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Clemens v. New York Central Mutual Fire Insurance Co.

United States District Court, M.D. Pennsylvania

August 29, 2017

BERNIE CLEMENS, Plaintiff
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge.

         On November 6, 2015, a judgment in the amount of $100, 000 was entered in favor of the plaintiff in the above-captioned matter. (Doc. 203). On November 20, 2015, the plaintiff's counsel submitted a bill of costs. (Doc. 214). The defendant filed objections to the bill of costs on November 30, 2015, (Doc. 218). On January 4, 2016, the plaintiff filed a response to the defendant's objections. (Doc. 230).[1]

         As noted above, Fed.R.Civ.P. 54(d)(1) provides, in relevant part, 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.” Rule 54(d) creates a “strong presumption” that costs are to 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 Litig., 221 F.3d 449, 462 (3d Cir. 2000)). “Taxable costs are those explicitly listed in 28 U.S.C. §1920.” Smith v. City of Lebanon, 2011 WL 66018, at *1 (M.D.Pa. Jan. 10, 2011) (citing Fitchett v. Stroehmann Bakeries, Inc., 1996 WL 47977, at *1 (E.D.Pa. Feb. 5, 1996) (citations omitted)). “‘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.'” Reger, 599 F.3d at 288 (quoting In re Paoli, 221 F.3d at 462-63, 468).

         With the above in mind, the first costs which may be taxed under §1920 are “[f]ees of the clerk and marshal”. 28 U.S.C. §1920(1). Here, the plaintiff's counsel has requested $127.10, which constitutes $115.75 for the filing of the complaint in Monroe County on August 23, 2013 and $11.35 for service of the complaint on September 6, 2013. While the defendant asks, generally, that all costs be disallowed as inequitable[2], in the alternative, the defendant argues that the plaintiff should only be allowed lawful and reasonable costs. The defendant includes in those lawful and reasonable costs the $127.10 for the fees of the clerk. The court finds these costs to be reasonable and therefore will direct that the clerk tax costs for the fees of the clerk in the amount of $127.10.

         The next area of costs allowable under §1920 is “fees for printed or electronically recorded transcripts necessarily obtained for use in the case”. 28 U.S.C. §1920(2). Under this category, counsel has requested the amount of $9, 343.50, broken down as follows:

1. Court reporter 6-30-14 Love Reporting (339 pages-videographer 705.00-Shipping 14.00)

$2, 484.30

2. Court reporter 7-30-14 Love Reporting (231 pages-Shipping 14.00)

$ 544.60

3. Court reporter 9-5-15 Love Reporting (217 pages-Videographer $820.00-Shipping 14.00)

$2, 070.00

4. Court reporter 9-9-15 Love Reporting (529 pages-Videographer $1, 420.00-Shipping 14.00)

$4, 244.60

TOTAL

$9, 343.50

         With respect to these costs, citing to a number of cases out of the Eastern District of Pennsylvania, the defendant argues that a prevailing party is not permitted to recover the costs of both stenographic transcripts and videotapes of depositions. The defendant argues that the plaintiff used only the videotapes during the trial and, as such, should only be allowed those costs. The defendant further objects to these costs to the extent that the plaintiff attempts to be reimbursed for the shipping of the transcripts. In response, the plaintiff's counsel argues that both the videotaped depositions and the stenographic transcripts were used during trial, in that a video clip would be run with the stenographic words scrolling along the bottom of the video clip. Since both the stenographic transcripts and the videotaped depositions were used in the course of trial, counsel argues an entitlement to costs for both.

         While the Third Circuit has not yet considered the issue of whether a prevailing party can recover costs for both stenographic transcription and videotape deposition costs, a number of other circuit courts have found that a party may recover both, if that party can demonstrate that each was reasonably and individually necessary for use in the case. See Stanley v. Cottrell, Inc., 784 F.3d 454, 466-67 (8th Cir. 2015); In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1370 (Fed.Cir. 2011); Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2007); BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 420 (6th Cir. 2005), abrogated on other grounds by Taniguchi v. Kan.Pac. Saipan, Ltd., ___ U.S.___, 132 S.Ct. 1997 (2012); Cherry v. Champion Int'l Corp., 186 F.3d 442, 448-49 (4th Cir. 1999); Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477-79 (10th Cir. 1997).

         While counsel in this case has argued that both the videotaped depositions and the stenographic transcripts were used during trial, counsel has not demonstrated that each of these was reasonably and individually necessary for use in the case. Individual “[n]ecessity for use at trial means more than for convenience of the party or duplication.” See Pharm. Res., Inc. v. Roxane Labs., Inc., 2008 WL 2951173, at *5 (D.N.J. July 25, 2008) (citing Cherry v. Champion Int'l Corp., 186 F.3d at 449). In the court's view, no such necessity was evident and because counsel has failed to demonstrate the individual necessity of both the videotaped depositions and stenographic transcripts, the court will allow the costs for only one. To this extent, the plaintiff's counsel argues that both the videotaped deposition and stenographic transcripts were used primarily to impeach the defendant's witnesses. The court finds that the videotaped depositions would allow the jury to more readily assess the credibility of a witness than would a stenographic transcript. Thus, with the exception of the one entry for which only a stenographic transcript was obtained (in the amount $544.60), only the videotaped deposition costs will be allowed (cumulatively in the amount of $2, 945.00).

         As for the plaintiff's attempt to recover the shipping fees related to the transcripts, these costs are not enumerated in §1920 and, therefore, the court finds that they are not taxable. See In re Aspartame Antitrust Litig., 817 F.Supp.2d 608, 617 (E.D.Pa. 2011). See also Neena S. ex rel. Robert S. v. School Dist. of Philadelphia, 2009 WL 2245066 (E.D.Pa. July 27, 2009) (quoting Matter of Penn Central Transp. Co., 630 F.2d 183, 191 (3d Cir. 1980)).

         Given the above, the court will reduce the costs requested by counsel for transcripts. The court will direct the clerk to tax the amount of $3, 489.60 for those costs sought under 28 U.S.C. §1920(2).

         The next category of costs to be addressed is “[f]ees and disbursements for printing and witnesses” under §1920(3). Here, counsel seeks costs in the amount of $765.66 for the witnesses which are itemized on page two of the bill of costs. In reviewing page two of the plaintiff's bill of costs, the plaintiff seeks $525.66 for Bernie Clemens - $240.00 for attendance at his deposition and the trial and $285.66 for mileage, and $240.00 for Nichole Clemens for attendance at her deposition and the trial. The defendant does not challenge these costs which are allowable under §1920(3). Therefore, the court will direct the clerk to tax costs under §1920(3) in the amount of $765.66.[3]

         Pursuant to §1920(4), the clerk may tax as costs “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case”. Counsel for the plaintiff seeks $1, 151.17 for the costs of copying various medical records and litigation documents, as well as $159.00 for the creation of demonstrative trial exhibits.

         With respect to counsel's request for costs for printing and/or copying, the defendant argues that counsel has provided no evidence showing the nature of the documents copied, including how they were used or intended to be used in the case. The defendant further argues that the plaintiff has not identified the specific documents copied or the number of copies made. Moreover, to the extent that the plaintiff is seeking reimbursement for the costs of creating or copying the demonstrative evidence used by the plaintiff at trial, the ...


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