3.10 Costs
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3.10 COSTS
3.1001 Federal Rule 54. Federal Rule 54(d) allows a prevailing party to recover costs other than attorney fees. But Rule 54 does not grant the district court "unrestrained discretion to reimburse the winning litigant for every expense he has seen fit to incur." 453 The Fourth Circuit has held that Rule 54(d)(1) creates a presumption that the prevailing party will be awarded costs. 454
3.1002 28 U.S.C. § 1920. District courts are given wide latitude to award costs, so long as the costs are enumerated in the general taxation-of-costs statute, 28 U.S.C. § 1920. "Once it is established that an item falls within 28 U.S.C. § 1920, the prevailing party is presumed to be entitled to recover costs, and the burden is on the losing party to show impropriety of an allowance." 455
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A. Copyright Infringement. There is a split in circuits regarding whether costs recoverable under 17 U.S.C. § 505 (copyright infringement case) are the same as 28 U.S.C. § 1920, or whether § 505 encompasses more than the general bill of cost statute.
The copyright statute states that a party should recover its "full costs." 456 The Fourth Circuit has not yet ruled on the issue. In Seoul Broadcasting Systems International, Inc. v. Ro, 457 a copyright infringement case, expenses for private process server, experts, delivery postage, PACER charges, long distance telephone calls, FedEx., parking for hearing and travel for attorneys were awarded. However, defendants did not object to any of the costs. Recently, in Humphrey & Partners Architects, L.P. v. Lessard Design, Inc., 458 Judge Ellis rejected any costs beyond those permitted by 28 U.S.C. §§ 1821 and 1920 in a copyright case, rejecting, among other costs sought, ESI fees, expert witness fees, outside counsel fees, legal research and investigation fees and deposition videography costs.
B. Contractual Fee Shifting Clauses. 28 U.S.C. § 1920 does not apply to the costs and expenses that may be recovered under a contractual fee-shifting clause, such as those typically found in Guaranty Agreements that allow Banks to recover 'all costs, expenses, and attorneys' fees incurred . . . in the enforcement of [the] guaranty." 459
Rule 54(d) and 28 U.S.C. §§ 1920 and 1924 do not apply to civil rights actions. 460
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3.1003 Timing for Filing for Taxable Costs.
A. Federal Rules of Civil Procedure, Rule 54(d)(1), Costs Other Than Attorney Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney fees—should be allowed to the prevailing party... The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action. Review by court is de novo. 461
B. Eastern District of Virginia. Pursuant to E.D. Va. Loc. R. 54(D)(1), the party entitled to costs shall file a bill of costs within eleven days of the entry of judgment, unless such time is extended by order of the court. 462
A party for whom costs are sought may serve an objection to the bill of costs within eleven days after service of the bill of costs. The objection shall identify each item objected to and the grounds for the objection. Within five days after the filing of an objection to the bill of costs, the prevailing party may serve responses to the objections.
C. Western District of Virginia. W.D. Va. Loc. R. 54 is entitled "Fees and Costs" but the rule only discusses attorney fees. Subsection (a)(1) states: "Unless otherwise provided by statute, or in Social Security cases, or as otherwise ordered by the Court, any motion requesting the award of attorneys' fees must be filed no later than 21 days after the entry of judgment. Any opposition must be filed within 21 days of service of the motion. Any reply must be filed within 7 days of service of the opposition."
3.1004 Procedure for Determining Taxable Costs. Federal Rules of Civil Procedure: Rule 54(d), Federal Rules of Civil Procedure, Rule 54(D)(1) sets out the procedures for determining taxable costs.
Rule 54(D)(1): The clerk may tax costs on 14 days' notice. On motion served within the next seven days, the court may review the clerk's action.
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Rule 54(D)(2): Unless a statute or court order provides otherwise a motion for attorney fees must be filed no later than 14 days after the entry of judgment.
Rule 54(D) does not apply to claims for fees and expenses as sanctions for violating the Federal Rules or as sanctions under 28 U.S.C. § 1927. 463
A. Eastern District of Virginia. Local Rule 54(D)(1) requires that the party entitled to costs file a bill of costs within 11 days from the entry of final judgment, unless such time is extended by order of the court. Local Rule 54(D)(2) allows a party from whom costs are sought to serve an opposition within 11 days after service and the prevailing party may then serve a response to the objections within five days.
Typically, the Clerk makes the initial determination as to the taxation of costs. E.D. Va. Loc. R. 54(D)(2) states: "If there is no objection to the bill of costs, the Clerk shall promptly proceed to tax the costs and shall allow such items in the bill of costs as are properly chargeable as costs."
The Court shall review the action of the Clerk upon timely motion under Rule 54(d). In the absence of a timely motion the action of the Clerk is final. E.D. Va. Loc. R. 54(D)(2).
If objections are filed and the Clerk is unable to determine all or some of the properly chargeable costs, the application for such costs shall be referred to the Court. 464 Any party applying for costs which are not recoverable or which are excessive shall be subject to sanctions under Fed. R. Civ. P. 11.
B. Western District of Virginia. The Western District has no specific local rule for a bill of costs. 465
3.1005 Enforcement of Local Rules. As a general rule, enforcement of local rules is within the sound discretion of the court. 466 Typically, "as
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a matter of practice, federal courts tend to consider untimely briefs and objections, in the court's discretion, where no showing of prejudice is made." 467
3.1006 Burden of Proof. The prevailing party bears the burden of showing that the requested costs are allowable under 1920. 468 Once the prevailing party has met its burden, the burden shifts to the party or parties that did not prevail to identify any impropriety of taxing the proposed costs. 469
3.1007 Standard of Review on Appeal. The Court's award of costs will not be disturbed on appeal, absent an abuse of discretion. 470
3.1008 Possible Costs. 28 U.S.C. § 1920 sets out six categories of costs that may be taxed to the nonprevailing party: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts necessarily obtained 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 where the copies are necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828.
A. Fees of the Clerk and Marshal (Court and Service Fees).
1. Private Process Server.
Eastern District of Virginia:
Although the Taxation of Costs Guidelines for the Eastern District of Virginia categorizes private process services as nontaxable, there remains a divide on this issue. Intellectual Ventures I LLC, v. Capital One Financial Corp., 2015 WL 7283108 (E.D. Va. 2015) (Trenga, J.) (while noting divide over the issue, court declines to permit private service process fees as taxable costs); Callis v. Shelette's Home for Adults, Inc., 3:10cv748, 2011 U.S. Dist. LEXIS 117472 at n.1 (E.D. Va. 2011) (Hudson, J.) ("[p]ursuant to Fed. R. Civ. P. 54 and Local Rule 54(D), private process server fees are not
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recoverable in this District."); Porter v. Elk Remodeling, Inc., 1:09cv446, 2010 U.S. Dist. LEXIS 89037, 2010 WL 3395660 (E.D. Va. 2010) (O'Grady, J.) (after examining case law, court holds private process service fees are not taxable based on the weight of the cases); United States ex rel. Davis v. U.S. Training Center, Inc., 1:08cv1244, 2011 U.S. Dist. LEXIS ____, 2011 WL 6317336 (E.D. Va. 2011) (Ellis, J.) (private process service not taxable in this District.
But see Mann v. Heckler & Koch Defense, Inc., 1:08cv611, 2011 U.S. Dist. LEXIS 46045, 2011 WL 1599580 (E.D. Va. 2011) (Cacheris, J.) (While the Fourth Circuit has not spoken on the issue yet, the clear majority of circuit courts recognize private process server fees as taxable as has this court in O'Bryhim v. Reliance Standard Life Ins. Co., 997 F.Supp. 728 (E.D. Va. 1998) (Cacheris, J.) and in appropriate circumstances, like here, they should be taxable).
Western District of Virginia:
Tunnell v. Ford Motor Co., 4:03cv74, 2005 U.S. Dist. LEXIS 28163, 2005 WL 3050316 (W.D. Va. 2005) (Urbanski, J.) (private process service was taxable cost citing other W.D. Va. cases and other out of state cases); Kennedy v. Joy Techs., Inc. 484 F.Supp.2d 502 (W.D. Va. 2007) (Jones, J.) (in wrongful death case, manufacturer as prevailing party was awarded costs including costs of private process server); Schwarz & Schwarz of Virginia, LLC v. Certain Underwriters at Lloyd's, London, 6:07cv42, 2010 U.S. Dist. LEXIS 10753, 2010 WL 2010 WL 452742 (W.D. Va. 2010) (Moon, J.) (the court finds persuasive the reasoning of the majority of circuit courts that permit private process service fees to the extent that such fees do not exceed the United States Marshal's fees). Walker v. Mod-U-Kraf Homes, LLC, 2014 WL 2450118 (W.D. Va. 2014) (Conrad, C.J.) (while acknowledging that some courts have permitted fees for private process server or local sheriff, court declines to allow such costs as the court is "constrained to apply the statute as written.").
2. Rush Charges. Rush charges sometimes are...
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