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Lori Smith and Rob Fam, Inc. T/A Liberty Square Cafe v. City of Lebanon

January 10, 2011

LORI SMITH AND ROB FAM, INC. T/A LIBERTY SQUARE CAFE, PLAINTIFFS
v.
CITY OF LEBANON, OFFICER MINNICH, OFFICER LEAR AND ROBERT ANSPACH, DEFENDANTS



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is plaintiffs' objections (Doc. 39) to defendants' bill of costs. (Doc. 36). For the reasons that follow the court will overrule the objections in part and sustain the objections in part.

I. Background

On July 26, 2010, subsequent to the Third Circuit's affirmance of this court's grant of summary judgment in defendant's favor in the above-captioned matter, see Smith v. City of Lebanon, No. 09-4647 (3d Cir. July 19, 2010), defendants filed their bill of costs. (See Doc. 36). Defendants seek to tax $1,873.40 in court reporter fees for deposition transcripts. Defendants request costs for transcription of the depositions of plaintiff Lori Smith and her husband, Vincent Smith in the amount of $861.40, defendants Minnick and Anspach in the amount of $667, and defendant Lear in the amount of $345. (Doc. 36, at 3-5).

The depositions of Anspach and Lear were video recorded by P.R. Video, Inc., and the depositions of the Smiths and Minnick were recorded by a stenographer. (See Docs. 18-2 through 18-5). It appears that a stenographer contracted by the defendants was also present for the depositions of Anspach and Lear. (See Doc. 18-2, at 6; Doc. 18-4, at 6). Defendants noticed the depositions of Lori and Vincent Smith, however, plaintiffs noticed the depositions of Officer Minnick, Officer Lear and Robert Anspach.

Plaintiffs filed the present objection to defendants' bill of costs on October 15, 2010. (Doc. 39). Plaintiffs contend that it is "fundamentally unfair" to assess costs against them because the costs are the result of defendants' litigation strategy (Doc. 39 ¶ 4), that the depositions of defendants were taken by "alternative means" in absence of written notification per local rules (Id. ¶ 6), and that the Federal Rules of Civil Procedure do not allow for recovery of costs by a party who was not the originator of the deposition, save for the cost of a copy of the deposition obtained from the originator. (Id.) Plaintiffs also aver that defendants employed alternative means depositions in order to injure plaintiffs' counsel, Don Bailey, Esquire ("Attorney Bailey") and P.R. Video, Inc. (Id. ¶ 7).

II. Discussion

Federal Rule of Civil Procedure 54(d)(1), which authorizes the court to tax costs, FED. R. CIV. P. 54(d),*fn1 creates a strong presumption that costs are to be awarded to the prevailing party. See In re Paoli Yard PCB Litig., 221 F.3d 449, 462 (3d Cir. 2000). Taxable costs are those cost explicitly listed in 28 U.S.C. § 1920. See Fitchett v. Stroehmann Bakeries, Inc., No. Civ. A. 95-284, 1996 WL 47977, at *1 (E.D. Pa. Feb. 5, 1996) (citing Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993); In re Philadelphia Mortg. Trust, 930 F.2d 306, 307-10 (3d Cir. 1991)). Pursuant to § 1920, "[a] judge or clerk of any court of the United States may tax as costs . . . fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(b). Transcripts need not be indispensable to award costs: "it is enough that they are reasonably necessary"-a determination "made in light of the facts known at the time of the deposition." Fitchett, 1996 WL 47977, at *3 (quoting Barber, 7 F.3d at 645); Adams v. Teamsters Local 115, Civ. A. No. 99-4910, 2007 WL 2071897, at *8 (E.D. Pa. July 17, 2007) (explaining that depositions need only "appear reasonably necessary to the parties in light of the particular situation existing at the time they were taken"). Costs should be awarded unless the result would be "inequitable." Smith v. Se. Pa. Transp. Auth., 47 F.3d 97, 99 (3d Cir. 1995) (citation omitted). The court will address the objections regarding the depositions of plaintiff Lori Smith and her husband first, followed by the objections to the depositions of the defendants Minnick, Anspach, and Lear.

A. Depositions of Lori and Vincent Smith

Plaintiffs object to defendants' transcription costs of $861.40 for the depositions of plaintiff Lori Smith and her husband Vincent Smith. (Doc. 39 ¶ 6). Plaintiffs aver that these deposition costs were incurred "due to trial strategy employed by the Defendants" and that it would be fundamentally unfair and inequitable to charge them with the costs of the defendants' litigation strategy. (Id. ¶¶ 4-6).

The factors a district court may consider in determining whether a costs award is equitable include:

(1) the unclean hands, or bad faith or dilatory tactics, of the prevailing party;

(2) the good faith of the losing party and the closeness and ...


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