LANGLEY v. UNITED PARCEL SERVICE, INC.
Filing
66
OPINION. Signed by Magistrate Judge Michael A. Hammer on 12/3/2021. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
KENRICK LANGLEY,
:
:
Plaintiff,
:
:
v.
:
:
:
UNITED PARCEL SERVICE, INC.,
:
:
Defendant.
:
____________________________________:
I.
Civil Action No. 18-8807 (MCA) (MAH)
OPINION
INTRODUCTION
This matter comes before the Court by way of Defendant United Parcel Service, Inc.’s
(“Defendant” or “UPS”) motion for taxation of costs pursuant to 28 U.S.C. § 1920, Federal Rule
of Civil Procedure 54.1 and Local Civil Rule 54.1. Def.’s Mot. for Taxation of Costs, Oct. 22,
2021, D.E. 63. The Court has reviewed the parties’ submissions in support of and in opposition
to the motion and, pursuant to Federal Rule of Civil Procedure 78, has considered the motion
without oral argument. For the reasons set forth below, the Court will grant the motion.
II.
BACKGROUND
Plaintiff initiated this matter on September 7, 2016 by filing a Complaint against
Defendant, his former employer, in the Superior Court of New Jersey, Law Division, Middlesex
County (“Superior Court”). Compl., Sept. 7, 2016, D.E. 1 at p. 19. Plaintiff accused UPS and
multiple since-terminated individual defendants of violations of the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1, et seq. (“NJLAD”), and New Jersey public policy. First Am.
Compl., May 4, 2017, D.E. 1, at pp. 50-66.
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UPS removed this action for the first time on December 6, 2016. First Notice of
Removal, D.E. 1, at pp. 11-12. On December 21, 2017, the Court remanded the matter to the
Superior Court for lack of subject matter jurisdiction. Remand Order, Dec. 21, 2017, D.E. 1, at
pp. 68-71. On remand, the Superior Court dismissed three counts of Plaintiff’s First Amended
Complaint and all the claims asserted against the individual defendants, leaving intact only
Plaintiff’s racial discrimination in violation of the NJLAD (Count 1) and “pattern and practice”
of discrimination in violation of the NJLAD (Count 3) claims. Superior Court Order, May 3,
2018, D.E. 1, at pp. 76-77.
This action was removed for the second time on May 4, 2018 and, following discovery,
UPS moved for summary judgment. Second Notice of Removal, May 4, 2018, D.E. 1, at pp. 15; Def.’s Mot. for Summary Judgment, Feb. 9, 2021, D.E. 52. The Court granted summary
judgment in UPS’s favor and dismissed Plaintiff’s remaining claims on September 23, 2021.
Order Granting Summary J., Sept. 23, 2021, D.E. 60. Thirty days later, on October 21, 2021,
Plaintiff filed a notice of appeal from the Order granting summary judgment to Defendant. 1
Notice of Appeal, Oct. 21, 2021, D.E. 61. Defendant filed the instant motion for taxation of
costs the next day. Def.’s Mot. for Taxation of Costs, D.E. 63.
III.
LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) (“Rule 54”) states that “Unless a federal statute,
these rules, or a court order provides otherwise, costs – other than attorney’s fees – should be
allowed to the prevailing party.” Rule 54(d)(1) “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) (citation omitted). “If an order or judgment is silent as to costs[,] the natural reading
1
As of the date of this Opinion, Plaintiff’s appeal is pending.
2
of the Rule 54(d) would lead one to conclude that a judgment or order allows costs because the
court had not ‘otherwise directed.’” O’Boyle v. Braverman, Civ. No. 08-553, 2008 WL
11381922, at *1 (D.N.J. Oct. 9, 2008) (citing Congregation of the Passion v. Touche, Ross &
Co., 854 F.2d 219, 221 (7th Cir. 1988)). “Rule 54(d) generally grants a federal court discretion
to refuse to tax costs in favor of the prevailing party.” Crawford Fitting Co. v. J. T. Gibbons,
Inc., 482 U.S. 437, 442 (1987). However, “[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. The Nemours Found., Inc., 599 F.3d 285,
288 (3d Cir. 2010) (quoting In re Paoli, 221 F.3d at 462-63, 468). The reasons underlying the
denial or reduction of a prevailing party’s award of costs must be articulated “because the denial
of such costs is akin to a penalty.” Id. (first citing In re Paoli, 221 F.3d at 468; and then citing
ADM Corp. v. Speedmaster Packaging Corp., 525 F.2d 662, 665 (3d Cir. 1975)).
“Where a defendant successfully defends against a plaintiff’s substantial claims and
judgment is entered accordingly, the defendant is generally considered the prevailing party for
purposes of Rule 54(d)(1).” AMA Realty LLC v. 9440 Fairview Ave. LLC, Civ. No. 13-457,
2019 WL 7288939, at *3 (D.N.J. Dec. 30, 2019) (citation omitted); see also Garonzik v.
Whitman Diner, 910 F. Supp. 167, 168 (D.N.J. 1995) (explaining “[a] prevailing party is the one
in whose favor a judgment is rendered”). Here, it is beyond dispute that Defendant is the
prevailing party in this action, since summary judgment was granted in Defendant’s favor on
Plaintiff’s remaining claims. Order Granting Summary J., D.E. 60. AMA Realty, 2019 WL
7288939, at *3. Additionally, the Order granting summary judgment to Defendant is silent as to
costs, leaving the decision to allow or deny taxation wholly within the Court’s discretion.
O’Boyle, 2008 WL 11381922, at *1.
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IV.
DISCUSSION
A. Plaintiff’s Arguments in Opposition
Plaintiff raises two arguments in support of his request that the Court exercise its
discretion and deny taxation. Pl.’s Br. in Opp’n, Oct. 26, 2021, D.E. 64, at pp. 2-5. Plaintiff first
asserts that taxation will have a “chilling effect” upon future NJLAD plaintiffs. Id. at p. 2. A
similar argument was raised and explicitly rejected in Reger v. The Nemours Foundation, Inc.,
599 F.3d at 289. The Third Circuit has explained that
The fact that a prevailing party prosecutes its rights under the
Federal Rules of Civil Procedure to an award of costs cannot be seen
as chilling the flow of litigation. Indeed, the very possibility that a
losing party will be required to reimburse the prevailing party for its
costs should cause parties to litigation to pause and calculate the
risks of pursuing meritless or marginal claims. . . . It is incumbent
on an attorney to explain the risks of litigation to his or her client –
including the risk that under Rule 54(d)(1) they may have to pay
costs should their litigation ultimately prove unsuccessful.
Id.
The Court finds no basis to deviate from this guidance. Moreover, the case Plaintiff relies upon
in urging the Court to conclude otherwise, Michael v. Robert Wood Johnson University Hospital,
398 N.J. Super. 159, 166 (App. Div. 2008), does not stand for the proposition that an award of
costs to a prevailing defendant in an NJLAD action will have a “chilling effect on civil rights
plaintiffs.” Pl.’s Br. in Opp’n, D.E. 64, at p. 2. To the contrary, the Michael court considered an
award of reasonable attorneys’ fees to an NJLAD defendant, not taxation of costs, and found
such an award was permissible so long as the trial court made a “requisite finding that plaintiff
proceeded in bad faith.” Id. at 167-68. The Court therefore finds Plaintiff’s concern
unpersuasive.
Plaintiff’s second argument, that the Court should exercise its discretion and deny costs
because of the significant financial disparity between the parties, is similarly unavailing. Id. at
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pp. 2-3. It is well-established that “disparity between the parties’ financial resources” is not a
basis to deny or reduce an award of costs to a prevailing party under Rule 54(d). Smith v. Se. Pa.
Transp. Auth., 47 F.3d 97, 99 (3d Cir. 1995) (“reject[ing] the general proposition that it is
‘inequitable’ to tax costs in favor of [a] prevailing party with substantially greater wealth than
the losing party”); accord Reger, 599 F.3d at 289; In re Paoli, 221 F.3d at 468 (holding “a
district court may not consider . . . the relative disparities in wealth between the parties” when
reviewing a costs award). Thus, the Court cannot deny Defendant’s motion simply because
Defendant has “considerable assets” and “would not be prejudiced by this Court’s denial.” Id. at
p. 3.
The Court also declines Plaintiff’s request to stay an award of costs to Defendant. Id. “A
stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder,
556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)).
A stay is “an exercise of judicial discretion . . . dependent upon the circumstances of the
particular case.” Id. (citations omitted). “The party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that discretion.” Id. at 433-34. Four
factors guide the court’s consideration:
(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.”
Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
While Plaintiff has appealed the entry of summary judgment in Defendant’s favor,
Plaintiff has not made any argument on the relevant factors or provided any case law establishing
a stay is appropriate in this matter. See id. Plaintiff also seemingly overlooks the fact that judges
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in this District have approved cost awards entered during the pendency of the losing party’s
appeal to the Third Circuit. See, e.g., Druding v. Care Alts., Civ. No. 08-2126, 2019 WL
5957403, at *2 (D.N.J. Nov. 13, 2019) (denying motion to stay taxation of costs pending
outcome of summary judgment appeal but extending automatic stay of execution on judgment);
see also Kenny v. Denbo, Civ. No. 16-8578, 2017 WL 4155226, at *1, *3 (D.N.J. Sept. 19, 2017)
(affirming cost award, despite losing party’s “pending notice of appeal in the Third Circuit”). In
sum, the Court finds no basis to grant Plaintiff’s request for a stay and concludes an award of
costs is appropriate.
B. Defendant’s Bill of Costs
The Court next considers whether Defendant’s itemized costs are eligible for taxation.
See Def.’s Bill of Costs, Oct. 22, 2021, D.E. 63-2. The following items are taxable as costs
under § 1920:
(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 [28 U.S.C. §] 1923;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under [28 U.S.C. §] 1828 of this title.
Defendant requests reimbursement in the amount of $5,491.61, which Defendant has
itemized as follows:
•
$150.00 for the cost of the pro hac vice admission of Abby E. Chermely, Esq., Def.’s
Itemization of Bill of Costs, Oct. 22, 2021, D.E. 63-3, at p. 1;
•
$147.81, for the service of a subpoena upon FedEx Ground, id.;
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•
$5,173.80 for costs incurred in the taking and transcribing of depositions necessarily
obtained for use in this matter, id. at p. 2; and
•
$20.00 for docket fees, id. at p. 3.
The Court first addresses Defendant’s request for fees paid to the Clerk of Court for the
pro hac vice admission of Ms. Chermely. Id. at p. 1. “Section 1920(1) allows the taxation of the
‘[f]ees of the clerk’ but does not explicitly include pro hac vice fees as costs.” Warner Chilcott
Lab’ys Ir. Ltd. v. Impax Lab’ys, Inc., Civ. Nos. 08-6304, 09-2073, 09-1233, 2013 WL 1716468,
at * 2 (D.N.J. Apr. 18, 2013). While the Third Circuit has not yet addressed whether these fees
are taxable costs, the District of New Jersey Clerk of Court has determined losing parties “should
not be required to pay these fees simply because [the prevailing party] chose to be represented by
counsel who are not admitted to practice in this district.” Id. at *3; accord Hyland v. Am. Gen.
Life Cos., Civ. No. 06-6155, 2010 WL 11566242, at *2 (D.N.J. Feb. 9, 2010); see also O’Boyle,
2008 WL 11381922, at *1. Accordingly, the Court will not permit the amount of $150 as a
taxable cost.
Defendant asks for taxation of $147.81 for the cost of serving a subpoena upon FedEx
Ground. Id. at p. 1. A review of the supporting documents submitted by Defendant shows this
fee was paid to Passant and Passant Ltd., a private investigation company. Exhibit B to
Itemization of Costs, Feb. 4, 2020, D.E. 63-5, at p. 2. As already noted, § 1920(1) authorizes
taxation of the costs of the “clerk and marshal.” “However, this Court has held that the fees of
private process servers are taxable under [a] combined reading of § 1920 and [28 U.S.C.] § 1921,
which allows the court to tax as costs the fees for serving a subpoena on a witness.” N.J. Mfrs.
Ins. Grp. v. Electrolux, Civ. No. 10-1597, 2013 WL 5817161, at *5 (D.N.J. Oct. 21, 2013); see
also Ricoh Corp. v. Pitney Bowes Inc., Civ. No. 02-5639, 2007 WL 1852553, at *3 (D.N.J. June
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26, 2007) (finding process server fees were “‘actually and necessarily’ incurred and should be
reimbursed”). Because Defendant has submitted an invoice substantiating this cost and Plaintiff
has voiced no opposition to its validity, the Court taxes this $147.81 cost, as allowed by
§ 1920(1).
Defendant requests taxation of $5,173.80, the combined cost of fees incurred in taking
and transcribing the depositions of Plaintiff and five other witnesses, less amounts charged by
vendors for the preparation and inclusion of exhibits, handling fees, and shipping costs. 2 Def.’s
Itemization of Costs, D.E. 63-3, at p. 2; see also Exhibit C to Def.’s Itemization of Costs, Oct.
22, 2021, D.E. 63-6. Fees for recorded transcripts are taxable under § 1920(2) if the transcripts
were “necessarily obtained for use in the case.” 3 See Electrolux, 2013 WL 5817161, at *5;
Hyland, 2010 WL 11566242, at *2. “Additionally, 28 U.S.C. § 1920 has been interpreted to
allow costs for depositions in connection with a successful motion for summary judgment.”
Hyland, 2010 WL 11566242, at *2 (first citing In re Baby Food Antitrust Litig., 166 F.3d 112,
139 (3d Cir. 1999); and then citing Tilton v. Cap. Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th
Cir. 1997)). A review of the record establishes Defendant relied upon the transcripts in
successfully moving for summary judgment. See Exs. A through F to Decl. of Allison L. Goico,
Feb. 9, 2021, D.E.s 53-1 to 53-6. The Court therefore finds that the transcripts were necessary
2
“[T]he costs of postage and messenger services are not taxable.” Warner Chilcott, 2013 WL
1716468, at *14.
3
Local Civil Rule 54.1(g)(7) is narrower than § 1920 and limits the taxation of the costs of
depositions to those “used at the trial.” However, in In re Baby Food Antitrust Litigation, the
Third Circuit held that a local court rule must yield to a federal rule where the two conflict, and
interpreted “necessarily obtained for use in the case” as allowing for the taxation of the cost of
“depositions used in deciding summary judgment motions.” 166 F.3d at 138.
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for Defendant’s use in the case and approves the taxation of deposition costs in the amount of
$5,173.80.
The final cost requested by Defendant is the docket fee provided for in 28 U.S.C. § 1923
and allowed pursuant to § 1920(5). Def.’s Itemization of Costs, D.E. 63-3, at p. 3. Section
1923(a) sets a $20 docket fee “on trial or final hearing (including a default judgment whether
entered by the court or by the clerk)” in civil actions, and a $5 fee “on discontinuance of a civil
action” or a “motion for judgment.” Because this action was decided on a motion for summary
judgment, not on a trial or final hearing, the Court will permit only a $5.00 docket fee for the
motion for summary judgment as a taxable cost. See O’Boyle, 2008 WL 11381922, at *1-2
(allowing $5 docket fee, rather than $20 fee where defendants prevailed on motion for summary
judgment); c.f. Electrolux, 2013 WL 5817161, at *1, *13 (taxing $20.00 for docket fee following
six-day jury trial and verdict for defendant).
In sum, the Court finds it appropriate to tax Plaintiff costs in the amount of (1) $147.81
for the service of a subpoena upon FedEx Ground; (2) $5,173.80 for the cost of multiple
deposition transcripts; and (3) $ 5.00 for docket fees, for a total of $ 5,326.61. The Court will
not tax Plaintiff $150.00 for the cost of defense counsel’s pro hac vice application.
V.
CONCLUSION
For the reasons set forth above, Defendant’s motion to tax costs against Plaintiff is
granted in the amount of $5,326.61.
Michael A. Hammer
Hon. Michael A. Hammer,
United States Magistrate Judge
Dated: December 3, 2021
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