Filing 103


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA A N D R E Y YUDENKO, P la in tiff v. V I N C E N T GUARINNI, et al. D e fe n d a n ts : : : : : : : C I V I L ACTION N O . 06-cv-4161 M EM ORANDUM S te n g e l, J. June 14, 2010 F o llo w in g an August 2009 jury trial, judgment was entered in favor of Lancaster C o u n ty and against Andrey Yudenko in this prisoner civil rights case. Vincent Guarinni, L a n c e Seibert, Robert Bodnar, and Brian Weaver were dismissed prior to trial. On November 6, 2009, Mr. Guarinni, Mr. Seibert, Mr. Bodnar, Mr. Weaver, and L a n c a ste r County filed a bill of costs, to which Mr. Yudenko objected. On February 19, 2 0 1 0 , the Clerk of Court taxed costs in the amount of $3,576.37.1 Mr. Yudenko filed this m o tio n to vacate the clerk's taxation of costs. For the reasons discussed below, this m o tio n will be granted. The clerk of court allowed the requested costs except the $2,000 fee for the expert's review of the records and it allowed only a $40.00 attendance fee for the expert witness, not the $3,500 requested. Clerk's Taxation of Costs at 8-9, Yudenko v. Guarini, No. 06-4161 (E.D. Pa. filed Feb. 19, 2010). 1 1 I. D ISC U S S IO N F e d e ra l Rule of Civil Procedure 54(d)(1) provides: "Unless a federal statute, these ru le s , or a court order provides otherwise, costs--other than attorney's fees--should be a llo w e d to the prevailing party. . . . The clerk may tax costs on 14 days notice. On m o tio n served within the next 7 days, the court may review the clerk's action." The d e f e n d a n ts filed a timely bill of costs. M r. Yudenko objects to specific costs taxed by the Clerk of Court and requests the ta x a tio n of costs be vacated because he is indigent. Some of the challenged costs are ta x a b le . The bill of costs, however, will be vacated due to Mr. Yudenko's indigency. A. O b je c tio n s to Specific Costs A prevailing party in a civil case may recover filing fees, copying costs, witness f e e s , printing costs, compensation for certain experts, and fees for interpreters.2 M r. 2 28 U.S.C. 1920 provides: A judge or clerk of any court of the United States may tax as costs the f o llo w in g : (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily o b ta in e d 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 w h e re 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, 2 Yudenko challenges the taxation of the following costs: photocopying costs; certain costs a s s o c ia te d with the depositions, including delivery and postage fees, charges for copies of e x h ib its , and travel expenses; and the charges for subpoena and copy service for medical re c o rds. 1. P h o to c o p y Costs M r. Yudenko maintains the photocopy costs should not be allowed because the p h o to c o p y invoices are not itemized. Motion to Vacate at 7. T h e "costs of making copies of any materials where the copies are necessarily o b ta in e d for use in the case" are taxable. 28 U.S.C. 1920(4). "The party seeking costs f o r copying . . . must provide evidence of the material copied so that the court can d e te rm in e whether each copy was in fact necessary." Montgomery Co. v. Microvote C o rp ., 2004 WL 1087196, at *7 (E.D. Pa. May 13, 2004) (quoting Herbst v. General A c c id e n t Ins. Co., 2000 WL 1185517, at *2 (E.D. Pa. Aug. 21, 2000)). Although "the p re v a ilin g party is not expected to provide a detailed description of every piece of paper c o p ie d , it is expected to provide the `best breakdown of the copied material obtainable f ro m its records.'" Montgomery Co., 2004 WL 1087196, at *7 (quoting Ass'n of a n d salaries, fees, expenses, and costs of special interpretation services u n d e r section 1828 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the ju d g m e n t or decree. 3 Minority Contractors & Suppliers, Inc. v. Halliday Props., Inc., 1999 WL 1551903, at *4 (E .D . Pa. June 24, 1999)). W h e re the prevailing party does not provide an itemized description of the c o p yin g , courts have disallowed or reduced the photocopying costs because they were u n a b le to determine whether the costs were necessary. See Morgan-Mapp v. George W. H ill Correctional Facility, 2009 WL 1035141, at *3 (E.D. Pa. Apr. 16, 2009) (where p re v a ilin g party "provide[d] no description of the material being copied," the court could n o t determine whether the copies were necessary and the court did not allow the u n id e n tif ie d costs to be taxed); Montgomery County, 2004 WL 1087196, at *8 (reducing c o p yin g costs because the prevailing party failed "to provide an adequate breakdown of c o p yin g costs"); Elliott, Reihner, Siedzikoski, & Egan, Inc. v. Richter, 2000 WL 427377, a t *4 (E.D. Pa. Apr. 20, 2000) (disallowing the taxation of copying costs because the c o s ts were not itemized, the prevailing party merely submitted a chart with dates and c o rre sp o n d in g amounts without a description of the items copied); Ass'n of Minority C o n tra c to rs and Suppliers, 1999 WL 551903, at *4 (copying costs not taxed because p re v a ilin g party "[did] not provide a sufficient breakdown of their copying costs to enable th e court to evaluate the necessity of these costs"). A lth o u g h defendants provided receipts for the photocopying, they do not provide a d e s c rip tio n of the photocopies obtained.3 See The Bill of Costs to the Clerk of Courts of The photocopying fees include $67.41 from a February 11, 2008 invoice from Landmark Legal Solutions, $275.97 from a June 24, 2008 invoice from Landmark Legal 4 3 Defendants Vincent Guarini, et al. at Exh. B, Yudenko v. Guarini, No. 06-4161 (E.D. Pa. f ile d Nov. 6, 2009). Therefore, I am unable to determine whether the costs were n e c e s s a ry, and taxation of these costs will not be allowed. 2. D e p o s itio n Transcript Costs M r. Yudenko does not dispute the costs for the depositions, but does object to the a d d itio n a l expenses on the transcript invoices, i.e., the charges for copies of exhibits, the d e liv e ry or postage fees, and the court reporter travel costs. a) C o s ts for Photocopies of Exhibits T h e "costs of making copies of any materials where the copies are necessarily o b ta in e d for use in the case" are taxable. 28 U.S.C. 1920(4). In Wesley, 2008 WL 2 6 0 9 7 2 0 , at *3, relied on by Mr. Yudenko, the court disallowed the cost for a copy of e x h ib its because a prevailing party should not be allowed to "recover costs for . . . excess c o p yin g that the party could have done on its own." Id. Defendants maintain the cost for th e copying of exhibits is taxable because "deposition transcripts must be delivered with th e exhibits attached in order to be any benefit to the effective defense of the case." The taxation of costs for the copy of exhibits is allowable because the copies were " n e c e s s a rily obtained for use in the case." Solutions, $45.07 from a July 2, 2007 invoice from InnoSource Business Solutions, and $18.64 from a July 2, 2007 invoice from InnoSource Business Solutions. 5 b) P o s ta g e Costs " T h e Court of Appeals `disallows costs for the following non-inclusive list of ite m s : postage and courier fees, overtime, unreasonable author's alterations, motions, and n o n -f ile d documents.'" Neena S. ex rel. Robert S. v. Sch. Dist. of Phila., 2009 WL 2 2 4 5 0 6 6 , at *10 (E.D. Pa. July 27, 2009) (quoting Matter of Penn Cent. Transp. Co., 630 F .2 d 183, 191 (3d Cir. 1980)); accord Laura P. v. Haverford Sch. Dist., 2009 WL 1 6 5 1 2 8 6 , at *9 (E.D. Pa. June 12, 2009); but see, e.g., Coastal Mart, Inc. v. Johnson Auto R e p a ir, Inc., 2001 WL 253873, at * (E.D. Pa. Mar. 14, 2001) (finding the attorney fee and c o s ts were reasonable where the costs included postage and messenger fees). Accordingly, the taxation of costs labeled "[p]ostage and [h]andling," "[s]hipping and h a n d lin g ," and "[s]hipping via UPS"on the transcript invoices will not be allowed. See, e .g ., Neena S. ex rel. Robert S., 2009 WL 2245066, at *10.4 c) Court Reporter's Travel Costs T h e invoice from Diamond Court Reporting for the deposition of Mr. Yudenko in c lu d e s $65.00 in travel expenses. The taxation of these travel costs is allowable. A lth o u g h Mr. Yudenko includes the travel expenses in his itemized list of c h a lle n g e d deposition expenses, he provides no argument as to why the costs should not b e allowed. Courts have found a court reporter's fee for his or her appearance is taxable. 4 The postage fees for the deposition transcripts include: $6.00 from an April 13, 2008 invoice from Allen S. Blank, RMR; $6.00 from a February 12, 2008 invoice from Allen S. Blank RMR; $20.00 from an April 9, 2008 invoice from the Esquire Deposition Services, LLC; and $6.50 from the February 8, 2008 invoice from Diamond Court Reporting. 6 Wesley, 2008 WL 2609720, at *2 (collecting cases); accord Fairley v. Andrews, 2008 U .S . Dist LEXIS 28325, at *16-17 (N.D. Ill. Apr. 8, 2008) (affirming court reporter a tte n d a n c e fee of $100). In addition, where there were no local court reporters, courts h a v e allowed the taxation of a court reporter's travel expenses. See Tharo Sys., Inc. v. C a b Produkttechnik, 2005 WL 1123595, at *1 (N.D. Ohio May 10, 2005) (court reporter tra v e l costs were incidental to deposition and taxable where court reporter traveled to G e rm a n y because no local court reporters were available). 3. C o s ts for Subpeona and Copy Service for Medical Records M r. Yudenko challenges the following fees associated with obtaining the medical re c o rd s : initial fee, expedited services, fee advancement, obtain authorization, medical ta b s , and medical billing. In Montgomery County v. Microvote Corp., 2004 WL 1087196, at *5 (E.D. Pa. M a y 13, 2004), the court disallowed costs for expedited preparation because "such costs w e re not `necessarily obtained' for use in preparing for and trying the case." The court n o te d the fees "were solely for the convenience of counsel and, therefore," should not be ta x e d to the prevailing party. Id. A lth o u g h defendants maintain they had to request the medical records because Mr. Y u d e n k o did not provide them, they have not explained why the medical records required 7 expedited service.5 Therefore, the taxation of costs for expedited service will not be a llo w e d . The other costs, however, are associated with the cost of obtaining the medical re c o rd s , and are taxable. See Stevens v. D.M. Bowman, Inc., 2009 WL 117847, at *5 (E .D . Pa. Jan. 15, 2009) (allowing taxation of costs for the copying and production of m e d ic a l records). B. W h e th e r Plaintiff Should be Required to Pay Costs R u le 54(d)(1) "creates the `strong presumption' that costs are to be awarded to the p re v a ilin g party." In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462 (3d Cir. 2000) (q u o tin g 10 MOORE"S FEDERAL PRACTICE 54.101, at 54-149 (3d ed. 1999)). If a d is tric t court denies costs to the prevailing party, it "must `support[] that determination w ith an explanation.'" Id. (quoting Institutionalized Juveniles v. Sec. of Pub. Welfare, 7 5 8 F.2d 897, 926 (3d Cir. 1985)) (alternations in original). "[T]he losing party bears the b u rd e n of making the showing that an award is inequitable under the circumstances." Id. (c itin g 10 MOORE's, supra, 54.101, at 54-151 & n.7). A district court may consider The expedited service costs include: $20.00 from a January 16, 2008 invoice from Medical Legal Reproductions, Inc.; $20.00 from a February 18, 2008 invoice from Medical Legal Reproductions, Inc.; $20.00 from an August 12, 2008 invoice from Medical Legal Reproductions, Inc.; $20.00 from an August 18, 2008 invoice from Medical Legal Reproductions, Inc.; $20.00 from an August 18, 2008 invoice from Medical Legal Reproductions, Inc.; $15.00 from a February 19, 2007 invoice from Medical Legal Reproductions, Inc.; $20.00 from an August 14, 2008 invoice from Medical Legal Reproductions, Inc.; and $20.00 from a February 20, 2008 invoice from Medical Legal Reproductions, Inc. 8 5 the following factors to determine whether an award of costs is inequitable: "(1) the p re v a ilin g party's unclean hands, bad faith, dilatory tactics, or failure to comply with p ro c e s s during the course of the instant litigation or the costs award proceedings; and (2) . . . the losing part[y's] potential indigency or inability to pay the full measure of a costs a w a rd levied against [him or her]." In re Paoli R.R. Yard PCB Litig., 221 F.3d at 468.6 " [ I]f a party is indigent or unable to pay the full measure of costs, a district court m a y, but need not automatically, exempt the losing party from paying costs." In re Paoli R .R . Yard PCB Litig., 221 F.3d at 464 (citing Smith, 47 F.3d at 99).7 "In assessing the [ p ]la in tif f 's indigency or modest means . . . [a] [c]ourt should measure each [p]laintiff's A district court may not consider "(1) the losing parties' good faith in pursuing the instant litigation (although a finding of bad faith on their part would be a reason not to reduce costs); (2) the complexity or closeness of the issues-in and of themselves-in the underlying litigation; or (3) the relative disparities in wealth between the parties." In re Paoli R.R. Yard PCB Litig., 221 F.3d at 468. See also Wesley v. Dombrowski, 2008 WL 2609720, at *5 (E.D. Pa. June 26, 2 0 0 8 ) (court reduced the costs taxed against the plaintiff to $500 because "common sense d ic ta te s that, based on a review of his finances, taxing the full amount would be in e q u ita b le ," but denied the plaintiff's request to be excused from the payment of all costs b e c a u s e the plaintiff "presented no evidence of his indigence other than his own s ta te m e n t," his inmate account indicated he received gifts and he maintained a positive b a la n c e , he did not spend the money on medical care or other necessities, and he did not o f f e r evidence he could not find employment while incarcerated); Guynup v. Lancaster C o u n ty, 2009 WL 3073718, at *2 (E.D. Pa. Sept. 24, 2009) (the court reduced the taxed c o s ts because of the plaintiff's indigence, reasoning although the plaintiff "may be unable to pay this amount now or in the future[,] [s]ome consequence should follow from filing b u t losing a case, even a civil rights case); Lindsey v. Vaughn, 2001 WL 1132409, at *2 (E .D . Pa. Sept. 24, 2001) (vacating the award of costs and finding "in light of the relative d is p a rity in wealth between the parties, the indigence of plaintiffs and the equities of the m a tte r before me . . . to force the plaintiffs to pay the costs award assessed by the clerk w o u ld be unduly burdensome"). 9 7 6 financial condition as it compares to whatever award the [c]ourt decides to tax against h im or her." Id. at 464 n.5. No "hard and fast rules" exist for assessing a losing party's in d ig e n c y or inability to pay. Id. "[D]istrict courts should use their common sense in m a k in g this determination." Id. Mr. Yudenko requests the court exercise its discretion to not tax costs against him b e c a u s e he is indigent and unable to pay the costs. Mr. Yudenko submitted a declaration. Motion to Vacate Bill of Costs at Exh. 1, Yudenko v. Guarini, No. 06-04161 (E.D. Pa. f ile d Feb. 24, 2010) [hereinafter Declaration]. The declaration states he lives with his p a re n ts and does not pay rent. Id. at 3. He has no income because he is disabled and u n a b le to walk or stand for a significant period of time, id. at 4, and he does not receive g o v e rn m e n t cash assistance or benefits, id. at 5. He has no assets, id. at 6, but owes o v e r $20,000 to Lancaster County because of prior incarcerations, id. at 7. Mr. Y u d e n k o 's parents and brother support him financially, and the only income his parents re c e iv e is through their pension. Declaration at 9-10. M r. Yudenko submitted his October 2009 bank account statement, which indicates h is balance as of September 22, 2009 was $6.62, one deposit of $40.00 was made in O c to b e r, and his balance on October 22, 2009 was $46.62. Motion to Vacate Bill of C o s ts at Exh. 2. Mr. Yudenko did not submit any other monthly bank statement. Mr. Y u d e n k o also submitted a bill from a debt collector for Lancaster County Court of C o m m o n Pleas stating he owed $20,873.08 to Lancaster County, and owed an installment 10 of $10.00 by October 25, 2009. Although some of the County's costs may be assessed against Mr. Yudenko under th e law, considerations of fairness and common sense weigh against the taxation of costs. Mr. Yudenko felt his civil rights were violated and brought the 1983 action to vindicate h is rights. The defendants made clear their position at trial and in pre-trial motions: Mr. Y u d e n k o 's claims were frivilous. The jury gave careful consideration to the facts of the c la im s . Ultimately, the jury found Mr. Yudenko did not prove the elements of his civil rig h ts case. With its defense verdict in hand, the defendants now want me to enforce the C le rk 's taxation of $3,576.37 in costs against Mr. Yudenko, a disabled and indigent man. Under these specific circumstances, there is a punitive aspect to this request. I am c o n c e rn e d that Mr. Yudenko, or anyone associated with this case, might reasonable c o n s id e r this assessment of costs a "penalty" for pursuing his civil rights claim all the way th o u g h verdict. Mr. Yudenko brought his claim, the County disagreed, and they all had their day (a c tu a lly three days) in court. The assessed costs should not discourage or limit the a b ility of the plaintiff to bring a suit. See In re Paoli, 221 F.3d at 462 (noting the " in d ig e n c y or inability to pay factor" "is `founded on the egalitarian concept of providing re la tiv e ly easy access to the courts to all citizens and reducing the threat of liability for litig a tio n expenses as an obstacle to the commencement of a lawsuit or the assertion of a 11 defense that might have some merit'" (quoting 10 Wright et al., 2665, at 202)). Mr. Yudenko is an indigent and disabled man and has no income. As of October 2 0 0 9 , he had $46.62 in his bank account but owed over $20,000 to the Lancaster County C o u rt of Common Pleas. Because he does not have the means to pay an award of costs, M r. Yudenko's motion to vacate costs will be granted. II. C O N C L U S IO N A lth o u g h some costs are allowable,8 the taxation of costs against Mr. Yudenko w ill be vacated. Taxation of costs against the indigent, disabled Mr. Yudenko would be in e q u ita b le . A n appropriate order follows. The taxation of costs for the photocopying of materials other than the copies for tra n s c rip t exhibits, the postage costs for the transcript materials, and the expedited service c o s ts for the medical records are not allowable. All other challenged costs are taxable. 12 8

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