UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PPL ENERGY PLUS, LLC, et al., 

Plaintiffs,

v.

ROBERT M. HANNA, in his official capacity 

as President of the New Jersey Board of Public 

Utilities, et al. ,

Defendants.

Civil Action No. 11-745 (PGS)

CLERK’S OPINION GRANTING 

IN PART AND DENYING IN PART

PLAINTIFFS’ MOTION TO TAX 

COSTS

This matter has come before the Clerk on the motion [Dkt. Entry 324] of Plaintiffs The 

PPL Parties1

, The Calpine Companies2, Exelon Generation Company, LLC, Essential Power, 

LLC, Atlantic City Electric Company, PSEG Power, LLC, and Public Service Electric and Gas 

Company (collectively, “Plaintiffs”) to tax costs against Defendants pursuant to Federal Rule of 

Civil Procedure 54(d) and Local Civil Rule 54.1. Defendants Robert M. Hanna, Jeanne M. Fox, 

Joseph L. Fiordaliso, Mary-Anna Holden and Dianne Solomon (hereinafter, “State Defendants”), 

and Intervenor/Defendant CPV Power Development, Inc. (“CPV”) (collectively, “Defendants”) 

oppose this motion.

1 The “PPL Parties” include Plaintiffs PPL EnergyPlus, LLC; PPL Brunner Island, 

LLC; PPL Holtwood, LLC; PPL Martins Creek, LLC; PPL Montour, LLC; PPL Susquehanna, 

LLC; Lower Mount Bethel Energy, LLC; PPL New Jersey Solar, LLC; PPL New Jersey Biogas, 

LLC; and PPL Renewable Energy, LLC, which are marketing and generation subsidiaries of PPL 

Corporation.

2 The “Calpine Companies” include Plaintiffs Calpine Mid-Atlantic Generation, 

LLC, Calpine New Jersey Generation, LLC, Calpine Bethlehem, LLC, Calpine Mid Merit, LLC, 

Calpine Vineland Solar, LLC, Calpine Energy Services, L.P., Calpine Mid-Atlantic Marketing, 

LLC, and Calpine Newark, LLC, which are generation and marketing subsidiaries of Calpine 

Corporation.

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Plaintiffs, a group of companies that produce and sell energy, filed a complaint in this 

matter on February 9, 2011, seeking a declaration that the New Jersey Long-Term Capacity Pilot 

Project Act, N.J.S.A. §§ 48:3-51, 48:3-98.2-.4 ((“LCAPP,” “the Act”), is unconstitutional as 

violating the Supremacy Clause and the dormant Commerce Clause [Dkt. Entry 1]. They sought 

to enjoin Defendants, sued in their official capacities as commissioners of the New Jersey Board 

of Public Utilities (“BPU”), from acting in furtherance of the LCAPP, which they deemed 

preempted by the Federal Power Act, 16 U.S.C. 824 et seq. Id. 

The LCAPP was enacted in January 2011 to encourage power generation companies 

to build new power plants in New Jersey. Under the Act, to be enforced by the BPU, new 

electric energy generators would be given fifteen-year contracts, called Standard Offer Capacity 

Agreements (“SOCAs”), through which they would be guaranteed a predetermined rate from 

local utilities for a predetermined amount of electrical capacity. The BPU solicited bids to 

construct new generation facilities and accepted those of CPV, Hess Newark LLC (“Hess”), 

and NRG Energy, Inc.(“NRG”). It then compelled New Jersey electricity distribution companies 

to sign SOCAs with the LCAPP generators. CPV’s and Hess’ projects advanced but NRG’s did 

not.

On March 9, 2011, CPV moved to intervene [Dkt. Entry 16] and its motion was granted 

by the Court on July 19, 2011 [Dkt. Entry 63]. 

The State Defendants’ motion to dismiss was denied on October 20, 2011 [Dkt. 

Entry 69], as were the motions for summary judgment of Plaintiffs, CPV and the State 

Defendants on September 28, 2012. [Dkt. Entries 151, 152]. 

Following a 13-day bench trial, held on April 2-4, 8-12, 18-19, May 6-9, and June 17, 

2013 [Dkt. Entries 252, 255-60, 263-64, 266-68, 272, 291], the Court entered final judgment 

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in favor of Plaintiffs on October 25, 2013 [Dkt. Entry 314]. The LCAPP was found to be 

unconstitutional and the BPU was enjoined from enforcing the Act. The Court’s order further 

provided that Plaintiffs were entitled to costs pursuant to Fed. R. Civ. P. 54(d). 

In its corresponding Memorandum [Dkt. Entry 305], the Court explained that the 

LCAPP was preempted by the Federal Power Act, which vests the Federal Energy Regulatory 

Commission (“the Commission”) with exclusive control over interstate wholesale rates of 

electric capacity. The LCAPP was both field and conflict preempted because the SOCAs occupy 

the same field of regulation as the Commission and intrude upon the Commission’s authority to set 

wholesale energy prices. Whereas the Court found that the Act violated the Supremacy Clause, 

it concluded that Plaintiffs had not met their burden of proving that it also violated the dormant 

Commerce Clause. 

Defendant/intervenor CPV appealed the final judgment to the Third Circuit on 

October 31, 2013 [Dkt. Entry 316]. Hess’ emergency motion to intervene in CPV’s appeal 

was granted by the circuit court on November 14, 2013. [Dkt. Entry 320]. On November 21, 

2013, the State Defendants filed their notice of appeal. [Dkt. Entry 321]. 

This Court’s final judgment was affirmed on September 11, 2014 by the Third Circuit, 

which determined that the LCAPP was field preempted, without reaching the conflict preemption 

or Commerce Clause issues. [Dkt. Entry 331]. 

While the appeals to the Third Circuit were pending, on November 25, 2013, Plaintiffs 

filed their motion to tax costs, here at issue. They request therein the costs of: filing and pro hac 

vice fees ($1,550.00); fees for service of summons and subpoena ($1,132.40); fees for printed 

hearing, trial and deposition transcripts ($48,350.10); witness fees ($10,468.31); exemplification 

and copying costs ($52,630.97); § 1923 docket fees ($20.00); and fees of a trial support team 

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($45,630.00), or a total of $159,781.78.1

 The Defendants do not contest the fees of the clerk, 

i.e., filing and service fees, or the $20 docket fees.

The Clerk notes that the Third Circuit’s judgment in lieu of mandate [Dkt. Entry 333] 

taxes costs against appellants, and in favor of Plaintiffs here. However, there is no indication on 

the docket that Plaintiffs seek appellate costs here in the district court pursuant to Fed. R. App. 

P. 39(e). 

Defendants’ arguments in opposition will be addressed below, but the Clerk dismisses 

as moot their initial contention that the taxation of costs should be stayed pending the resolution 

of the Third Circuit appeals. Defs.’ Br. at 2-3. As noted above, the circuit court rendered its 

decision affirming this Court on September 11, 2014.

I. Legal Standards 

Taxable costs are allowed by Fed. R. Civ. P. 54(d), which provides: “[u]nless a 

federal statute, these rules, or a court order provides otherwise, costs – other than attorney’s fees 

– should be allowed to the prevailing party.” A prevailing party is “one in whose favor a 

judgment is rendered, regardless of whether the party has recovered its entire claim or a portion 

thereof.” Garonzik v. Whitman Diner, 910 F. Supp. 167, 168 (D.N.J. 1995) (citing Fahey v. 

Carty, 102 F.R.D. 751 (D.N.J. 1983)). 

There is such a strong presumption that costs should be awarded to the prevailing party 

that, “‘[o]nly 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 

1 In their bill of costs [Dkt. Entry 324-1], Plaintiffs originally requested witness 

fees in the amount of $11,934.51 and a total of $161,247.98, but, in their reply brief, they 

decreased the witness fees amount and the total by $1,466.20. 

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prevailing party.’” Reger v. Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010) (quoting 

In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 468 (3d Cir. 2000)). 

Even so, taxable costs are “limited to relatively minor, incidental expenses,” and are 

“modest in scope.” Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2006 (2012). 

Despite the “venerable presumption that prevailing parties are entitled to costs,” Marx v. Gen. 

Revenue Corp., 133 S. Ct. 1166, 1172 (2013), absent express statutory authorization, the clerk 

and district court may reimburse only those costs enumerated in 28 U.S.C. § 1920: 

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained 

 for use in the case; 

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials 

 where the copies are 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.

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).

 

Furthermore, even with such presumption in its favor, the prevailing party must 

present sufficient information to carry its burden of showing that the costs sought fall within 

the limits of § 1920. Romero v. CSX Transp., Inc., 270 F.R.D. 199, 201-02 (D.N.J. 2010). 

In addition to Rule 54(d) and 28 U.S.C. § 1920, the Clerk’s decision is guided by 

Local Civil Rule 54.1, which “establishes the general procedures to be followed in those cases 

where a party is entitled to recover costs” under § 1920. Lite, N.J. Federal Practice Rules, 

Comment 2 to Rule 54.1 (Gann 2015 ed.) at 251.

Defendants do not dispute that Plaintiffs are prevailing parties, having obtained, through 

final judgment, the declaratory and injunctive relief sought in their complaint. See North Dakota 

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v. Heydinger, No. 11-cv-3232, 2014 WL 7157013, at *2-3 (D. Minn. Dec. 15, 2014) (where 

district court granted summary judgment in favor of plaintiffs, finding that Minnesota statute 

was preempted by Federal Power Act and violated dormant commerce clause, and enjoined 

defendants from enforcing the statute, plaintiffs were “prevailing parties” because the ordered 

declaratory and injunctive relief altered defendants’ behavior towards plaintiffs, to plaintiffs’

benefit, in accordance with Supreme Court’s decision in Farrar v. Hobby, 506 U.S. 103 (1992)).

Furthermore, Plaintiffs’ bill of costs was timely filed on November 25, 2013, or “within 

30 days after the entry of a judgment allowing costs,” which occurred on October 25, 2013.

2

 

L. Civ. R. 54.1(a). Plaintiffs have also complied with the verification requirement of 28 U.S.C. 

§ 1924, mirrored in L. Civ. R. 54.1(b), by declaring, through their attorney’s signature of the AO 

133 form [Dkt. Entry 423-1], that the costs are correct and were necessarily incurred in this 

action and that the services for which fees have been charged were actually and necessarily 

performed. Plaintiffs’ counsel, Lawrence S. Lustberg, Esq., also attests to same in his 

Declaration (“Lustberg Decl.”) [Dkt. Entry 324-3] and outlines therein the specific items of 

cost sought. Finally, supporting invoices have been appended to Plaintiffs’ motion, as required 

under L. Civ. R. 54.1(b). 

II. Commerce Clause Claim

While Defendants do not dispute that Plaintiffs are the prevailing parties, they do, 

however, maintain that Plaintiffs’ cost award should be halved to account for the failure of their 

Commerce Clause claim. Defendants assert, generally, that “Plaintiffs’ Bill of Costs does not 

2 The 30th day, November 24, 2013, fell on a Sunday, and therefore, under Fed. R. 

Civ. P. 6(a)(1)(C), Plaintiffs could file their motion until the end of Monday, November 25th.

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indicate the extent to which the requested amount of $161,247.98 includes costs incurred for 

their unsuccessful Commerce Clause claim,” and that “even if Plaintiffs could show that all their 

costs were actually and necessarily incurred, they would be entitled to no more than 50% of the 

claimed amount of $161,247.98.” Defs.’ Br. at 2. Defendants repeat this argument specifically 

in connection with the cost of making copies, id. at 16, and the cost of trial support services, 

id. at 18.

Defendants’ argument does not pass muster under Third Circuit law. In the case of ADM 

Corp. v. Speedmaster Packing Corp., the Third Circuit held that costs must be granted to a 

prevailing party in the absence of some defection by that party. 525 F.2d 662, 665 (3d Cir. 

1975). It adopted the language enunciated by the Seventh Circuit in Chicago Sugar Co. v. Am. 

Sugar Ref. Co., 176 F.2d 1, 11 (7th Cir. 1949) that “the denial of costs to the prevailing party . . . 

is in the nature of a penalty for some defection on his part in the course of the litigation.” 

Unduly extending or complicating the resolution of the issues constitutes such “defection.” 

ADM Corp., 525 F.2d at 665. 

The requirement that costs be granted to the prevailing party, absent some “defection” on 

its part, was applied in the case of Institutionalized Juveniles v. Sec’y of Public Welfare, in 

which the Third Circuit rejected the same argument pressed by Defendants here. 758 F.2d 897 

(3d Cir. 1985). The court determined that the “prevailing party” analysis in cost determinations, 

as in fee applications under 42 U.S.C. § 1988, should focus on the relief obtained rather than on 

the success of the legal theories asserted. Id. at 911, 926. In that case, plaintiffs were adjudged 

to be the prevailing parties, even though judgment was actually entered in favor of defendants. 

The claims of plaintiffs, who challenged a Pennsylvania law, had been mooted by the enactment 

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by Pennsylvania of a statute and regulations which granted much of the relief sought by plaintiffs

in their suit. The district court denied plaintiffs their costs, due to the limited nature of the 

success they achieved through extra-judicial relief, and the plaintiffs appealed. 

Applying the ADM defection test, the Third Circuit stated that costs should not be 

denied to plaintiffs absent a showing that they created unjustifiable costs by needlessly 

prolonging or complicating the litigation. In finding that the district court had abused its 

discretion, the court concluded, “[l]imited success, however, is not a ‘defection’ under the 

standard articulated in ADM and described in detail in Chicago Sugar and therefore does 

not justify the penalty of a denial of costs.” Id. at 926. 

The above Third Circuit analysis was applied by another district court within this circuit 

in the case of Multitherm Corp. v. Fuhr, Civ. A. No. 89-6151, 1992 WL 158383 (E.D. Pa. 

June 29, 1992). Citing Institutionalized Juveniles, the court there denied the losing party’s 

request to apportion costs in a claim by claim manner, and thereby reduce the cost award, 

based upon the fact that plaintiff prevailed on only one of its eight counts. 

More recent examples of the court denying the apportionment of costs based upon the 

prevailing party’s limited success are Bacon v. Stiefel Labs., Inc., No. 11-20489-CIV, 2014 WL 

4825279, at *9-10 (S.D. Fla. Sept. 25, 2014) (“[c]ases from this and other circuits consistently 

support shifting costs if the prevailing party obtains judgment on even a fraction of the claims 

advanced”); Apple Inc. v. Samsung Elec. Co., 11-CV-01846, 2014 WL 4745933, at *4-5 (N.D. 

Cal. Sept. 19, 2014) (in that patent litigation, applying Federal Circuit test of “prevailing party,” 

which similarly looks at relief obtained, the court refused to deny Apple its costs even though 

Apple did not win on many claims it asserted and recovered only a portion of the damages it 

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originally sought from Samsung); Ruiz v. APCO Constr., No. 2:10-cv-1312, 2014 WL 4402379, 

at *3 (D. Nev. Sept. 5, 2014) (where defendant prevailed on only two of nine claims asserted by 

plaintiffs, because court declined to exercise supplemental jurisdiction over seven state law 

claims after dismissing two federal claims, court denied plaintiffs’ request to strike portions of 

defendant’s bill of costs).

In the case at bar, Defendants do not raise any “defection” by Plaintiffs. Rather, 

they merely point to the lack of success of one of the legal theories upon which Plaintiffs relied. 

Defendants do not, and cannot, argue that Plaintiffs failed to obtain the relief they sought, i.e., 

the declaration that the LCAPP is unconstitutional and the voiding of the SOCAs. Accordingly,

the Clerk rejects Defendants’ argument and refuses to reduce Plaintiffs’ cost award due to 

the failure of their Commerce Clause claim. The requested costs are addressed below in the 

order in which they fall within § 1920. 

III. Fees of the Clerk and Marshal, § 1920 (1)

Fees sought under § 1920 (1) as fees of the clerk and marshal consist of: the $350.00 

fee for the filing of Plaintiffs’ complaint; $1,200 in pro hac vice admission fees; and the $189.90 

and $942.50 fees for the service of summons and complaint, and subpoenas, respectively. 

Filing Fee

The docket indicates that Plaintiffs paid the $350 fee required under 28 U.S.C. § 1914(a) 

for the filing of their complaint in 2011. The Clerk consistently grants the filing fee as a 

§ 1920 (1) fee of the clerk and awards this $350.00 cost, to which Defendants do not object.

Pro Hac Vice Admission Fees

Plaintiffs seek the $1,200 cost of the admission pro hac vice of eight attorneys at the rate 

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of $150 per attorney [Dkt. Entry 324-5, Ex. B], relying upon the case of Church & Dwight Co., 

Inc. v. Abbott Labs., Civ. A. No. 05-2142, 2009 U.S. Dist. LEXIS 58067, at * 20-21 (D.N.J. 

July 8, 2009). Pls.’ Br. at 3; Lustberg Decl. ¶ 4. 

Defendants’ position is that “[a]lthough pro hac vice admission fees are taxable, 

Plaintiffs failed to justify the need for eight attorneys; therefore, Defendants submit that 

$1,200 is excessive.” Defs.’ Br. at 6. 

Defendants concede too readily that this type of fee is taxable. In fact, there is a split in 

the circuits on this issue and, lacking guidance by the Third Circuit, the Clerk is of the opinion 

that such fees are non-taxable. In the Church & Dwight case, cited by Plaintiffs, this court 

summarily granted such fees without providing a basis therefor. Rather than adopt that holding, 

the Clerk consistently denies pro hac vice fees on the ground that the opponent should not have 

to pay for the movant’s choice to be represented by counsel not admitted to practice in this 

district. See e.g., Warner Chilcott Labs. Ireland Ltd. v. Impax Labs, Inc., Civ. A. Nos. 08-6304, 

09-2073, 09-1233, 2013 WL 1716468, at *2-3 (D.N.J. Apr. 18, 2013). In so holding, the Clerk 

has parted company with the Eighth Circuit and aligned himself with the Ninth and Eleventh 

Circuits and other district courts within the Third Circuit and beyond.

While a cogent analysis is lacking in both the Eleventh Circuit decision denying taxation, 

Beck v. Prupis, 162 F.3d 1090, 1100 (11th Cir. 1998), aff’d on other grounds, 529 U.S. 494 

(2000), and that of the Eighth Circuit favoring it, Craftsmen Limousine, Inc. v. Ford Motor Co., 

579 F.3d 894, 898 (8th Cir. 2009), the Clerk finds persuasive a more recent Ninth Circuit opinion 

disallowing pro hac vice fees. In Kalitta Air L.L.C. v. Central Texas Airborne System Inc., 

the court determined that the phrase “[f]ees of the clerk” refers to those in 28 U.S.C. § 1914, i.e., 

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those set by the Judicial Conference. 741 F.3d 955, 957-58 (9th Cir. 2013). As the Judicial 

Conference’s fee schedule does not cover pro hac vice fees, such fees are not fees of the clerk, 

within the meaning of § 1920 (1). The court buttressed its holding by espousing the general 

principle, embraced likewise by the Clerk, that § 1920 should be narrowly construed in the wake 

of the Supreme Court’s admonition in Taniguchi. See also Awad v. Ziriax, No. CIV-10-1186-M, 

2014 WL 1572804, at *1 (W.D. Okla. Apr. 17, 2014).

For these reasons, the Clerk denies all pro hac vice fees.

Service Fees

Plaintiffs seek the $1,132.40 cost of service by private process servers as a fee of the 

marshal, pursuant to § 1920 (1). This total includes the $189.90 cost of serving the summons 

and complaint on each of the State Defendants and the $942.50 cost of serving subpoenas on 

Defendants’ witnesses, Richard Levitan, Andrew Dembia, and Paul Sotkiewicz [Dkt. Entry 232 

at 39-40], and on PJM Interconnection, LLC. (a regional transmission organization, the 

significance of which is discussed in Judge Sheridan’s memorandum [Dkt. Entry 305] at 6-8). 

Section 1920 (1) explicitly authorizes taxation of the costs of just the “clerk and 

marshal.” However, this Court has held that the fees of private process servers are taxable under 

the combined reading of § 1920 and § 1921, which allows the court to tax as costs the fees for 

serving a subpoena on a witness. Ricoh Corp. v. Pitney Bowes Inc., Civ. A. No. 02-5639, 

2007 WL 1852553, at *3 (D.N.J. June 26, 2007); Hurley v. Atlantic City Police Dep’t, Civ. A. 

Nos. 93-260, 94-1122, 1996 WL 549298, at *8 (D.N.J. Sept. 17, 1996). Therefore, the Clerk 

taxes this $1,132.40 cost, to which Defendants do not object. Added to the $350.00 filing fee, 

§ 1920 (1) costs are taxed in the total amount of $1,482.40.

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IV. Fees for Printed Transcripts, § 1920 (2)

Plaintiffs request the cost of the printed transcripts of six hearings ($1,225.94), the trial 

($20,645.23) and depositions ($26,478.93) as § 1920 (2) “[f]ees for printed or electronically 

recorded transcripts necessarily obtained for use in the case.” 

Hearing Transcipts

The six hearings in question are the following: 1./ December 20, 2011 status conference, 

during which Magistrate Judge Arpert addressed Plaintiffs’ request for unredacted versions of 

the SOCAs and Defendants’ invocation of privilege [Dkt. Entry 87], and which culminated 

in a stipulation and consent order between the parties [Dkt. Entry 86]; 2./ July 31, 2012 hearing 

before Judge Sheridan on Plaintiffs’, CPV’s and the State Defendants’ motions for summary 

judgment, the rulings of which are reflected in the Court’s orders and memorandum [Dkt. Entries 

151, 152]; 3./ November 20, 2012 telephonic pretrial conference with Magistrate Judge Arpert, 

after which Plaintiffs’ counsel prepared the proposed form of order containing the revised case 

management schedule [Dkt. Entries 164, 166, 192]; 4./ November 27, 2012 in person status 

conference and preliminary hearing to address objections to PJM’s compliance with the subpoena

and the amended confidentiality order requested by PJM [Dkt. Entries 165, 193], resulting in 

several non-party intervenors’ motion to quash the subpoena [Dkt. Entries 168, 172, 176, 203]; 

5./ January 22, 2013 telephonic status conference [Dkt. Entry 205];3 and 6./ October 25, 2013 oral 

argument on the proposed form of order of the final judgment, Plaintiffs’ application for attorney’s 

3 The hearings listed by Plaintiffs include one shown as having occurred on 

January 16, 2013. Lustberg Decl. ¶ 6. As Defendants point out, and per the docket entry of 

January 15, 2013, the January 16 status conference was rescheduled to January 22. The docket 

contains no further details regarding this conference.

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fees on their preemption claim, and Defendants’ joint motion to stay final judgment pending appeal 

[Dkt. Entry 315]. 

The taxability of the above-mentioned transcripts turns on their necessity and yet, Plaintiffs

do not specify the use of any of the transcripts. Indeed, Defendants correctly point out that 

“Plaintiffs provide no explanation whatsoever as to why they needed any of the referenced hearing 

transcripts and why they were needed on an expedited basis.” Defs.’ Br. at 7. Plaintiffs rely entirely 

upon the prior taxation of transcripts of a motion to dismiss, Markman hearing and summary 

judgment motion by the Honorable Dickinson R. Debevoise of this Court, who reasoned that it was 

his “usual practice to request transcripts of such hearings.” Pharm. Resources, Inc. v. Roxane Labs., 

Inc., Civ. A. No. 03-3357, 2008 WL 2951173, at *5 (D.N.J. July 25, 2008). 

In opposition, Defendants cite to our relevant local rule, L. Civ. R. 54.1(g) (6), which 

reads:

The cost of a reporter’s transcript is allowable only (A) when specifically 

requested by the Judge, master, or examiner, or (B) when it is of a statement

by the Judge to be reduced to a formal order, or (C) if required for the record

 on appeal. Mere acceptance by the Court of a submitted transcript does not 

constitute a request. Copies of transcripts for an attorney’s own use are not 

taxable in the absence of a prior order of the Court. All other transcripts of 

hearings, pretrials and trials will be considered by the Clerk to be for the 

convenience of the attorney and not taxable as costs.

Defendants assert that the transcripts are not taxable because they merely served the convenience 

of Plaintiffs’ counsel. Defs.’ Br. at 7. Alternatively, Defendants maintain that Plaintiffs should 

not be reimbursed for the cost of expediting the transcripts. Id. 

Under the standard of § 1920 (2), the Clerk must determine if the transcripts were 

“necessarily obtained for use in the case,” such as for a purpose outlined in L. Civ. R. 

54.1(g) (6), or rather, obtained for the convenience of counsel. Courts have denied the 

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cost of hearing transcripts where note-taking by counsel should have sufficed. See e.g.,

Ash Grove Cement Co. v. Liberty Mutual Ins. Co., No. 3:09-cv-00239-HZ, 2014 WL 837389, 

at *16-17 (D. Or. Mar. 3, 2014) (denying costs of transcripts of scheduling conference and 

hearing on motion to compel as unnecessary when note-taking by counsel would have been 

sufficient). 

After perusing the docket, the Clerk finds that the transcript of the November 20, 2012 

pretrial conference is taxable under L. Civ. R. 54.1(g)(6), because Magistrate Judge Arpert 

requested that Plaintiffs’ counsel prepare the resulting proposed order. [Dkt. Entry 164]. 

While Plaintiffs’ counsel indicated during the conference that he was taking notes [Dkt. Entry 

166, Tr.32:24-33:1], the order contained the revised case management schedule with numerous 

dates and the transcript was necessary to ascertain the accuracy of the schedule. Therefore, 

the Clerk taxes the $208.25 cost of this transcript, which was charged at a $4.25 per page 

“expedite 14-day” rate. [Dkt. Entry 324-7, Ex. D]. It is reasonable to assume that the Court 

would have wished to enter the order within a two-week timeframe. 

As for the remaining transcripts, the Clerk agrees with Defendants that Plaintiffs have 

not met their burden of showing that they were necessary, rather than convenient for counsel. 

Judge Sheridan issued a written, not just an oral, opinion on the summary judgment motions 

[Dkt. Entry 151]. Ash Grove Cement Co., 2014 WL 837389, at *16 (written opinion issued after 

summary judgment hearing negated the need for transcript); Cf. Hollowell v. Kaiser Found. 

Health Plan of the Nw., No. 3:12-cv-2128-AAC, 2014 WL 6750325, at *4 (D. Or. Dec. 1, 

2014) (indicating the converse, i.e., that hearing transcript was “necessary for use in the case” 

where court issued oral ruling on motion for protective order, indicating on the order, “as stated 

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on the record”); Honeywell Int’l Inc. v. Nokia Corp., C.A. No. 04-1337, 2014 WL 2568041, 

at *8 (D. Del. May 30, 2014) (same). No appeals were taken from the rulings on the motions for 

summary judgment, attorney’s fees or stay. Plaintiffs have not shown that the Court requested 

any of these transcripts or that note-taking by counsel was insufficient. Accordingly, taxation of 

the other five transcripts is denied. Hearing transcripts are taxed in the amount of $208.25.

Trial Transcripts

Plaintiffs seek reimbursement of the $20,645.23 cost of the trial transcripts. [Dkt. Entry 

324-8, Ex. E]. This cost consists of the $20,136.75 fee of the proceedings of April 2-4, 8-12, 

18-19 and May 6-8 and the $508.48 cost of those held on May 9 and June 17, 2013 (224 pp. @ 

$2.27/p.). While 224 pages were charged at the “ordinary” rate of $2.27 per page, 1,981 pages 

were charged at the hourly rate of $7.25 per page and 292 page were charged at the expedited 

rate of $4.85 per page. Also, the $5,294.80 cost of Realtime is included within this total. 

Realtime technology allows the court reporter to instantly translate the spoken word into written 

form and send it to the attorney’s computer for immediate access to the translation.

In contesting this charge, Defendants assert that the length and complexity of the trial 

do not alone justify this cost, nor does the fact that the transcripts may have been helpful to 

counsel. Defs.’ Br. at 8. They further suggest that Plaintiffs’ counsel should have sought a court 

order prior to ordering these transcripts. Id.

The Clerk rejects Defendants’ position that Plaintiffs have failed to show the essential

nature of the transcripts. Plaintiffs point out several uses of the trial transcripts: to address 

various issues that arose during the course of the trial; to prepare post-trial findings of fact 

and conclusions of law required by the Court; and to prepare their opposition to CPV’s and the 

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State Defendants’ appeals to the Third Circuit. Pls.’ Br. at 5; Pls.’ Reply at 3-4. Furthermore,

the transcripts were required on an expedited basis both because Plaintiffs’ counsel cited to 

them in submissions to the Court during the trial [Dkt. Entries 253, 265] and because the 

proposed findings of fact and conclusions of law were due 15 days after trial completion [Dkt. 

Entry 272]. That being said, the Clerk finds that Plaintiffs have not justified, in addition to the 

hourly copies, the need for Realtime technology, which he views as a non-taxable convenience 

of counsel. Accordingly, trial transcripts are taxed in the amount of $15,350.43 ($20,645.23 –

$5,294.80). 

Deposition Transcripts

Plaintiffs request the $26,478.93 cost of the printed deposition transcripts of the 

following 27 deponents: Andrew Dembia, Richard Levitan, Oden Sherman Knight, Douglas 

Egan, James Guiliano, Peter Galbrait (Braith) Kelly, Craig Roach, Robert Yardley, Kevin 

McGowan, Kevin Reuter, Mark Finfrock, Stephen Kamppila, L. Gene Alessandrini, Kim 

Hanemann, Amy Hamilton, William Massey, Stephen Schleimer, Caleb Stephenson, Robert 

Willig, Richard Wodyka, Daniel Cregg, Anthony Robinson, William Berg, Joseph Dominguez, 

Zamir Rauf, Michael Cudwadie and Paul Sotkiewicz. Lustberg Decl. ¶ 8; [Dkt. Entry 324-9, 

Ex. F]. As five transcripts were also used for related litigation in the District of Maryland, 

Plaintiffs request only 50% of the cost of: the January 1, 2013 depositions of Michael Cudwadie 

and L. Gene Alessandrini; the January 18, 2013 deposition of Douglas Egan; the February 14, 

2013 deposition of Robert Willig; and the February 19, 2013 deposition of Paul Sotkiewicz. Id.

at ¶ 9.

Plaintiffs justify this cost by explaining that the depositions “contain testimony of trial 

witnesses, were designated and/or entered into the record pursuant to Federal Rule of Civil 

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Procedure 32, were used to prepare for direct and/or cross-examination, or were otherwise 

necessary for use in the case.” Pls.’ Br. at 6. 

Defendants object to this cost on the ground that Plaintiffs have not shown how the 

transcripts were “used at the trial under Fed. R. Civ. P. 32,” as required by L. Civ. R. 54.1(g) (7). 

Defs.’ Br. at 8-9. They further specify that Plaintiffs should not be reimbursed for the costs of 

shipping and handling, ASCII discs, multiple copies or expedited service. Id. at 9-10. 

Like hearing transcript costs, deposition transcript costs are taxable only to the extent 

that the transcripts were “necessarily obtained for use in the case,” under § 1920 (2). As 

Defendants point out, L. Civ. R. 54.1(g) (7) provides that “[i]n taxing costs, the Clerk shall allow 

all or part of the fees and charges incurred in the taking and transcribing of depositions used at 

the trial under Fed. R. Civ. P. 32,” and further, that “[f]ees and charges for the taking and 

transcribing of any other deposition shall not be taxed as costs unless the Court otherwise 

orders.” 

Defendants’ argument that the transcripts were not used at the trial is unavailing. 

The conflict between the “used at the trial” requirement of our local rule and the broader 

§ 1920 (2) standard of “necessarily obtained for use in the case” was reconciled by the Third 

Circuit in In re Baby Food Antitrust Litig., 166 F.3d 112, 138 (3d Cir. 1999). The circuit court 

held therein that a local court rule must yield to a federal rule where the two conflict, and 

interpreted “necessarily obtained” as allowing for the taxation of the cost of depositions used 

in deciding summary judgment motions. 

Furthermore, despite the “used at the trial” language of our local rule, it is generally 

accepted by this Court, and others, that “[f]or the costs to be taxable, the depositions need not 

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have been used at trial, and must only ‘appear reasonably necessary to the parties in light of a 

particular situation existing at the times they were taken.’” See, e.g., Thabault v. Chait, Civ. A. 

No. 85-2441, 2009 WL 69332, at *7 (D.N.J. Jan 7, 2009) (quoting Datascope Corp. v. SMEC, 

Inc., No. 81-3948, 1988 WL 98523, at *3 (D.N.J. Sept. 15, 1988)); Smith v. Crown Equip. Corp., 

No. Civ. A. 97-541, 2000 WL 62314, at *3 (E.D. Pa. Jan. 13, 2000).

Through an independent review of the docket, the Clerk has confirmed that with the 

exception of the Kelly transcript, all of the transcripts were used in summary judgment briefing 

[Dkt. Entries 88, 98, 100, 124], were designated for use at trial in the Final Pretrial Order 

[Dkt. Entry 232 at 43-49], contained testimony of either live trial witnesses [Dkt. Entries 252, 

255-60, 263-64, 266-68] or potential liability or expert trial witnesses listed on the Final Pretrial 

Order [Dkt. Entry 232 at 38-41] and/or were noticed for deposition by Defendants, Lustberg 

Decl. ¶ 10. Therefore, all but the Kelly transcript would have appeared reasonably necessary 

to Plaintiffs at the times they were taken. See Clerk’s decision in Cordis Corp. v. Abbott Labs., 

Civ. A. No. 07-2265 (D.N.J. June 6, 2014), [Dkt. Entry 162], at 15-16, and cases cited therein. 

The Clerk can find no indication in the docket of the significance of the deposition of Peter 

Galbrait (Braith) Kelly, and therefore, the $649.80 requested cost of that transcript is denied. 

[Dkt. Entry 324-9, Ex. F at 8].

As in the normal course, the Clerk taxes the cost of the original plus one copy (“Orig.

& 1”) or certified copy of the transcript, plus court reporting fees for attendance and for evening 

deposition times, “Evening Pages.” All other listed charges are denied, including for handling 

and delivery, litigation support services, i.e., word index, rough draft, interactive Realtime, rough 

ASCII, and for exhibits, the uses and needs of which are undefined by Plaintiffs. Plaintiffs have 

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not shown the necessity of these services and they are either for the convenience of counsel or in 

the nature of attorney’s fees. New Jersey Mfrs. Ins. Group v. Electrolux, Inc., Civ. A. No. 

10-1597, 2013 WL 5817161, **6, 8 (D.N.J. Oct. 21, 2013) and cases cited therein. 

Similarly non-taxable are the costs of expedited service, e.g., 2 or 3-5 day delivery and 

“expedited” rates of $4.75 and $6.00 per page for copies of the Stephenson/Schleimer/Cudwadie 

and Willig depositions, respectively. It appears that when the Stephenson/Schleimer/Cudwadie 

depositions were taken on January 3-4, 2012, the ordinary rate of J. H. Buehrer & Associates for 

copies was $3.00 per page, as reflected in the invoice for the December 21, 2011 

Berg/Hamilton/Kamppila depositions. It seems that that rate had increased to $3.50 per page by 

the time the Willig deposition was taken on February 21, 2013, as indicated in the invoice for the 

January 16, 2013 Rauf deposition. These adjustments will be made below. 

Also deducted are what appear to be either duplicate charges for the Cregg ($373.50) and 

Robinson ($180.00) depositions or charges for additional copies, which are non-taxable. This 

can be seen by comparing J. H. Buehrer & Associates’ invoice no. 9894 [Dkt. Entry 324-9, Ex. F 

at 22] with their invoice no. 9895, id. at 12. 

With the foregoing in mind, the Clerk taxes the following deposition charges, in the order 

in which they appear in Dkt. Entry 324-9, Exhibit F4:

Deponent Taxed Amount

Andrew Dembia, 12/15/11

Certified transcript $ 784.70

4 The entries below marked with an asterisk (*) are those for which Plaintiffs seek 

only half of the invoiced charges due to related litigation in the District of Maryland. Lustberg 

Decl. ¶ 9. Accordingly, the taxed amounts shown constitute 50% of the invoiced amounts 

allowed.

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Deponent Taxed Amount

Andrew Dembia, 2/12/13

Orig. & 1 $ 658.35

Reporter attendance $ 110.00

Richard Levitan

Orig. & 1 $ 1,089.00

Reporter attendance $ 110.00

Oden Sherman Knight

Orig. & 1 $ 888.25

Reporter attendance $ 90.00

Douglas Egan*

Orig. & 1 $ 680.00

Evening pages $ 13.00

Reporter attendance $ 45.00

Reporter attendance, evening session $ 33.75

James Giuliano

Orig. & 1 $ 163.35

Reporter attendance $ 110.00

Craig Roach

Orig. & 1 $ 1,381.25

Reporter attendance $ 90.00

Robert Yardley

Orig. & 1 $ 927.00

Reporter attendance $ 90.00

Kevin McGowan

Transcript copy $ 204.00

Kevin Reuter

Transcript copy $ 87.00

Mark Finfrock

Orig. transcript $ 301.50

Anthony Robinson, 1/24/13

Orig. transcript $ 180.00

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Deponent Taxed Amount

Daniel Cregg, 1/24/13

Orig. transcript $ 373.50

William Berg, Amy Hamilton & 

Stephen Kamppila

Transcript copy $ 369.00

Michael Cudwadie & L. Gene Alessandrini*

Certified transcript $ 398.13

Kim Hanemann

Orig. transcript $ 310.50

Joseph Dominguez

Orig. transcript $ 378.00

William Massey

Certified transcript $ 793.00

Evening pages $ 11.25

Caleb Stephenson, Stephen Schleimer & 

Michael Cudwadie

Transcript copy, unexpedited - 116 pp. @ $3.00/p. $ 348.00

Robert Willig, 2/14/13*

Certified transcript $ 489.13

Robert Willig, 2/21/13

Transcript copy, unexpedited – 93 pp. @ $3.50/p. $ 325.50

Richard Wodyka

Certified transcript $ 539.50

Daniel Cregg, 12/16/11

Certified transcript $ 126.85

Certified transcript (confidential) $ 135.70

Anthony Robinson, 12/16/11

Certified transcript $ 82.60

Zamir Rauf

Transcript copy $ 199.50

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Deponent Taxed Amount

Paul Sotkiewicz*

Orig. & 1 $ 584.38

Evening pages $ 13.00

Reporter attendance $ 45.00

Reporter attendance, evening session $ 33.75

Total: $13,592.44

Combining the costs of the hearing ($208.25), trial ($15,350.43), and deposition 

($13,592.44) transcripts, pursuant to § 1920 (2), transcripts are taxed in the total amount of 

$29,151.12.

V. Witness Fees, § 1920 (3)

Pursuant to § 1920 (3) and 28 U.S.C. §1821, Plaintiffs ask the Clerk to tax witness fees 

in the total amount of $10,468.31, after reducing the requested amount by $1,466.20 in their 

reply. Pls.’ Reply at 5, n.4. This amount includes the $40 statutory per diem witness fee as well 

as subsistence and travel costs for witnesses produced for deposition and at trial. Lustberg 

Decl. ¶¶ 10-17. The requested fees are set forth in Plaintiffs’ charts in “Attachment 1 to AO 133: 

Deposition Witnesses,” and “Attachment 2 to AO 133: Trial Witnesses,” [Dkt. Entry 324-1 

at 3-5], and receipts are provided in Exhibit G, [Dkt. Entry 324-10] and Exhibit H, [Dkt. Entry 

324-11]. Such costs were halved in those instances where the fees were also attributable to the 

related litigation in the District of Maryland, i.e., Mr. Alessandrini’s January 14, 2013 deposition 

and Dr. Willig’s February 14, 2013 deposition, both of which occurred in Washington, D.C. 

Pls.’ Br. at 6, n.4.; Attach. 1 [Dkt. Entry 324-1], n.1, n.2. 

Plaintiffs cite the relevant legal standards, L. Civ. R. 54.1(g) and 28 U.S.C. § 1821. 

Pls.’ Br. at 6-8. Our local rule provides: 

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(1) The fees of witnesses for actual and proper attendance shall be allowed,

whether such attendance was voluntary or procured by subpoena. The rates 

for witness fees, mileage and subsistence are fixed by statute (see 28 U.S.C. 

§ 1821). Witness fees and subsistence are taxable only for the reasonable 

period during which the witness was within the District. Subsistence to the 

witness under 28 U.S.C. § 1821 is allowable if the distance from the courthouse 

to the residence of the witness is such that mileage fees would be greater than 

subsistence fees if the witness were to return to his or her residence from day 

to day.

L. Civ. R. 54.1(g) (1). 

Local Civil Rule 54.1(g) (7) also provides that “[f]ees for the witness at the taking of a 

deposition are taxable at the same rate as for attendance at trial. (See L. Civ. R. 54.1(g) (1).)”

Our applicable local rule incorporates 28 U.S.C. § 1821 by reference, and thus, 

allowable witness fees are controlled by § 1821. That statute provides for the payment of 

witnesses’ fees and allowances for their attendance in federal court. 28 U.S.C. § 1821(a) (1). 

Subsection (b) therein allows a $40 per day attendance fee “for the time necessarily occupied 

in going to and returning from the place of attendance at the beginning and end of such 

attendance or at any time during such attendance.” Subsection (c) provides for the actual 

expenses of the most economical common carrier that is reasonably available, traveling the 

shortest practical route, as well as “[a]ll normal travel expenses within and outside the judicial 

district,” including parking fees, tolls and taxicab fares. Also, the mileage allowance for travel 

by privately owned vehicle is that prescribed by the Administrator of General Services (“GSA”), 

pursuant to 5 U.S.C. § 5704. Subsection (d) allows a subsistence fee for a required overnight 

stay, provided that the per diem rate does not exceed the allowance established by the GSA, 

pursuant to 5 U.S.C. § 5702(a), in the area of attendance.

Defendants do not take issue with the witnesses listed by Plaintiffs. However, they do 

assert that Plaintiffs’ request is excessive, principally because those witnesses did not travel by 

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automobile, train or plane at “the most economical rate reasonably available,” as required under 

§ 1821(c). Defs.’ Br. at 10-15. Defendants complain that certain witnesses used the more 

expensive Acela Amtrak service, rather than the Northeast Corridor Amtrak service, flew firstclass or used costly limousine services. They object also on the grounds that some witnesses 

did not travel by the shortest route possible or stayed more nights than are legally taxable. Id. 

Defendants further criticize Plaintiffs’ proofs as lacking or deficient, arguing that in certain 

instances, Plaintiffs provide no receipt or the date on the receipt does not match the date of the 

deposition. 

The Clerk agrees with Defendants on many of these points and makes certain adjustments 

below, where necessary, in taxing the combined deposition and trial fees for each witness. 

Deposition Witnesses Only 

Plaintiffs seek reimbursement of the fees of the following witnesses who testified at 

deposition only. 

Kim Hanemann, Stephen Kamppila, Kevin McGowan, Kevin Reuter, Stephen Schleimer 

and Caleb Stephenson

Plaintiffs request just the $40 per diem fee for the one-day attendance at deposition 

of the above-listed witnesses and Defendants do not object. Attendance fees for these six 

witnesses are granted in the amount of $240.00. 

Amy Hamilton

In addition to the $40 per diem fee for her one-day attendance at deposition, Plaintiffs 

request the $13.00 parking fee, for which they have provided the receipt. [Dkt. Entry 324-10, 

Ex. G at 29]. Fees for this witness, to which Defendants do not object, are taxed in the amount 

of $53.00.

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L. Gene Alessandrini

The requested fees for this witness’ one-day deposition in Washington, D.C. on 

January 14, 2013 have been halved by Plaintiffs, as being related to the Maryland litigation. 

Supporting documentation shows that this witness traveled round-trip between Wilmington, DE 

and Washington, D.C. via the Acela train, business class, at the cost of $194.00. He left on the 

day before his deposition, January 13, stayed overnight in Washington, D.C., and returned to 

Wilmington on the evening of his deposition. 

Defendants correctly observe that they should not have to pay for the more costly 

transportation used by this witness. See e.g., Osseiran v. Int’l Fin. Corp., Civ. A. No. 06-336, 

2014 WL 4694815, at *4 (D.D.C. Sept. 22, 2014) (noting that “[b]usiness-class fare is not ‘the 

most economical rate reasonably available,’” and, finding no other means of determining that 

economical rate, reduced requested airfare by 50%); Jacoby Airplane Crash Litig., Civ. A. No. 

99-6073, 2008 U.S. Dist. LEXIS 118037, at *12-14 (D.N.J. Oct. 7, 2008) (same). The Clerk 

has determined that, currently, the cost of an Amtrak Northeast Regional coach ticket, which 

this witness could have used, is 70% of that of an Acela business class ticket, during the same 

time frame. http://tickets.amtrak.com/itd/amtrak#. Before halving the costs, they should be 

taxed as follows: train ticket - $135.80 ($194.00 x .7); two days of attendance fees - $80.00; 

train station parking - $18.00; taxicab fares - $31.00; one night’s lodging at the GSA rate for 

Washington, D.C. in January 2013, www.gsa.gov/portal/category/100120 – $183.00; meals for 

January 14 at the GSA “M & IE” rate, id. - $71.00; and meals for January 13 at the GSA travel 

day rate, id. -- $53.25. These total $572.05. Halved, they amount to $286.03. 

Mark Finfrock

The submitted receipts indicate that this witness took the Acela train, business class, 

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from Washington, D.C. to Newark, on January 23, 2013, the day before his deposition, and 

returned the same way to Washington, D.C. on January 24, the day of his deposition. The Clerk 

will apply the 70% discount, explained above, to the train cost of $417.00, and taxes: train 

ticket - $291.90 ($417.00 x .7); two days of attendance fees - $80.00; one night’s lodging at 

the GSA rate that applied to Newark in January 2013, www.gsa.gov/portal/category/100120 -

$120.00; meals for January 24 at the GSA “M & IE” rate - $61.00; meals for the January 23 

travel day at the GSA rate, id. – $45.75. Fees are taxed in the total amount of $598.65 for this 

witness. 

William Berg

Plaintiffs request the cost of this witness’ attendance and Acela business class train ticket, 

roundtrip between Wilmington, DE and Newark, for his December 21, 2011 deposition. No 

subsistence fees are requested or due, as this witness returned on the same day. Defendants 

argue not only that Mr. Berg could have purchased a less expensive Northeast regional coach 

ticket instead, but that Plaintiffs have supplied only ticket stubs, not receipts. The information on 

the ticket stubs, i.e., the witness’ name, the date, the points of origin and destination, the ticket 

class and the cost ($96.00 + $112.00 = $208.00), are proof enough for the Clerk, who applies the 

70% discount again, and taxes: train ticket – $145.60 ($208.00 x .7); and a one day attendance 

fee - $40.00; or a total of $185.60.

Richard Wodyka

This witness testified in Washington, D.C. on March 1, 2013. He traveled from 

Wilmington, DE on that date on an Acela business class ticket, which cost $97.00. While he 

returned the following day on the less expensive Northeast regional line, his $71.00 business 

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class ticket cost $24.00 more than the $47.00 coach seat, per the submitted receipt. Plaintiffs 

request the attendance fee and travel costs in the amount of $253.95, although the receipts 

supplied only add up to $200 ($168.00 train + $22.00 parking + $10.00 taxicab). They do not 

ask for subsistence fees. Applying the 70% discount to the Acela travel to Washington, D.C., 

and deducting the $24.00 surcharge for the business class return ticket, the Clerk grants: train 

ticket -- $114.90 (($97.00 x .7) + $47.00); two days of attendance fees -- $80.00; parking in 

Wilmington -- $22.00; and taxicab fare -- $10.00; totaling $226.90. 

Deposition and Trial Witnesses

Plaintiffs ask for the fees of the following witnesses who testified both at deposition and 

trial: Daniel Cregg, Michael Cudwadie, Joseph Dominguez, Zamir Rauf, Anthony Robinson, 

William Massey and Robert Willig. Receipts for trial witness fees are set forth in Exhibit H, 

[Dkt. Entry 324-11].

Daniel Cregg

Plaintiffs request just the $40 per diem fee for the attendance at depositions and trial 

of this witness, a resident of New Jersey. Mr. Cregg attended two days of depositions, 

on December 16, 2011 and January 24, 2013, and one day of trial, on April 10, 2013. Fees for 

this witness are taxed in the amount of $120.00.

Anthony Robinson

Attendance fees alone are requested in connection with the deposition and trial testimony

of this witness from New Jersey. The Clerk grants $80 for two days of deposition attendance,

on December 16, 2011 and January 24, 2013, and $40 for his trial attendance on April 10, 2013,

or a total of $120.00.

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Michael Cudwadie

This witness was deposed on January 3 and/or 4, 2012 in Newark, to which he drove 

in his car, presumably, from Pennsylvania (listed on Attachs. 1 & 2 as the state of his residence). 

Plaintiffs ask for two days’ attendance, $181.00 in subsistence, and $114.13 in travel costs, 

which consist of $92.13 for mileage, $21.00 for parking and a $1.00 toll. Defendants object 

to taxing the mileage cost, as the origin of the witness’ trip and therefore, the mileage, are

unknown, as is the rate used by Plaintiffs. The Clerk agrees and denies this cost. Deposition 

costs are taxed as follows: two days of attendance fees -- $80.00; one night’s lodging at the 

GSA rate applicable to Newark in January 2012, www.gsa.gov/portal/category/100120 --

$120.00; one day of meals at the GSA rate, id. -- $61.00; one travel day of meals at the GSA 

rate, id. – $45.75; parking -- $21.00; and toll -- $1.00; or a total of $328.75. 

Michael Cudwadie testified at the trial in Trenton on one day, April 11, 2013. The 

GSA per diem rates for Trenton at the time of trial were: $119 for lodging; $61.00 for meals; 

and $45.75 for travel day meals. In addition to attendance fees and subsistence, Plaintiffs 

request $123.70 in travel costs, which include an $85.88 mileage fee, on top of parking and tolls. 

Defendants make the same objection regarding the mileage cost, which Plaintiffs fail to explain. 

The Clerk accepts Defendants’ argument and taxes just: two days of attendance fees -- $80.00; 

one night’s lodging -- $119.00; one day of meals -- $61.00; one travel day of meals -- $45.75; 

parking in Trenton -- $7.00; and tolls -- $10.48. The total is $323.23.

Joseph Dominguez

This witness sat for his deposition in Newark on January 22, 2013, and Plaintiffs 

ask for the cost of attendance, his taxicab fare ($24.33) and his Acela train ticket from 

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Washington, D.C. ($249.00) for his same-day trip. Accepting Defendants’ objection to 

travel via the Acela train, the Clerk again taxes the cost of the train ticket at 70%. 

Mr. Dominguez’s deposition costs are taxed at: train ticket -- $174.30 ($249.00 x .7); 

a one day attendance fee – $40.00; and cab fare -- $24.33, or a total of $238.63.

This witness traveled on April 2, 2013 to attend trial on April 3 and April 4, when his 

testimony was anticipated. Attach. 2, n.3. He returned home on April 4. He traveled back north 

from Maryland on April 7 to testify when trial resumed on April 8, the day he also left for home. 

Plaintiffs request four days of attendance and subsistence, as well as $737.00 in travel costs. 

Piecing together three Amtrak “Lost Receipt Forms” and receipts, the Clerk believes that on 

April 2, this witness used Uber car service ($44.00) for the drive from his Bethesda home to 

the Washington, D.C. train station, where he took the Amtrak train ($174.00) (presumably, 

Acela, based upon the price) to Newark, and then used Uber ($187.00) for the drive from 

Newark to Princeton, where he stayed the nights of April 2 and 3. On April 4, he took the 

Amtrak ($146.00) (again, presumably, Acela) from Philadelphia to Washington, D.C. and used 

Uber ($40.00) for the drive from the train station to home. In connection with this witness’ 

second trip back north, Plaintiffs have submitted just the invoice from the Hyatt Regency 

Princeton for April 7 and 8, the Lost Receipt Form for the Amtrak ($109.00) from Philadelphia 

to Washington, D.C. on April 8, and the Uber invoice ($37.00) for car service from the train 

station to his home. In addition to this $737.00 travel cost, Plaintiffs ask for attendance and 

subsistence, or a total of $1,617.00. 

Like Defendants, the Clerk finds that this witness incurred unnecessary expenses by 

taking a circuitous route. Also, while Mr. Dominguez may have desired to stay in Princeton, 

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rather than Trenton, Defendants do not have to bear the cost of that choice. Section 1821(c) (1) 

allows for the actual expense of travel “on the basis of the means of transportation reasonably 

utilized and the distance necessarily traveled to and from such witness’s residence by the shortest 

practical route in going to and returning from the place of attendance.” The witness could have 

purchased Amtrak coach train tickets for the trip between Washington, D.C. and Trenton at the 

cost of $126.00 each way. Accordingly, for the two separate trial attendances in Trenton, the 

Clerk grants: five days of attendance fees – $200.00; four train tickets to/from Trenton –

$504.00 ($126.00 x 4); three nights’ lodging (Apr. 2, 3, 7) at the GSA rate then-applicable to 

Trenton – $357.00 ($119.00 x 3); three days of meals -- $183.00 ($61.00 x 3); two travel days 

of meals – $91.50 ($45.75 x 2); and Uber car fare – $121.00 ($44.00 + $40.00 + $37.00). 

This witness’ costs total $1,456.50. 

Zamir Rauf

This witness sat for a deposition in Newark on January 16, 2013. In connection 

therewith, Plaintiffs originally requested: three days’ attendance ($120.00); two days of 

subsistence ($362.00) at the then-applicable GSA per diem rate for Newark of $181.00 ($120.00 

for lodging and $61.00 for meals); and travel costs ($2,770.57). Receipts covering the travel 

are for: two first-class flight tickets from Houston to LaGuardia Airport, costing $1,246.40 each, 

one for January 14, 2013 and one for January 16, 2013; car service for a trip from LaGuardia 

Airport to the Ritz Carlton, New York City, charged at $167.52, and cab fare for January 15, 

2013, costing $110.25, presumably from the Ritz Carlton to Newark for deposition preparation. 

In connection with Mr. Rauf’s trial attendance on April 11 and 12, 2013, Plaintiffs 

have submitted a receipt for a first-class flight from Houston to Newark on April 11, 2013, 

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costing $1,575.40. In addition to this travel cost, Plaintiffs ask for $80.00 in attendance fees and 

one day’s subsistence at the correct GSA rate for Trenton of $180.00 ($119.00 for lodging and 

$61.00 for meals) or the total amount of $1,835.40. 

In response to Defendants’ objection to taxing first-class flight tickets, Plaintiffs reduced 

their request by $1,466.20. Pls.’ Reply at 4-5, n. 4. They show that the cost of a one-way 

refundable coach class ticket from Houston to Newark in April 2014 was $863.00. Id. at n.4, 

Ex. B. 

Like Mr. Dominguez, this witness chose more luxurious accommodations than were 

necessary and under the statute, Defendants are not required to foot that bill. Rather than flying

first-class into LaGuardia to stay at the Ritz Carlton on Central Park South, this witness could 

have flown via coach fare directly into Newark to attend his deposition in Newark. For both 

the deposition and trial fees, the Clerk will use the $863.00 figure provided by Plaintiffs. 

Considering that the flight alone between Newark and Houston lasts more than four 

hours, the Clerk agrees that it is reasonable to grant an extra two days of attendance for travel, 

in addition to the day of attendance for deposition, and Defendants do not object to this. 

Deposition fees are taxed as follows: three days of attendance fees -- $120.00 ($40.00 x 3); 

two coach flight tickets between Houston and Newark -- $1,726.00 ($863.00 x 2); two nights’ 

lodging at the then-applicable GSA rate for Newark – $240.00 ($120.00 x 2); one day of meals 

at the GSA rate – $61.00; two travel days of meals at the GSA rate of $45.75 -- $91.50 

($45.75 x 2). The expensive car fares are denied. Deposition fees are taxed at $2,238.50.

For this witness’ trial attendance, Plaintiffs request only two days of attendance fees 

and one day of subsistence. Documentation shows that he flew into Newark on the first 

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day of his trial testimony, and he must have flown back home on the second day of his trial 

attendance. The Clerk taxes: two days of attendance fees -- $80.00 ($40.00 x 2); two coach 

flight tickets -- $1,726.00 ($863.00 x 2); one nights’ lodging at the GSA rate for Trenton –

$119.00; two days of meals at the GSA rate -- $122.00 ($61.00 x 2). These total $2,047.00. 

William Massey

Just a $40.00 attendance fee is requested for this witness’ deposition on February 26, 

2013. This unopposed fee is granted. 

For his trial attendance, this witness traveled north from Washington, D.C. on April 1, 

2013, testified on April 3 and 4, during which time he stayed overnight in Princeton, and 

returned home on April 4. Plaintiffs seek reimbursement of: $120.00 for three days of 

attendance; $360.00 for two days of subsistence at the correct GSA per diem rate of $180.00,

with lodging ($119.00) and meals ($61.00) combined; and $727.93 in travel costs, consisting of 

$272.00 for Amtrak ($148.00 + $124.00), $13.00 for parking in Trenton, $88.00 for parking 

at Union Station, Washington, D.C. (4 days at $22.00/day), and $354.93 for car rental. 

Defendants’ point, like that made in connection with Mr. Dominguez’s trial attendance, 

is well-taken. Plaintiffs are not entitled to these unnecessary travel costs under § 1821. This 

witness could have merely taken the train from Washington, D.C. directly to Trenton at the cost 

of $126.00 per ticket, instead of this circuitous route, which entailed an expensive rental car fee. 

The Clerk grants: three days of attendance fees -- $120.00; two trains tickets -- $252.00 

($126.00 x 2); two nights’ lodging at the GSA rate -- $238.00 ($119.00 x 2); two days of meals

at the GSA rate -- $122.00 ($61.00 x 2); one travel day of meals at the GSA rate -- $45.75; and 

three days of parking in Washington, D.C. -- $66.00 ($22.00 x 3). This witness’ trial attendance 

fees are taxed in the amount of $843.75. 

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Robert Willig

This witness from New Jersey testified at his deposition in Washington, D.C. on 

February 14, 2013 and in Trenton on February 21, 2013. Plaintiffs request only half of the 

taxable costs of his February 14 deposition, as being related to the Maryland litigation. 

Before halving the costs, for the February 14 deposition, Plaintiffs ask for three days of 

attendance, and subsistence, which appear to include arrangements for preparation with counsel. 

They also ask for $155.00 in car and taxi fares and $239.00 for the cost of the train. As 

Defendants point out, these requested fees are either excessive or undocumented. The Clerk 

does not tax any of the travel costs, as the travel point of origin is unspecified and no receipts 

have been provided. Only attendance and subsistence for one travel day and one full day are 

taxed, as follows: two days of attendance fees – $80.00; one night’s lodging at the thenapplicable GSA rate for Washington, D.C. -- $183.00; one day of meals at the GSA rate –

$71.00; one travel day of meals at the GSA rate – $53.25. This total of $387.25 amounts 

to $193.63, when halved. 

For the February 21, 2013 deposition in Trenton, Plaintiffs request one day of attendance 

and $130.00 for car service, although the amounts of $62.54 and $77.47 indicated on the 

submitted statement total $140.01. In any event, the statement date of February 23 does not 

match the deposition date and again, no receipts have been provided. Just a one day attendance 

fee of $40.00 is taxed on connection with this deposition. Deposition costs are taxed in the 

total amount of $233.63 ($193.63 + $40.00).

For Dr. Willig’s trial attendance on April 9 and 10, 2013, Plaintiffs seek just two days 

of attendance fees, or $80.00, to which Defendants do not object. This amount is allowed. 

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Summary of Witness Fees

Witness Taxed Amount

Kim Hanemann $ 40.00

Stephen Kamppila $ 40.00

Kevin McGowan $ 40.00

Kevin Reuter $ 40.00

Stephen Schleimer $ 40.00

Caleb Stephenson $ 40.00

Amy Hamilton $ 53.00

L. Gene Alessandrini $ 286.03

Mark Finfrock $ 598.65

William Berg $ 185.60

Richard Wodyka $ 226.90

Daniel Cregg – Deposition: $ 80.00

 “ “ -- Trial: $ 40.00

Anthony Robinson – Deposition: $ 80.00

 “ “ -- Trial: $ 40.00

Michael Cudwadie – Deposition: $ 328.75

 “ “ -- Trial: $ 323.23

Joseph Dominguez – Deposition: $ 238.63

 “ “ -- Trial: $ 1,456.50

Zamir Rauf – Deposition: $ 2,238.50

 “ “ -- Trial: $ 2,047.00

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Witness Taxed Amount

William Massey – Deposition: $ 40.00

 “ “ -- Trial: $ 843.75

Robert Willig – Deposition: $ 233.63

 ” “ -- Trial: $ 80.00

Total: $ 9,660.17

Under § 1920 (3), witness fees are taxed in the total amount of $ 9,660.17.

VI. Exemplification and Cost of Making Copies, § 1920 (4)

Plaintiffs’ request, under § 1920 (4), for the $52,630.97 cost of exemplification and 

of making copies, consists of: the $1,886.25 cost of in-house copying for summary judgment 

briefing, which entailed over thirty exhibits; the $29,099.72 cost of third-party copying of trial 

exhibits; and the $21,645.00 cost of demonstratives for use at trial. Pls.’ Br. at 8-9. 

In addition to arguing that Plaintiffs have failed to distinguish Commerce Clause copies 

from Supremacy Clause copies, Defendants contend that Plaintiffs have not shown which copies 

were “necessarily obtained for use in the case,” as opposed to being for the convenience of 

counsel. Defendants further contend that Plaintiffs do not satisfy the dual requirements of our 

local rule and that the copying rates charged are excessive. Defs.’ Br. at 15-17.

As Defendants observe, our local court rule imposes a two-part condition for the 

taxation of copies: 

The fees for exemplification and copies of papers are taxable when

(A)the documents are admitted into evidence or necessarily attached 

to a document required to be filed and served in support of a dispositive

motion, and (B) they are in lieu of originals which are not introduced

at the request of opposing counsel. The cost of copies submitted in lieu

of originals because of convenience to offering counsel or his or her 

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client is not taxable. The cost of copies obtained for counsel’s own use 

is not taxable.

L. Civ. R. 54.1(g) (9).

However, this Court has previously allowed the taxation of the cost of copies without 

strict adherence to the dual requirements of L. Civ. R. 54.1(g) (9). In the Hurley case, the court 

noted that departure from the local rule would be permissible, although only to the extent 

consistent with § 1920 (4). 1996 WL 549298, at *3, n.5. See also Thabault, 2009 WL 69332, 

at *13-14; Reichhold, Inc. v. U.S. Metals Ref. Co., Civ. A. No. 03-453, 2009 WL 3761828, 

at *4 (D.N.J. Nov. 6, 2009). This is in keeping with the Third Circuit’s statement that a local 

court rule must yield to a federal rule where the two conflict. In re Baby Food Antitrust Litig., 

166 F.3d at 138.

Accordingly, this Court requires only satisfaction of the test of § 1920 (4), i.e., that 

the copies have been “necessarily obtained for use in the case.” The Clerk must determine 

the reason for these materials and deny taxation if they were made merely for counsel’s 

convenience. However, as this Court stated in Thabault, “[c]osts are taxable under this provision 

‘even if the documents are not offered into evidence at trial.’” 2009 WL 69332, at *14 (quoting 

Hurley, 1996 WL 549298, at *3).

In-House Copies

The description on the submitted invoices of the black and white copies made for 

Plaintiffs’ summary judgment briefing is “Duplicating: Duplication of SJ motion 

papers for submission to court and attorney reference. 2,840 B & W copies.” The same 

description is shown for the black and white copies of their reply papers, which numbered 

2,465 thereon. Those copies were charged at the rate of $.25 per page. [Dkt. Entry 324-12,

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Ex. I, at 2-3]. The invoice also describes charges for color copying as: “Color Duplicating: 

Duplication of SJ reply papers for submission to court and attorney reference. 560 color copies.” 

The color copies were charged at the rate of $1.00 per page. Id. at 3. 

The supporting invoices themselves indicate that some copies were made for “attorney 

reference,” and were therefore for the convenience of counsel. These are non-taxable. 

Conversely, copies which were required to be filed with the Court or provided to opposing 

counsel were necessarily obtained for use in the case under § 1920 (4). Shukh v. Seagate Tech., 

LLC, Civ. No. 10-404, 2014 WL 4348199, at *6 (D. Minn. Sept. 2, 2014) and cases cited 

therein (courtesy copies which are required to be filed with the court are necessarily obtained, 

not for the convenience of counsel, and are taxable). This is a generally accepted principle. See

e.g., Metropolitan Van and Storage, Inc. v. United States, 101 Fed. Cl. 173, 203 (Fed. Cl. 2011); 

Friedlander v. Nims, 583 F. Supp. 1087, 1088 (N.D. Ga. 1984); Universal City Studios, Inc. v. 

Nintendo Co., Ltd., No. 82 Ci. 4259, 1986 WL 11462, at *2 (S.D.N.Y. Oct. 6, 1986). 

In this judicial district, one courtesy copy of all papers filed in support of or in opposition 

to a motion must be submitted to the Judge’s chambers. L. Civ. R. 7.1 (g). Otherwise, 

documents are filed and served on the parties through the Court’s CM/ECF System. A hard copy 

of motion papers need not be served on opposing counsel. Per the Clerk’s count from the 

docket, these copies number 1,277. [Dkt. Entries 88, 124]. Defendants are correct in stating 

that a reasonable copying rate for black and white copies is $.10 to $.15 per page, not the $.25 

per page charged on Plaintiffs’ invoices. Interfaith Community Org. v. Honeywell, Int’l, 426 

F.3d 694, 717 (3d Cir. 2005). Also, Plaintiffs fail to explain why color copies were necessary, 

particularly when they were invoiced at $1.00 per page. The bulk of the exhibits attached to 

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their motion papers are reports, emails, transcripts and the like. The Clerk taxes 1,277 pages 

at the rate of $.15 per page, or $191.55 for in-house copies made in connection with Plaintiffs’ 

summary judgment briefing.

Third-Party Copying of Trial Exhibits

The requested cost of copies also includes the $29,099.72 fee of a third-party, DTI, for 

making copies of trial exhibits. In addition to the cost of tabs and binders, Plaintiffs ask for the 

cost of 94,934 black and white blowbacks, charged at $.08 per page, and 27,206 color 

blowbacks, invoiced at $.75 per page. 

While the DTI invoices show the total number of pages copied and the copying rate,

there is no indication of the number of copies made of each exhibit. However, the Clerk 

appreciates that the trial exhibits in this rather complicated case were voluminous. Plaintiffs’ 

revised exhibit list [Dkt. Entry 245] shows 416 exhibits. Also, the terms of the Final Pretrial 

Order [Dkt. Entry 232 at 42] required that the parties supply copies of their trial exhibits to 

each other and a bench book of exhibits to the Court. 

Nor is there any indication whether the trial exhibits copied were just Plaintiffs’, 

to supply to defense counsel and the Court, and not Defendants’ exhibits. If Plaintiffs had 

copies of Defendants’ exhibits made, they would have been made merely for the convenience 

of counsel, since defense counsel would have provided its trial exhibits to Plaintiffs under the 

terms of the Final Pretrial Order. Plaintiffs’ counsel rather vaguely states, “Plaintiffs hired an 

outside vendor, DTI, to make copies of the trial exhibits in this case.” Lustberg Decl. ¶ 20. 

Plaintiffs also just describe this cost as “$29,099.72 for vendor-generated copying costs 

associated with the trial exhibits in this case, many of which were admitted into evidence.”

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Pls.’ Br. at 9. Accordingly, the Clerk taxes 50% of the cost of these blowbacks, after deducting 

the cost of binders and tabs, which are non-taxable. Yong Fang Lin v. Tsuru of Bernards, LLC, 

Civ. A. No. 10-2400, 2011 WL 2680577, at *5 (D.N.J. July 8, 2011) (disallowing cost of exhibit 

binders as general overhead cost); Laura P. v. Haverford School Dist., Civ. A. No. 07-5395, 

2009 WL 1651286, at *9 n.10 (E.D. Pa. June 12, 2009) (same); Close-Up Int’l, Inc. v. Berov, 

Civ. A. No. 02-CV-2363, 2007 WL 4053682, at *11 (E.D.N.Y. Nov. 13, 2007) (denying costs of 

trial exhibit binders and tabs as being subsumed in attorney’s fees) and cases cited therein.

The cost of trial exhibits is taxed in the amount of $13,999.61 ($27,999.22 x .5).

Demonstratives

In addition to the cost of trial exhibits, Plaintiffs’ seek reimbursement of the $21,645.00 

fee of Tangent Computer Solutions, LLC (“Tangent”) to prepare unspecified “demonstratives” 

for use at the trial. Plaintiffs’ counsel explains, “the vast majority were used during trial to 

illustrate factual evidence and/or in further support of witness testimony in order to assist the 

Court. The demonstratives were necessary in order for Plaintiffs to explain the complex issues 

in the case.” Lustberg Decl. ¶ 21. 

The Clerk explored the taxability of demonstratives at length in his decision in 

Warner Chilcott Labs. Ireland Ltd. v. Impax Labs., Inc., Civ. A. Nos. 08-6304, 09-2073, 

09-1233, 2013 WL 1876441, at *13-17 (D.N.J. Apr. 18, 2013), after the Third Circuit’s groundbreaking decision in the case of Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158

(3d Cir.), cert. denied, 133 S. Ct. 233 (2012). Basically, the cost of demonstratives falls under 

the other prong of § 1920 (4) for “exemplification,” which is yet undefined in the Third Circuit. 

However, the Third Circuit’s Race Tires decision, which addresses the taxability of electronic 

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discovery as “the costs of making copies” under § 1920 (4), evinces a clear intent by the Third 

Circuit to pull in the reins on taxable costs. 

The Clerk noted in his Warner Chilcott opinion, “[l]acking a clear directive from the 

Third Circuit, the Clerk must take cues both from the Circuit Court’s analysis in Race Tires and 

the United States Supreme Court’s most recent application of § 1920 in the Taniguchi case,”

which “undoubtedly proscribe exorbitant cost awards which contravene the Congressional intent 

in enacting a statute that limits costs to specified categories.” 2013 WL 1876441 at *14. The 

Clerk distinguished between the intellectual effort required to produce demonstratives from 

their actual physical preparation, and denied the fees of specialists charged at rates of $195.00,

$225.00 and $245.00 per hour. 

In a companion opinion, the Clerk further cited to the Supreme Court’s comment in 

Taniguchi, 132 S. Ct. at 2006, that “[t]axable costs are a fraction of the nontaxable expenses 

borne by litigants for attorneys, experts, consultants, and investigators.” Warner Chilcott Labs. 

Ireland Ltd., 2013 WL 1716468, at *12.

Here, Plaintiffs’ counsel describes this requested cost as one for “physically” preparing 

demonstratives. Lustberg Decl. ¶ 21. However, the supporting invoices are very vague and 

do not give a clear indication of the services provided by Tangent. The invoices merely use 

the descriptions of “Demonstrative Exhibits,” “Demonstrative Exhibits & Revisions,” “Exhibit 

Labels,” “Demonstrative Exhibits & Exhibits Labeling,” and “Demonstratives.” [Dkt. Entry 

324-13 at 2, 4, 5]. The Clerk does not even know what the demonstratives were, be they 

graphics, computer animations or videos. Furthermore, these services, charged at the rate of 

$195.00 per hour, are those of computer “experts,” which the Supreme Court has warned are 

nontaxable.

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Based upon the foregoing, the Clerk denies all requested costs of the demonstratives.

Under § 1920 (4), the Clerk taxes the fees for exemplification and costs of making copies 

in the amount of $14,191.16 ($191.55 + $13,999.61).

VII. Docket Fees, § 1920 (5)

The penultimate item requested by Plaintiffs is the docket fee provided in 28 U.S.C. 

§ 1923 and allowed pursuant to § 1920 (5). Section 1923 (a) provides that “[a]ttorney’s and 

proctor’s docket fees in courts of the United States may be taxed as costs as follows: $20 on trial

. . . in civil . . . cases . . . .” Plaintiffs are entitled to recover this fee, which Defendants do not 

oppose and therefore, the Clerk taxes this $20.00 cost. 

VIII. “Other” Costs – Trial Support 

Finally, Plaintiffs seek reimbursement of the $45,630 cost of Tangent, which “provided 

trial support to Plaintiffs by operating the equipment in court and assisting with the presentation 

of trial exhibits to the court during trial.” Lustberg Decl. ¶ 22. Plaintiffs assert that Tangent’s 

trial support was “necessary to illustrate and explain the complex issues in the case.” Id.

According to Defendants, who cite the standard of § 1920 (4), “Plaintiffs have failed to 

show why the vendor services were necessarily obtained for use in the case, as opposed to a mere 

convenience of counsel.” Defs.’ Br. at 18. They further assert that Plaintiffs have not specified 

which of the line items in Tangent’s invoice Plaintiffs attempt to recover, and that Plaintiffs 

“have not shown which costs were incurred for their Supremacy Clause claim, as opposed to 

their unsuccessful Dormant Commerce Clause claim.” Id.

Plaintiffs respond to Defendants’ objection by explaining that they seek only the cost 

of Tangent’s courtroom and warroom support, and not the cost of meals, hotels, and the like.

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Pls.’ Reply at 5. However, the Clerk appreciates Defendants’ criticism that it is unclear which 

of the invoiced charges Plaintiffs are attempting to recoup as trial support costs. All invoiced 

items described as “Courtroom/Warroom Support” total $36,700, not the $45,630 requested by 

Plaintiffs. [Dkt. Entry 324-13, Ex. J]. If the items described as “Travel,” to either Princeton or 

MD, or “Travel . . . /Warroom Support,” amounting to $7,702.50, are added in, the new total is 

$44,402.50. Adding in two equipment rentals, amounting to $1,560, does not clarify this issue. 

With the exception of the equipment rental, all services were invoiced by Tangent at the rate of 

$195.00 per hour. 

It is not surprising that Plaintiffs list such fees as “other costs” in their bill of costs,

as they are unable to show that these charges fall within the limited categories of § 1920. They 

merely cite the Clerk’s opinion in the Ricoh case, 2007 WL 1852553, at *3, rendered before the 

Third Circuit’s and Supreme Court’s decisions in Race Tires and Taniguchi, for the proposition 

that the cost of a trial support team is “ ‘an ordinary litigation expense subject to taxation’ for 

large, complex cases such as this one.” Pls.’ Reply at 5. 

As another district court within the Third Circuit recently stated, “’[c]ourtroom support’ 

is the type of activity typically performed by paralegals or support staff employed at a law firm, 

and is therefore akin to attorneys fees, which are not recoverable as costs.” Honeywell Int’l Inc., 

2014 WL 2568041, at *11. Accordingly, this cost is denied in its entirety.

IX. Summary

In sum, the Clerk taxes the following costs in favor of Plaintiffs and against Defendants:

Fees of the clerk and marshal, § 1920 (1): $ 1,482.40 

Fees for transcripts, § 1920 (2): $29,151.12

Witness fees, § 1920 (3): $ 9,660.17

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Costs of making copies, § 1920 (4): $14,191.16

Docket fees, § 1920 (5): $ 20.00

TOTAL: $54,504.85

For the reasons set forth above, Plaintiffs’ motion to tax costs against Defendants 

is hereby GRANTED IN PART AND DENIED IN PART. An appropriate order follows.

WILLIAM T. WALSH, CLERK

By: S/John T. O’Brien

 Deputy Clerk

Date: December 30, 2014

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