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Robert Daddio, et al. v. the A.I. Dupont Hospital For

August 12, 2011

ROBERT DADDIO, ET AL.
v.
THE A.I. DUPONT HOSPITAL FOR CHILDREN OF THE NEMOURS
FOUNDATION, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action arises from the death of the plaintiffs' two year old son, Michael. This case was filed against ten defendants on February 1, 2005. Eight of the defendants were terminated by October of 2008. On August 21, 2009, the Court granted summary judgment in favor of the two remaining defendants - the Nemours Foundation and Dr. William I. Norwood. The two defendants filed their bill of costs against the plaintiffs on November 18, 2009. On November 24, 2010, the United States Court of Appeals for the Third Circuit affirmed the grant of summary judgment. On December 6, 2010, the defendants re-filed their bill of costs against the plaintiffs, seeking $18,535.18. The plaintiffs filed objections to the bill of costs. On June 1, 2011, the clerk taxed costs against the plaintiffs in the amount of $15, 240.68.

On June 3, 2011, the plaintiffs filed a motion to vacate the clerk's taxation of costs. The plaintiffs argue that the defendants are not entitled to the following costs: (1) pro hac vice fee; (2) cost of producing transcripts; (3) witness fees; (4) costs of photocopying and exemplifications; and (5) photocopy costs of Mark D. Villanueva.*fn1 The plaintiffs also argue that the Clerk failed to consider their inability to pay the costs.

The taxing of costs is governed by Fed. R. Civ. P. 54(d)(1), which provides in relevant part:

Except when express provision therefore is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . . On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.

The Rule limits the reimbursable costs to those enumerated in 28U.S.C. § 1920, specifically:

1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

The Clerk of Court is charged with taxing costs, but "the [district] court may review the clerk's action." Fed. R. Civ. P. 54(d)(1). A district court's review of the clerk's determination of costs is de novo. In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 461 (3d Cir. 2000). There is a "strong presumption" that costs are to be awarded to the prevailing party. Id. at 462. "Only if the losing party can introduce evidence, and the district court can articulate reasons within the bounds of its equitable power, should costs be reduced or denied to the prevailing party." Id. at 462-63, 468. Thus, if a district court, within its discretion, denies or reduces a prevailing party's award of costs, it must articulate its reasons for doing so. In re Paoli, 221 F.3d at 468.

The Court will consider each objection lodged by the plaintiffs seriatim.

A. Pro Hac Vice Fee

The plaintiffs claim that the defendants are not

entitled to the $40.00 pro hac vice fee for Mr. Hudgins. The clerk disallowed the pro hac vice fee when it taxed costs in this matter. The defendants concede that this cost is not taxable and admit that they mistakenly ...


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