STADLER v. ABRAMS et al
OPINION. Signed by Judge Robert B. Kugler on 8/17/2018. (tf, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Steven M. STADLER,
Glenn ABRAMS, JR., et al.,
Civil No. 13-2741 (RBK/AMD)
KUGLER, United States District Judge:
This matter comes before the Court on Plaintiff’s Bill of Costs (ECF No. 292) after this
Court previously ordered Plaintiff to present invoices for costs pursuant to 28 U.S.C. § 1920, 42
U.S.C. § 1988, and L. Civ. R. 54.1. (See ECF No. 290.) The Court finds that all the expenses that
Plaintiff seeks are taxable save for the daily trial transcripts, and awards $32,135.08.
The relevant facts were recently summarized in this Court’s last opinion on attorney’s fees
and have not drastically changed. (See ECF No. 290.) In brief, Plaintiff prevailed on claims of
excessive force and municipal liability pursuant to 28 U.S.C. § 1983 and Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 690 (1978), and seeks costs from Defendants, in addition
to the attorney’s fees that this Court has already awarded. This Court previously declined to tax
Plaintiff’s initial request for costs of $148,772.38 because Plaintiff had failed to include invoices
with his initial application and had not sufficiently briefed the matter. (Id. at 31.) Plaintiff has since
submitted an amended Bill of Costs, inclusive of “expenses” under 42 U.S.C. § 1988, for a
substantially lower sum of $56,009.33. We address the particulars of the Bill of Cost below.
In this Circuit, there is a strong presumption that costs should be awarded to the prevailing
party, and “‘[o]nly if the losing party can introduce evidence, and the district court can articulate
reasons within the bounds of its equitable power, should costs be reduced or denied to the
prevailing party.’” Reger v. Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010) (quoting In
re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 468 (3d Cir. 2000)). The rationale behind this
presumption is that the denial of costs is tantamount to a penalty. Id. at 288–289 (citing ADM Corp.
v. Speedmaster Packaging Corp., 525 F.2d 662, 665 (3d Cir. 1975)). The taxing of costs is within
the discretion of the district court. In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 458 (3d Cir.
2000) (citations omitted).
Despite this strong presumption, courts do not have unfettered discretion to grant costs
under Rule 54(d) and their ability to grant costs is statutorily circumscribed. The United States
Supreme Court has ruled that absent express statutory authorization, courts may reimburse only
those costs that are enumerated in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 441 (1987). Section 1920 has been narrowly construed to permit taxing of only the
1) Fees of the clerk and marshal;
2) Fees of the court reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case;
3) Fees and disbursements for printing and witnesses;
4) Fees for exemplification and copies of papers necessarily obtained for use in the
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
1928 of this title.
The Supreme Court recently reinforced its Crawford Fitting holding in Taniguchi v. Kan Pacific
Saipan, Ltd., 566 U.S. 560 (2012), in which § 1920(6)’s provision for the “compensation of
interpreters” only extended to the costs of courtroom interpreters, and not to the costs of oral
translation. In denying the cost of document translation, the Court noted that its decision was “in
keeping with the narrow scope of taxable costs.” Id. at 573.
Plaintiff seeks a total of $56,009.33 in costs divided between trial transcripts ($23,874.25),
deposition transcript ($26,978.59), expert costs ($2,660.36), subpoenas ($729.94), and a set of
miscellaneous “expenses” under 42 U.S.C. § 1988 that includes copying, Fed-Ex, medical records,
and parking (totaling $1,766.19). (Br. at 12.) Defendant concedes that costs for experts, subpoenas,
and the miscellaneous § 1988 “expenses” are proper. (Opp’n at 1.) Thus, the costs related to these
concessions are accordingly granted to Plaintiff. But Defendant strenuously objects to the
big-ticket items, namely the costs for daily trial transcripts and the costs for deposition transcripts.
A party can be reimbursed for trial transcripts that are “necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). “[W]hether something is ‘necessarily obtained for use in the case,’ . .
. inevitably calls for a factual evaluation. Common sense is compelling that Congress committed
that task to the District Judge.” United States v. Kolesar, 313 F.2d 835, 838–39 (5th Cir. 1963).
In addition to § 1920, this district’s local rules also set forth when a trial transcript is
recoverable as a cost:
The cost of a reporter’s transcript is allowable only (A) when specifically requested
by the Judge, master, or examiner, or (B) when it is of a statement by the Judge to
be reduced to a formal order, or (C) if required for the record on appeal. Mere
acceptance by the Court of a submitted transcript does not constitute a request.
Copies of transcripts for an attorney’s own use are not taxable in the absence of a
prior order of the Court. All other transcripts of hearings, pretrials and trials will be
considered by the Clerk to be for the convenience of the attorney and not taxable
L. Civ. R. 54.1(g)(6).
The line between what is “for the convenience of the attorney” and what is “necessarily
obtained” can be difficult to draw. As a matter of strict logical necessity, though, there are only a
few instances where it is absolutely necessary to get trial transcripts for their use at trial. Strictly
construed, the use of daily trial transcripts would not be “necessary” whenever a party could
achieve a similar result with a viable alternative. Note-taking at trial is routine—indeed,
expected—and thus many courts limit recovery of costs for daily transcripts when a party could
have simply taken notes and achieved the same outcome without burdening a losing opponent with
costs that could have easily been avoided. “Typically, for the purpose of cross-examination,
attorneys take notes during the trial,” John G. v. Bd. of Educ. of Mount Vernon Pub. Sch., 891 F.
Supp. 122, 123 (S.D.N.Y. 1995), and “[t]he mere convenience [of daily transcripts] to counsel is
insufficient to justify the taxation of costs.” Smith v. Board of Sch. Comm’rs of Mobile County,
119 F.R.D. 440, 444 (S.D. Ala. 1988). See also Galella v. Onassis, 487 F.2d 986, 999 (2d Cir.
1973) (holding that award of “premium cost of daily transcripts” requires showing of “necessity—
beyond the mere convenience of counsel”); Bucalo v. E. Hampton Union Free Sch. Dist., 238
F.R.D. 126, 129 (E.D.N.Y. 2006) (“it is not necessary for counsel to rely on a trial transcript when
counsel can take notes during trial in order to prepare for cross examination and summation.”)
(citing cases); John G. v. Board of Ed. of Mt. Vernon Public Schools, 891 F. Supp. 122, 123
(S.D.N.Y. 1995) (“Daily transcripts of trial testimony are not customary.”) (citation omitted).
This district’s local rules are a procedural reflection of this substantive law, “in keeping
with the narrow scope of taxable costs.” Taniguchi, 566 U.S. at 573. Per Rule 54.1, the cost of a
reporter’s transcript is limited to (a) court requests, (b) the transcript of a judicial order, or
(c) appeal. Plaintiff does not argue that he used the daily trial transcripts for any of these purposes.
At first blush, then, Plaintiff has failed to demonstrate that these daily trial transcripts were
“necessarily obtained for use in the case.” 28 U.S.C. § 1920(2).
But Rule 54.1 is not necessarily dispositive. However faithfully it reflects substantive law,
a rule of procedure cannot abridge 28 U.S.C. § 1920 by defining “necessarily obtained for use in
the case” to exclude certain categories of necessity that might otherwise be within the statute’s
meaning. See Erie R. Co. v. Tompkins, 304 U.S. 64, 92 (1938). The rule merely offers guidance,
and for that reason, the Court may waive the rule where appropriate. “A district court can depart
from the strictures of its own local procedural rules where (1) it has a sound rationale for doing so,
and (2) so doing does not unfairly prejudice a party who has relied on the local rule to his
detriment.” United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 215 (3d
Cir. 2000). As Defendant does not claim detrimental reliance on the procedure set forth by the
local rule—rather, it makes a substantive assault on Plaintiff’s use of the daily transcripts—the
Court may properly consider whether there is a sound rationale to depart from this rule.
As we have noted, most authority has concluded that trial transcripts used for trial and
summation are not “necessarily obtained for use in the case.” But there is a line of cases that regard
the use of daily transcripts as “necessarily obtained” when a trial is long and complex, when the
parties and court rely on the transcripts, and when the trial transcripts were used in post-trial
briefing. See Jo Ann Howard & Assocs., P.C. v. Cassity, 146 F. Supp. 3d 1071, 1081 (E.D. Mo.
2015) (citing cases). Most of these cases are not directly applicable here, though. In McDowell v.
Safeway Stores, Inc., 758 F.2d 1293, 1294 (8th Cir. 1985), the Eighth Circuit found that transcripts
were “necessary to prepare proposed findings of fact and conclusions of law” when “requested by
the trial judge.” As we noted with respect to Rule 54.1, though, this Court never requested the
transcripts, even if they were provided to it, and it did not prepare findings of fact or conclusions
of law. And although this trial was long and relatively complex, Plaintiff had two lawyers during
the entirety of trial, one of whom was capable of taking notes the entire time. What’s more, the
transcripts were used only modestly in post-trial briefing—only a few passages in 3,293 pages of
We also note that Plaintiff’s request for the taxation of daily trial transcripts is very broad.
He seeks costs for every day of trial, without making an effort to distinguish between those costs
that really were necessary, those that were merely convenient, or even those that were simply
superfluous. But many cases that tax costs for the use of daily trial transcripts do so only for
specific days, not the entirety of trial. See, e.g., Montgomery Cty. v. Microvote Corp., Civ. No.
A.97-6331, 2004 WL 1087196, at *5 (E.D. Pa. May 13, 2004) (taxing costs only for daily copies
of the trial transcripts for openings, a day of testimony, and summation, not the entirety of the twoweek trial).
Thus, after receiving briefing on the matter, the Court cannot conclude that § 1920 permits
the award of $23,874.25 in costs in these circumstances. Given the strict construction of § 1920
set forth by Taniguchi, 566 U.S. at 573, Defendant cannot be asked to pay for a transcript that was
was only convenient, not necessary. Plaintiff was on notice as to Rule 54.1’s requirements and the
Court sees no sound rationale to depart from the local rules in this instance. The Court thus declines
to tax costs for daily trial transcripts.
The last time this Court considered costs, it noted that many deposition transcripts were
relied on at trial, but the absence of invoices rendered scrutiny impossible. Plaintiff has since pared
down his request after submitting invoices and an exhaustive accounting of the use of these
depositions during the trial. He now seeks a total of $26,978.59 in costs for depositions of
individuals who testified at trial or worked for Atlantic City. Defendant argues, without specificity,
that many of these were not necessary and, alternatively, that their costs should be defrayed across
the several matters that Plaintiff’s counsel has pending against the City of Atlantic City.
Defendants also object to costs related to shipping and handling of the depositions.
The costs of discovery are broadly recoverable under § 1920, and depositions are no
different. The mass of authority does not require a deposition transcript to be “absolutely
indispensable” to be taxable as a cost. See, e.g., Majeske v. City of Chicago, 218 F.3d 816, 825
(7th Cir. 2000) (“the introduction of testimony from a transcript is not a prerequisite for finding
that it was necessary.”); Indep. Tube Corp. v. Copperweld Corp., 543 F. Supp. 706, 717 (N.D. Ill.
1982) (“If a deposition appeared to be reasonably necessary ‘in light of the particular situation
existing at the time it was taken,’ the cost of a deposition may be taxed even if the witness was not
called at trial or the deposition used at trial and even if the deposition was a discovery deposition
only.”) (internal citations omitted) (citing Dorothy K. Winston & Co. v. Town Heights
Development, Inc., 68 F.R.D. 431, 434 (D.D.C. 1975)). Generally speaking, “a deposition taken
within the proper bounds of discovery . . . will normally be deemed to be ‘necessarily obtained for
use in the case,’ and its costs will be taxed unless the opposing party interposes a specific objection
that the deposition was improperly taken or unduly prolonged.” Jeffries v. Georgia Residential
Finance Authority, 90 F.R.D. 62, 63 (N.D. Ga. 1981) (citing Federal Savings and Loan Insurance
Corp. v. Szarabajka, 330 F. Supp. 1202, 1210 (N.D. Ill. 1971)).
Defendant objects to the breadth of the depositions pursued by Plaintiff, arguing that many
of Plaintiff’s requested depositions were ultimately unnecessary. “[C]osts for depositions obtained
for the convenience of counsel or for investigatory or discovery purposes [that] are not used or
intended for use at trial may not be taxed.” Adams v. Teamsters Local 115, 678 F. Supp. 2d 314,
325 (E.D. Pa. 2007). But the nature of Plaintiff’s prevailing Monell claim, 436 U.S. at 690, imposes
a heavy burden on defendant to identify why these depositions were not necessary. Monell claims
are often expansive: they encompass a broad range of actors and policy considerations which
makes much discovery relevant, a tendency borne out by the lengthy proceedings in this case. And
at both oral argument and in supplemental briefing, Defendant failed to articulate which
depositions were not used for this case.
Defendant makes another argument: the Court should divide the costs of these depositions
among four or five other cases that Plaintiff’s counsel are or were litigating against the City of
Atlantic City. It is true that Plaintiff cannot recoup duplicate cost awards. See, e.g., Ortho-McNeil
Pharm., Inc., v. Mylan Labs., 569 F.3d 1353, 1358 (Fed. Cir. 2009). But Plaintiff’s counsel have
repeatedly stated, at oral argument and elsewhere, that they have no intention of seeking
duplicative cost awards. And even if they did, Defendant would be well-positioned to argue against
double taxation should Plaintiff’s counsel attempt to do so at a future time. See also Fed. R. Civ.
P. 11. Moreover, the proposed methodology for dividing these costs is crude and unwieldy—
Defendant simply asks this Court to divide deposition costs by the number of cases, without regard
for their relevance or utility. If Plaintiff has not taxed and will not seek to tax costs in other matters,
then there is no reason why he should not be entitled to tax costs in this one. What’s more,
Defendant has not refuted the basic presumption that these depositions are just as necessary to this
case as they may be to others. The Court will therefore tax costs for the entirety of the deposition
transcripts that Plaintiff requests.
Finally, Defendant is correct that 28 U.S.C. § 1920 does not permit recovery of $726.05 in
shipping costs for Plaintiff’s depositions.1 See, e.g., New Jersey Manufacturers Ins. Grp. v.
Electrolux, Inc., Civ. No. A. 10-1597 (AET), 2013 WL 5817161, at *8 (D.N.J. Oct. 21, 2013)
(noting that shipping costs are not recoverable under § 1920, and citing cases). These expenses
are, however, recoverable under the Third Circuit’s construction of 42 U.S.C. § 1988, under which
many expenses are “attorney’s fees,” not “costs.” See Abrams v. Lightolier Inc., 50 F.3d 1204,
1225 (3d Cir. 1995). Among these expenses are postage. Id. As such, the shipping “expenses” are
awardable under § 1988.
In short, the entirety of Plaintiff’s costs and “expenses” for deposition transcripts shall be
taxed and awarded, a sum of $26,978.59.
Although not raised by the parties at any time in this litigation, the Court finds that
apportionment of fees and costs is appropriate.
This Court has broad discretion to determine the allocation of attorney’s fees and costs
among multiple defendants. See In re Paoli, 221 F.3d at 468–69. In allocating attorney’s fees and
costs among multiple defendants, a district court “should make every effort to achieve the most
fair and sensible solution that is possible.” Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960 (1st
Cir. 1984). This power to apportion between parties also includes the power to divide costs among
the losing and winning parties in a case involving multiple defendants. In re Paoli, 221 F.3d at
469. In dividing costs among multiple parties on one side of the bar—either prevailing or
Four deposition transcripts do not include costs for shipping and, as neither party has addressed
this, the Court will not infer shipping costs that are not stated in the invoices.
non-prevailing—this Court may choose to impose costs jointly and severally or to disaggregate
costs and to impose them individually. Id.
Given the disparity in damages awarded by the jury against Defendants—$500.00 against
John Devlin and $300,000 against the City of Atlantic City—the Court finds that both the
attorney’s fees and the costs that is has awarded and taxed should be similarly distributed among
the defendants who were found liable. Thus, John Devlin, whose damages are only 0.166% of the
total damages awarded in this action, shall be liable for fees and costs to the same degree. Atlantic
City shall be correspondingly liable for 99.834% of the fees and costs awarded in this litigation.
The Court finds that all of Plaintiff’s requested costs are awardable under 28 U.S.C. § 1920
and 42 U.S.C. § 1988 save for the daily trial transcripts, which are not “necessarily obtained for
use in the case” under the strict construction set by the Supreme Court. The Court will therefore
award $32,135.08 in costs and “expenses” to Plaintiff. In addition, and to the extent this Court’s
last order does not make this clear, all fees and costs shall be entered against Defendants in the
proportions we have identified. An order follows.
Dated: August 17, 2018
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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