Taxation of Costs

Procedures for Filing the Bill of Costs

Under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920, a prevailing party may request the

Courtroom Deputy Clerk to tax allowable costs in a civil action as part of a judgment or

decree. This procedure is begun by filing a Bill of Costs, which must be filed on form

AO 133, available in the Clerk’s office.

When is a party the “prevailing party”?

A party in whose favor a judgment is entered is the

prevailing party, regardless of whether that party sustains

the entire complaint or only a portion thereof.

Thus, the

plaintiff is the prevailing party when judgment is rendered in

her favor. The defendant is the prevailing party when the

proceeding is terminated by court-ordered dismissal or

judgment in favor of the defendant. Note, however, that

when the case is dismissed or remanded for lack of

jurisdiction, costs can only be allowed on order of the

Judge.

In addition, under Fed. R. Civ. P. 68, a plaintiff who

rejects a settlement offer that is more than the judgment

eventually obtained by the plaintiff is liable to the defendant

for costs incurred after the offer was made.

What must be filed?

The original of the Bill of Costs shall be filed with the Clerk,

with copies served on adverse parties. All costs sought

must be itemized and documented in order to allow the

adverse party a fair chance to object.

An affidavit of the

party or counsel must accompany the Bill of Costs verifying

that (i) the items claimed in the Bill of Costs are correct, (ii)

the costs have been necessarily incurred in the case, and

(iii) the services for which fees have been charged were

actually and necessarily performed.

When must the Bill of Costs be filed?

The Bill of Costs must be filed within fifteen (15) days of the

earlier of (i) the expiration of the time allowed for appeal of

the final judgment or decree, or (ii) receipt by the Clerk of

the Mandate of the Court of Appeals.

Can costs be taxed in settled cases?

If parties have specified an allocation of costs in their

agreement to settle a case, that allocation is controlling.

their agreement does not specify how costs are to be

allocated, the determination will depend on which party is

“prevailing.” Ordinarily, this determination will require the

party seeking costs to make an application for review by a

District Judge or Magistrate Judge.

Objections to the Bill of Costs

How does the adverse party object to the Bill of Costs?

If an adverse party objects to the Bill of Costs or any item

claimed by a prevailing party, that party must state their

objection(s) in a Motion for Disallowance with supporting

documents. The Motion must be made within ten (10) days

after the filing of the Bill of Costs. The prevailing party may

file a response to the objection, so long as it is within five (5)

days of the filing of the Motion for Disallowance.

How is the objection resolved?

The need for a hearing on costs will be determined by the

Courtroom Deputy Clerk. Unless a hearing is ordered, a

ruling will be made within a reasonable period by the

Courtroom Deputy Clerk. Within five (5) days of receipt of

that Clerk’s ruling on costs, a party may request review by a

District Judge or Magistrate Judge.

What are common objections that should not be given weight?

Adverse parties raise four common arguments against the

taxation of costs that should not be given weight. First, it is

often claimed that the losing party’s lawsuit addressed

important social issues, and that if costs are awarded, other

parties seeking to pursue important public policy goals will

be frightened away from litigation.

Second, parties

sometimes view the “good faith” nature of their lawsuit as

somehow excluding them from the duty to pay costs.

Third, parties often claim that their financial status should

exempt them from taxation responsibilities, either because

they are less wealthy than the prevailing party or because

they are indigent.

Finally, it is sometimes claimed that the

prevailing party should be denied all or a part of their costs

because they only prevailed on a portion of their claims, or

they only received injunctive or other non-monetary relief.

None of these arguments are acceptable objections to the

award of costs.

What are common objections that can be considered?

Acceptable reasons for denying all or part of requested

costs include the prevailing party’s failure to file the Bill of

Costs within the fifteen day time period,

and the failure to

provide sufficient, legible itemization of costs, along with

supporting documentation.

Costs may also be denied

where the prevailing party has engaged in misconduct

during the litigation process,

but this determination must be

made by a District Judge or Magistrate Judge.

Taxable Costs

It is important to note that only those costs specifically mentioned in 28 U.S.C. § 1920

are taxable.

Thus, the Courtroom Deputy Clerk must deny all other costs requested,

even if the opposing party has failed to make an objection.

The following costs are

taxable to the extent described:

Fees of the Clerk.

Taxable.

Fees of the Marshal.

Taxable, even if conducted by private process servers.

Fees of the Court Reporter.

Taxable for all or any part of the transcript necessarily

obtained for use in the case.

This includes trial transcripts

and transcripts of depositions taken for use at trial.

Video

depositions are not taxable without prior permission of the

Court.

Daily or expedited transcript costs will not be

taxable unless requested in a motion filed prior to

commencement of trial.

Fees for witnesses.

Taxable, if the testimony of the witness was relevant and

material to an issue in the case,

for the following items:

witness fees (at $40 per day); mileage (at $.3250 per mile)

and/or travel by common carrier, tolls, and parking, if the

witness testifies; and subsistence (at $238.00 per day for the

Boston area) if the witness testifies and it is not practical for

the witness to return to his or her residence from day to

day.

Fees for witnesses who are parties to the litigation

are not taxable.

However, witness fees for employees of a

corporate party are allowable so long as the employees are

not real parties in interest.

Fees for exemplification.

Taxable if necessarily obtained for use in the case.

Exemplification is the making of an official and certified copy

of a document or transcript that is used as evidence.

Examples of items that may be exemplified include docket

sheets, complaints, medical reports, police reports, weather

reports, land records, and criminal records.

Fees for printing and copying.

Photocopying costs are taxable only to the extent that the

copies were used as exhibits, were furnished to the Court or

opposing counsel, or were otherwise necessary for

maintenance of the action.

Thus, taxable items can

include copies of trial transcripts,

deposition transcripts

used at trial,

copies of exhibits where originals are not

available, briefs, excerpts of the record, etc.

Counsel must

include a statement that the cost is no higher than what is

generally charged for reproduction in the local area, and that

no more copies than what was actually necessary were

reproduced.

Copies for the convenience of counsel and

not for use at trial are not taxable.

The reasonable

expense of preparing items such as charts, photographs,

motion pictures and similar visual aids is taxable when the

exhibits have been received in evidence and have been of

aid to the Court.

The costs of maps, charts and models

(including computer generated models) that are deemed to

be beyond the needs of the case are not taxable.

Docket fees.

Taxable according to the rates set forth in 28 U.S.C. § 1923.

Compensation of court-appointed experts.

Taxable only if the expert is court-appointed. If an expert

witness is not court-appointed, expenditures are taxable only

to the extent that ordinary witness expenditures would be

(see above).

Compensation of interpreters and costs of special interpretation

services.

Fees, expenses and costs of interpreters are taxable if their

services or the product of their services (i.e., translated

depositions) are used at trial.

Fees for translation of

documents received in evidence, used as part of the

proceeding or otherwise reasonably necessary for trial

preparation are taxable. Current rates for a certified and

professionally qualified interpreter are $305.00 for a full day,

$165 for a half day, and $45 per hour for overtime. The rate

for a language skilled (non-certified) interpreter is $145 for a

full day, $80 for a half day, and $25 per hour for overtime.

Special Proceedings

When the action has had proceedings in courts other than the District Court, or is a

special type of proceeding in the District Court, the following rules apply:

Bankruptcy appeals.

A Bill of Costs on a bankruptcy appeal to the District Court

must be filed within fifteen (15) days of the entered date of

the order deciding the bankruptcy appeal. Note that if

judgment is affirmed or reversed in part, or is vacated, costs

cannot be taxed unless the judgment signed by the Court

specifically awards costs to a party.

The following are

taxable as costs, in addition to other taxable items: costs

incurred in the production of copies of briefs, the

appendices, and the record and in the preparation and

transmission of the record, the cost of the Reporter's

transcript, if necessary for the determination of the appeal,

the premiums paid for cost of supersedeas bonds or other

bonds to preserve rights pending appeal and the fee for

filing the notice of appeal.

Suits in admiralty.

Costs incurred in posting a bond may be taxable if deemed

a reasonable expense.

The prevailing party must have

obtained the lowest available rate.

The Court of Appeals.

Any costs allowed and entered as an order by the Court of

Appeals (usually costs associated with appellate printing or

production of briefs) shall be added to costs taxed by the

District Court.

In addition, allowable costs to be entered by

the Courtroom Deputy Clerk of the District Court include the

costs of preparing and transmitting the record and

transcripts, obtaining supersedeas bonds and other required

bonds, and fees of the appellate clerks.

The United States Supreme Court.

Taxable costs are limited to fees of the Clerk and costs of

printing the joint appendix. When costs are allowed by the

Supreme Court, an itemization of the costs will be inserted in

the body of the mandate sent to the court below.

State courts.

For removed cases, any costs incurred in state court prior to

removal are taxable in federal court, so long as the costs

were taxable under state law.

An affidavit of costs incurred

while proceeding in state court must accompany the Bill of

Costs.

Items Specifically Not Taxable

Two non-taxable items deserve special mention.

Attorney’s fees.

Any party seeking attorney’s fees must file an appropriate

motion with the District Judge or Magistrate Judge.

Special Master fees.

1. See Robe rts v. Madigan, 921 F.2d 1047, 1058 (10th Cir. 1990) (awarding full costs to party that

prevailed on the majority of claim s and issues); see also 10 Wright & Miller: Federal Prac. & Proc. § 2667

n. 16 (1998) (collecting sources).

2. See 28 U.S.C. § 1919.

3. See

Crossman v. Marcoccio, 806 F.2 d 329 (1st Cir. 198 6).

4. See

Harceg v. Brown, 536 F. Supp. 125 (N.D. Ill. 1982).

5. See 28 U.S.C. § 1924.

6. No statute or federal rule governs what constitutes a timely filing and thus individ ual co urts v ary in th eir

treatment of the question. In lieu of a local rule, it has been held that bills of costs must be filed within a

reasonable time after the conclus ion of litigation. See

, e.g., Congregation of the Passion, Holy Cross

Province v. Touche, Ross & Co., 854 F.2d 219 (7th Cir. 1988). While the District of Massachusetts does

not have a formalized local rule, the procedure described above has come to represent the practice of the

District.

7. See

Frigiquip Corp. v. Parker-Hannifin Corp., 75 F.R.D. 605 (W .D. Okla. 1977).

Any party seeking Special Master fees must file a motion

with the District Judge or Magistrate Judge.

Status of Certain Special Parties

Intervenors.

Intervenors in agency actions are generally treated like any

other prevailing or losing party.

The United States.

Costs may be taxed against the United States or any of its

agencies or officials if the United States is a losing party.

The United States may recover filing fees when it prevails in

a civil action.

State governments.

State governments, agencies and officials may be taxed with

costs.

(taxation.wpd - 12/28/00)

Sources

8. Like the fifteen day time period for filing the Bill of Costs, this procedure for filing objections is a matter

of local practice, perm issible within the Federal Rules. See Kallay v. Community National Life Insurance

Co., 52 F.R.D. 139 (D. Okl. 1971) (local rule may set time limit for filing bill of costs).

9. See Fed. R. Civ. P. 54(d)(1).

10. See

, e.g., Smith v. Southeastern P ennsylvan ia Trans portation A uthority, 47 F.3d 97 (3d Cir. 1995).

11. See, e.g., Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772 (7th Cir. 1975).

12. See, e.g., Papas v. Hanlon, 849 F.2d 702 (1st Cir. 1988) (requiring in forma pauperis litigant to pay

prevailing defenda nts for stenographer’s fee s in no-sh ow depositions); Halasz

v. University of New

England, 821 F. Supp. 40 (D. Me. 1993) (student’s plausible arguments and general lack of funds did not

preclude award of costs to university).

13. See, e.g., Robe rts, 921 F.2d 1047.

14. Because the District’s fifteen day time period appears to be an informal practice, rather than a

formalized local rule, some allowance should be made for litigants who file late but claim, in good faith,

that they were not aware of the time res triction. See

In re Two Appeals Arising Out of San Juan Dupont

Plaza Hotel Fire Litigation, 994 F.2d 956 (1st Cir. 1993) (district court cannot deny costs without providing

opportunity to seek ordinary costs).

15. See

Proffitt v. Mun icipal A uthority of th e Borgough of Mor risville, 716 F. Supp. 845 (E.D. Pa. 1989)

(clerk may not tax unexplained costs).

16. See

Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir. 1985).

17. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 442, 107 S.Ct. 2494, 96 L.Ed.2d 385

(1987) (“The Court has the discretion to deny any of the costs on this list but may not grant the prevailing

party fees for expe nses that do not appear [in § 1920]”); Rodrigue z-Ga rcia

v. Davila, 904 F.2d 90, 100 (1st

Cir. 1990) (“An award of costs m ust be carefully tailored to the items [in § 1920]”).

18. See

Andrews v. Suzuki Motor Co., Ltd., 161 F.R.D. 383 (S.D. Ind. 1995).

19. See 28 U.S.C. § 1920(1).

20. See Bass v. Spitz, 522 F. Supp. 1343 (E.D. M ich. 1981); Morris v. Carnathan, 63 F.R.D. 374 (N.D.

Miss. 1974).

21. See W alters v. President and Fellows of Harvard College, 692 F. Supp. 1440 (D. Mass. 1988)

(successful litigant could recover only those costs associated with taking and transcribing depositions that

were used or introduced as evidence at trial).

22. See Emerson v. National Cylinder Gas Co., 147 F. Supp. 543 (D. Mass. 1957), affirmed, 251 F.2d 152

(1st Cir. 1958) (costs of depositions taken for preparation and discovery, rather than for use at trial, not

recoverable).

23. Miller

v. National R.R. Passenger Corp., 157 F.R.D. 145 (D. Mass. 1994).

24. See Virginia Panel Corp. v. Mac Panel Co., 887 F. Supp. 8 80 (W .D. Va. 1995) (“The cost of da ily

copies of trial transcripts is recoverable if the daily transcript is indispensable, rather than merely for the

convenience of the attorneys.”) (citing Farmer v. Arabian American Oil Co., 379 U.S . 227, 233-34, 85 S.Ct.

411, 13 L.Ed.2d 248 (1964)).

25. See 10 Wright & Miller: Federal Prac. & Proc. § 2678 n. 8 (1998) (collecting sources).

26. See 28 U.S.C. § 1821.

27. See Bee v. Greaves, 910 F.2d 686 (10th Cir. 1990); Heverly v. Lewis, 99 F.R.D. 135 (D. Nev. 1983).

28. See

Todd Shipyards Corp. v. Turbine Services, Inc., 592 F. Supp, 380 (E.D. La. 1984); Morrison v.

Alleluia Cushion Co.

, 73 F.R.D . 70 (N.D . Miss. 1976); Sperry Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132

(E.D. Va. 1973).

29. See 28 U.S.C. § 1920(4); Commerce Oil Refining Corp. v. Miner, 198 F. Supp. 895 (D. R.I. 1961)

30. See

Board of Directors, Water’s Edge v. Anden Group, 135 F.R.D. 129 (E.D. Va. 1991).

31. Under 28 U.S.C. § 1920(2), prevailing parties are entitled to the fees of the court reporter for all or any

part of the transcript necessarily obtained for use in the case. "Courts generally consider a transcript

‘necessarily obtained’ when it was necessary to counsel's effective performance and proper handling of

the case ... or when requested by the court.... The words 'use in the case' signify that the transcript must

have a direct relations hip to the de termination and result of the trial." Dopp

v. HTP Corp., 755 F. Supp.

491, 502 (D. Puerto Rico 1 991), vac ated on other grounds, 947 F.2d 506 (1st C ir. 1991).

32. "[I]f depositions are either introduced in evidence or used at trial, their costs should be taxable to the

losing party." Templeman

v. Chris Craft Corp., 770 F.2d 245, 248 (1st Cir. 1985), cert. denied, 474 U.S.

1021, 106 S.Ct. 571, 88 L.Ed .2d 556 (1985).

33. “U nder section 1920(4), P laintiff s are entitled to th e fee s for their c opies which were neces sarily

obtained for use in the case. Copies are recoverable when they are reasonably necessary to the

maintenance of the action.” Rod rigue z-Ga rcia

v. Davila, 904 F.2d 90, 100 (1st Cir. 1990).

34. See

28 U.S.C. § 1924.

35. See Perlman v. Feldmann, 116 F. Supp. 102 (D. Conn. 1953) (additional copies of depositions

obtained because prevailing parties were represented by two law firms were for the convenience of

counsel and therefore not taxable).

36. See

H. C. Baxter & Bro. v. Great Atlantic & Pacific Tea Co., 44 F.R.D. 49 (D. Me. 1968).

37. See Emerson, 147 F. Supp. 543 (successful defendants only allowed 25 percent of expenses for

elaborate and de tailed charts which w ent beyon d needs of the o ccasion); Paul N. Howard Co., v. Puerto

Rico Aqueduct and Sewer Authority, 110 F.R.D. 78 (D . Puerto R ico 1986 ) (costs for graph s and exhibits

disallowed where not indispensable to court’s understanding).

38. As the Supreme Court in Crawford Fitting

expressed, "when a prevailing party seeks reimbursement

for fees paid to its own expert witnesses, a federal court is bound by the limit of 1821(b), absent contract

or explicit statutory authority to the contrary." Crawford Fitting Co.

, 482 U.S. 437, 439, 107 S.Ct. 2494, 96

L.Ed.2d 385.

39. See 28 U.S.C. § 1920(6); East Boston Ecumenical Community Council, Inc. v. Mastrorillo, 124 F.R.D.

14 (D. M ass. 1989) (cos ts of having interpreters present at deposition wou ld be recoverable by defenda nts

if they prevailed at trial).

40. See

28 U.S.C. § 1818.

41. See

Fed. R. Bankr. P. 8014.

42. See id.

43. See Copperweld Steel Co. v. Demag-Mannesmann-Bohler, 624 F.2d 7 (3d Cir. 1980).

44. See Keystone Shipping Co. v. S. S. Monfiore, 275 F. Supp. 606 (S.D. Tex. 1967); American Hawaiian

Ventures, Inc. v. M. V. J. Latuharhary, 257 F. Supp. 622 (D. N.J. 1966).

45. See Fed. R. App. P. 39(c).

46. See Fed. R. App. P. 39(e).

47. See

Sup. Ct. R. 43(3).

48. See Simeone v. First Bank National Association, 971 F.2d 103 (8th Cir. 1992) (state law governs

award of costs for proceedings that take place in state court).

49. See

De Thomas v. Delta S. S. Lines, Inc., 58 F.R.D. 335 (D. Puerto Rico 1973) (attorneys’ fees not

included in statutory definition of taxable costs).

50. See Mallonee v. Fahey, 117 F. Supp. 259 (S. D. Cal. 1953) (special master fees were required to be

fixed and assessed by the court, rather than the clerk acting under her statutory authorization).

51. See

10 W right & Miller: Federal Prac. & Proc. § 2667 n. 23 (1998) (collecting sources).

52. See

28 U.S.C. § 2412(a).

53. See Federal Courts Administration Act of 1992 (P.L. 102-572).

54. The Eleventh Amendm ent has been he ld not to bar such assess men ts. See Gay Student Services v.

Texas A & M Univers ity

, 612 F.2d 160 (5th Cir. 1980); Samuel v. University of Pittsburgh, 538 F.2d 991

(3d Cir. 1976).