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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

TAXATION OF COSTS BY THE CLERK BILL OF COSTS HANDBOOK
FEBRUARY 2009

BILL OF COSTS HANDBOOK
TABLE OF CONTENTS

TAXATION OF COSTS BY THE CLERK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 DISCUSSION OF TAXABLE COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FEES OF THE CLERK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FEES OF THE COURT REPORTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FEES FOR WITNESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FEES FOR SERVICE OF SUMMONS AND SUBPOENA . . . . . . . . . . . . . FEES AND DISBURSEMENTS FOR PRINTING . . . . . . . . . . . . . . . . . . . . FEES FOR EXEMPLIFICATION AND COPIES OF PAPERS . . . . . . . . . . OTHER COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 3 4 5 6 6 6

ADDITIONAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

BILL OF COSTS HANDBOOK

I.

TAXATION OF COSTS BY THE CLERK
INTRODUCTION The clerk will tax costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, NECivR 54.1, and NECrimR 31.2. This handbook has been prepared to assist counsel and/or litigants in the preparation of bills of costs. We encourage counsel and/or litigants to review it thoroughly. Section II should prove especially valuable. When a judgment is entered for a party in this court, it may merely state that the party can recover a sum certain with costs. These costs are not itemized at this point. If counsel are unable to agree on the amount of costs, it will be the duty of the clerk or the clerk's designee to tax all allowable costs to be included in the judgment upon the filing of a proper request for taxation of costs. If the judgment does not specifically award costs, the clerk will tax costs in accordance with Fed. R. Civ. P. 54(d) in favor of the prevailing party, unless the court orders otherwise. The party entitled to recover costs must file, within 30 calendar days after entry of judgment, a verified bill of costs on a form available on the court's Web page at http://www.ned.uscourts.gov/fpo/forms/index.html, or from the clerk's office. After a bill of costs is filed, the clerk will file a letter advising the parties of the response schedule. The responding party has ten (10) business days from the date of the letter to file a response. If no response is filed, the clerk will tax the costs. The party filing the bill of costs has five (5) business days following the filing of a response to file a reply. Post-trial motions do not extend the time within which a party must file a verified bill of costs as provided by NECivR 54.1(b), unless the judge orders the time extended. The taxation clerk taxes costs based on the parties' filed bill of costs, affidavit, response, reply, and briefs. When filing a supporting affidavit, response, or reply, a party may request a hearing for cause before the taxation clerk. The taxation clerk may also request a hearing for cause. In general, however, costs will be taxed without a hearing. If a hearing is requested, the hearing on the taxation of the bill of costs will generally be by telephone conference. [underline added for emphasis] A proposed bill of costs must be filed on the proper form. Forms are available from the clerk's office or from the court's Web page at http://www.ned.uscourts.gov/fpo/forms/index.html. An affidavit must accompany a bill of costs form, stating that 1) each item of costs is correct and has been necessarily incurred in the case, and 2) services for which fees have been charged were actually and necessarily performed. Copies of invoices or proofs of payment must also be attached to the bill of costs. Failure to attach proofs of payment will result in the disallowance of that particular item of cost. Counsel must file a certificate of service and attach a separate itemization and the documentation to support the claims made. Documentation may include copies of receipts,

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BILL OF COSTS HANDBOOK
invoices, orders, and stipulations of the parties. Counsel must ensure that any receipts are self-explanatory (e,g, receipts for service 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 must be broken down by fee. The taxation clerk will disallow any expenses that do not have this supporting information. [underline added for emphasis] After the taxation clerk has taxed costs, counsel for either side may, within five (5) business days, file a motion asking the court to review the action of the taxation clerk. If the parties settle costs before the taxation, counsel must file a stipulation stating that the issue has been resolved. Once costs have been determined, those costs are included in the judgment and should be paid directly to the prevailing party except in the following instances: criminal cases, suits for civil penalties for violations of criminal statutes, and government cases not handled by the Department of Justice. NECivR 54.1(c). In criminal cases, the taxation clerk will tax the costs and then send the sentencing judge a memo stating the amount, attaching a copy of the Bill of Costs to the memo. The judge will decide whether the costs are to be included as part of the sentence and the judgment and commitment. NECrimR 31.2. The taxation clerk will tax costs even if the case is appealed, unless the court grants a stay pending appeal. [underline added for emphasis] With the exception of costs on appeal prescribed by FRAP 39(e), the district court taxation clerk will not tax appeal costs. For the Eighth Circuit Court of Appeals Rules and Policies see, www.ca8.uscourts.gov. II. DISCUSSION OF TAXABLE COSTS The taxation clerk will review and tax costs in the categories listed below. Counsel is responsible for filing the required copies of receipts, invoices, orders, stipulations, or other documentation to support the bill of costs. The taxation clerk will deny costs lacking supporting documentation. A. FEES OF THE CLERK 1. Taxable a. Filing fee for complaint, removal, and habeas corpus petitions. When the United States is the prevailing party, it can recover docket fees under 28 U.S.C. 1923, and filing fees under section1914, even if these costs were never actually incurred. Fee charged by out-of-district federal courts for filing notice of taking deposition.

b.

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BILL OF COSTS HANDBOOK
c. B. Docket fees pursuant to 28 U.S. C. 1923.

FEES OF THE COURT REPORTER FOR A DEPOSITION OR TRIAL Counsel must attach to the bill of costs a copy of the court's order directing preparation of transcript or, if applicable, the parties' stipulation agreeing to its preparation. If the transcript/deposition was used in support of a motion, counsel must provide the title of the motion and the approximate date it was filed. If the transcript/deposition was used at trial, counsel must provide the date the transcript was read into the record. The general rule is that the costs incurred in taking a deposition will be taxed in favor of the prevailing party if the taking of the deposition was reasonably necessary at the time it was taken, even though it may not have been used at trial. If the prevailing party did not introduce the deposition into evidence, the prevailing party must show that either 1) it relied on the deposition for cross-examination or impeachment purposes, or 2) the deposition was useful "in assisting a resolution of the contested issues." In the latter instance, the prevailing party must furnish evidence that the deposition was reasonably necessary to the development of the case at the time the deposition was taken. Depositions taken solely for discovery are not taxable as costs. 1. Taxable a. b. c. d. e. f. g. h. i. j. Transcript procured at the direction of the court. Transcript prepared pursuant to stipulation of parties to tax as costs. Transcript used at trial to impeach witness(es). Transcript used in support of a motion. Electronic media depositions used at trial, e.g., video tape, DVD, audio. Court reporter fees for attendance at and travel for depositions. Court reporter postage or delivery charges. Cost of original transcript and one copy. Costs of copies of papers obtained as exhibits in the deposition. Electronic media support, e.g., disk, CD-ROM.

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BILL OF COSTS HANDBOOK

The cost of the transcript and one copy will be allowed, if the transcript falls into categories b-e above. If the prevailing party did not request the deposition and did not incur stenographic costs, it may recover costs of one copy of the deposition with postage costs. All depositions filed must be in written form. Only written transcripts of audio or video recordings will be accepted for filing.

2.

Not Taxable a. Cost of daily or expedited copy produced solely for the convenience of counsel, unless prior court approval is obtained. Transcript used primarily for trial preparation or discovery. Discovery depositions. Attorneys' fees and expenses incurred while taking a deposition. Long distance phone charges for telephonic deposition. Transcript ordered for appeal purposes.

b. c. d. e. f. C.

FEES FOR WITNESSES If a witness is subpoenaed for trial but does not testify, or if a witness is deposed but the transcript is not used at trial or in support of a motion, the taxation clerk will not tax the fees and disbursements as to that witness. 1. Taxable a. Attendance. The attendance fee is currently taxed at $40.00 per day. See 28 USC 1821(b). Mileage. For use of a privately owned automobile. (See "Attachment 1" for applicable mileage rate.) Travel by Common Carrier. Covers the actual expenses of travel based on the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence by the

b.

c.

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BILL OF COSTS HANDBOOK
shortest practical route. 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. d. Subsistence. Subsistence is allowed for witnesses who live too far to travel to and from their residences daily while in attendance. The daily amount is 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 in the area of attendance by federal government employees. No itemization of expenses is required. Expenses are not limited to the day the witness testifies, but include those days on which the witness necessarily attends trial. (See "Attachment 2" for applicable subsistence rate.) Miscellaneous Expenses. Witnesses' toll charges, taxicab fares between places of lodging and carrier terminals, and parking fees may be taxed with proper supporting documentation. Federal Employees. Federal employees are not entitled to attendance fees, but may receive the mileage and subsistence allowance for overnight stays.

e.

f.

2.

Not Taxable a. Parties. Real parties in interest or parties suing in a representative capacity are not entitled to fees or allowances as witnesses. Expert Witnesses. Compensation paid to an expert witness in excess of the statutory fees, without prior order of the court, is not taxable. Rental Vehicles. Witnesses' fees for rental vehicles are not taxable.

b.

c. D.

FEES FOR SERVICE OF SUMMONS AND SUBPOENA 1. Taxable a. b. c. Service fees for summons and other initial process. Services fees for trial subpoenas for witnesses who testified at trial. Service fees for deposition subpoenas if the deposition transcript is taxed as costs. Cost of postage if service is executed by mail. United States Marshal fees pursuant to 28 U.S.C. 1921.

d. e.

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BILL OF COSTS HANDBOOK
f. Costs for private process service.

Service fees must be documented on the returned summons or subpoena and a copy provided as an attachment to the bill of costs.

2.

Not Taxable a. b. Service fees for discovery subpoenas. Service fees for trial subpoenas if the witness did not testify.

E.

FEES AND DISBURSEMENTS FOR PRINTING

Fees and disbursements for printing usually do not become involved in trial court proceedings. The court of appeals taxes these fees and disbursements and includes them in the mandate. These taxed costs are in addition to those recoverable in the trial court. F. FEES FOR EXEMPLIFICATION AND COPIES OF PAPERS (28 U.S.C. 1920)

This category covers the cost of actually trying a case in the courtroom, and includes documents and exhibits used at trial. Fees for exemplification are not recoverable without a prior court order. Exemplification covers demonstrative evidence, such as models, charts, photographs, illustration, and other similar graphic aids. Expenses for copies of briefs, court documents, and trial exhibits are taxable if the copies were received as evidence, prepared for use in presenting evidence, or obtained for service on the other parties in the litigation and the court. Costs of copies may not exceed the fees in 28 U.S.C. 1914. Routine copy expenses, i.e., those made for service, filing, or for convenience of counsel, are not taxable without prior court approval. G. OTHER COSTS 1. Taxable a. b. c. Bond premiums. Interpreter fees, but only upon order of the court. Video and audio recordings of depositions, but only upon order of the court. (See also Section B, fees of the court reporter).

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BILL OF COSTS HANDBOOK
2. Not Taxable a. Attorney fees and travel expenses incurred in attending depositions, conferences, and trial, as well as expenses incurred during investigations. Word processing, typing charges, copy charges, and scanning charges that are incidental to an attorney's services. Reusable exhibit notebooks or binders. Computerized legal research charges. Paralegal expenses. Prejudgment and post-judgment interest. Mediation fees. Fees for postage (other than summons/subpoenas), delivery and notary fees, and Federal Express charges. Long-distance telephone calls and fax charges. Damage surveys. Accountant's expenses. Office overhead.

b.

c. d e. f. g. h.

i. j. k. l. III.

ADDITIONAL INFORMATION If the responding party fails to file an objection, the taxation clerk will tax costs without further notice, when the time for filing a response expires. The clerk may strike any erroneous costs but will not add costs the submitting party omitted from the Bill of Costs. If the parties settle a case before or during trial, costs will not be taxed. Counsel should include all costs in the settlement agreement. If the parties resolve the taxing of costs prior to the taxation, counsel must file a stipulation to that effect. Fees for interpretation services are assessed in much the same manner as expert fees. When the court appoints an interpreter and fixes compensation, the court may direct one or more of the parties to pay the compensation and ultimately order it taxed as costs. When special interpretation services provided under 28 U.S.C. 1828 are taxed as costs, a judge may direct

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BILL OF COSTS HANDBOOK
that the taxed costs be used to reimburse the Administrative Office of the United States Courts for providing such special interpretation services. Where the prevailing party procured interpretation or translation services without prior court approval, costs will be assessed only for those expenses necessarily incurred. The party requesting costs has the burden to show that the interpretation or translation services were necessary at the time the services were received.

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BILL OF COSTS HANDBOOK
Attachment 1 MILEAGE RATES Dates of Travel On or after 02/01/09 8/01/08 - 01/31/09 03/19/08 - 7/31/08 2/01/07 - 03/18/08 1/1/06 - 1/31/07 9/1/05 -12/31/05 2/4/05 - 8/31/05 1/1/04 - 2/3/05 10/1/03 - 12/31/03 1/21/02 - 9/30/03 1/22/01 - 1/20/02 1/14/00 - 1/21/01 4/1/99 - 1/13/00 9/8/98 - 3/31/99 6/7/96 - 9/7/98 1/1/95 - 6/6/96 6/30/91 - 12/31/94 9/17/89 - 6/29/91 8/14/88 - 9/16/89 Per Mile $.55 $.585 $.505 $.485 $.445 $.485 $.405 $.375 $.36 $.365 $.345 $.325 $.31 $.325 $.31 $.30 $.25 $.24 $.225

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BILL OF COSTS HANDBOOK
Attachment 2 SUBSISTENCE RATES Date of Travel With Lodging Without Lodging (last day and return to residence) $49.00 - Omaha $39.00 - Lincoln $39.00 - North Platte $49.00 - Omaha $39.00 - Lincoln $39.00 - North Platte $49.00 - Omaha $39.00 - Lincoln $39.00 - North Platte $49.00 - Omaha $39.00 - Lincoln $39.00 - North Platte $38.00 - all court locations $38.00 - all court locations $38.00 - all court locations $38.00 - all court locations $38.00 - all court locations $38.00 - all court locations

On or after 10/01/08

$148.00 - Omaha $109.00 - Lincoln $109.00 - North Platte $142.00 - Omaha $109.00 - Lincoln $109.00 - North Platte $133.00 - Omaha $ 99.00 - Lincoln $ 99.00 - North Platte $128.00 - Omaha $ 99.00 - Lincoln $ 99.00 - North Platte $128.00 - Omaha $ 99.00 - Lincoln $ 99.00 - North Platte $111.00 - Omaha $ 91.00 - Lincoln $ 91.00 - North Platte $106.00 - Omaha $ 86.00 - Lincoln $ 86.00 - North Platte $105.00 - Omaha $ 85.00 - Lincoln $ 85.00 - North Platte $101.00 - Omaha $ 85.00 - Lincoln $ 85.00 - North Platte $93.00 - Omaha $84.00 - Lincoln $80.00 - North Platte

10/01/07 to 9/30/08

10/1/06 to 9/30/07

7/1/06 - 9/30/06

10/01/05 - 06/30/06

10/1/04 - 9/30/05

10/1/03 - 9/30/04

10/1/02 - 9/30/03

1/1/00 - 9/30/02

Prior to 1/1/00

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