DeSaint et al v. Delta Air Lines, Inc.

Filing 53

Judge George A. OToole, Jr: ORDER entered re 51 Bill of Costs filed by Delta Air Lines, Inc. (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11856-GAO
NANCY DESAINT and BARBARA KEENAN et al,
Plaintiffs,
v.
DELTA AIR LINES, INC.,
Defendant.

ORDER
July 8, 2015
O’TOOLE, D.J.
Having prevailed on its motion for summary judgment, defendant Delta Air Lines, Inc.
now seeks $1995.12 in costs. Plaintiffs Nancy DeSaint and Barbara Keenan object, arguing that
Delta requests non-recoverable expenses and that the costs should be reduced based on equitable
concerns.
Under the Federal Rules of Civil Procedure, “costs – other than attorney’s fees – should be
allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 lists the costs that are
recoverable under Rule 54(d):
(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.

28 U.S.C. § 1920(1)-(6). A court may not award costs beyond those enumerated in § 1920. See In
re Two Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 962
(1st Cir. 1993).
The plaintiffs argue that the costs of pro hac vice admissions and photocopying fall outside
the scope of § 1920. This Court agrees that the pro hac vice admission fees of attorneys Ira
Rosenstein and Brendan Killeen should not be taxed to the plaintiffs. This conclusion is consistent
with other decisions in the District of Massachusetts. See Interfood, Inc. v. Select Veal Feeds, Inc.,
No. CIV. 12-10825-JLT, 2014 WL 690566, at * 2 (D. Mass. Feb. 19, 2014) (explaining that “the
majority of the decisions within the District of Massachusetts . . . do not allow parties to tax pro
hac vice costs”). Moreover, while the pro hac vice admission fee can be understood as a “fee of
the clerk” under § 1920, “defendant's election to use out-of-state counsel, while perfectly
appropriate, does not appear to be a cost that is fairly chargeable to plaintiff.” Keurig, Inc. v. JBR,
Inc., No. CIV. 11-11941-FDS, 2014 WL 2155083, at *2 (D. Mass. May 21, 2014). As a result, the
Court will deduct $200 for pro hac vice admission fees from the total costs.
The plaintiffs also dispute the unexplained photocopying charges in Delta’s bill of costs,
which contains charges of $396.62 for over 3923 pages in copies under the heading “deposition
exhibits for Nancy DeSaint, Barbara Keenan and Brian Moreau.” (Ex. C at 1 (dkt. no. 51-3).) A
prevailing party may recover copying costs under § 1920 where the copies are “necessarily
obtained for use in the case.” 28 U.S.C. § 1920(4). While a party need not provide “‘page-by-page
justification,’” it “‘must offer some evidence of necessity.’” Osorio v. One World Techs., Inc., 834
F. Supp. 2d 20, 23 (D. Mass. 2011) (quoting Bowling v. Hasbro, Inc., 582 F. Supp. 2d 192, 210
(D.R.I. 2008)). Delta provides no explanation for why it needed nearly 4000 pages in copies. The
invoice for the court reporter suggests the three depositions totaled 167 pages, and only 77 pages

2

of depositions were appended to Delta’s motion for summary judgment. Without more information
as to the necessity of these documents, the Court will deduct an additional $396.62 from the total
costs.
Lastly, the plaintiffs argue that the Court should deny Delta’s bill of costs in light of “the
limited financial resources of [the] plaintiff[s].” Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir.
1988). While courts in this circuit have denied costs where they risk imposing a severe hardship
on a party, see Anunciacao v. Caterpillar Japan, Ltd., 283 F.R.D. 44, 45 (D. Mass. 2012); Kuzman
v. Hannaford Bros. Co., No. CV-04-87-B-W, 2005 WL 1981498, at *2 (D. Me. Aug. 10, 2005);
Mulvihill v. Spalding Worldwide Sports, Inc., 239 F. Supp. 2d 121, 122 (D. Mass. 2002), the Court
believes that the total costs in this action, which total $1398.50 after deducting $596.62 in
photocopy costs and pro hac vice fees, are not overly burdensome. Accordingly, the Court declines
to reduce the costs further.
For the foregoing reasons, the defendant’s Bill of Costs (dkt. no. 51) is APPROVED in
part. The plaintiffs are ordered to pay $1398.50 in costs to the defendant.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

3