UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GARY MANGINI,

 Plaintiff,

v.

PENSKE LOGISTICS,

 Defendants.

Civil No. 11-0270 (NLH/KMW)

OPINION

APPEARANCES:

JOSHUA S. BOYETTE

JUSTIN L. SWIDLER 

RICHARD STEVEN SWARTZ 

SWARTZ SWIDLER LLC 

1101 KINGS HIGHWAY NORTH 

SUITE 402 

CHERRY HILL, NJ 08034

On behalf of plaintiff

MICHAEL D. HOMANS 

RACHEL E. LICAUSI 

FLASTER GREENBERG PC 

1810 CHAPEL AVENUE WEST 

CHERRY HILL, NJ 08002

On behalf of defendant

HILLMAN, District Judge

This matter has come before the Court on the motion of 

plaintiff to vacate the Clerk’s Order granting defendant’s motion 

for the taxation of costs. For the reasons expressed below, 

plaintiff’s motion will be granted.

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BACKGROUND & ANALYSIS

After a denial of defendant’s motion for summary judgment on 

plaintiff’s claims that defendant violated the New Jersey 

Conscientious Employee Protection Act, N.J.S.A. 34:19-3, when it 

terminated plaintiff’s employment for his expression of safety 

concerns about the product load in his delivery truck, the matter 

proceeded to a three-day jury trial. On May 6, 2014, a jury 

returned a verdict in defendant’s favor. On May 13, 2014, a 

judgment in favor of defendant was entered. On June 12, 2014, 

defendant filed a motion pursuant to Federal Civil Procedure Rule 

54(d) and Local Civil Rule 54.1 for costs in the amount of 

$5,271.60, which the Clerk granted in part and denied in part on 

July 24, 2014, awarding defendant $4,072.78. 

Plaintiff has asked the Court to vacate the Clerk’s 

imposition of costs against him, for two reasons. First, 

plaintiff argues that defendant did not properly follow the 

procedures required by Local Rule 54.1. Second, plaintiff argues 

that he is financially unable to pay the bill of costs so that it 

is inequitable to uphold the Clerk’s Order. In response, 

defendant argues that the filing of its motion for costs was 

appropriate and plaintiff’s failure to timely respond to its 

motion does not justify the Court vacating the award of costs. 

Defendant also argues that plaintiff’s statements as to his 

financial situation are insufficient to support his motion.

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Federal Civil Procedure Rule 54(d) provides, “Unless a 

federal statute, these rules, or a court order provides 

otherwise, costs--other than attorney's fees--should be allowed 

to the prevailing party. . . . The clerk may tax costs on 14 

days' notice. On motion served within the next 7 days, the court 

may review the clerk's action.” 

The New Jersey District Court Local Civil Rule 54.1 modifies 

the F.R.C.P. The Local Rule provides, in relevant part:

(a) Within 30 days after the entry of a judgment 

allowing costs, . . . the prevailing party shall serve on 

the attorney for the adverse party and file with the Clerk a 

Bill of Costs and Disbursements, together with a notice of 

motion when application will be made to the Clerk to tax the 

same.

. . . 

(d) The notice of motion shall specify the hour and 

date when application to the Clerk to tax the costs will be 

made, which shall not be less than three nor more than seven 

days from the date of the notice if personal service is made 

and, if service is made by mail, not less than seven nor

more than 14 days from the date the notice is deposited in 

the mail.

(e) Upon failure of the prevailing party to comply with 

this Rule, all costs shall be waived.

(f) At or before the hearing the adverse party may file 

specific objections to claimed items of cost with a 

statement of the grounds for objection, supported by 

affidavits or other evidence.

. . . 

(h) A dissatisfied party may appeal to the Court upon 

written notice of motion served within seven days of the 

Clerk's action, as provided in Fed. R. Civ. P. 54(d)(1).

L. Civ. R. 54.1.

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In this case, defendant filed its motion for costs within 

the 30-day window under the Local Rule. Defendant did not, 

however, “specify the hour and date when application to the Clerk 

to tax the costs will be made” as required by the Rule. 

Plaintiff argues that this is fatal to defendant’s motion for 

costs, and that if he had been provided with the proper notice, 

he would have appeared to object. Plaintiff also points out that 

the Rule’s procedures are mandatory, as subsection (e) states 

that all costs are waived if the prevailing party fails to comply 

with the Rule. 

In response, defendant states that the electronic filing 

system does not provide the mechanism for noticing a specific 

hour and date, and that the filing of its motion on the 

electronic filing system provided plaintiff with adequate notice 

of its motion. Defendant further argues that the typical 

practice in this District, as described in the comments to the 

Local Rule published by a private party, is to relegate a motion 

for costs to a decision on the papers, rather than the Clerk 

conducting a formal, in-person hearing.1

1 The New Jersey Federal Practice Rules, with Comments and 

Annotations by Allyn Z. Lite (Gann Law Books 2015), provides at 

256, “Although the rule speaks in terms of a ‘hearing’ at or 

before which the objections are to be made, the practice in this 

District is that such objections are made in writing to the 

Clerk, who reviews the documentation submitted by both sides 

before deciding what costs are taxable.”

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As a primary matter, even though the cited comments to our 

Local Civil Rules are published by a highly regarded member of 

the bar very familiar with the procedures of the Clerk’s Office 

and are often of great assistance to litigants and the Court, it 

is the Rules themselves, as adopted by the Board of Judges, that

govern – not privately published commentary interpreting those 

Rules. Thus, despite the claimed existence of a colloquial 

“District practice” the defendant contends is contrary to the

language of the Rule, a prevailing party must follow the 

requirements of Local Civil Rule 54.1, including the 

specification of an hour and date when the application for costs 

will be heard.2 Relatedly, even though the electronic filing 

system does not provide a specific mechanism to select a time and 

date for a hearing before the Clerk, defendant can easily provide 

that information on its notice of motion, and it can use the 

dialog box on the electronic filing system to add that 

information on the docket.

Thus, because Local Rule 54.1(e) provides that “failure of 

2 A close examination of the commentary reveals that it actually 

supports the Plaintiff’s position. Comment 3a states: “...the 

notice of motion must set forth the hour and date when the 

application will be made....” See New Jersey Federal Practice 

Rules, with Comments and Annotations by Allyn Z. Lite (Gann Law 

Books 2015), at 256. The quoted portion from Comment 3c is 

little more than a recognition that the Clerk may exercise his or 

her discretion to resolve the application on the submitted papers

and often does.

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the prevailing party to comply with this Rule, all costs shall be 

waived,” and it is undisputed that defendant did not comply with 

the notice provision of 54.1(d), defendant’s award of costs must 

be vacated on that basis. See, e.g., Michael J. Benenson 

Assocs., Inc. v. Orthopedic Network of N.J., 54 F. App'x 33 (3d 

Cir. 2002) (upholding the district court’s denial of all costs 

“in light of plaintiff's failure to comply with Local Civil Rule 

54.1 by failing to provide invoice documentation of the items for 

which it sought reimbursement”).3

Even if the Court excused defendant’s procedural defect, the 

Court would vacate the award in its equitable discretion to do 

so. On an appeal challenging the imposition of costs,4 the 

Court, in its discretion, may uphold, reduce, or deny a Clerk’s 

Order granting costs pursuant to Rule 54. See Reger v. The 

Nemours Foundation, Inc., 599 F.3d 285, 288 (3d Cir. 2010) (“[I]f 

a district court, within its discretion, denies or reduces a 

prevailing party's award of costs, it must articulate its reasons 

for doing so.”); In re Paoli R.R. Yard PCB Litigation, 221 F.3d 

3 Indeed we believe that the Clerk should have dismissed the 

application on his own motion in light of the failure of the 

notice of motion to comply with Local Civil Rule 54.1.

4 The Rule provides that a dissatisfied party may appeal the 

Clerk’s award of costs to the Court upon written notice of motion 

served within seven days of the Clerk's action. L. Civ. R. 

54.1(h). Plaintiff complied with this requirement by filing his 

motion to vacate on July 31, 2014.

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449, 458 (3d Cir. 2000) (“Given the district court's 

discretionary equitable power to award costs under Rule 54(d)(1), 

taxation of costs is reviewed only for abuse of discretion.”); 

Bowdren v. Abbott Bamboo, Inc., 2011 WL 4983473, 1 (D.N.J. 2011)

(explaining that “‘[b]y its terms, the rule creates a presumption 

in favor of awarding costs to a prevailing party, but vests in 

the district court discretion to refuse to award costs’” (quoting

Ass'n of Mexican American Educators v. California, 231 F.3d 572, 

591 (9th Cir. 2000)). 

The Court takes plaintiff’s indigent status into 

consideration under its equitable power to assess a petition for 

costs. Plaintiff states that a bill of costs imposed on him for 

over $4,000 would be crippling, and he has provided documentation 

demonstrating that his financial condition is poor and that he is 

struggling to provide for his family. His expenses for essential 

items for himself and his family exceed his income. This is 

contrasted to defendant’s status as a large well-funded 

organization that ostensibly will not suffer the same financial 

impact if it does not recover the $4,000 in costs. 

The Court also takes into consideration that even though a 

jury ultimately found in favor of defendant, plaintiff’s claims 

were not frivolous, and they were substantive enough to withstand 

defendant’s motion for summary judgment. And while we do not 

fault the defendant for notifying plaintiff that it would seek 

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cost if it prevailed, we have some concern that automatically 

awarding costs to losing plaintiffs in low wage employment cases, 

whistleblower cases, civil rights cases, consumer cases, and 

other types of cases brought under statutes designed to 

facilitate access to the courts may serve to undermine those 

legislative determinations. Here plaintiff believed wrongly –

but apparently sincerely – that defendant’s policies put its 

employees and the public at risk. It would be more equitable in 

a case like this to let each party bear their costs. The Court 

therefore finds, in the alternative, that under all the 

circumstances present here, it would be inequitable to uphold the 

Clerk’s Order granting defendant its costs, even if defendant 

strictly complied with the noticing procedures of Local Rule 

54.1.

Accordingly, plaintiff’s motion to vacate the Clerk’s Order 

granting defendant an award of costs in the amount of $4,072.78

will be granted, and the Clerk’s Order vacated. An appropriate 

Order will be entered.

Date: March 12, 2015 s/ Noel L. Hillman 

 NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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