PERRI v. RESORTS INTERNATIONAL HOTEL, INC. et al

Filing 75

MEMORANDUM OPINION AND ORDER denying Deft's 65 Motion for reimbursement of expenses pursuant to Federal Rule of Civil Procedure 68. Signed by Magistrate Judge Ann Marie Donio on 1/16/2014. (drw)

[Doc. No. 65]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DOMINIC PERRI,
Plaintiff,

Civil No. 10-4489 (AMD)

v.
RESORTS INTERNATIONAL HOTEL,
INC.
Defendant.

MEMORANDUM OPINION AND ORDER
Presently

before

the

Court

is

the

application

of

Resorts International Hotel, Inc. (hereinafter, the “Defendant”)
for reimbursement of expenses pursuant to Federal Rule of Civil
Procedure 68.
basis

that

Plaintiff Dominic Perri opposes the motion on the

the

expenses

do

not

meet

the

requirements

for

reimbursable expenses under Federal Rule of Civil Procedure 68
and

that

the

application

lacks

sufficient

documentation

to

support the request. The Court agrees with Plaintiff and for the
reasons set forth herein, denies Defendant’s application.
The Court shall set forth only the facts relevant to
Defendant’s

application.

Pursuant

to

Rule

68

of

the

Federal

Rules of Civil Procedure, on March 7, 2011, Defendant made an
Offer of Judgment to Plaintiff, Dominic Perri, prior to trial,
“in

the

amount

of

$15,000.00

in

full

satisfaction

of

all

claims[.]” (Application for Reimbursement of Expenses Pursuant
to Fed.R.Civ.P. 68 (hereinafter, “Def.’s Mot.”) [Doc. No. 65-5],
Ex. B.)

On May 20, 2013, this personal injury matter proceeded

to trial before a jury on the issues of causation and damages. 1
On May 22, 2013, the jury found that "the injuries claimed by
the Plaintiff Dominic Perri were caused by the negligence of
Resorts International Hotel, Inc. d/b/a Resorts Casino & Hotel,"
and awarded Plaintiff $13,817.47 for Plaintiff's past medical
bills. (Jury Verdict Sheet [Doc. No. 60], 1.) However, as a
result of a stipulation before trial, the parties agreed that
the jury verdict should be molded, and consequently, the parties
submitted a proposed judgment in the amount of $2,310.44 on June
5, 2013. (See Letter [Doc. No. 63], 1.) The Court thereafter
entered judgment in the reduced amount of $2,310.44 on June 11,
2013. 2

(Judgment in a Civil Action [Doc. No. 64], 1.) Defendant

now seeks reimbursement of litigation-related costs and expenses
in the amount of $7,700.64. (See Certification of Counsel in

1

The parties consented to this Court’s jurisdiction pursuant to
28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73(b),
and Rule 73.1 of the Local Civil Rules for the United States
District Court, District of New Jersey. (See Notice, Consent,
and Reference of a Civil Action to a Magistrate Judge [Doc. No.
22], 1.)
2
This reduction does not impact the pending motion because the
parties do not dispute that the offer of judgment exceeded the
verdict obtained by Plaintiff.
2

Support

of

the

Application

for

Reimbursement

of

Expenses

Pursuant to FED.R.CIV.P. 68 [Doc. No. 65-1], ¶ 12.)
Federal

Rule

of

Civil

Procedure

68

provides

in

relevant part that if the offeree ultimately obtains a judgment
“not more favorable than the unaccepted offer, the offeree must
pay the costs incurred after” the offeror made the offer. FED. R.
CIV. P. 68(d). 3
aims

“to

An offer of judgment made pursuant to Rule 68

encourage

settlements”

and

to

“avoid

protracted

litigation[.]” 12 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND

PROCEDURE § 3001 (2d ed. 2007).

parties”

to

objectively

The Rule also “prompts both

“evaluate

the

risks

and

costs

of

litigation, and to balance [those risks] against the likelihood
of success upon trial on the merits.” Marek v. Chesny, 473 U.S.
1,

5

(1985).

mechanism,
offers”

To

which

and

that

end,

Rule

“encourages

insulates

the

68

creates

plaintiffs

party

willing

to
to

a

cost-shifting

accept
settle

reasonable
from

the

burden of certain costs that subsequently accrue. Crescenzo v.
Healthcare Revenue Recovery Grp., 842 F. Supp. 2d 1340, 1344
(S.D. Fla. 2012).
The costs recoverable under Rule 68 are limited to

3

Federal Rule of Civil Procedure 68(d) expressly provides that,
“[i]f the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the
3

“‘those enumerated in 28 U.S.C. § 1920, unless the substantive
law applicable to the particular cause of action expands the
general § 1920 definition.’” Phillips v. Bartoo, 161 F.R.D. 352,
354 (N.D. Ill. 1995) (quoting Parkes v. Hall, 906 F.2d 658, 660
(11th Cir. 1990)); see also Turpin v. Marriott Corp., No. 924567, 1994 WL 551510, at *2 (E.D. Pa. Oct. 6, 1994) (noting that
28 U.S.C. § 1920 defines “costs” for the purposes of Rule 68).
Specifically, “[f]ederal, not state law, determines the proper
taxation

of

costs”

where

“no

express

state

policy

on

costs

directly relate[s] to the substantive cause of action.” Turpin,
1994 WL 551510, at *1 (citing Chevalier v. Reliance Ins. Co. of
Ill., 953 F.2d 877, 885-86 (5th Cir. 1992)).
A “federal court sitting in diversity must apply state
substantive law and federal procedural law.” Liggon-Redding v.
Estate of Sugarman, 659 F.3d 258, 262 (3d Cir. 2011) (citing
Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). However, because
“the

Court

trial”

of

applied
this

the

action, 4

New

Jersey’s

Defendant

substantive

asserts

“that

law
New

in

the

Jersey

substantive law” must “dictate” the scope of recovery “under the

costs incurred after the offer was made.” FED. R. CIV. P. 68(d).
The Court applied New Jersey law with respect to Plaintiff’s
personal injury claim.
4

4

Offer

of

Judgment

Rule.” 5

(Def.’s

Reply

[Doc.

No.

74],

3.)

Defendant further asserts that New Jersey’s “substantive law” on
costs,

set

forth

in

New

Jersey’s

Offer

of

Judgment

rule,

controls the resolution of the pending application. (Brief in
Reply

to

Plaintiff’s

International
Expenses

Hotel,

Pursuant

to

Opposition

Inc.,

to

Application

Fed.R.Civ.P.

68

Defendant,
for

Resorts

Reimbursement

(hereinafter,

of

“Def.’s

Reply”) [Doc. No. 74], 3 (citing New Jersey Court Rules 4:58-2,
-3).)

Defendant therefore alleges that it should be entitled to

all “reasonable costs incurred as a result of the [P]laintiff’s
failure to accept a reasonable Offer of Judgment[,]” rather than
only those delineated in 28 U.S.C. § 1920. (Def.’s Reply [Doc.
No. 74], 3-4.) Defendant provides neither case nor statutory
authority to support its assertion that the New Jersey Offer of
Judgment

rule

[Plaintiff’s]

constitutes
particular

“‘substantive

cause

of

5

law

action[.]’”

applicable

to

Phillips,

161

New Jersey’s Offer of Judgment rule differs in materials
respects from the federal rule. See generally New Jersey Court
Rule 4:58 (setting forth New Jersey’s Offer of Judgment rule).
Specifically, the New Jersey rule permits “both the plaintiff
and the defendant to issue pre-trial settlements offers” and
permits recovery of “both court costs and attorneys[’] fees[.]”
Reid v. Finch, 40 A.3d 100, 103 (N.J. Super. Ct. Law. Div.
2011). Federal Rule of Civil Procedure 68, by contrast, allows
only a “party defending against a claim” to serve an offer of
judgment, and limits the scope of recovery to “costs[.]” FED. R.
CIV. P. 68 (a), (d). Defendant does “not seek[] reimbursement”
5

F.R.D. at 354 (citation omitted).
New Jersey courts have concluded that the New Jersey
Offer of Judgment rule, like Federal Rule of Civil Procedure 68,
constitutes a “procedural mechanism intended to facilitate the
settlement of litigation.” Voorhees Office Ctr., LLC v. Target
Bldg.

Const.,

(N.J.

Super.

Inc.,
Ct.

No.

App.

A-6337-08T3,
Div.

Oct.

4,

2010

WL

2010)

3933238,

(citing

at

*3

Wiese

v.

Dedhia, 911 A.2d 479 (N.J. 2006)) (emphasis added); see also Kas
Oriental Rugs, Inc. v. Ellman, 972 A.2d 413, 421 (“Rule 4:58 is
procedural in nature”). The Court concludes that the New Jersey
Offer

of

Judgment

rule

is

not

a

matter

applicable to Plaintiff’s cause of action.

of

substantive

law

Moreover, “[e]xcept

in rare circumstances in which some important state interest is
implicated,” “federal law” controls “the awarding of costs in an
action in federal court.” Baker v. Power Sec. Corp., 174 F.R.D.
292, 294 (W.D.N.Y. 1997). Here, no such important state interest
is implicated. The Court therefore rejects Defendant’s assertion
that the award of “reasonable costs” under New Jersey’s Offer of
Judgment

rule

governs

resolution

of

the

pending

motion.

See

Humann v. KEM Elec. Co-op., Inc., 497 F.3d 810, 813 (8th Cir.
2007) (citing 10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

for “attorney’s fees[.]" (Def.’s Reply [Doc. No. 74], 4.)
6

AND

PROCEDURE § 2669 (3d ed.)) (noting that, the federal rule

generally governs the “award of costs in federal court”); see
also Conte v. Flota Mercante Del Estado, 277 F.2d 664, 672 (2d
Cir.

1960)

accordance
state

(“[a]
with

where

court

its

the

own

claim

will

tax

practice[,]
arose”).

ordinary
rather

Therefore

court
than

costs

that

Defendant

in

of

the

is

not

entitled to recover costs beyond those delineated in 28 U.S.C. §
1920.

Phillips, 161 F.R.D. at 354 (citing Wahl v. Carrier Mfg.

Co., 511 F.2d 209, 217 (7th Cir. 1975)) (“without a specific
underlying statute authorizing any other types of ‘costs’ not
listed

in

§

1920,

such

as

attorney's

fees,

postage,

Federal

Express fees, and messenger service fees, only the six types of
costs listed § 1920 are ‘taxable costs’ included in Rule 68”).
Accordingly, the scope of recovery in this action is
limited to the following costs, set forth in 28 U.S.C. § 1920:
(1)
(2)
(3)
(4)

(5)
(6)

Fees of the clerk and marshal;
Fees
for
printed
or
electronically
recorded
transcripts necessarily obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and the costs of making
copies
of
any
materials
where
the
copies
are
necessarily obtained for use in the case;
Docket fees under section 1923 of this title [28
U.S.C. § 1923]; and
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. § 1828].

28 U.S.C. § 1920(1)-(6). A party seeking reimbursement of costs
7

“must

provide

sufficient

information”

to

compensable nature of the requested costs.

establish

the

N.J. Mfgs. Ins. Grp.

v. Electrolux, Inc., No. 10-1597, 2013 WL 5817161, at *2 (D.N.J.
Oct. 21, 2013). The party must further comply with Local Civil
Rule 54.1, which requires that a request for costs “precisely
set forth each [cost][], so that the nature of the charge can be
readily

understood”

and

invoices[.]”

L. CIV. R.

costs

Rule

under

supported

by

68

substantiated
54.1(b).

therefore

the

by

Determining

requires

necessary

“copies

a

the

analysis,

Defendant’s

application, however, suffers from several deficiencies.
Defendant’s
costs.

application

Defendant

seeks

to

specifically

tax,

or

seeks

all

recoverable

detailed

documentation.

of

recover,

reimbursement

First,

nontaxable
for

the

following costs: (1) courier services; (2) travel expenses; (3)
costs related to “Trial Technologies[;]” (4) costs related to
the video deposition of an expert witness; (5) costs related to
a “subpoena[;]” (6) costs related to an “investigation[;]” (7)
costs

related

to

“deposition[.]”
28

U.S.C.

§

“medical[;]”

and

(8)

costs

related

(Def.’s Mot. [Doc. No. 65-7], Ex. D.)

1920

limits

taxable

costs

“to

to

a

However,

relatively

minor,

incidental expenses” constituting a “fraction of the nontaxable
expenses borne by litigants for attorneys, experts, consultants,
and

investigators.”

Taniguchi

v.
8

Kan

Pac.

Saipan,

Ltd.,

132

S.Ct.

1997,

2006

(2012).

Consequently,

the

Court

finds

no

support, nor has Defendant cited any relevant authority, for
Defendant’s
expenses.

assertion

that

these

costs

constitute

recoverable

Indeed, courts have expressly found costs related to

courier services, travel and parking, trial technologies, and
trial consultants/investigators not recoverable under 28 U.S.C.
§ 1920.

See, e.g., United Healthcare Servs., Inc. v. Meyer, No.

12-6197,

2013

(finding

courier

categories

WL

of

5346094,
costs

to

recoverable

at

*4

be

(N.D.
“not

costs”);

Cal.

one

of

D.I.

ex

Sept.

24,

the

2013)

enumerated

rel.

R.G.

v.

Phillipsburg Bd. of Educ., No. 10-2602, 2011 WL 1899341, at *6
(D.N.J.

May

19,

2011)

(finding

counsel’s

parking

and

travel

expenses “not recoverable” costs); Yale Mortg. Corp. v. Wells
Fargo Bank, N.A., No. 11-22605, 2012 WL 3597438, at *5 (S.D.
Fla. Aug. 20, 2012) (finding “technological trial support” not
recoverable); Warner Chilcott Labs. Ireland Ltd. v. Impax Labs.,
Inc., Nos. 08-6304, 09-2073, 2013 WL 1716468, at *13 (D.N.J.
Apr. 18, 2013) (denying requested consulting fees); see also
Walker v. Robbins Hose Fire Co. No. 1, Inc., 622 F.2d 692, 694
(3d Cir. 1980) (noting that any “authority for allowing district
courts to tax as costs items not mentioned” in 28 U.S.C. § 1920
“should be exercised sparingly”). Consequently, the Court denies
Defendant’s motion with respect to these items because they are
9

not recoverable “costs” under 28 U.S.C. § 1920.
Second, even if certain expenses may be recoverable as
“costs” under 28 U.S.C. § 1920, Defendant’s application fails to
set forth the requisite level of detail for an award of costs.
By

way

of

example,

Defendant’s

application

seeks

to

recover

$139.95 for the costs of a “subpoena.” (Def.’s Mot. [Doc. No.
65-5], Ex. D.)
fees

While Section 1920(1) may render recoverable the

associated

with

serving

Electrolux,

Inc.,

2013

WL

sufficient

information

to

a

subpoena

5817161,

at

determine

on

*5,

a

witness,

the

Court

whether

the

see

lacks

expenses

constitute recoverable “costs[.]” United Access Techs., LLC v.
Earthlink, Inc., No. 02-272, 2012 WL 2175786, at *10 (D. Del.
June 14, 2012) (noting that a “court is free to deny [a] request
for”

costs

“when

it

finds”

the

documentation

lacking

or

insufficient). The Court similarly lacks sufficient detail to
determine

whether

“deposition”

Defendant’s

constitute

request

recoverable

costs.

for

“medical”

(Def.’s

Mot.

and
[Doc.

No. 65-5], Ex. D.) Though copying and printing may generally be
recoverable
inadequately

under

28

documented

U.S.C.
the

§

nature

1920(4),
of

Defendant

incurred

has

expenses.

Finally, the Court must consider Defendant’s request to recover
expenses identified as “Prepayment of Video Deposition regarding
[Plaintiff] on 12/07/2011[.]” (Id.) While Section 1920 permits
10

recovery

of

costs

for

“printed

or

electronically

recorded

transcripts necessarily obtained for use in the case[,]” it does
not

explicitly

provide

for

reimbursement

in

connection

with

video deposition transcripts. 28 U.S.C. § 1920(2). “‘In Garonzik
v. Whitman Diner, 910 F.Supp. 167, 171 (D.N.J. 1995), the court
permitted the taxation of costs associated with preparation and
playback of videotaped depositions, ‘as long as the use of the
videotape

was

reasonably

necessary

to

the

trial.’’”

Pharma.

Res., Inc. v. Roxane Labs., Inc., No. 03-3357, 2008 WL 2951173,
at *5 (D.N.J. July 25, 2008) (citation omitted).

Therefore,

though “preparation and playback of [a] videotaped deposition”
may be recoverable, Defendant’s application does not delineate,
with
light

specificity,
of

construe

the

Defendant’s
the

expense

basis

for

showing,
as

solely

the

expense.

the

Court

expert

Id.

must

Rather,

in

necessarily

compensation,

a

non-

recoverable cost under 28 U.S.C. § 1920. 6 See Pelzer v. City of
Phila., 771 F. Supp. 2d 465, 473 (E.D. Pa. 2011) (finding expert
fees, among other things, not recoverable). Consequently, even

6

28 U.S.C. § 1821 may have permitted Defendant to recover a
statutory per diem and reimbursement for certain travel expenses
in connection with a witness’s attendance at a deposition. See
28 U.S.C. § 1821(a)-(d). However, Defendant submitted the charge
as a single line-item expense without delineating the specific
basis for the charge. The Court is therefore unable to assess
the applicability of 28 U.S.C. § 1821.
11

if Defendant seeks, in part, recoverable expenses, Defendant has
failed

to

provide

sufficient

information

to

establish

its

entitlement to reimbursement. Central Del. Branch of N.A.A.C.P.
v.

City

of

Dover,

Del.,

123

F.R.D.

85,

93

(D.

Del.

1988)

(“Failure to properly document expenses is an obvious ground for
denial

of

costs

to

an

applicant.”).

Consequently,

for

the

65]

for

reasons set forth above and for good cause shown:
IT IS on this 16th day of January 2014,
ORDERED
reimbursement

of

that

Defendant’s

expenses

pursuant

motion
to

[Doc.

Federal

No.
Rule

of

Procedure 68 shall be, and hereby is, DENIED.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE

12

Civil