Commercial Litigation and Arbitration

Pro Hac Vice Admission Fees Are Not Taxable by a Prevailing Party under 28 U.S.C. § 1920 — Circuit Split —Issue: Must an Opponent Underwrite a Decision to Be Represented by Unadmitted Counsel?

PPL Energy Plus, LLC v. Clerk’s Robt. M. Hanna, 2014 U.S. Dist. LEXIS 178285 (D.N.J. Dec. 30, 2014):

Pro Hac Vice Admission Fees

Plaintiffs seek the $1,200 cost of the admission pro hac vice of eight attorneys at the rate of $150 per attorney [Dkt. Entry 324-5, Ex. B], relying upon the case of Church & Dwight Co., Inc. v. Abbott Labs., Civ. A. No. 05-2142, 2009 U.S. Dist. LEXIS 58067, at * 20-21 (D.N.J. July 8, 2009). ***

Defendants' position is that "[a]lthough pro hac vice admission fees are taxable, Plaintiffs failed to justify the need for eight attorneys; therefore, Defendants submit that $1,200 is excessive." ***

Defendants concede too readily that this type of fee is taxable. In fact, there is a split in the circuits on this issue and, lacking guidance by the Third Circuit, the Clerk is of the opinion that such fees are non-taxable. In the Church & Dwight case, cited by Plaintiffs, this court summarily granted such fees without providing a basis therefor. Rather than adopt that holding, the Clerk consistently [*14]  denies pro hac vice fees on the ground that the opponent should not have to pay for the movant's choice to be represented by counsel not admitted to practice in this district. See e.g., Warner Chilcott Labs. Ireland Ltd. v. Impax Labs, Inc., Civ. A. Nos. 08-6304, 09-2073, 09-1233, 2013 WL 1716468, at *2-3 (D.N.J. Apr. 18, 2013). In so holding, the Clerk has parted company with the Eighth Circuit and aligned himself with the Ninth and Eleventh Circuits and other district courts within the Third Circuit and beyond.

While a cogent analysis is lacking in both the Eleventh Circuit decision denying taxation, Beck v. Prupis, 162 F.3d 1090, 1100 (11th Cir. 1998), aff'd on other grounds, 529 U.S. 494 (2000), and that of the Eighth Circuit favoring it, Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 898 (8th Cir. 2009), the Clerk finds persuasive a more recent Ninth Circuit opinion disallowing pro hac vice fees. In Kalitta Air L.L.C. v. Central Texas Airborne System Inc., the court determined that the phrase "[f]ees of the clerk" refers to those in 28 U.S.C. § 1914, i.e., those set by the Judicial Conference. 741 F.3d 955, 957-58 (9th Cir. 2013). As the Judicial Conference's fee schedule does not cover pro hac vice fees, such fees are not fees of the clerk, within the meaning of § 1920 (1). The court buttressed its holding by espousing the general principle, embraced likewise by the Clerk, that § 1920 should be narrowly construed in the wake of the Supreme Court's admonition in Taniguchi. See also Awad v. Ziriax, No. CIV-10-1186-M, 2014 WL 1572804, at *1 (W.D. Okla. Apr. 17, 2014).

For these reasons, the Clerk [*15]  denies all pro hac vice fees.

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