April 28, 2017 Practice Points

What You Should Know about the Taxation of Costs

By Florence Johnson

The case is finished. The judge has issued a ruling and whether you win or lose you must address moving for the taxation of costs or how to oppose.

Moving for Taxation of Cost

Are you the prevailing party who can recover costs? At the beginning of my career some 25 years ago, it was not widespread practice to go after a plaintiff for costs. Now, as the most common of litigation tactics, some motions to tax costs are spurned out of the need for firms big and small ones to recoup money spent defending non-meritorious cases. Other motions to tax costs are used as a strategic sword against future litigants. Either way it is an effective and necessary part of the practice.

Federal Rule of Civil Procedure 54(d) outlines which party can recover its costs other than attorney's fees. Rule 54. Judgment; Costs

(a) Definition; Form. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings.

(d) Costs; Attorney's Fees.

(1) Costs Other Than Attorney's Fees. 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. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. 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.

If you fall into the categories outlined above from Rule 54(d) then you should itemize the expenses that have been incurred during the life of the matter.

What can you ask for recovery on? Courts routinely find that the deposition costs are recoverable. A party can recover for both the audio and visual versions of one deposition even if only one version of the deposition is ultimately used. You can recover for your firms in house printing cost, postage and mailing to name a few areas properly recoverable under Rule 54.

It is best to review United States Code Section 28 U.S.C. § 1920 which details the limits of recovery of costs to the following specific items:

  1. Fees of the clerk and marshal;
  2. Fees for printed or electronically recorded manuscripts 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 Section 1923 of the Title; and
  6. Compensation for court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under Section 1828 of this Title.

The non-prevailing party will more than likely oppose the taxation motion, but normally, if you are the prevailing party and your costs are not unreasonable, the Clerk of Court will award them. Attorneys seeking to recover costs in state court matters should check the local rules in your jurisdiction about what costs are recoverable.

Florence M. Johnson is the principal attorney at Johnson and Johnson, PLLC, in Memphis, Tennessee, and the chair of the Practice Points Subcommittee for the Section of Litigation's Minority Trial Lawyers Committee.