PERCY HOGAN, JR. Plaintiff,
THE RAYMOND CORPORATION, Defendant.
JOY FLOWERS CONTI, Chief District Judge.
Plaintiff, Percy Hogan ("Hogan"), seeks judicial review of the clerk of court's taxation of costs against him in the amount of $9, 835.38. (ECF No. 101.) For the reasons set forth below, this court modifies the clerk's taxation of costs, but only to excise the court's previously ordered sanction of $3, 718.57 against Hogan from the costs taxable pursuant to Federal Rule of Civil Procedure 54(d). Therefore, costs will be taxed in the amount of $6, 099.25.
I. Legal Authority
Federal Rule of Civil Procedure 54(d) provides that "[u]nless a 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); see also LCvR 54(B). The Rule, as stated, is mandatory, and creates a "strong presumption" that all costs authorized for payment will be awarded to the prevailing party. Reger v. Nemours Found. Inc. , 599 F.3d 285, 288 (3d Cir. 2010) (citing In re Paoli R.R. Yard PCB Lit., 21 F.3d 449, 461 (3d Cir. 2000)). "The losing party, therefore, bears the burden of showing why costs should not be taxed against it." Adams v. Teamsters Local 115 , 678 F.Supp.2d 314, 324 (E.D. Pa. 2007). The costs eligible for recoupment under Rule 54(d)(1) are specifically listed in 28 U.S.C. § 1920, and include: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies; (5) docket fees under 28 U.S.C. § 1932; and (6) compensation for court appointed experts and for interpreters. In re Paoli, 221 F.3d at 457 (citing Smith v. Se. Pa. Transp. Auth. , 47 F.3d 97, 99 n.1 (3d Cir. 1995)). Notably absent from § 1920's list is previously court-ordered sanctions.
As a matter of procedure, a clerk of court may tax costs on fourteen days' notice, after issuing a schedule for objections to the bill of costs. FED. R. CIV. P. 54(d)(1); LCvR 54(B)(3). Any party may challenge the clerk's taxation of costs by filing a motion with the court seven days after the clerk's action. FED. R. CIV. P. 54(d)(1). The taxation of costs by the clerk of court is subject to de novo review by the district court. Reger v. Nemours Found. Inc. , 599 F.3d 285, 288 (3d Cir. 2010). A district court may consider the following factors in reviewing a clerk of court's taxation of costs: "(1) the prevailing party's unclean hands, bad faith, dilatory tactics, or failures to comply with process during the course of the instant litigation or the costs award proceedings; and (2) each of the losing parties' potential indigency or inability to pay the full measure of a costs award levied against them." In re Paoli, 221 F.3d at 468. In contrast, however, a district court may not consider "(1) the losing parties' good faith in pursuing the instant litigation (although a finding of bad faith on their part would be a reason not to reduce costs); (2) the complexity or closeness of the issues-in and of themselves-in the underlying litigation; or (3) the relative disparities in wealth between the parties." Id.
II. Procedural Background
On September 28, 2012, this court entered an order dismissing Hogan's claims, with prejudice, for failure to comply with the orders and directives of this court. (ECF No. 83.) Hogan filed a notice of appeal challenging that order, as well as orders entered by this court on March 18, 2011, denying his motion to remand, and August 7, 2012, imposing monetary sanctions. (ECF No. 85.) The Court of Appeals for the Third Circuit affirmed the September 28, 2012, and August 7, 2012, orders, and directed that the March 18, 2011 order be modified to dismiss the claims against defendant, Giant Eagle, Inc., pursuant to Federal Rule of Civil Procedure 12(b)(1) instead of 12(b)(6). (ECF No. 97-1 at 9-12.)
On October 31, 2012, while Hogan's appeal was pending, defendant, The Raymond Corporation ("Raymond"), filed a bill of costs with the clerk of this court in the amount of $9, 835.38. (ECF No. 87.) The clerk of court notified Raymond and Hogan that action on the bill of costs would be deferred until after the disposition of Hogan's appeal. (ECF No. 89 (Nov. 26, 2012 letter).) Upon being notified of the Court of Appeals for the Third Circuit's disposition of Hogan's appeal, the clerk of this court issued a letter setting a deadline of October 10, 2013, for Hogan to file objections to Raymond's bill of costs. (ECF No. 95 (Sept. 19, 2013 letter).) Hogan filed a timely objection arguing that consideration of the bill of costs by this court was premature because his petition for rehearing en banc was still pending at the court of appeals. (ECF No. 96.) The clerk of court did not tax costs at that time.
The court of appeals thereafter issued its mandate, on October 31, 2013. (ECF No. 97.) The mandate taxed appellate costs against Hogan in the amount of $323.20, to reimburse Raymond for the cost of copying and binding its appellate brief and appendix. (ECF Nos. 97 at 2; 99-1 at 2; 102-3 at 2; 11/1/2013 docket entry.) Hogan contends, in recent filings, that Raymond asked the appellate court to tax costs in the amount of $542.99, but only received $323.20. (ECF Nos. 102 ¶ 7; 102-3 at 2.) Although there is no documentation in the record to support that assertion, the discrepancy is inconsequential.
After the mandate issued, the clerk of this court sent another notice setting a deadline of December 13, 2013, for Hogan to file objections to the bill of costs. (ECF No. 98 (Nov. 27, 2013 letter).) Hogan filed a timely objection in which he argued that he was entitled to a set off against Raymond's bill of costs because this court previously ordered Raymond to pay him nearly $2, 000 in sanctions for the cost of a failed mediation session. (ECF No. 99 ¶ 4.) Raymond responded to that objection by explaining that the sanction was awarded against Raymond's prior counsel, not against Raymond itself, and could not be offset against the bill of costs. (ECF No. 100.) Thereafter, the clerk of court taxed costs against Hogan in the full amount requested by Raymond, i.e., $9, 835.38, and notified Hogan of his right to seek judicial review by filing a motion within seven days. (ECF No. 101.) Hogan filed a motion to strike taxation of defendant's costs with this court. (ECF No. 102.) Although the motion was filed eight days after the clerk of court entered the taxation of costs, Hogan, who is proceeding pro se, was served with that paper by mail, which added three days to Hogan's deadline, making his filing timely. FED. R. CIV. P. 6(d).
In his motion, Hogan challenges the clerk of court's taxation of costs on both procedural and substantive grounds. Procedurally, Hogan contends that the clerk of court never provided him with the notice required by Federal Rule of Civil Procedure 54(d)(1) and Local Civil Rule 54 before taxing costs against him. Substantively, Hogan argues that the clerk of court should have reviewed and rejected the bill of costs, even without objection from him, for the following five reasons: (a) the bill of costs does not include supporting documentation, such as receipts, or an explanation of the necessity of each cost; (b) deposition costs should be disallowed if the deposition was not read into the record or received into evidence; (c) large and unusual expenditures that were not approved by the court prior to trial or incurred in preparation for trial should be disallowed; (d) copying costs should only be allowed for any exhibits used at trial; and (e) air travel should not be allowed unless it was incurred at the most economical rate available and receipts are attached. (ECF No. 102 at 4.)
The court concludes that none of Hogan's challenges to the clerk of court's taxation of costs is meritorious, but that it must excise from the clerk's taxation of costs the $3, 718.57 sanction that the court previously imposed on Hogan in a September 12, 2012, order. (ECF No. 80.)
A. Hogan's Procedural ...