United States District Court, W.D. Pennsylvania
DONNA COLLINS, MARY NARCAVISH, DIANA REED, DIANNE ROSE, TERRI WELCH, Plaintiffs,
KINDRED HOSPITALS EAST, LLC, ALSO KNOWN AS KINDRED HOSPITAL HERITAGE VALLEY, A DELAWARE CORPORATION Defendants.
FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE
pending is PLAINTIFFS' MOTION FOR REVIEW OF TAXATION OF
COSTS (ECF No. 54) filed by plaintiffs Donna Collins, Mary
Narcavish, Diana Reed, Dianne Rose, and Terri Welch
(“plaintiffs”). Defendant Kindred Hospitals East,
LLC, also known as Kindred Hospital Heritage Valley
(“defendant” or “Kindred”) filed a
response in opposition (ECF No. 55) and the motion is ripe
and Procedural Background
employment discrimination case was filed by five former
Kindred employees. On August 12, 2016, the court granted
Kindred's motion for summary judgment in full and entered
judgment in favor of Kindred and against plaintiffs on all
claims. Thus, Kindred is a prevailing party.
submitted a bill of costs pursuant to Federal Rule of Civil
Procedure 54(d) and local rule 54(B), seeking taxable costs
in the amount of $3, 533.40 (ECF No. 50). Plaintiffs objected
that the costs were improper and unreasonable (ECF No. 52).
On January 3, 2017, the clerk of court taxed costs against
plaintiffs in the amount of $3, 266.00 (ECF No. 53).
Specifically, the clerk disallowed claimed costs for exhibit
scanning, OCR-PDF and “production and archiving”
relating to the depositions of each plaintiff and Janie
Slampak, Kindred's corporate designee. The clerk also
disallowed claimed “attorney attendance fees” at
conferences. The clerk allowed the remaining costs sought by
Kindred. The instant motion followed.
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 district court, however, retains
discretionary authority to refuse to tax costs in favor of
the prevailing party. Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437, 442 (1987). The court must
give “careful scrutiny” to all items proposed as
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)). A
prevailing party may also recover attorney attendance fees,
as itemized in 28 U.S.C. § 1923.
taxation of costs by the clerk of court is subject to de novo
review by the district court. Reger, 599 F.3d at
288. 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. 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.; see
generally Hogan v. Raymond Corp., No. CIV.A. 10-846,
2014 WL 292170, at *1 (W.D. Pa. Jan. 27, 2014).
assert the following specific objections to the costs claimed
by Kindred: (1) the “per page” cost of the
deposition transcripts taken by Kindred were excessive
compared to the cost of the deposition taken by plaintiffs
($3.25/page vs. $2.41/page); (2) Kindred's copy of the
Slampak deposition should be reimbursed at $0.90 per page,
the rate set by the Judicial Conference; (3)
“production and archiving” and “shipping
and handling” fees for each deposition should be
disallowed; (4) the invoices do not distinguish the cost of
the “original and one copy”; and (5) the attorney
attendance fees should be stricken because the conferences
were by phone. In addition, plaintiffs contend that costs
should be stricken or substantially reduced based on their
inability to pay. Kindred contends that the costs taxed by
the clerk are reasonable and appropriate. Kindred does not
challenge the costs disallowed by the clerk. The court will
address plaintiffs' objections seriatim.
“per page” cost of the deposition transcripts is
reasonable. Plaintiffs did not challenge the authenticity of
the invoices or show that the rates charged are excessive in
the relevant market. Each deposition was reasonably necessary
for the case.
court has not adopted the Judicial Conference rate of $0.90
per page for copies. The Judicial Conference rate applies to
the official court reporters employed by the court and is not
necessarily appropriate for private court reporters.
Plaintiffs did not challenge the authenticity of the invoice
submitted to Kindred by the court reporter plaintiffs
selected to transcribe the Slampak deposition. In
Montanez v. Simon, 755 F.3d 547, 558 (7th
Cir. 2014) (cited by plaintiffs), the court noted that
“whoever picked the reporter can't later object to
that reporter's rates.”
clerk of court already disallowed the $40 per deposition
charge for “production and archiving.” Kindred
did not challenge this disallowance. The $50 “shipping
and handling” fee associated with the depositions of
all five plaintiffs will be disallowed. See In re
Aspartame Antitrust Litig., 817 F.Supp.2d 608, 617 (E.D.
Pa. 2011) (“A party may not recover the shipping and
handling costs associated with depositions.”)
(citing Neena S. v. Sch. Dist., No. 05-5404, 2009 WL
2245066, at *10-11, (E.D.Pa. July 27, 2009; In re Penn
Cent. Transp. Co., 630 F.2d 183, 191 (3d Cir.1980));
Wesley v. Dombrowski, No. 05-5404, 2008 U.S. Dist.
LEXIS 49544, at *10-11 (E.D.Pa. June 25, 2008) (refusing to
grant costs for shipping and handling). Accordingly, the
taxed costs will be reduced by $250.00.
invoices for plaintiffs' depositions contain a line item
for “Deposition Transcript - Original and one
copy.” Plaintiffs object that there is no way to
allocate the unit price of $3.25 per page between the
original and the copy. Kindred did not respond to this
objection. Plaintiffs argue that the entire cost should be
disallowed as improperly itemized, citing Montanez,
755 F.3d at 558. In Montanez, the district court
revised the taxable cost downward to an appropriate
“per page” rate and only disallowed costs
entirely only when the length of the document was unknown.
See id. The Local Rules of this court do not
directly address taxation of deposition transcripts, but
costs for both the original and one copy are taxable in our
sister districts. Local Rule 54.1(b)(3) of the Delaware
district court unambiguously states: “The
reporter's reasonable charge for the original
and one copy of a deposition . . . are
taxable.” (Emphasis added). Local Rule 54.4(3) of the
middle district of Pennsylvania provides: ...