The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
This matter is before the Court on Plaintiff's Motion for Review of the District Court Clerk's Taxation of Costs. Plaintiff, Highway Materials, Inc. (HMI), brought the present lawsuit against Defendants, Whitemarsh Township, The Board of Supervisors of Whitemarsh Township, Supervisors Ann D. Younglove, Ronald J. DeRosa, William P. Rimel, III, Peter B. Cornog, Michael A. Zeock, and Township Engineer Thomas F. Zarko, hereinafter ("Township Defendants") pursuant to 28 U.S.C. § 1983, claiming that its due process and equal protection rights were violated when the Township's Board of Supervisors denied Plaintiff's application for preliminary approval of a land development plan.*fn1 After lengthy discovery which included the exchange of thousands of documents and the taking of 33 depositions the Township Defendants filed a motion for summary judgment which this Court granted on October 4, 2004. Plaintiffs appealed that judgment to the United States Court of Appeals for the Third Circuit. That Court affirmed this Court's decision on July 29, 2010.
Township Defendants and Cohan filed a Bill of Costs with the District Court Clerk on August 12, 2010 to which the Plaintiff filed objections. Thereafter, the District Court Clerk, Michael E. Kunz, entered the Taxation of Costs and a Judgment in an amount of $43,042.05 in favor of the Township Defendants and $5,018.63 in favor of Cohan. The Plaintiff now seeks review of the Taxation of Costs by this Court.
Fed. R. Civ. P. 54(d)(1) provides for the Taxation of Costs other than attorneys fees in favor of the prevailing party or parties and against the non-prevailing party or parties. The costs referenced in Rule 54(d)(1) are specified in 28 U.S.C. § 1920. The costs that pertain to this case are the following:
(2) Fees for printing or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees for . . . witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where copies are necessarily obtained for use in the case.
In reviewing a Bill of Costs the District Court applies the standards and limitations set forth in Rule 54(d). The only costs sought by the Township Defendants in this case are deposition transcript fees, witness fees and photocopying costs.
HMI first argues that the costs in question were necessary for use in two separate legal actions with opposite prevailing parties and those costs should either be denied in their entirety as beyond the scope of 18 U.S.C. § 1920 or equitably allocated between the two cases.
The rationale for Plaintiff's position I believe goes something like this: Under 28 U.S.C. § 1920 and its case law deposition transcript fees and copying costs are limited to those costs "necessarily obtained for use in the case". In HMI's view the Clerk's Taxation of Costs decision imposed costs on HMI that each incurred for use in another case, i.e., HMI v. Whitemarsh Township, in the Court of Common Pleas in Montgomery County, in which HMI was the prevailing party.*fn2 (Under Pennsylvania law HMI cannot recover its own costs in the State Court action even though it was a prevailing party.)
HMI goes on to argue that even if its costs in the federal action are properly taxable we should refuse to award them to the Township and Cohan on equitable grounds.
The Township Defendants argue that while the State land use appeal and the federal action arise out of the same set of operative facts, the outcome of the State land use appeal is irrelevant to the issue of whether the Township Defendants and Cohan, as the prevailing parties, are entitled to taxable costs in the federal action. The Township Defendants support their position by arguing that the State Court action was a land use appeal to the Court of Common Pleas of Montgomery County. That the federal action was a 1983 Civil Rights action claiming that Plaintiff's procedural due process, substantive due process and equal protection rights were violated by the Township Defendants. In the State land use appeal, HMI sought a reversal of the Board of Supervisor's decision to deny HMI's ...