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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD KECK : CIVIL ACTION

:

v. :

PPL, INC. : NO. 02-4071

CLERK'S TAXATION OF COSTS

Plaintiff brought this civil action against defendant and judgment was entered in

favor of defendant, which filed its bill of costs. On March 6, 2006, the Clerk of Court 

requested counsel for plaintiff, the non-prevailing party, to file objections to the bill of

costs, if they had any, within fourteen days. No objections have been filed with the Clerk

of Court. 

It is well-established that district court costs may not be imposed in federal

district courts except where they are authorized by either a statute or a rule of court. 

Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995). The federal Taxation of Costs

statute, 28 U.S.C. §1920, lists those items of district court costs taxable in the first

instance by the Clerk, with a five-day right of appeal to the assigned district court judge. 

Buchanan v. Stanships, Inc., 485 U.S. 265 (1988); In re: Paoli Railroad Yard PCB

Litigation, 221 F.3d 449 (3d Cir. 2000). These items taxable in the first instance by the

Clerk, as listed in 28 U.S.C. §1920, are: 

"(l) Fees of the clerk or marshal; 

“(2) Fees of the court reporter for all or any part of its 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;

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“(5) Docket fees under (28 U.S.C. §1923); (and,) 

“(6) Compensation of court appointed experts, compensation of interpreters, and

salaries, fees, expenses, and costs of special interpretation services

under (28 U.S.C. §1828)

The costs sought by defendant are all, at least arguably, of those types of costs

stated previously as being listed in the taxation statute, 28 U.S.C. §1920. Federal Rule

of Civil Procedure 54(d)(1) is incorporated into the law of Clerk’s Taxation of Costs

established by 28 U.S.C. §1920. Crawford Fitting Company v. J. T. Gibbons, Inc., 482

U.S. 437 (1987). Federal Rule of Civil Procedure 54(d)(1) directs that "costs other than

attorney fees" (i.e. those costs authorized by 28 U.S.C. §1920) "shall be allowed as of

course to the prevailing party unless the court otherwise directs" (emphasis added). 

This language creates a heavy presumption that “the 'prevailing party' automatically

is entitled to costs" as a matter of course, once it has been shown that the costs

sought are, at least arguably, of those types of costs listed in 28 U.S.C. §1920. 

Buchanan v. Stanships, Inc., 485 U.S. 265, 268 (1988)(emphasis added). Accord, In

re: Paoli Railroad Yard PCB Litigation, 221 F.3d 449 (3d Cir. 2000); Abrams v.

Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995); Smith v. SEPTA, 47 F.3d 97 (3d Cir. 1995);

Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir. 1985);

Pearlstine v. United States, 649 F.2d 194 (3rd Cir. 1981); Delaney v. Capone, 642 F.2d

57 (3d Cir. 1981); Samuel v. University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976); ADM

Corp. v. Speedmaster Packing Corp., 525 F.2d 662 (3d Cir. 1975); City of Rome, Italy

v. Glanton, 184 F.R.D. 547 (E.D. Pa. 1999); Greene v. Fraternal Order of Police, 183

F.R.D. 445 (E.D. Pa. 1998); Action Alliance for Senior Citizens of Greater Philadelphia

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v. Shapp, 74 F.R.D. 617 (E.D. Pa. 1977). This heavy presumption is based on the

federal policy that a Clerk’s Taxation of Costs is seen as a ministerial act in civil cases,

and is not seen as a penalty against the losing party or parties. Abrams v. Lightolier,

Inc., 50 F.3d 1204 (3d Cir. 1995); Smith v. SEPTA, 47 F.3d 97 (3d Cir. 1995); Greene

v. Fraternal Order of Police, 183 F.R.D. 445 (E.D.Pa. 1998). A consequence of this

heavy presumption is that the non-prevailing party bears the burden of proof, and must

overcome the presumption in favor of the taxing of costs against that non-prevailing

party. In re: Paoli Railroad Yard PCB Litigation, 221 F.3d 449 (3d Cir. 2000); Greene v.

Fraternal Order of Police, 183 F.R.D. 445 (E.D.Pa. 1998). Because of this heavy

presumption, it is considered punitive towards a prevailing party to deny to that

prevailing party costs which are ordinarily automatically taxed under 28 U.S.C. §1920. 

Smith v. SEPTA, 47 F.3d 97 (3d Cir. 1995); Institutionalized Juveniles v. Secretary of

Public Welfare, 758 F.2d 897, 926 (3rd Cir. 1985); Pearlstine v. United States, 649 F.2d

194 (3rd Cir. 1981); Delaney v. Capone, 642 F.2d 57 (3d Cir. 1981); Samuel v.

University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976); ADM Corp. v. Speedmaster

Packing Corp., 525 F.2d 662 (3d Cir. 1975). As a further result of this presumption, in

the event taxable costs are denied to a prevailing party, the Clerk must specifically state

what defect, bad act or impropriety on the part of that prevailing party leads the Clerk to

deny to that prevailing party otherwise allowable costs. Pearlstine v. United States, 649

F.2d 194, 198-9 (3rd Cir. 1981); ADM Corp. v. Speedmaster Packaging Corp., 525 F.2d

662, (3rd Cir. 1975). See, also, In Re Olympia Brewing Co. Securities Litigation, 613

F.Supp. 1286, 1302 (N.D.Ill. 1985). In examining the relevant caselaw concerning

taxations of costs by the Clerk of Court, there is a recurring theme that the prevailing

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party may recover those types of costs listed in 28 U.S.C. §1920 that were necessary

for his counsel's effective preparation, judged in light of the situation existing at the time

the costs were incurred, regardless of whether the items for which costs are sought

were actually used. In re: Paoli Railroad Yard PCB Litigation, 221 F.3d 449 (3rd Cir.

2000); In Re: Kulicke & Soffa Industries Inc. Securities Litigation, 747 F.Supp. 1136

(E.D.Pa. 1990), aff'd, 944 F.2d 897 (3rd Cir. 1991); ADM Corp. v. Speedmaster Packing

Corp., 525 F.2d 662 (3d Cir. 1975); Nugget Distributors Cooperative of America v. Mr.

Nugget, Inc., 145 F.R.D. 54 (E.D.Pa. 1992); Raio v. American Airlines, 102 F.R.D. 608

(E.D.Pa. 1984). See, also, Charter Medical Corp. v. Cardin, 127 F.R.D. 111 (D.

Maryland 1989); Women's Federal Savings and Loan Association of Cleveland v.

Nevada National Bank, 108 F.R.D. 396 (D. Nevada 1985); International Wood

Processors v. Power Dry, Inc., 598 F.Supp. 299 (D.S.C. 1984); Morrissey v. County

Tower Corp., 568 F.Supp. 178 (E.D.Mo. 1983); Gillam v. A. Shyman, Inc., 31 F.R.D.

271 (D. Alaska 1962). Since the costs sought by defendant are all, at least arguably, of

those types of costs listed in the taxation statute, 28 U.S.C. §1920, we are of the view

that plaintiff bears the burden of proof in this matter. Moreover, the bill of costs in the

instant matter is accompanied by an affidavit from counsel, pursuant to 28 U.S.C. §

1924, stating that the costs are correct and were actually and necessarily incurred; the

existence of such an affidavit in a Clerk's Taxation of Costs proceeding is given very

great weight regarding the Clerk's determination as to whether the requested costs are

allowable. Schauffler v. United Assoc. of Journeymen and Apprentices of the Plumbing

and Pipe Fitting Industry of the United States and Canada, 246 F.2d 867 (3d Cir. 1957). 

See, also, Women's Federal Savings and Loan Association of Cleveland v. Nevada

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National Bank, 108 F.R.D. 396 (D. Nevada 1985). 

Turning to the substance of the requests for bill of costs, we first address the

request for court reporter fees. With regard to the request for costs of deposition

transcripts, we note that the relevant statute, 28 U.S.C. §1920(2), directs the taxing of

costs for transcripts "necessarily obtained for use in the case." A deposition transcript

is seen as “necessarily obtained” when it was necessary to counsel's effective

preparation, judged in light of the situation existing at the time the costs were incurred,

regardless of whether it was actually used. In re: Paoli Railroad Yard PCB Litigation,

221 F.3d 449 (3rd Cir. 2000); In Re: Kulicke & Soffa Industries Inc. Securities Litigation,

747 F.Supp. 1136 (E.D.Pa. 1990), aff'd, 944 F.2d 897 (3rd Cir. 1991); Nugget

Distributors Cooperative of America v. Mr. Nugget, Inc., 145 F.R.D. 54 (E.D.Pa. 1992);

Raio v. American Airlines, 102 F.R.D. 608 (E.D.Pa. 1984). Modern case law states that

both stenographic and videotaped depositions are considered "transcripts" for purposes

of 28 U.S.C. §1920(2). Morrison v. Reichhold Chems., 97 F.3d 460 (11th Cir. 1996);

Commercial Credit Equipment Corp. v. Stamps, 920 F.2d 1361 (7th Cir. 1990); United

International Holdings v. Wharf, Ltd., 174 F.R.D. 479 (D. Colo. 1997); Weseloh-Hurtig v.

Hepker, 152 F.R.D. 198 (D. Kansas 1993); Deaton v. Dreis & Krump Mfg. Co. (ND Ohio

1991). We are satisfied that the statutory standard of necessity has been met. As

stated previously, there is a heavy presumption in favor of the automatic taxation of

those types of costs listed in the taxation statute, 28 U.S.C. §1920. We are of the view

that the non-prevailing party in this civil action has not rebutted this heavy presumption. 

Deposition costs are accordingly taxed in the full requested amount of $1,140.20.

Printing is routinely taxed under 28 U.S.C. §1920(3). Proffitt v. Municipal

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Authority of Borough of Morrisville, 716 F.Supp. 845 (E.D. Pa. 1989), aff'd, 897 F.2d

523 (3d Cir. 1990); Shannon v. United States Department of Housing and Urban

Development, 433 F.Supp. 249 (E.D. Pa. 1977). In examining the relevant case law

concerning costs pursuant to 28 U.S.C. §1920, there is a recurring theme that the

prevailing party may recover costs that were necessary for his counsel's effective

preparation, judged in light of the situation existing at the time the costs were incurred. 

In Re: Kulicke & Soffa Industries Inc. Securities Litigation, 747 F.Supp. 1136 (E.D.Pa.

1990), aff'd, 944 F.2d 897 (3rd Cir. 1991); ADM Corp. v. Speedmaster Packing Corp.,

525 F.2d 662 (3d Cir. 1975); Nugget Distributors Cooperative of America v. Mr. Nugget,

Inc., 145 F.R.D. 54 (E.D.Pa. 1992); Raio v. American Airlines, 102 F.R.D. 608 (E.D.Pa.

1984). See, also, Charter Medical Corp. v. Cardin, 127 F.R.D. 111 (D. Maryland 1989);

Women's Federal Savings and Loan Association of Cleveland v. Nevada National

Bank, 108 F.R.D. 396 (D. Nevada 1985); International Wood Processors v. Power Dry,

Inc., 598 F.Supp. 299 (D.S.C. 1984); Morrissey v. County Tower Corp., 568 F.Supp.

178 (E.D.Mo. 1983); Gillam v. A. Shyman, Inc., 31 F.R.D. 271 (D. Alaska 1962). We

are satisfied that the statutory standard of necessity has been met. As stated

previously, there is a heavy presumption in favor of the automatic taxation of those

types of costs listed in the taxation statute, 28 U.S.C. §1920. We are of the view that

counsel for the losing party has not rebutted this heavy presumption, and we tax costs

in the amount of $205.20.

Courts have traditionally seen costs related to the production of copies of

documentary evidence as recoverable costs under 28 U.S.C. §1920(4) when the copies

in question were "necessarily obtained for use in the case." Nugget Distributors

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Cooperative of America v. Mr. Nugget, Inc., 145 F.R.D. 54 (E.D.Pa. 1992); Raio v.

American Airlines, 102 F.R.D. 608 (E.D.Pa. 1984). See, also, Haagen Dazs v. Double

Rainbow Gourmet Ice Cream, 920 F.2d 587 (9th Cir. 1990); Robinson v. Burlington

Northern Railroad Co., 963 F.Supp. 691 (N.D. Ill. 1997); Postednik v. Sullivan, 718

F.Supp. 1097 (S.D.N.Y. 1989); Grider v. Kentucky & ITR Co., 101 F.R.D. (W.D. Ky.

1984). Based on this caselaw, the Clerk is of the view that such documentary evidence

consists of items such as police reports, weather reports, medical records, personnel

records, business records, land records, newspapers, tax records, and the like. 

Likewise, costs for copies of demonstrative evidence, such as photos, maps, blow-ups,

charts, diagrams and the like, are seen as allowable under 28 U.S.C. §1920(4) as

exemplification when these items were "necessarily obtained for use in the case." In re:

Kulicke and Soffa Industries Securities Litigation, 747 F.Supp. 1136 (ED Pa. 1990);

aff'd, 944 F.2d 897 (3rd Cir. 1991). See, also, Maxwell v. Hapag-Lloyd

Aktiengesellschaft, 862 F.2d 767 (9th Cir. 1988); Nissho-Iwai Co. v. Occidental Crude

Sales, Ltd., 729 F.2d 1530 (5th Cir. 1984); Soler v. McHenry, 771 F.Supp. 252 (ND Ill.

1991), aff'd, 989 F.2d 251 (7th Cir. 1993); Phillips v. Cameron Tool Corp., 131 F.R.D.

151 (SD Ind. 1990). Concerning this previously mentioned standard that these

aforesaid items must have been "necessarily obtained for use in the case" to be

taxable, there is a recurring theme in 28 U.S.C. §1920 litigation that the prevailing party

may recover costs that were necessarily obtained for his counsel's effective

preparation, judged in light of the situation existing at the time the costs were incurred,

even where the items in question were not used at trial. In re: Paoli Railroad Yard PCB

Litigation, 221 F.3d 449 (3rd Cir. 2000); In Re: Kulicke & Soffa Industries Inc. Securities

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Litigation, 747 F.Supp. 1136 (E.D.Pa. 1990), aff'd, 944 F.2d 897 (3rd Cir. 1991); ADM

Corp. v. Speedmaster Packing Corp., 525 F.2d 662 (3d Cir. 1975); Nugget Distributors

Cooperative of America v. Mr. Nugget, Inc., 145 F.R.D. 54 (E.D.Pa. 1992); Raio v.

American Airlines, 102 F.R.D. 608 (E.D.Pa. 1984). See, also, Charter Medical Corp. v.

Cardin, 127 F.R.D. 111 (D. Maryland 1989); Women's Federal Savings and Loan

Association of Cleveland v. Nevada National Bank, 108 F.R.D. 396 (D. Nevada 1985);

International Wood Processors v. Power Dry, Inc., 598 F.Supp. 299 (D.S.C. 1984);

Morrissey v. County Tower Corp., 568 F.Supp. 178 (E.D.Mo. 1983); Gillam v. A.

Shyman, Inc., 31 F.R.D. 271 (D. Alaska 1962). We are satisfied that the statutory

standard of necessity has been met; moreover, the bill of costs is accompanied by an

affidavit by counsel, pursuant to 28 U.S.C. § 1924, stating that the costs are correct and

were actually and necessarily incurred; the existence of such an affidavit in a Clerk's

Taxation of Costs proceeding is given very great weight regarding the Clerk's

determination that the statutory standard of necessity has been met in a given case.

Schauffler v. United Assoc. of Journeymen and Apprentices of the Plumbing and Pipe

Fitting Industry of the United States and Canada, 246 F.2d 867 (3d Cir. 1957). See,

also, Women's Federal Savings and Loan Association of Cleveland v. Nevada National

Bank, 108 F.R.D. 396 (D. Nevada 1985). As stated previously, there is a heavy

presumption in favor of the automatic taxation of those types of costs listed in the

taxation statute, 28 U.S.C. §1920. We are of the view that the non-prevailing party has

not rebutted this heavy presumption. Copying costs are accordingly taxed in the full

requested amount of $493.92.

Fees of the Marshal, authorized pursuant to 28 U.S.C. §1920(1), include costs of

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service of process, including subpoena service. Proffitt v. Municipal Authority of

Borough of Morrisville, 716 F.Supp. 845 (ED Pa. 1989), aff'd, 897 F.2d 523 (3d Cir.

1990). Courts interpret this provision of 28 U.S.C. §1920(1) as permitting the taxing of

costs for private process servers. Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499

(D. Kansas 1994); Bass v. Spitz, 522 F. Supp. 1343 (E.D. Mich. 1981). In examining

the relevant case law concerning taxation of costs by the Clerk of Court, there is a

recurring theme that the prevailing party may recover those types of costs listed in 28

U.S.C. §1920 that were necessary for his counsel's effective preparation, judged in light

of the situation existing at the time the costs were incurred, regardless of whether the

items for which costs are sought were actually used. In re: Paoli Railroad Yard PCB

Litigation, 221 F.3d 449 (3rd Cir. 2000); In Re: Kulicke & Soffa Industries Inc. Securities

Litigation, 747 F.Supp. 1136 (E.D.Pa. 1990), aff'd, 944 F.2d 897 (3rd Cir. 1991); ADM

Corp. v. Speedmaster Packing Corp., 525 F.2d 662 (3d Cir. 1975); Nugget Distributors

Cooperative of America v. Mr. Nugget, Inc., 145 F.R.D. 54 (E.D.Pa. 1992); Raio v.

American Airlines, 102 F.R.D. 608 (E.D.Pa. 1984). See, also, Charter Medical Corp. v.

Cardin, 127 F.R.D. 111 (D. Maryland 1989); Women's Federal Savings and Loan

Association of Cleveland v. Nevada National Bank, 108 F.R.D. 396 (D. Nevada 1985); 

International Wood Processors v. Power Dry, Inc., 598 F.Supp. 299 (D.S.C. 1984);

Morrissey v. County Tower Corp., 568 F.Supp. 178 (E.D.Mo. 1983); Gillam v. A.

Shyman, Inc., 31 F.R.D. 271 (D. Alaska 1962). We are satisfied that the statutory

standard of necessity has been met. As stated previously, there is a heavy

presumption in favor of the automatic taxation of those types of costs listed in the

taxation statute, 28 U.S.C. §1920. We are of the view that counsel for the losing party

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has not rebutted this heavy presumption, and we tax costs in the amount of $795.50.

In summary, district court costs pursuant to 28 U.S.C. §1920 are taxed as

follows:

Court reporter costs: $1,140.20

Printing costs: 205.20

 Copying costs: 493.92

 Fees of Marshal: 795.50

TOTAL $2,634.82 

 S/ Michael E. Kunz 

Date MICHAEL E. KUNZ

CLERK OF COURT

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