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Paschal v. Billy Beru

June 17, 2010

CURTIS HYMAN PASCHAL, PLAINTIFF,
v.
BILLY BERU, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM ORDER

This matter is before the Court on Defendant Billy Beru's Amended Motion Pursuant to Federal Rule of Civil Procedure 54(d)(1) and 54(d)(2) for Assessment of Costs and Attorney's Fees Against the Plaintiff (Docket No. [64]) and Plaintiff Paschal's so-called "Motion in Opposition to Defendants [sic] Motion Pursuant to Defendants [sic] Motion for the Assessment of Costs and Attorneys Fees Against Plaintiff" (Docket No. [67]). For the reasons stated below, Defendant's motion is GRANTED, in part, and DENIED, in part; Plaintiff's motion is DENIED, as moot.

I. Procedural Background and the Instant Motions

As the parties are familiar with the particular facts of Paschal's claims and they are not germane to the instant motions, the Court will only review the pertinent procedural history.*fn1 In a Memorandum Order dated June 8, 2009 (Docket No. 64), after Paschal repeatedly failed to set forth facts upon which relief could be granted, this Court granted Billy Beru's Motion to Dismiss Plaintiff's Fourth Amended Complaint (Docket No. 48), dismissing Paschal's Fourth Amended Complaint (Docket No. 47), with prejudice, since further amendment would be futile. Billy Beru subsequently filed a Motion Pursuant to Federal Rule of Civil Procedure 54(d)(1) and 54(d)(2) for Assessment of Costs and Attorney's Fees (Docket No. 56), which this Court denied, without prejudice, (Docket No. 61) when Paschal appealed the Memorandum Order to the United States Court of Appeals for the Third Circuit, at Case Number 09-2764. The Court of Appeals eventually upheld this Court's order. Paschal v. Billy Beru, Inc., Civ. A. No. 09-2764, 2010 WL 1401465, 1 (3d Cir. Apr. 8, 2010). Subsequently, Billy Beru filed two itemized and verified bills of costs pursuant to FED.R.APP.P. 39, with the Court of Appeals, which entered a certified judgment, taxing costs in the amount of $163.00 in favor of Billy Beru on May 3, 2010. Judgment, Paschal v. Billy Beru, Inc., Civ. A. No. 09-2764, (3d Cir. May 3, 2010).

Billy Beru then filed its instant motion with this Court, seeking to recoup its costs and attorney's fees pursuant to FED.R.CIV.P. 54(d)(1) and 54(d)(2). (Docket No. 64). In the motion, Billy Beru seeks:

$163.00 in costs taxed by the Court of Appeals; $182.50 in costs for a transcript of the March 16, 2009 hearing before this Court; and $3,638.25 in attorney's fees. (Id.). Paschal responded with two filings: a "Plaintiffs Brief in Opposition to Defendants Motion Pursuant to Federal Rule of Civil Procedure 54(d)(1) and 54(d)(2) for Assessment of Costs and Attorneys Fees Against the Plaintiff" (Docket No. 66), and "Plaintiffs Motion in Opposition to Defendants Motion Pursuant to Defendants Motion for the Assessment of Costs and Attorneys Fees Against Plaintiff" (Docket No. 66). As the only relief sought in Paschal's latter filing is denial of Billy Beru's motion, the Court construes Paschal's "motion" as a supplemental brief in opposition to Billy Beru's motion, and denies Paschal's "motion," as moot.

II. Costs Taxed by the Court of Appeals

On May 3, 2010, the United States Court of Appeals issued a certified judgment in lieu of a mandate, which taxed costs in the amount of $163.00 in favor of Billy Beru. Judgment, Paschal v. Billy Beru, Inc., Civ. A. No. 09-2764, (3d Cir. May 3, 2010). As these costs have already been taxed against Paschal, the Clerk of Court for the Western District of Pennsylvania has already entered a judgment against Paschal for same, and there is no need for an order from this Court.

Accordingly, Billy Beru's Motion seeking $163.00 for appellate costs is denied, as moot.

III. Transcript Costs

In its motion, Billy Beru asks that this Court tax $182.50 against Paschal, pursuant to FED.R.CIV.P.54(d)(1) for the costs to produce a transcript of a hearing held before this Court on March 16, 2009. (Docket No. 64). Rule 54(d)(1) provides, in part, that "[u]nless federal statute, these rules, or a court order provides otherwise costs -- other than attorney's fees -- should be allowed to the prevailing party." FED.R.CIV.P.54(d)(1).

Billy Beru has attached a Certification of Qualification and Amended Account in Request for Re-Imbursement of Costs and Fees pursuant to Rule 54 Motion (Docket No. 64-1) to its instant motion. In that certification, Billy Beru includes not only the transcript fee of $182.50, but also $4.25 in mailing costs and $42.00 for copies. (Id.). Photocopying costs are disallowed, since in this district these are considered normal office expenses and part of the costs of litigation. See Krouse v. American Sterilizer Company, 928 F.Supp. 543 (W.D. Pa. 1996). Thus, the Court declines to assess costs for photocopies.

Accordingly, this Court taxes an additional $186.75 in costs, for producing and mailing the ...


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