(d)(1) Costs Other than Attorneys' Fees. 1

Except when express provision therefor 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; but costs against the United

States, its officers, and agencies shall be imposed only to the extent permitted by law.

Such costs may be taxed by the clerk on one day's notice. On motion served within

5 days thereafter, the action of the clerk may be reviewed by the court.

Federal Rules of Civil Procedure Rule 54 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAKKADASAN SAMPATHACHAR : CIVIL ACTION

:

 v. :

: NO. 03-5905 

FEDERAL KEMPER LIFE ASSURANCE :

COMPANY et al. :

MEMORANDUM AND ORDER

Juan R. Sánchez, J. January 8, 2007

Kakkadasan Sampathachar, the successful plaintiff in this jury trial, submits a revised Bill

of Costs totaling $31,886.45. Federal Kemper Life Assurance Co., the sole remaining defendant,

objects to most of the costs presented. After hearing argument, I will sustain Federal Kemper’s

objections to two items and award costs of $31,405.76 to Sampathachar.

The taxation of costs is governed by federal rules of civil procedure even though this is an

Erie-bound diversity case. Hanna v. Plummer, 380 U.S. 460, 473 (1965) (holding a valid Federal

Rule of Civil Procedure applies even where the plaintiff's claim is based on state law). The federal

rule provides “costs other than attorneys’ fees shall be allowed as of course to the prevailing party

unless the court otherwise directs.” Fed. R. Civ. P. 54(d)(1).1

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Section 1920. Taxation of costs 2

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily

obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers 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.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

28 U.S.C. § 1920 

2

Taxable costs referenced in Rule 54(d)(1) are enumerated in 28 U.S.C. § 1920. Abrams v. 2

Lightolier Inc., 50 F.3d 1204, 1224 (3d Cir. 1995). Costs do not include attorney’s fees and

expenses except by separate motion. Id. at 1225. Denial of costs is a penalty and this Court’s

discretion is limited. Smith v. SEPTA, 47 F.3d 97, 99 (3d Cir. 1995). A losing party must show an

award of costs is “inequitable under the circumstances.” In re Paoli R.R. Yard PCB Litigation, 221

F.3d 449, 462-63 (3d Cir. 2000).

I will sustain Federal Kemper’s objection to the charge of $309.50 for private service of

summons and subpoenas. Section 1921 explicitly provides that a court may tax as costs, fees for

serving a subpoena or summons on a witness. 28 U.S.C. § 1921(a)(1)(B). In the absence of Third

Circuit precedent, I am guided by the language of the statute which restricts reimbursement for

service of summons and subpoenas to the amount charged by the U.S. Marshal. Since three

subpoenas were served, I will allow $24 for this item.

Federal Kemper argues the $1,320 fee for a copy of the trial transcript was not “necessarily

obtained for use in the case.” 28 U.S.C. § 1920(2). I find the transcript was reasonably ordered to

respond to Federal Kemper’s post-trial motions, even though it was not ultimately used for that

Case 2:03-cv-05905-JS Document 169 Filed 01/09/07 Page 2 of 4
3

purpose because the motions were decided before the transcript was delivered. I will award the

transcript fees of $1,320. 

Federal Kemper objects to Sampathachar’s request for costs for deposition transcripts and

witness fees. I will award Sampathachar his revised request of $12,907.22 because the witnesses

were noticed and deposed by both sides without objection as to relevancy. 28 U.S.C. § 1920(2);

Raio v. American Airlines, Inc., 102 F.R.D. 608, 611 (E.D. Pa. 1984). 

Federal Kemper objects to $8,390.34 taxable as compensation for interpreters who produced

unofficial transcripts and videotaped depositions in India. Circumstances of this case require

deviation from the norm that either videotapes or written transcripts are taxable but not both. 

Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993). This Court may tax the costs of both the videotape

and transcription when it finds an independent reason and “a stenographic transcript of a videotaped

deposition will be necessarily obtained for use in the case.” Tilton v. Capital Cities/ABC, Inc., 115

F.3d 1471, 1478 (10th Cir. 1997). In this case, the language of the Indian deponents was heavilyaccented to a Western ear and the rapidly shifting designations during trial required a written record

as well as the videotape. I find $8,390.34 taxable for depositions and interpreters in India. 

The task of marrying the transcript to the videotape as a caption, and excising unwanted parts

of both during trial fell to James DeCresenzo/Trial Technologies which billed $8,640.00 for work

on this case. Federal Kemper objects the videotape presentations were not exemplars “necessarily

obtained for use in the case.” 28 U.S.C. § 1920(4). Videotaped presentations are recoverable as

exemplars under section 1920(4). In re Paoli R.R. Yard PCB Litigation, No. 86-2229, 1999 WL

569435, *6 (E.D. Pa. Aug. 2, 1999), aff’d in relevant part, In re Paoli R.R. Yard PCB Litigation, 221

F.3d 449 (3d Cir. 2000). I will tax $8,640.00 in costs for the exemplars.

Case 2:03-cv-05905-JS Document 169 Filed 01/09/07 Page 3 of 4
4

I will sustain Federal Kemper’s objection to taxation of $294.39 for two copies of paper trial

exhibits and reduce the cost to $147.20 to cover the cost of the exhibits provided to Federal Kemper

only.

The total of taxable costs is $31,405.76. An appropriate order follows.

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