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Gilmore v. Macy's Retail Holdings

June 19, 2009

JANICE GILMORE, PLAINTIFF,
v.
MACY'S RETAIL HOLDINGS, INC. DEFENDANT.



ORDER TO TAX COSTS

This matter comes before the Court on a motion [Dkt. Entry No. 124] by Defendant Macy's Retail Holdings, Inc. ("Defendant") to tax costs in this matter against Plaintiff Janice Gilmore ("Plaintiff"), pursuant to Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.1. Plaintiff contests Defendant's motion for Bill of Costs.

The original matter arises out of a complaint filed by Plaintiff alleging employment discrimination. The case was tried as a jury trial before the Hon. Jerome B. Simandle starting February 2, 2009 and concluding on February 10, 2009. A judgment for no cause of action [Dkt. Entry No. 120] was entered on February 10, 2009.

Under Federal Rule of Civil Procedure 54(d)(1), a prevailing party is entitled to costs unless the Court otherwise directs.*fn1

Rule 54(d) creates a "'strong presumption' that costs are to be awarded to the prevailing party." In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462 (3d Cir. 2000) (quoting 10 MOORES FEDERAL PRACTICE § 54.101, at 54-149); see also Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). Thus, if the judgment is silent as to costs, as it is in this matter, the presumption is that costs are taxed against the losing party. However, the prevailing party generally bears the evidentiary burden to show that a particular claimed cost is taxable. See Garonzik v. Whitman Diner, 910 F. Supp. 167, 172 (D.N.J. 1995) (declining to award costs for particular reproduction because "plaintiffs have not shown how a copy was reasonably necessary to the trial."). In the current case, Defendant is the prevailing party within the meaning of Federal Rule Civil Procedure 54(d).

1. Fees of the Clerk

Defendant requests reimbursement of the $350.00 filing fee for filing a Notice of Removal with the Court. Under 28 U.S.C. § 1914(a), the required filing fee in year 2006 to file a civil action was $350.00 Additionally, the docket in this matter reflects that Defendant paid a filing fee of $350.00 when filing the Notice of Removal. This expense is an allowable taxed cost under 28 U.S.C. § 1920(1); therefore, the Clerk permits $350.00 as a taxable cost.

2. Deposition Transcripts

Defendant requests reimbursement for deposition transcripts in the amount of $3,546.50. Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case are taxable costs under 28 U.S.C. § 1920(2). Local Civil Rule 54.1(g)(7) states in relevant part,

In 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.*fn2 Fees and charges for the taking and transcribing of any other deposition shall not be taxed as costs unless the Court otherwise orders.

The Clerk finds the six deposition transcripts taken in this matter were necessarily obtained for "use" in the case. 28 U.S.C. § 1920. The Clerk allows Defendant to be reimbursed for the production of six stenographic transcripts, including the Plaintiff's two deposition transcripts, and for the expenses incurred in taking those depositions.

DeponentAmount RequestedAmount Allowed Janice Gilmore (Day one)$832.20$832.20 (Transcript/Exhibits Appearance)   (CD Depo)$34.00Denied (Shipping/Handling)$15.00Denied Janice Gilmore (Day two)$1,501.00$1,501.00 (Rough ASCII)$427.50Denied (CD Depo)$34.00Denied (Shipping/Handling)$32.75Denied Elaine Van Aken$288.25$288.75 (Shipping)$7.50Denied Jeanette Rutter$179.55$179.55 Leslie El$53.55$53.55 Shirley Cobb$132.30$132.30 (Copies)$0.90$0.90 (Delivery)$7.50Denied Total$3,546.50$2,988.25

Accordingly, based on the evidence submitted in support of taxing the above-mentioned deposition transcripts, the Clerk does not find Defendant's level of deposition discovery in this matter to be excessive or unreasonable, especially since these deponents testified at trial. (Siegel Decl. ¶4.) Therefore, the Clerk finds that deposition transcripts taken in this matter were necessarily obtained for "use" in the case. See 28 U.S.C. § 1920.

The Clerk allows Defendant to be reimbursed for costs incurred for the production of stenographic transcripts including one copy of each deposition in the amount of $2,988.25. The reduced amount reflects a reduction of the expense for shipping and handling the deposition transcripts to counsel and for the production of ASCII Disks. These charges are not considered a taxable cost because they are not among the categories of costs listed in 28 U.S.C. § 1920. See Bollitier v. Int'l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers, 735 F. Supp. 623, 629 (D.N.J. 1989) (denying taxation costs for mailing); see also Harkins v. Riverboat ...


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