Kocher v. Larksville Borough et al

Filing 102

MEMORANDUM (Order to follow as separate docket entry) re 99 Objections filed by Scott E. Kocher Signed by Honorable A. Richard Caputo on 3/6/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT E. KOCHER,
CIVIL ACTION NO. 3:CV-11-2053

Plaintiff,

(JUDGE CAPUTO)

v.
LARKSVILLE BOROUGH, et al.,
Defendants.

MEMORANDUM
Presently before the Court are Plaintiff Scott Kocher’s (“Plaintiff”) Objections to the
Clerk’s Taxation of Costs. (Doc. 99.) Because the costs were properly taxed against
Plaintiff, Plaintiff’s objections will be overruled and the Clerk’s taxation of costs against
Plaintiff in the amount of $5,934.04 will be affirmed.
I. Background
Plaintiff commenced this action against Defendants Larksville Borough, Joe
Zawadski, Tony Kopko, and John Pekarovsky (collectively, “Defendants”) on November 3,
2011. (Doc. 1.) Plaintiff asserted claims for First Amendment retaliation, Fourteenth
Amendment deprivation of liberty interest in reputation, defamation, and false light invasion
of privacy. (Doc. 6.)
Defendants moved for summary judgment following the close of discovery.
Defendants’ motion for summary judgment was granted on February 20, 2013. (Docs. 83;
84.) Judgment was entered in favor of Defendants on the First and Fourteenth Amendment
claims, while the state law claims were dismissed without prejudice. (Doc. 84.)
On February 27, 2013, Defendants filed a Notice of Request to Tax Costs pursuant
to Local Rule 54.5. (Doc. 85.) The same day, Plaintiff filed a Notice of Appeal of the
February 20, 2013 Order granting Defendants’ motion for summary judgment. (Doc. 86.)
The United States Court of Appeals for the Third Circuit affirmed on December 10, 2013.

See Kocher v. Larksville Borough, - - - F. App’x - - -, 2013 WL 6439651, at *1 (3d Cir. Dec.
10, 2013). The Third Circuit issued its mandate on January 2, 2014. (Doc. 94.)
On January 8, 2014, Defendants docketed their Bill of Costs. (Doc. 95.) Defendants’
Bill of Costs requested the Clerk to tax Plaintiff in the amount of $5,939.04, which consisted
of $5,299.95 in fees for transcripts necessarily obtained for use in the case and $639.09 in
witness fees. (Id.)
Plaintiff filed objections to the Bill of Costs on January 13, 2014. (Doc. 96.) Plaintiff
requested that he be exempted from paying costs based on financial hardship. (Id. at ¶ 2.)
Alternatively, Plaintiff argued that Defendants were only entitled to deposition costs for
witnesses that were used to obtain summary judgment pursuant to Honeywell Int’l, Inc. v.
Hamilton Sunstrand Corp., No. 99-309, 2009 WL 3153496 (D. Del. Sept. 30, 2009). (Id. at
¶ 5.) Plaintiff also objected to the payment of fees to witnesses whose testimony/transcripts
were not used by Defendants in obtaining summary judgment. (Id. at ¶ 6.)
On January 15, 2014, the Clerk overruled Plaintiff’s objections and ordered costs
taxed against Plaintiff and in favor of Defendants in the amount of $5,934.04. (Docs. 97;
98.) The Clerk also noted that any party could appeal to the Court within seven days by
filing a written specification of the items objected to and the grounds of objection. (Doc. 97.)
Plaintiff filed timely objections to the Clerk’s Taxation of Costs on January 16, 2014.
(Doc. 99.) On January 23, 2014, Defendants filed a brief in opposition to Plaintiff’s
objections. (Doc. 101.) Plaintiff’s objections are now ripe for review.
II. Discussion
In objecting to the Clerk’s Taxation of Cost, Plaintiff first argues that the Court should
exercise its discretion to deny costs because he does not have the financial resources to
pay the award. (Doc. 99, ¶¶ 3-5.) Plaintiff also objects to the Clerk’s Taxation of Costs on
the basis that the Clerk provided no explanation as to why Honeywell Int’l, Inc. v. Hamilton

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Sunstrand Corp., No. 99-309, 2009 WL 3153496 (D. Del. Sept. 30, 2009) does not apply
to this case. (Doc. 99, ¶ 2.) Relying on Honeywell, Plaintiff argues that Defendants cannot
recover costs for depositions that were not filed or used in obtaining summary judgment,
nor can they recover the fees paid to those witnesses. (Id. at ¶¶ 7-8.) Plaintiff’s objections
are without merit and will be overruled.1
Plaintiff’s request to be exempted from paying costs will be denied because he fails
to establish that such an award would be inequitable under the circumstances. Rule
54(d)(1) of the Federal Rules of Civil Procedure provides, in pertinent part, 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.” Fed. R. Civ. P. 54(d)(1). This rule creates
a “strong presumption” that costs are to be awarded to the prevailing party. Reger v.
Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010) (citing In re Paoli R.R. Yard PCB
Litig., 221 F.3d 449, 462 (3d Cir. 2000)). “‘Only 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.’” Id. (quoting In re Paoli, 221 F.3d at 46263, 468). Significantly, “the losing party bears the burden of making the showing that an
award is inequitable under the circumstances.” In re Paoli, 221 F.3d at 462-63 (citation
omitted).
According to the Third Circuit:
a district court may consider the following factors in reviewing a clerk of court's
costs award: (1) the prevailing party's unclean hands, bad faith, dilatory tactics,

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Plaintiff also suggests that Defendants failed to timely submit their Bill of Costs
because it was filed more than ten months after summary judgment was granted.
(Doc. 99, ¶ 1.) As noted by Defendants, Plaintiff filed a Notice of Appeal
immediately after (and on the same day) Defendants filed their Notice of Taxation
of Costs. And, six days after the mandate was issued by the Third Circuit,
Defendants filed their Bill of Costs. Based on these circumstances, I reject
Plaintiff’s objection to the timeliness of the Bill of Costs.
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or failures to comply with process during the course of the instant litigation or
the costs award proceedings; and (2) each of the losing parties' potential
indigency or inability to pay the full measure of a costs award levied against
them. In contrast, 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, 221 F.3d at 468. The losing party’s indigency or inability to pay is most
important. Id. at 463. As such, “a party may be exempted from costs if he is in fact indigent,
if he has adduced evidence that he is indigent, and if the district court sees fit to reduce the
costs award imposed for reasons of equity.” Id. at 464. Nevertheless, “if a losing party is
indigent or unable to pay the full measure of costs, a district court may, but need not
automatically, exempt the losing party from paying costs.” Id. (emphasis in original).
As noted, Plaintiff argues that he cannot afford to pay the award of costs.2 The only
evidence in the record which Plaintiff cites as support for his claimed inability to pay is a
single statement in his affidavit: “[s]ince I still do not have a full-time job, I do not have the
financial resources to pay for any sanction award.” (Doc. 100, ¶ 6.) Plaintiff’s claim,
however, is unsubstantiated by any evidence of his income, savings, or living expenses.
The record does not establish that Plaintiff is indigent, nor does it sufficiently demonstrate
that Plaintiff lacks the ability to pay the full measure of costs. Thus, this case stands in stark
contrast to the authority cited by Plaintiff. See Sullivan v. Warminster Twp., No. 04-4447,
2013 WL 1934532, at *3 (E.D. Pa. May 9, 2013) (vacating the clerk’s award of costs where
the losing party suffered from PTSD which kept her from maintaining employment, she lived
with her niece free of charge, she received only $360.00 per month through the
Government’s food stamp and cash assistance program, and she had no bank account).
Denial of costs to the prevailing party in the circumstances presented here is not warranted.

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Plaintiff does not argue that Defendants acted improperly during the course of this
litigation.
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Plaintiff’s objection based on Honeywell Int’l, Inc. v. Hamilton Sunstrand Corp., No.
99-309, 2009 WL 3153496 (D. Del. Sept. 30, 2009) will also be overruled. Simply put,
Plaintiff’s reliance on Honeywell is puzzling. There, the Clerk of Court denied the prevailing
party’s request for deposition costs. See Honeywell Int’l, 2009 WL 3153496, at *1. In
affirming the denial of deposition costs, the United States District Court for the District of
Delaware relied on District of Delaware Local Rule 54.1(b)(3), which provides, in part:
The reporter's reasonable charge for the original and one copy of a deposition
and the reasonable cost of taking a deposition electronically or magnetically
recorded are taxable only where a substantial portion of the deposition is used
in the resolution of a material issue in the case. Charges for counsel's copies
and the expenses of counsel in attending depositions are not taxable,
regardless of which party took the deposition.
Id. at *2 (emphasis added) (citing D. Del. R. 54.1(b)(3)).
In comparison, Middle District of Pennsylvania Local Rule 54.4(3) provides:
Deposition Costs. The reporter’s charge for the original deposition and/or
copy is taxable whether or not the same is actually received into evidence, and
whether or not it is taken solely for discovery, regardless of which party took
the deposition. . . . Fees for the witness at the taking of a deposition are
taxable at the same rate as for attendance at trial.
M.D. Pa. L.R. 54.4(3) (emphasis added).
As Honeywell relies on a local rule materially different than Middle District of
Pennsylvania Local Rule 54.4(3), Honeywell is inapplicable to the taxation of costs in this
case. And, because Local Rule 54.4(3) allows for taxation of deposition costs regardless
of whether the deposition is received into evidence and regardless of whether the deposition
was taken solely for discovery, the Clerk properly taxed against Plaintiff the costs for
depositions of witnesses whose testimony was not cited by Defendants in obtaining
summary judgment.
Lastly, Plaintiff’s objection to taxation of deposition fees for witnesses whose
testimony was not relied on by Defendants in securing judgment will also be overruled. As
cited above, Local Rule 54.4(3) states that witness fees for the taking of a deposition “are

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taxable at the same rate as for attendance at trial.” M.D. Pa. L.R. 54.4(3). Moreover, Local
Rule 54.4(4) provides, in relevant part, that “[a]llowance of fees for a witness on deposition
shall not depend on whether or not the deposition is admitted into evidence.” M.D. Pa. L.
R. 54.4(4). Accordingly, the costs of witness fees were properly taxed against Plaintiff.
III. Conclusion
For the above stated reasons, Plaintiff’s objections to the Clerk’s Taxation of Costs
will be overruled, and the Clerk’s taxation of costs in the amount of $5,939.04 will be
affirmed.
An appropriate order follows.

March 6, 2014
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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