The opinion of the court was delivered by: Conti, District Judge
MEMEMORANDUM OPINION AND ORDER
Pending before the court is a motion for costs and objection to the clerk‟s denial of all costs (the "Motion" (ECF No. 185)), filed by plaintiff John J. Witkowski ("plaintiff" or "Witkowski"), and the response (ECF No. 186) of defendant International Brotherhood of Boilermakers, Iron Shipbuilders, Local Union 154 ("defendant" or "Union"). For the reasons stated below, the court will grant the Motion in part and deny in it in part.
On January 30, 2009, a jury rendered a verdict in favor of plaintiff against defendant with respect to plaintiff‟s claims for retaliation in violation of the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONST. STAT. §§ 951-63. The jury rendered a verdict in favor of defendant against plaintiff with respect to plaintiff‟s claims for age discrimination in violation of the ADEA and the PHRA.
On February 13, 2009, plaintiff filed a bill of costs (the "Trial Court Costs" (ECF No. 132)), in the amount of $24,790,41. The clerk of courts delayed ruling on the Trial Court Costs until resolution of the then-pending post-trial motions and any appeal. (ECF No. 133). On September 18, 2009, defendant filed an appeal. (ECF No. 142.) On April 7, 2010, this court issued a memorandum opinion and order (the "Memorandum Opinion" (ECF No. 177)), awarding plaintiff‟s attorney‟s fees. See Witkowski v. Int‟l Bhd. of Boilermakers, Iron Shipbuilders, Local Union 154, Civ. A. No. 06-867, 2010 WL 1433104 (W.D. Pa Apr. 7, 2010). In the Memorandum Opinion the court found plaintiff to be "a prevailing party on the basis that he succeeded at trial on a significant issue in the litigation -- the retaliation claims under the ADEA and the PHRA." Id. at *3. "[W]hile this case is on appeal, Witkowski is a prevailing party for purposes of an award of attorneys‟ fees and expenses, including those incurred in litigating the Union‟s post-trial motions." Id.
On December 22, 2010, the Court of Appeals for the Third Circuit filed an appellate judgment (ECF No. 180) affirming this district court‟s judgment in favor of plaintiff. On January 14, 2011, the court of appeals filed an opinion (ECF No. 182) affirming this district court‟s judgment of the jury award of $650,000 in damages.
On January 4, 2011, plaintiff filed a second bill of costs (the "Appellate Costs" (ECF No. 181)), pursuant to Federal Rule of Appellate Procedure 39(e)(2), in the amount of $1,568.70 reflecting the cost of the court reporter‟s transcript of the entire trial. Plaintiff alleges the transcript was necessary to determine the appeal. On January 18, 2011, the clerk of court issued a denial of plaintiff‟s costs (the "Denial of Costs" (ECF No. 184)). In the Denial of Costs, the clerk of court stated:
Plaintiff has filed two Bill of Costs [Doc. Nos. 132 and 181]. One prior to a Notice of Appeal being filed and one after the district court judgment was affirmed. Rule 54(d) of the Federal Rules of Civil Procedure provides that costs shall be allowed to the prevailing party in an action, unless the court otherwise directs. In the present case, the judgment entered on the docket on January 30, 2009 indicates that both the Plaintiff and the Defendant were prevailing parties.
Therefore, this 18th day of January, 2011, the Bills of Costs are DENIED and both the plaintiff and the defendant shall bear their own costs.
You are advised that any determination of costs by the Clerk may be reviewed by the court upon motion served within seven days thereafter, under Rule 54(d) of the Federal Rules of Civil Procedure.
On January 25, 2011 plaintiff timely filed the instant Motion seeking to reverse the clerk of court‟s Denial of Costs with respect to plaintiff‟s Trial Costs and Appellate Costs.
Plaintiff contends this court already determined that he was a prevailing party. Plaintiff points to the Memorandum Opinion, wherein the court concluded plaintiff "was a prevailing party on the basis that he succeeded at trial on a significant issue in the litigation . . . and that he achieved some of the benefit he sought in bringing the suit." Witkowski, 2010 WL 1433104, at *3. Plaintiff argues that the clerk of court erred in denying him all Trial Costs and Appellate Costs on the basis that defendant was also a prevailing party. Plaintiff argues that he is entitled to his costs at both the trial and appellate levels because this court determined that he was the sole prevailing party at the trial level, and defendant does not dispute his success at the appellate level.
Plaintiff argues that the mere fact that defendant prevailed on plaintiff‟s age discrimination claims at the trial level does not make the Union a "prevailing party" for purposes of costs. Plaintiff contends that the clerk of court‟s finding to the contrary is erroneous and should be rejected. In support, plaintiff relies upon Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) ("The threshold issue [in determining an award of costs] is to determine whether there is a prevailing party."). Plaintiff maintains that Rule 54(d) creates a strong presumption that costs are to be awarded to the prevailing party and that the losing party bears the burden of showing that an award for costs is inequitable under the circumstances. For this proposition, plaintiff relies upon In re Paoli Railroad Yard PCB Litigation, 221 F.3d 449, 462 (3d Cir. 2000) ("[T]he losing party bears the burden of making the showing that an award is inequitable under the circumstances."), and Reger v. The Nemours Foundation, Inc., 599 F.3d 285, 288-89 (3d Cir. 2010) (stating that a district court must articulate reasons for denying costs to the prevailing party because a denial of such costs is akin to a penalty). Plaintiff notes that taxable costs are limited to those explicitly listed in 28 U.S.C. § 1920.
With respect to recovery of plaintiff‟s Appellate Costs, plaintiff argues that a plain reading of Federal Rule of Appellate Procedure 39(a)(2) indicates that costs for trial transcripts are taxed against the appellant where a judgment is affirmed and costs of the transcripts were necessary to determine the appeal.
Defendant requests the court to deny plaintiff‟s Motion and allow the clerk of court‟s Denial of Costs to stand. Defendant disagrees that plaintiff is the sole prevailing party at the trial level. Without relying upon any independent authority, defendant argues that the clerk of court‟s finding - based upon judgment entered on the docket on January 30, 2009 - that both plaintiff and defendant were prevailing parties is consistent with Rule 54(d). Defendant does not dispute that plaintiff prevailed at trial on his retaliation claims, but argues that the ruling of the ...