UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

OFFICE OF THE CLERK

BILL OF COSTS HANDBOOK

FEBRUARY 10, 2003

BILL OF COSTS HANDBOOK

TABLE OF CONTENTS

Page

I.

II.

Taxation of Costs by the Clerk

3

A. Introduction

B. Proper Format

3

3

Authority for Taxation of Costs

4

III. Time for Filing

5

IV. Definition of Prevailing Party

5

V.

7

Discussion of Taxable Costs

A. Fees of the Clerk

7

B. Fees for Service of Summons and Subpoena 7

C. Fees of Court Reporter and Transcripts

8

D. Fees for Printing

9

E. Witness Fees

9

F. Fees for Exemplification and Copies

11

G. Other Taxable Costs

12

VI.

Non Taxable Costs

12

I. Tax OF COSTS BY THE CLERK

A. INTRODUCTION

Costs shall be taxed by the Clerk pursuant to Rule 54(d)(1),

Federal Rules of Civil Procedure and Local Rule 54.1. Not every expense

of litigation is not recoverable.

This handbook has been prepared to assist counsel in the

preparation of bills of cost. We encourage litigants to review it

thoroughly.

When a judgment is entered for a party in this court, it may

just state that the party recover a sum certain with costs. These costs

are not itemized at this point in the proceedings. If counsel are unable to

agree as to the amount of costs, it is the duty of the Clerk, or the Clerk’s

designee, to tax all allowable costs and to include them in the judgment

upon the filing of a proper request for taxation of costs.

B. PROPER FORMAT

Before any bill of costs is taxed, it must be submitted on the

proper form. A party claiming any item of costs of disbursement shall

attach thereto an affidavit, made by himself or by his duly authorized

attorney or agent having knowledge of the facts, that such item is correct

and has been necessarily incurred in the case and that the services for

which fees have been charged were actually and necessarily performed.

Forms may be obtained from the Office of the Clerk’s web site

at www.ncwd or the sample found in this handbook may be used. The

form contains the necessary affidavit. It is the responsibility of counsel to

serve opposing counsel, provide the court with a certificate of service and

attach a separate itemization and the documentation to support the

claims made. Documentation may include receipts, orders and

stipulations of the parties. Please be advised that counsel must ensure

that any receipts are self-explanatory (i.e., receipts for service shall

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include the names of the individuals, why they were served, where they

were served, and the cost for service). Claims for docket fees under 28

U.S.C. §1923 shall be broken down by fee. The Clerk may disallow any

expenses that do not have adequate supporting information and

documentation.

The original and one copy of the bill of costs shall be filed

with the Clerk. After the Clerk has taxed the costs, counsel for either

side may, within five (5) days, file a motion to review the action of the

Clerk and request review by the court. Once the court has ruled on the

motion filed by any party, and the matter of costs has been determined,

those costs are included in the judgment and should be paid directly to

the prevailing party. These costs are not processed through the Office of

the Clerk. To record payment, counsel may file a notice of satisfaction of

costs.

The Clerk will tax costs even if the case is appealed, unless a

stay pending appeal has been granted by the court. However, if all

parties prefer to postpone the taxation proceeding until the conclusion of

all appellate proceedings, the Clerk should be advised in writing. Counsel

will be responsible to advise the Clerk at the conclusion of all appellate

proceedings that costs may be taxed.

II. AUTHORITY FOR TAXATION OF COSTS

The authority for the Clerk to tax costs can be found at:

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28 U.S.C. §1920 (Taxation of costs);

28 U.S. C. §1821 (Per diem and mileage generally;

subsistence);

28 U.S.C. §1921 (United States marshal’s fees);

28 U.S.C. §1922 (Witness fees);

28 U.S.C. §1923 (Docket fees and costs of briefs);

28 U.S.C. §1924 ( Verification of bill of costs);

Federal Rule of Civil Procedures 54(d)(1);

Local Rule of Civil Procedure 54.1;

Federal Rule of Appellate Procedure 39(e).

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III. TIME FOR FILING

A prevailing party may request the Clerk to tax allowable

costs, other than Attorneys’ fees and expenses, by filing a bill of costs

within 30 days after the expiration of time allowed for appeal of a final

judgment or decree or after receipt by the Clerk of an order terminating

the action on appeal. The failure of a prevailing party to timely file a

bill of costs shall constitute a waiver of any claim for costs.

If a party objects to the bill of costs or any item claimed by a

prevailing party, that party must state its objection in a motion for

disallowance of costs with a supporting brief within ten (10) days after

the filing of the bill of costs. Within five (5) days thereafter, the

prevailing party may file a response motion and brief.

Either party may request review of the Clerk’s ruling by filing

a motion within (5) days after the action of the Clerk.

IV. PREVAILING PARTY

Unless the court directs otherwise, the prevailing party is

entitled to recover costs. Even where a judgment is silent about costs, it

is generally viewed as a judgment allowing costs where no doubt exists as

to who is the prevailing party. The Supreme Court has held that a party

in whose favor a judgment is rendered is the prevailing party, regardless

of whether that party sustains the entire claim or only a portion thereof.

Roberts v. Madigan, 921 F.2d 1047, 1058 (10 th Cir. 1990), cert. denied 112

S.Ct. 3025 (1992) (Court awarded full costs to the party that prevailed on

the vast majority of claims and issues.)

The issue of whether or not a party is a prevailing party is a

little less clear when the case is dismissed prior to judgment. When the

case is dismissed with prejudice, most circuits, including the Fourth

Circuit, provide for the awarding of costs on the grounds that the

defendant is the prevailing party. Kollsman v. Cohen, 996 F.2d 702 (4 th

Cir. 1993) (Dismissal of action, whether on merits or not, generally means

defendant is prevailing party for purposes of ward of fees and costs under

Federal Civil Rules.)

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Until recently, when a party dismissed an action with or

without prejudice, the district court had the discretion to award costs to

prevailing party. However, some circuits, including the Fourth Circuit are

now making a distinction between a dismissal with prejudice and a

dismissal without prejudice for the purposes of awarding costs. The more

recent view is illustrated by Szabo Food Service, Inc. v. Canteen Corp,

823 F.2d 1073 (7 th Cir. 1987), in which the Seventh Circuit refused to

grant attorneys’ fees to the defendant after the plaintiff obtained a

voluntary dismissal without prejudice. The Seventh Circuit noted that

under a dismissal without prejudice the defendant was still at risk from

litigation on the claim. Accordingly, the court held that a dismissal under

Rule 41(a) is not “the practical equivalent of a victory for the defendant

on the merits,” and the defendant could not be considered a prevailing

party.

The Fourth Circuit recently adopted the same position in an

unpublished opinion of Best Industries v. North American Scientific, Inc.,

134 F.3d 362, 1998 WL 39383 (4 th Cir.(Va.)). In this case the plaintiff also

moved and was granted a voluntary dismissal without prejudice and the

court agreed with the Seventh Circuit’s view that a voluntary dismissal

without prejudice does not render a defendant a prevailing party. The

court noted the distinction with its own decision in Kollsman was that

Kollsman dealt with a dismissal with prejudice, leaving the defendant

without risk of further litigation on the claim. Therefore, Kollsman did

not provide direct support for the proposition that a dismissal without

prejudice makes the defendant a prevailing party.

It should be noted that an even more recent case, Sequa

Corporation v. Cooper, 245 F.3d 1036 (8 th Cir. 2001), in which that court

has found that a voluntary dismissal without prejudice does not deprive a

district court of its authority to award costs. This serves to illustrate that

circuits continue to be of two distinct views on whether the defendant

becomes a “prevailing party” when the plaintiffs obtain a voluntary

dismissal without prejudice. For now, the Clerk will be guided by the

Fourth Circuit’s position in Best.

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V. DISCUSSION OF TAXABLE COSTS

The Clerk will review and tax costs in the following categories.

Counsel are responsible for providing the required receipts, orders,

stipulations or other documentation to support their bill of costs. The

Clerk may deny costs without adequate supporting documentation. Items

normally taxed will include, but not be limited to those items specifically

listed on the bill of costs form which are explained in more detail herein.

A. FEES OF THE CLERK

1. Taxable

a.

Filing fee of complaint, removal and habeas corpus

petitions.

b. Docket fees pursuant to 28 U.S.C. §1923.

c. Appellate fees pursuant to FRAP 39(e).

B. FEES FOR SERVICE OF SUMMONS AND SUBPOENA

Fees paid to the U.S. Marshal Service for service of process are

recoverable. In making the fees of the Marshal taxable as costs in 28

U.S.C. §1920, Congress exhibited an intent to make service of process a

taxable item. The federal rules now allow for the service of process in

civil matters by methods other than the U.S. Marshal Service. The costs of

these other methods are recoverable as costs. See, Alflex Corp. v.

Underwriters Labs, Inc., 914 F.2d 175, 177-78 (9 th Cir. 1990) (per curiam),

cert. denied, 502 U.S. 812, 112 S.Ct. 61, 116 L. Ed. 2d 36 (1991).

Therefore, amounts paid to private process servers are recoverable.

Generally, the Clerk will tax reasonable service fees for summonses,

service fees for trial subpoenas for witnesses who are present and

available to testify and service fees for deposition subpoena.

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C. FEES OF THE COURT REPORTER FOR ALL OR ANY PART OF THE

TRANSCRIPT NECESSARILY OBTAINED FOR USE IN THE CASE.

The general rule is that the costs incurred in taking

depositions will be taxed in favor of the prevailing party if the taking of

the depositions was reasonably necessary at the time it was taken, even

though they may not have been used at trial. Absent introduction into

evidence of the deposition, the prevailing party must show that the

deposition was relied upon for cross-examination or impeachment

purposes, or a showing that the deposition was useful in assisting a

resolution of the contested issues. The Fourth Circuit has held that even

if depositions are not actually used at trial, the cost of the transcripts are

recoverable if taking the deposition seemed reasonably necessary in light

of the particular situation existing at the time of taking. See, LaVay

Corp. v. Dominion Federal Savings and Loan Association, 830 F.2d 522,

528 (4 th Cir. 1987), cert. denied, 484 U.S. 1065, 108 S.Ct. 1027, 28, 98

L.Ed. 2d 991 (1988).

Taxable transcript costs are not limited to the number of

deposition pages necessary for a motion for summary judgment as at the

time of taking the depositions, defendant could not know which aspects

of the deposition or whose deposition would be needed for preparation of

the motion for summary judgment until after the deposition is taken. See,

Jop v. City of Hampton, VA, 163 F.R.D. 486, 488 (E.D. VA. 1995).

Taxable costs in this category normally include:

1. The court reporter’s attendance fee and travel costs.

2. The charge for only the original transcript.

3. Transcripts procured at direction of the court.

4. Transcripts ordered for appeal purposes.

5. Transcripts prepared pursuant to stipulation of parties

with an agreement to tax as costs.

6. Transcripts introduced into evidence.

7. Transcripts used at trial to impeach a witness.

8. Transcripts used in support of a motion.

9. Costs of copies of papers obtained as exhibits in the

deposition.

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10. One copy of the trial transcript for each party

represented by separate counsel.

Non-taxable costs in this category normally include:

1. Cost of daily or expedited copy produced solely for

the convenience of counsel, unless prior court approval

was obtained.

2. Attorneys’ fees and expenses incurred while taking a

a deposition.

3. Long distance phone charges for telephone deposition.

4. Transcripts of video depositions as the Clerk will generally

not tax the costs of both a video deposition and a

transcript.

5. Multiple copies of depositions.

D.

FEES AND DISBURSEMENTS FOR PRINTING.

These fees and disbursements usually do not become involved

in trial court proceedings. The court of appeals taxes these fees and

disbursement and includes them in their mandate. These taxed costs are

in addition to those recoverable in the trial court. General copy costs are

recoverable at the district court level under fees for exemplification and

copies of papers necessarily obtained for use in the case discussed below.

E.

FEES FOR WITNESSES.

Witness fees are generally a recoverable cost with clear limits

as set by 28 U.S.C. §1821. As a rule, these fees are not limited to the day

the witness testifies but includes those days in which the witness

necessarily attends the trial.

1.

2.

Attendance fees as set by 29 U.S.C. §1821 which are

presently $40.00 per day.

Mileage fees for use of a privately owned automobile

with mileage computation based upon a uniformed

table of distances at the same rate prescribed for

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3.

4.

5.

6.

for federal employees in 5 U.S.C. §5704 (.30 cents

per mile).

Subsistence allowance for witnesses is taxable in an

amount not to exceed the maximum per diem allowance

prescribed by the Administrator of General Services,

pursuant to 5 U.S.C. §5702(a) for official travel by

federal employees for the city in which the trial or

deposition was held. No itemization of expenses is

required.

Actual expenses of travel on the basis of the means of

transportation reasonably utilized if a common carrier

is used instead of the witness’s personal automobile.

A witness is required to utilize a carrier at the most

economical rate reasonably available and furnish a

receipt or other evidence of actual cost.

Miscellaneous toll charges, taxicab fares between places

of lodging and carrier terminals, and parking fees may

be taxed. Receipts or evidence of fee paid is required.

Expert witness fees ONLY for court-appointed witnesses.

Non-taxable costs in this category normally include but are not

limited to:

1.

2.

3.

4.

The expenses of witnesses who are themselves parties

in the case.

Compensation paid to an expert witness in excess of

statutory fees, without prior order of the court.

Rental vehicles. Witness will receive only the mileage

rate for the distance traveled.

Federal employees are not entitled to attendance fees,

but may receive the mileage and subsistence allowance

for any overnight stays.

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F. FEES FOR EXEMPLIFICATION AND COPIES OF PAPERS

NECESSARILY OBTAINED FOR USE IN THE CASE.

“Exemplification has been interpreted to embrace all manner of

demonstrative evidence, including enlarged photographs, if necessary to

the understanding of issues and material aid to the jury. Costs for copies

of pleadings, memorandums and motions filed with the court are also a

recoverable cost. See. Independence Tube Corp. v. Copperweld Corp.,

543 F.Supp. 706, 722 (N.D. Ill. 1982). Other items such as separate

binders for the jurors and enlargements of exhibits and like material are

taxable under this section.

Costs or copying expenses are also recoverable. The

prevailing party seeking copying costs need only provide best breakdown

obtainable from retained records; if documentation establishes that

copies were made for the case for its attorneys and billed in normal

course with documents coming in, it is sufficient. See, Movitz v. First

National Bank of Chicago, 982 F.Supp. 571 (N.D. Ill. 1997). Costs for inhouse photocopies and for copies at out-side copy centers are recoverable

upon verification that the fees included only those photocopies that were

necessary for the case. Printouts or records from an in-house copy

counter which automatically bills clients based upon client codes may be

used as a receipt for in-house copies. The general, rule is that the

prevailing party is not required to submit bill of costs containing

descriptions so detailed as to make it impossible economically to recover

photocopying costs; rather, the prevailing party is required to provide

best breakdown obtainable from retained records. See, Northbrook

Excess and Surplus Insurance Company v. Procter and Gamble Company,

924 F. 2d 633 (7 th Cir. 1991). Costs for copies of pleadings,

memorandums and motions filed with the court are included in this

section.

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G.

OTHER TAXABLE COSTS

1.

2.

3.

VI.

Bond premiums.

Interpreter fees when appointed by the court.

Video and audio tapes of depositions upon order of the

court.

NON TAXABLE COSTS

The Supreme Court has held that federal courts are limited to

assessing only those costs enumerated under 28 U.S.C. §1920 and may not

tax costs above and beyond items listed or in amount in excess of

statutory limits. See, Crawford Fitting Company v. J.T. Gibbons, Inc., 482

U.S. 437, 441-42, 107 S.Ct. 2494, 2497, 96 L.Ed. 2d 385, 391 (1987).

Accordingly, the following items are not considered taxable and will

generally be denied by the Clerk.

A.

B.

C.

D.

E.

F.

G.

H.

I.

J.

K.

L.

Attorney fees and travel expenses incurred in attending

depositions, conferences and trial, as well as expenses

incurred by investigations or site visits.

Word processing, typing charges, and copy charges which are

incidental to an attorney’s services.

Computerized legal research charges.

Paralegal expenses.

Mediation fees.

ASCII, CD-ROM, computerized indices or optical discs produced

for the benefit of counsel.

Postage fees (other than for summons/subpoenas), delivery

and notary fees; FEDEX type charges.

Long-distance telephone calls and fax charges.

Damage surveys.

Accountant’s expenses.

Office overhead.

Pro Hac Vice fees.

February 21, 2003

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