                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2008

Allen v. Natl RR Passenger
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2723




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 07-2723
                                    ____________

                         DEBRA ALLEN; BEVERLY GREEN;
                         RONALD JONES; JOILYNN SCOTT;
                         BILLY SHAW; YVONNE UPSHUR,

                                              Appellants

                                               v.

         NATIONAL RAILROAD PASSENGER CORPORATION (Amtrak)
                           ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cv-03497)
                     District Judge: Honorable Legrome D. Davis
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 18, 2008

        Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.

                                  (Filed: July 8, 2008)
                                     ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      The plaintiffs, Debra Allen, Beverly Green, Ronald Jones, Joilynn Scott, Billy

Shaw, and Yvonne Upshur, appeal the District Court’s order denying their “Motion for
Review and Reversal of Clerk’s Taxation of Costs” where the Clerk taxed costs against

Plaintiffs pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d). For

the following reasons, we will affirm the order of the District Court.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On September 6, 2005, the District Court granted summary judgment for the

defendant, National Railroad Passenger Corporation, also known as “Amtrak,” in a Title

VII race-discrimination case brought by the plaintiffs. On October 7, 2005, the plaintiffs

filed a notice of appeal. Seven days later, Amtrak filed a bill of costs initially seeking

$765.09 in “Fees for exemplification and copies of papers necessarily obtained for use in

the case” pursuant to 28 U.S.C. § 1920(4), and $12,002.52 in “Fees and disbursements for

printing” pursuant to 28 U.S.C. § 1920(3). On January 31, 2007, we affirmed the order of

the District Court granting summary judgment for Amtrak. On March 23, 2007, the Clerk

entered his taxation of costs. The Clerk taxed the plaintiffs the $765.09 Amtrak had

requested in fees for exemplification and copies necessarily obtained for use in the case

and $6,451.52 for costs expended by Amtrak on outside duplicating and printing, yielding

a total amount of $7,216.61. The Clerk did not grant Amtrak’s request that the plaintiffs

be taxed $5,551.00 for on-site duplicating and printing. The plaintiffs then filed a motion



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styled “Motion for Review and Reversal of Clerk’s Taxation of Costs,” arguing that

Amtrak purportedly only sought $765.09 in “copy costs” and the Clerk erred in awarding

$7,216.61. On May 7, 2007, the District Court denied Plaintiffs’ motion and affirmed the

Clerk’s taxation of costs. This timely appeal followed.

                                              II.

       We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. “In reviewing

the District Court’s decision to impose costs in this case, we exercise plenary review as to

legal questions pertaining to Rule 54(d)(1). In reviewing the District Court’s application

of those legal precepts, we reverse only if that application exceeded the bounds of

discretion.” In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 458 (3d Cir. 2000).

                                             III.

                                              A.

       The plaintiffs first argue that “the copy costs taxed by the Clerk . . . exceed the

copying costs claimed by the defendant by more than $6000.00.” However, this argument

is directly contradicted by the record on appeal. Pursuant to 28 U.S.C. § 1920(3), “A

judge or clerk of any court of the United States may tax as costs . . . [f]ees and

disbursements for printing and witnesses.” In its bill of costs, Amtrak specifically

requests both offsite and on-site “copy costs” under the heading “fees and disbursements

for printing.” Therefore, Amtrak sought the $6,451.52 that was awarded in outside

copying costs in addition to the $765.09 for exemplification and copies of papers



                                              3
necessarily obtained for use in the case, for a total of $7,216.61 in copying costs. The

plaintiffs make no argument that these amounts were calculated in error or that Amtrak

was not otherwise entitled to recover these costs. Thus, the District Court did not abuse

its discretion in affirming the Clerk’s taxation of copying costs.

                                               B.

       The plaintiffs also argue that the timing of Amtrak’s filing of its Bill of Costs

renders the District Court’s decision invalid. The plaintiffs contend that the Procedural

Handbook of the Clerk for the U.S. District Court for the Eastern District (“Handbook”)

provides that a party cannot file a bill of costs with the Clerk until all litigation is

completed and a “prevailing party” has been determined. Handbook at 41, 43.

Specifically, the plaintiffs rely on the language “[i]t has been held that bills of costs must

be filed within a ‘reasonable’ time after the conclusion of litigation.” Id. at 41. The

plaintiffs interpret this language to require that the filing of the Bill of Costs before

resolution of the appeal mandates that “the entire Bill of Costs [be] rejected by the Clerk

and the District Court.”

       The plaintiffs did not raise this argument in their motion before the District Court

and there is no other indication in the record that this argument was made before that

Court. Therefore, the plaintiffs have waived their right to pursue this argument on appeal.

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir.




                                                4
2007) (“absent exceptional circumstances, issues not raised before the district court are

waived on appeal.”)

       Even if this argument had not been waived, the bill of costs was timely filed. The

plaintiffs have not directed us to any rule or case supporting their contention that a bill of

costs filed after summary judgment but prior to the resolution of the appeal must be

rejected. Furthermore, the Clerk did not actually enter his Taxation of Costs until after

we affirmed the District Court’s summary judgment. Contrary to the plaintiff’s

assertions, we are aware of no rule that a bill of costs cannot be filed prior to resolution of

the appeals process, so long as the Clerk does not tax costs before the ultimate prevailing

party has been determined. See Paoli, 221 F.3d at 455 (upholding taxation of costs

against plaintiff where bill of costs was filed after defendants prevailed in the District

Court, but costs were not actually taxed until after resolution of the appeal).

                                             IV.

       For the foregoing reasons, we will affirm the order of the District Court.




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