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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DR. MARTIN I. FRY et al. : CIVIL ACTION

:

v. :

MIDDLETOWN TOWNSHIP et al. : NO. 02-2780

CLERK'S TAXATION OF COSTS

Plaintiffs brought this civil action against defendants, and judgment was entered

in favor of defendants, which filed their bill of costs. On January 25, 2006, the Clerk of

Court requested counsel for plaintiffs, the non-prevailing parties 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;

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

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

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

under (28 U.S.C. §1828)

Normally, the Clerk will tailor his taxation of costs opinion around the items

requested and the actual objections raised by the losing party or his counsel, and will

not raise issues sua sponte; however, as stated previously, since the Clerk's authority is

strictly limited by 28 U.S.C. §1920, a necessary corollary is that if a requested item is

obviously, without any doubt, never authorized by 28 U.S.C. §1920 under any

circumstances, the Clerk may not tax that item as a 28 U.S.C. §1920 cost, even where

counsel has not raised any objections to the item in question. Andrews v. Suzuki Motor

Co., 161 F.R.D. 383 (S.D. Ind. 1995). 

The costs sought by the prevailing party must by listed in the taxation statute 28

U.S.C. §1920. District court costs related to the preparation of an expert’s testimony or

report are not taxable. Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499 (D. Kan.

1994). The request for expert reports in the amount of $7,475.00 is accordingly

disallowed.

The remaining costs sought by defendants 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

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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 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.

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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 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);

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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 defendants

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 plaintiffs bear the burden of proof in this matter.

Turning to the substance of the requests contained in the 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 caselaw 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

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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 $5,844.10.

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

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

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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

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

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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 amounts of $1,478.00 for copies, $995.00 for demonstrative evidence and

medical records costs in the amount of $585.75.

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

follows:

Court Reporter Costs: $5,844.10

Copying Costs 1,478.00

Demonstrative Evidence: 995.00

Medical Records Costs: 585.75

TOTAL $8,902.85

 S/ Michael E. Kunz 

Date MICHAEL E. KUNZ

CLERK OF COURT

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