United States District Court, E.D. North Carolina, Western Division
ORDER ON BILL OF COSTS
matter is before the clerk on the motion for bill of costs
[DE-51] filed by defendant TWC Administration LLC. For the
reasons set forth below, the motion is GRANTED in part and
DENIED in part.
order filed on November 2, 2017 [DE-50], the court denied
plaintiffs motion for partial summary judgment, and granted
defendant's motion for summary judgment. Judgment was
entered that same day [DE-50]. Defendant timely filed its
motion for bill of costs [DE-51]. Plaintiff responded in
opposition [DE-61] and defendant replied [DE-62].
seeks costs under Rule 54(d)(1) as the prevailing party in
this action. See Fed.R.Civ.P. 54(d)(1) ("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."). Federal courts may
assess only those costs listed in 28 U.S.C. § 1920.
See Arlington Cent. Sch. Bd. of Educ. v. Murphy. 548
U.S. 291, 301 (2006); Crawford Fitting Co. v. J.T.
Gibbons. Inc., 482 U.S. 437, 441-42 (1987),
superseded on other grounds by statute, 42 U.S.C.
§ 1988. Local Civil Rule 54.1 "further refines the
scope of recoverable costs." Earp v. Novartis
Pharmaceuticals Corp., No. 5:11 -CV-680-D, 2014 WL
4105678, at *1 (E.D. N.C. Aug. 19, 2014). In this case,
defendant seeks recovery of $5, 422.90 from plaintiff.
opposes the bill of costs in whole, arguing that she acted in
good faith, and that defendant failed to mediate in good
faith. This argument raises equitable concerns that go beyond
the clerks' authority in ruling on a motion for bill of
costs. See Taniguchi v. Kan.Pacific Saipan,
Ltd.. ___U.S.___, 132 S.Ct. 1997, 2006 (2012)
(describing the taxation of costs by the clerk as a
"clerical matter"). Plaintiff may raise equitable
arguments in a motion for the court to review the taxation of
costs pursuant to Fed.R.Civ.P. 54.
the specific costs, defendant seeks $4, 111.70 for fees for
transcript costs and $1, 311.20 in fees for the costs of
making copies. As to the transcript costs, fees for printed
or electronically recorded transcripts necessarily obtained
for use in the case may be taxed as costs. 28 U.S.C. §
1920(2). Defendant submits court reporter invoices for four
transcripts and declared, through counsel, that the costs
were necessarily incurred in this action [DE-82]. Moreover,
the docket reveals that defendant filed excerpts from the
depositions in support of its motion for summary judgment.
Accordingly, the undersigned finds that the transcripts were
necessarily obtained for use in the case.
of the invoices submitted by defendant include charges for
shipping and handling, exhibit copies, expedited processing,
"read and sign" services, and a "litigation
package." This court has construed 28 U.S.C. §
1920(2) and Local Civil Rule 54.1 as not encompassing any of
these charges. See Dutton v. Wal-Mart Stores East.
L.P.. No. 4:11-CV-94-BO, 2015 WL 1643025, at *2 (E.D.
N.C. March 13, 2015) ("In construing 28 U.S.C. §
1920 and Local Civil Rule 54.1, this court has also denied
fees for copies of deposition exhibits, read and sign, rough
drafts, litigation support packages, ASCII disks, shipping,
handling and expedited processing."); Nwaebube v.
Emplov't Sec. Comm'n of N.C. , No.
5:09-CV-395-F, 2012 WL 3643667, at *1 (E.D. N.C. Aug. 21,
2012) (disallowing costs of exhibit copies); Hexion v.
Specialty Chems., Inc. v. Oak-Bark Corp., No.
7:09-CV-105-D, 2012 WL 2458638, at *6 (E.D.N.C, June 27,
2012) (disallowing costs for shipping and postage);
Parrish v. Johnston Comty. Coll. No. 5:09-CV-22-H,
slip. op. at 2-3 (E.D. N.C. Feb. 13, 2012) (observing that
"Local Civil Rule 54.1(c)(1)(a) specifies that taxable
costs incident to the taking of depositions normally include
only the court reporter's fee and the fee for the
original transcript of the deposition"). The fourth
invoice is not itemized. Accordingly, defendant is awarded
the cost of the deposition transcript and appearance fee for
the depositions of Shirley Evans, Linda Smith, and Wayne
Holliday, for a total of $1, 736.25. The remainder of the
costs associated with the depositions of those witnesses is
not allowed. Given the unallowable charges on the
itemized invoices, the costs related to the non-itemized
invoice is DENIED without prejudice. Defendant may file a
renewed motion for bill of costs, that details the allowable
costs associated with that deposition, within 21 days of the
filing date of this order.
also seeks $1, 311.20 in exemplification and copy costs.
"Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained
for use in the case" may be taxed as costs. 28 U.S.C.
§ 1920(4). "The concept of necessity for use in the
case connotes something more than convenience . ..."
Har-Tzion v. Waves Surf & Sport. Inc., No.
7:08-CV-137-D, 2011 WL 3421323, at *3 (E.D. N.C. Aug. 4,
2011) (quoting Cherry, 186 F.3d at 449).
"Copying costs are allowable if used as court exhibits,
or if furnished to the court or opposing counsel."
PCS Phosphate Co., Inc. v. Norfolk S. Corp., No.
4:05-CV-55-D, 2008 WL 1901941, at *1 (E.D. N.C. Apr. 29,
2008) (citing Bd. of Dirs. Water's Edge v. Anden
Group. 135 F.R.D. 129, 138-39 (E.D. Va. 1991)). However,
the cost of copies made solely for the convenience of counsel
is generally not taxable under 28 U.S.C. § 1920(4).
Fells v. Virginia Dept. of Transp.. 605 F.Supp.2d
740, 743 (E.D. Va. 2009) (citing Thomas v. Treasury Mgmt.
Ass'n. Inc.. 158 F.R.D. 364, 372 (D. Md. 1994)).
"The burden is on the party seeking recovery of
photocopying costs to demonstrate the reasons for each
copying charge." Kelley v. Int'l Bhd. of
Teamsters. Local Union 71. No. 4:11-CV-1268-RBH, 2014 WL
1366038, at *3 (D.S.C. Apr. 7, 2014) (quoting Ford v.
Zalco Realty. Inc., 708 F.Supp.2d 558, 563 (E.D. Va.
case, plaintiff objects to the costs sought by defendant,
arguing that the amount sought is excessive, and notes that
defendant seeks $1, 026.90 in costs for color copies (at
$0.25 per page). Plaintiff disputes that thousands of
color copies were made. In response, defendant contends that
the number of copies includes responses to discovery
requests, copies of exhibits for depositions, and motion
practice. The issue, however, is that defendant has failed to
provide any itemized explanation for the copy costs. Again,
defendant bears the burden of demonstrating the reason for
each copying charge. It has not done so here. Accordingly,
the request for copying costs is DENIED without prejudice to
renew within 21 days, with adequate supporting documentation.
foregoing reasons, the motion for bill of costs [DE-51] is
GRANTED in part. Costs in the amount of $1, 736.25 are taxed
against plaintiff Shirley Evans and shall be included in the
judgment. The motion for bill of costs [DE-51] is DENIED as
to the other requested costs. Defendant may file a renewed
motion for bill of costs within 21 days of the filing date of
this order, supported by documentation as specified herein.