Audio Technica U.S., Inc. v. United States of America

Filing 149

Order and Decision granting in part and denying in part Plaintiff's Motion to enter a Bill of Costs (Related Doc # 145 ). For the foregoing reasons, Audio Technica's motion for costs is granted in part and denied in part, as follow s: 1.Clerk and Marshal Fees of $350.72 are GRANTED. 2. Recorded Transcript Fees of $2,761.84 are GRANTED. 3. Printing Fees of $6,828.80 are GRANTED. 4.Travel Expenses for Out-of-District Counsel of $34,746.24 are DENIED. Total costs awarded to the sum of $9,941.36. Judge John R. Adams on 7/17/19.(K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Audio Technica U.S., Inc.,

Plaintiff,
v.
United States of America,

Defendant.

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CASE NO: 5:16CV2052

JUDGE JOHN ADAMS
ORDER AND DECISION
(Resolving Doc. 145)

Pending before the Court is Plaintiff’s Request to Enter Bill of Costs (Doc. # 145)
pursuant to Fed. R. Civ. P. 54(d)(1), 28 U.S.C. § 1920, and this Court’s Final Judgment
(Doc. # 144). Defendant has objected in part to the request and Plaintiff has replied in
support. For the foregoing reasons, the request is GRANTED in part and DENIED in part.
I.

Background
Plaintiff, Audio Technica U.S., Inc., filed a related civil action against Defendant

United States of America for a refund of several years’ worth of research tax credits
pursuant to I.R.C. Secs. 41 & 174. The matter was tried before a jury, after which a
unanimous verdict was delivered in favor of the plaintiff. The Court issued a Final
Judgment in the matter, finding that Plaintiff had substantially prevailed on the primary
issues in dispute and awarding reasonable court costs. Following this judgment, Plaintiff
filed a motion requesting the Court to enter a Bill of Costs. Pursuant to 28 U.S.C. § 1920,
Plaintiff requests: 1). $350.72 in Clerk and Marshal Fees, 2). $2,761.84 in RecordedTranscript Fees, and 3). $6,828.80 in Printing Fees. Additionally, Plaintiff seeks to recover

fees entitled “Travel Expenses for Out-of-District Counsel” in the amount of $34,746.24.
In support, Plaintiff included an affidavit of its cost calculations for each category,
including an itemized receipt for “Travel and Trial Supply Fees.” Defendant objected to
the latter category of fees.
II.

Analysis
Fed. R. Civ. P. 54(d)(1) provides that “[u]nless a federal statute, these rules, or a

court order provides otherwise, costs—other than attorney’s fees—should be allowed to
the prevailing party. But costs against the United States, its officers, and its agencies may
be imposed only to the extent allowed by law.”
Plaintiff pursues taxable costs under 28 U.S.C. § 1920. The pertinent language of §
1920 reads:
A judge or clerk of any court of the United States may tax as costs the
following:
(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 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.

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In awarding costs, district courts first look to whether the requested expenses are
permitted under the statute. King v. Gowdy, 268 F. App’x. 389, 391 (6th Cir. 2008) (citing
BDT Prods. v. Lexmark Int'l, Inc., 405 F.3d 415, 417 (6th Cir. 2005)). Those expenses not
enumerated by § 1920 are not recoverable in a Bill of Costs. Id. (citing Crawford Fitting
Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 440 (1987)); see also Wyandotte Sav. Bank v.
NLRB, 682 F.2d 119, 120 (6th Cir. 1982) (travel costs are not mentioned in 28 U.S.C. §
1920 and thus not recoverable); L & W Supply Corp. v. Acuity, 475 F.3d 737, 741 (6th Cir.
2007) (holding that expert witness fees cannot be taxed as costs “because § 1920 does not
provide for them.”); Vistein v. Am. Registry of Radiologic Technologists, 2010 U.S. Dist.
LEXIS 21762, at *25-26 (N.D. Ohio Mar. 10, 2010) (attorney travel, telephone, fax,
PACER, delivery, and business meal expenses are not authorized as taxable expenses under
§ 1920). If costs are allowable under the statute, courts then determine whether they are
reasonable and necessary. Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 591 (6th
Cir. 2004) (citing Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924
F.2d 633, 643 (7th Cir. 1991).
Defendant United States has not contested Plaintiff’s request for fees that are
specifically enumerated under § 1920. Thus, Plaintiff’s request for Clerk and Marshal Fees,
Recorded-Transcript Fees, and Printing Fees is granted for a total of $9,941.36. The Court
would note, however, that Plaintiff has not offered any form of itemization or per-unit cost
in support of its printing expenses. District courts should “cast a strict eye” toward expense
reports, especially in an instance of thousands of dollars worth of photocopying, absent an
in-depth itemization or explanation. See Bowling v. Pfizer, Inc., 132 F.3d 1147, 1152 (6th
Cir. 1998). Nevertheless, in consideration of the lengthy and complex proceedings

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involved in this case, as well as the absence of opposition from Defendant, the Court finds
Plaintiff’s non-itemized request for printing fees to satisfy the reasonable and necessary
requirement.
Plaintiff’s uncontested fees having been approved, the sole issue of contention
between the parties is Plaintiff’s request for what it has deemed “Travel Expenses for Outof-District Counsel.” As discussed above, attorney travelling expenses, along with other
expenses that Plaintiff has proffered under this category, are not enumerated under § 1920
and thus not recoverable costs under the jurisprudence of this circuit. 1
In an effort to distinguish this case from those holdings, Plaintiff cites Hahnemann
Univ. Hosp. v. All Shore, Inc., for the proposition that there are circumstances that allow
for recovery of travelling expenses for counsel located outside of the forum. 514 F.3d 300,
312 (3d Cir. 2008). Plaintiff further asserts that because the subject matter of this case
involved an understanding of “intricate and complex” provisions of law, local attorneys
may lack Plaintiff’s own counsel’s level of knowledge and as such may have jeopardized
its interests in this litigation. 2 However, Hahnemann does not stand for the stated
proposition, nor is it binding on this Court. Hahnemann states in relevant part:
“We have stated that ‘under normal circumstances, a party that hires counsel
from outside of the forum of the litigation may not be compensated for
travel time, travel costs, or the costs of local counsel.’ Interfaith Cmty. Org.
v. Honeywell Int'l, Inc., 426 F.3d 694, 710 (3d Cir. 2005). ‘However, where
forum counsel are unwilling to represent plaintiff, such costs are
compensable.’ Id. In this case, there is nothing in the record to suggest that
counsel from within the forum was unwilling to represent Hahnemann in
this straight forward, albeit lengthy . . . action.”

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Beyond airfare and hotel expenses, Plaintiff also includes car rental costs, gasoline, meals, tolls, parking,
mileage, exhibit transportation, office supplies, and even attendance at a seminar in its calculation of
“Travel Expenses for Out-of-District Counsel.”
2
Plaintiff’s reply brief goes so far as to say plaintiff counsel’s level of experience in litigating two cases of
the same subject matter in the Fifth Circuit “cannot be duplicated by a local attorney.”

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Hahnemann, 514 F.3d at 312.
This Court is not required to adhere to the Third Circuit’s unwillingness test. Even
if it did, Plaintiff has offered no argument or facts in the record which indicate that forum
counsel was unwilling to represent it in this matter. On the contrary, Plaintiff appears to
concede that it was unwilling to obtain in-forum counsel, electing instead to retain distant
counsel for their expertise in the relevant area of law. Plaintiff further emphasizes
Hahnemann’s description of the litigation as “straight forward” to contrast it with the more
complex areas of law that were at issue in this case. But the complexity, or lack thereof, of
that case was not a dispositive issue, nor did the court place any significant emphasis on its
straightforward nature. In as much as Hahnemann echoes the general rule of this circuit,
namely that outside of the forum counsel are not entitled to travel expenses, this Court will
follow suit.
Plaintiff’s argument that it is unfair and inequitable to punish it for not hiring “less
knowledgeable” local counsel merely for their proximity to the courthouse is without merit.
This forum is large and contains many capable and specialized attorneys and large and
sophisticated law firms. Obtaining in-forum counsel does not require parties to retain an
attorney with an office next to the courthouse, nor is it a “requirement” in its own sense.
Plaintiff was free to retain counsel of its choosing in this matter, from within or outside of
this forum. However, travel expenses for out of district counsel are not enumerated under
28 U.S.C. § 1920, thus the law is clear that Plaintiff is not entitled to collect such expenses
in a bill of costs.
III.

Conclusion

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For the foregoing reasons, Audio Technica’s motion for costs is granted in part and
denied in part, as follows:
1. Clerk and Marshal Fees of $350.72 are GRANTED.
2. Recorded Transcript Fees of $2,761.84 are GRANTED.
3. Printing Fees of $6,828.80 are GRANTED.
4. Travel Expenses for Out-of-District Counsel of $34,746.24 are DENIED.
Total costs awarded to the sum of $9,941.36.
IT IS SO ORDERED.

7/17/2019
Date

____/s/ Judge John R. Adams_______
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT

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