In Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021) following the denial of the father’s petition for return of the child ( 2021 WL 1885263) Respondent moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1.
Respondent requested total costs in the amount of f $87,305.06. Petitioner contests the amount sought and argues that an award of costs should be limited to $18,105.34.
The district court observed that Federal Rule Of Civil Procedure 54 provides that, “unless 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) (“Rule 54”)). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). 28 U.S.C. § 1920 lists six categories of recoverable costs: (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 court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497. “Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable.” Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting, 482 U.S. at 445, 107 S. Ct. at 2499). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ ”Endo Pharmaceuticals, 331 F.R.D. at 578-79 (quoting National Organics, Inc. v. Nutraceutical Corp., No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009)) Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006. Section 1920 thus does not direct that the court “must” or “shall” award costs, but rather that a judge or clerk of court “may” tax costs as set forth in the statute. 28 U.S.C. § 1920; see Endo Pharmaceuticals, 331 F.R.D. at 580. Similarly, Rule 54 provides that although certain costs “should” be awarded, a court may order “otherwise.” Fed. R. Civ. P. 54(d)(1).
Respondent requested payment for the following categories of costs, among others: trial transcripts; printing, copying, and exemplification; fees paid to interpreters; and the fees paid for remote trial services. Petitioner contended that much of what Respondent requests is not taxable as costs and should not be awarded. The Court addressed each disputed category in turn.
Trial Transcripts. The court held that fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent. The Court could not determine that amount from the invoices provided by counsel and required Respondent to provide a revised bill of costs that makes the appropriate adjustment.
Printing, Copying, and Exemplification. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs were attributed to exemplification as distinct from those that fall under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeded what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. And while exhibits were exchanged and displayed digitally, paper copies could not be avoided. The Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.
Interpreters. Interpreters were employed for trial because the parties’ native language is French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees are awardable based on this District’s local rules, because the costs sought are those associated with the testimony of Respondent who is a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Section 1920 expressly identifies costs that “may” be awarded, thus permitting courts to award less than what “may” otherwise be allowed. Rule 54 does exactly that. See Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (“Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.”). Respondent’s argument was premised on the incorrect assumption that all costs contemplated by Section 1920 are mandatory. The Court was not aware of any authority so holding. Accordingly, costs for Respondent’s interpreter were not awarded.
Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, Trial Graphix, which provided technology for and facilitated trial. Petitioner contends that Respondent was not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner is correct. The Court noted that remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1. Another court in this District recently confronted the very issue presented here: whether the costs of retaining Trial Graphix to facilitate a remote trial fall within the ambit of recoverable costs. Chain v. North East Freightways, Inc., 16-CV-3371, 2021 WL 1611953 (S.D.N.Y. April 26, 2021). The Chain court held that they do not, distinguishing between the costs of preparing demonstrative exhibits, which may be recoverable, and costs for remote trial hosting, the service provided by Trial Graphix both there and here. Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting. Accordingly, costs of conducting the trial remotely were not awarded.
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