United States District Court, E.D. Pennsylvania
brought this product liability action to recover for injuries
he allegedly sustained while climbing up a ladder
manufactured by Defendant Tricam Industries, Inc.
(“Tricam”) and sold by Defendant Home Depot, Inc.
when the ladder suddenly collapsed. Plaintiff asserted claims
against Defendants for negligence, strict liability and
breach of express and implied warranties. The case was
referred to arbitration and on August 29, 2018, the
arbitration panel found in favor of Plaintiff and awarded
damages. On September 5, 2018, Defendants demanded a trial
case was tried to the Court sitting with a jury.
Plaintiff's counsel elected not to proceed with the
breach of warranties claims. After a four-day trial, the
jury, responding to interrogatories [ECF 90], found that the
ladder did not contain a design or manufacturing defect, but
found that the ladder lacked adequate or proper warnings.
However, the jury found that the lack of such warnings was
not a factual cause of harm to Plaintiff. The jury also found
Defendant Tricam was negligent, but that its negligence was
not a factual cause of Plaintiff's injury. Finally, the
jury found that Plaintiff was negligent and that his
negligence was a factual cause of any harm to him. Taking the
combined fault that was a factual cause of any harm to
Plaintiff as 100%, the jury found Plaintiff was 75% negligent
and Defendant Tricam was 25% negligent.
filed a bill of costs in the amount of $5, 742.32 [ECF 94],
to which the Plaintiff filed objections [ECF 95]. Defendants
then filed a revised bill of costs in the amount of $2479.17
[ECF 96], to which the Plaintiff also filed objections [ECF
97]. The Clerk of Court subsequently taxed costs against the
Plaintiff and in favor of the Defendants in the amount of $2,
338.22 [ECF 101]. Presently before the Court is the
Plaintiff's motion to vacate the taxation of costs. For
the reasons that follow, the motion is granted.
54(d)(1) of the Federal Rules of Civil Procedure provides
that “costs” other than attorney's fees
“should be allowed to the prevailing party.” The
“costs” which may be recovered under Rule
54(d)(1) are listed in 28 U.S.C. § 1920. In re Paoli
Railroad Yard PCB Litig., 221 F.3d 449, 457 (3d Cir.
2000). The Clerk of Court has the authority to tax costs
under Rule 54(d)(1), but “the [district] court may
review the clerk's action.” Reger v. Nemours
Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010) (quoting
district court reviews de novo the Clerk's
cost-determination. Reger, 599 F.3d at 288. While a
district court has discretion to award or deny costs, Rule
54(d)(1) “creates the strong presumption that costs are
to be awarded to the prevailing party.” In re
Paoli, 221 F.3d at 458, 462. “[T]he losing party
bears the burden of making the showing that an award is
inequitable under the circumstances.” Id. at
462-463. “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 462-463, 468). Ultimately, it is
within the discretion of the district court to award or deny
costs under Rule 54(d)(1). Adams v. Teamsters Local
115, 678 F.Supp.2d 314, 324 (E.D.Pa. July 17, 2007).
Reger, our Court of Appeals reiterated the factors
previously set forth in In re Paoli which a district
court is permitted to consider in reviewing the Clerk's
taxation of costs under Rule 54(d)(1). A district court may
consider: “(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.”
Reger, 599 F.3d at 288 n.3 (quoting In re
Paoli, 221 F.3d at 468). 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.”
argues that the judgment and taxation of costs should be
vacated because he is indigent and unable to pay the costs.
a party is indigent or unable to pay the full measure of
costs, a district court may, but need not automatically,
exempt the losing party from paying costs.” In re
Paoli 221 F.3d at 464. “In assessing the
[p]laintiff's indigency or modest means . . . [a] [c]ourt
should measure each [p]laintiff's financial condition as
it compares to whatever award the [c]ourt decides to tax
against him or her.” Id. at 464 n.5. No.
“hard and fast rules” exist for assessing a
losing party's indigency or inability to pay.
Id. “[D]istrict courts should use their common
sense in making this determination.” Id.
has filed an unsworn affidavit, in which he states that
“[d]uring the litigation of my case against Tricam, I
was homeless. I was unable to perform my job duties due to my
injuries and became unemployed. I receive Medicare benefits.
I receive assistance from the Commonwealth of Pennsylvania.
At the end of trial I was unemployed and had been unemployed
throughout the duration of the litigation. My income is from
the State and is below $12, 490.00, which is the Federal
Poverty threshold for 2019.” [ECF 104, p.4.]
letter to the Court dated September 9, 2019, Plaintiff's
counsel states that Plaintiff is “completely dependent
upon government assistance for income, from the United States
Social Security. . . and from food stamps. .
.[Plaintiff's] federal disability is approximately $771
per month or $9252.00 per year [records attached to letter] .
. .He is not claimed as a dependent by anyone. . .[Plaintiff]
was born in 1957 is under age 65. . He is single. [Plaintiff]
has not filed tax returns. He is not earning income. .
.” Plaintiff's counsel is a responsible officer of
this Court and as such we will take his statements as
matter of common sense and equity, the award of costs against
Plaintiff should be vacated. Even though Plaintiff's
affidavit is unsworn, it does appear from the record that
Plaintiff is indigent and disabled, has no assets, does not
receive enough income to file tax returns and is not claimed
as a dependent. In addition, as demonstrated by the
jury's verdict sheet, this action was not frivolous.
Under these circumstances, requiring Plaintiff to pay the
amount of $2, 338.22 to Defendant would be punitive in
nature. See Sullivan v. Warminster Township, No.
07-4447, 2013 WL 1934532, at * 3 (E.D. Pa. May 9, 2013)
(vacating the clerk's award of costs where the losing
party suffered from PTSD which kept her from maintaining
employment, she lived with her niece free of charge, she
received only $360.00 per month through the Government's
food stamp and cash assistance program, and she had no bank
account). ; Amorosi v. Molino, No.
06-5524, 2010 WL 3058450, at *5 (E.D. Pa. Aug. 2, 2010)
(quoting Lindsey v. Vaughn, No. 93-2030, 2001 WL
1132409, at *2 (E.D. Pa. Sept. 24, 2001) (granting motion to
vacate costs where the plaintiff had been unemployed for ...