Phoenix Versailles Industrial Investors LLC v. Bourbon Pallet Dreams, L.L.C. et al

Filing 28

MEMORANDUM OPINION & ORDER: 1. The plaintiff's Bill of Costs 25 is APPROVED in the amount of $402.00 for the reasons set forth in this Memorandum; 2. The plaintiff's Motion for Attorney's Fees 26 is GRANTED. The plaintiff is awarded attorney's fees of $12,956.50 under Rule 54(d)(2); 3. The plaintiff is directed to serve a copy of this Memorandum Opinion and Order on the defendants in a manner that complies with Rule 5 of the Federal Rules of Civil Procedure and constitutional notice requirements. Signed by Judge Danny C. Reeves on 2/7/2024. (KMP) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
PHOENIX VERSAILLES
INDUSTRIAL INVESTORS LLC,

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Plaintiff,
V.
BOURBON PALLET DREAMS,
L.L.C., et al.,
Defendants.
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Civil Action No. 5: 23-196-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Phoenix Versailles Industrial Investors LLC has submitted a Bill of Costs and
has moved for attorney fees in response to a favorable Default Judgment entered January 25,
2024. [Record Nos. 25, 26] The plaintiff served the Bill of Costs on the defendants pursuant
to Local Rule 54.3 on February 2, 2024. 1 [Record No. 25] The expenses sought to be
recovered by the plaintiff include fees of the Clerk ($402.00) and fees for service of summons
and subpoena ($335.00). The plaintiff’s Motion for Attorney’s Fees seeks $12,956.50 for
counsel’s representation in connection with this matter. The motion is accompanied by an
affidavit from counsel and an accounting of hours billed. [Record No. 26-1]

1

Local Rule 54.3 provides that a “prevailing party must file a Bill of Costs with the Clerk
and serve a copy of the Bill on each adverse party within (30) days of entry of judgment.” LR 54.3
(emphasis added). In contrast to the Local Rule, Federal Rule of Civil Procedure 5(a)(2) holds
that “[n]o service is required on a party who is in default for failing to appear.” And because Local
Rules must be consistent with the Federal Rules, the dictate of the latter must prevail. Fed. R. Civ.
P. 83(a)(1). While service was not required in this matter, the defendants were nonetheless
afforded an opportunity to respond.

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The Bill of Costs will be approved in the amount of $402.00 because fees of the Clerk
are taxable pursuant to 28 U.S.C. § 1920(1). The plaintiff’s requested fees for service of
summons and subpoena, however, are not taxable because they were accrued using a private
process server.2 The Motion for Attorney’s Fees will be granted.
I.
Costs that courts may tax under Rule 54(d)(1) are confined to those itemized in 28
U.S.C. § 1920, absent an explicit statutory instruction otherwise. See, e.g., Rimini St., Inc. v.
Oracle USA, Inc., 139 S. Ct. 873, 878 (2019) (“[F]ederal courts are limited to awarding the
costs specified in §§ 1821 and 1920. If, for particular kinds of cases, Congress wants to
authorize awards of expenses beyond the six categories specified in the general costs statute,
Congress may do so.”); Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 573 (2012)
(“Because taxable costs are limited by statute and are modest in scope, we see no compelling
reason to stretch the ordinary meaning of the cost items Congress authorized in § 1920.”);
Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (“Any argument that a
federal court is empowered to exceed the limitations explicitly set out in §§ 1920 and 1821
without plain evidence of congressional intent to supersede those sections ignores our
longstanding practice of construing statutes in pari materia.”).
The discretion that Rule 54(d)(1) gives courts is only discretion to decline requests for
costs, not discretion to award costs not enumerated in § 1920. Crawford Fitting, 482 U.S. at
441–42.

2

The plaintiff has tendered a receipt from On Time Attorney Services LLC, a private limited
liability company headquartered in Dayton, Ohio. [Record No. 25, p. 4]

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II.
Congress has expressly authorized fees of the Clerk to be taxed pursuant to 28 U.S.C.
§ 1920(1). Likewise, the statute permits the recovery of fees of the marshal, including those
associated with service of process. 28 U.S.C. § 1920(1); see also § 1921(a)(1).3 But the Sixth
Circuit has also held in an unpublished opinion that “a district court may tax costs for private
process server fees to the extent that these private process server fees do not exceed the United
States Marshal’s fees.” Arrambide v. Wal-Mart Stores, Inc., 33 F. App’x 199, 203 (6th Cir.
2002). In reaching this conclusion, the court adopted the Seventh Circuit’s reasoning that,
“[f]rom the losing litigant’s perspective, it is irrelevant who delivers the papers, provided the
total outlays do not exceed what the marshal would have charged.” Id. (quoting Collins v.
Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996). But subsequent binding decisions of the Sixth
Circuit and United States Supreme Court cast serious doubt regarding the continued viability
of Arrambide.
Two years after the Supreme Court decided Taniguchi, the Sixth Circuit was again
tasked with determining the scope § 1920. See Colosi v. Jones Lang LaSalle Americas, Inc.,
781 F.3d 293 (6th Cir. 2015). At issue was § 1920(4), which authorizes courts to tax “the costs
of making copies of any materials where the copies are necessarily obtained for use in the
case.” The court was tasked with determining “whether imaging a hard drive, or other physical
storage device, falls within the ordinary meaning of ‘making copies.’” Id. at 296. The court

3

“The United States marshals or deputy marshals shall routinely collect, and a court may
tax as costs, fees for the following: (A) Serving a writ of possession, partition, execution,
attachment in rem, or libel in admiralty, warrant, attachment, summons, complaints, or any other
writ, order or process in any case or proceeding.”

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referenced a Third Circuit opinion which construed the phrase “making copies” in light of
historical context and the Supreme Court’s traditionally narrow reading of § 1920. See Race
Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 166–72 (3d Cir. 2012). In
doing so, the Third Circuit found only that which qualified as “the functional equivalent of
‘making copies’” could be properly taxed. Id. at 171 & n. 11.
The Sixth Circuit rejected this “functional equivalent” approach, criticizing its sister
circuit for ignoring § 1920’s plain text. Colosi, 781 F.3d at 297. It instead relied upon the
ordinary meaning of the text while reiterating the Supreme Court’s recent guidance. Id. at
297–98 (noting the Taniguchi Court’s process of “beginning its interpretation of § 1920 with
the ordinary meaning of words before examining statutory context”).
III.
The text of § 1920(1) provides that a court may tax as costs “[f]ees of the clerk and
marshal.” It is unclear how the Arrambide court’s adopted reasoning that “it is irrelevant who
delivers the papers,” is any different from the “functional equivalent” rationale that the Sixth
Circuit has since criticized. Despite the relevant provision being comprised of only six words,
it remains the Court’s duty “to give effect, if possible, to every clause and word of a statute.”
Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting Montclair v. Ramsdell, 107 U.S. 147,
152 (1883)) (emphasis added). And “[b]ecause words are to be given the meaning that proper
grammar and usage would assign them, the rules of grammar govern statutory interpretation
unless they contradict legislative intent or purpose.” Nielsen v. Preap, 139 S. Ct. 954, 965
(2019) (cleaned up).

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A.
The Court’s first observation of § 1920(1) is its use of the preposition “of”. The
Supreme Court has repeatedly highlighted the potential significance of preposition use in
statutory interpretation. See, e.g., County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462,
1480 (2020) (Thomas, J., dissenting) (“The prepositions ‘from’ and ‘to’ reinforce this
reading.”); Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. 709, 716 (2018) (“For our
purposes, then, the key word in the statutory phrase is the preposition ‘respecting,’ . . . .”);
Early v. Homans, 57 U.S. (16 How.) 610, 617 (1853) (“The preposition ‘for’ means of itself
duration, when it is put in connection with time, and, as all of us use it in that way in our
everyday conversation, it cannot be presumed that the legislator, in making this statute, did not
mean to use it in the same way.”).
Section 1920(1)’s use of the prepositional phrase, “of the clerk and marshal,” denotes
ownership or possession.

The objects of the preposition, “the clerk and marshal,” are

modifying the nature of the fees in question. 4 This appears to be an intentional grammatical
choice employed by Congress. Throughout § 1920, “of” is used in each instance in which the
object of the preposition is a discrete person or group of people. See 28 U.S.C. § 1920(1), (6).
In contrast, the statute provides that fees are taxable “for” certain conduct or items (e.g.,
transcripts, printing, making copies, etc.). See 28 U.S.C. § 1920(2)–(4). 5 So the text of the

4

This provision could also be articulated using the possessive noun form: the clerk’s fees
and the marshal’s fees.
5

The text of 28 U.S.C. § 1920(5) discussed fees “under” § 1923. The fees listed therein can
again be grouped as being costs “of” persons (e.g., “fees of United States attorneys and United
States Trustees) or costs “for” certain conduct (e.g., “costs for printing”). See 28 U.S.C.
§ 1923(b)–(c).

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statute appears to draw a distinction between fees “of” a person or persons and those “for” a
specified purpose.
The Arrambide court’s reading of § 1920(1) effectively rewrites the provision to
presuppose Congress’s underlying intent targeted services rendered rather than persons
identified. But this interpretation ignores the statute’s clear grammatical and syntactical
distinctions. By disregarding this seemingly intentional nuance, the Arrambide court strayed
from the text to treat a private process server as “the functional equivalent” of the marshal—
an extratextual approach the Sixth Circuit has subsequently criticized.
B.
Section 1920’s use of definite and indefinite articles provides further support for the
Court’s view. Use of the definite article “the” followed by a singular noun indicates that the
identity of the noun is discrete and certain. The Supreme Court has repeatedly acknowledged
this principle of statutory interpretation. See, e.g., Niz-Chavez v. Garland, 593 U.S. 155, 166
(2021) (observing that the statute “seems to speak of the charging document as a discrete thing,
using a definite article with a singular noun (‘the notice’).”); Cochise Consultancy, Inc. v.
Hunt, 139 S. Ct. 1507, 1514 (2019) (“[Section] 3731(b)(2)’s use of the definite article ‘the’
suggests that Congress did not intend for any and all private relators to be considered ‘the
official of the United States.’”); Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (“The
consistent use of the definite article in reference to the custodian indicates that there is
generally only one proper respondent . . . .”).

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The statute does not refer to unidentified “clerks or marshals,” but “the clerk” and “the
marshal.” 6 An ordinary reading of § 1920(1) establishes that fees for service of summons and
subpoena are only taxable when they are initially paid to one of two specified officers of the
court: the clerk or the marshal. Expanding the ordinary meaning of the text to encompass fees
paid to those who provide comparable private services (i.e., functional equivalents) would
require this Court to ignore the ordinary meaning and usage of words while undermining the
Supreme Court’s traditionally narrow reading of § 1920.
C.
Some circuits in resolving this issue have justified their departure from the text by
highlighting changes to the role of the United States Marshal. See, e.g., Alflex Corp. v.
Underwriters Lab’ys, Inc., 914 F.2d 175, 178 (9th Cir. 1990) (“Now that the Marshal is no
longer involved as often in the serving of summonses and subpoenas, the cost of private
process servers should be taxable under 28 U.S.C. § 1920(1).”) But the undersigned must
respectfully disagree.
Since its codification in 1948, § 1920 has been amended on two separate occasions. 7
And despite the most recent amendment taking place nearly thirty years after the relevant
changes were made to Rule 4, 8 Congress chose not to alter the text of § 1920(1). Just as an act

6

The sole “the” in § 1920(1) serves as an implied definite article for “marshal.”

7

See Court Interpreters Act of 1978, Pub. L. No. 95-539, 92 Stat. 2040; Judicial
Administration & Technical Amendments Act of 2008, Pub. L. No. 110-406, 122 Stat. 4291.

8

See Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96
Stat. 2527.

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of Congress modified the duties of the United States Marshal, so too is one required to give
new meaning to the plain text of § 1920(1).
IV.
This decision pays homage to an important principle elucidated by the Supreme Court
in Niz-Chavez: “At one level, today’s dispute may seem semantic, focused on a single word, a
small one at that. But words are how the law constrains power.” 593 U.S. at 172. That
principle holds true whether the power being constrained is that of the Executive or the
Judiciary. The decision to treat private process servers as a taxable expenditure under Rule
54(d)(1) is a task that falls squarely within the purview of Congress. Regardless of the wisdom
of such a determination, it is not this Court’s to make.
Having reviewed the matter and being sufficiently advised, it is hereby
ORDERED as follows:
1.

The plaintiff’s Bill of Costs [Record No. 25] is APPROVED in the amount of

$402.00 for the reasons set forth in this Memorandum Opinion and Order.
2.

The plaintiff’s Motion for Attorney’s Fees [Record No. 26] is GRANTED. The

plaintiff is awarded attorney’s fees of $12,956.50 under Rule 54(d)(2).
3.

The plaintiff is directed to serve a copy of this Memorandum Opinion and Order

on the defendants in a manner that complies with Rule 5 of the Federal Rules of Civil
Procedure and constitutional notice requirements.

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Dated: February 7, 2024.

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