In Knowles v. Temple Univ., No. 22-2978 (7th Cir. July 26, 2024), the Third Circuit contributes to the circuit split about whether private process-server fees are taxable costs as “[f]ees of the clerk and marshal” under 28 U.S.C. § 1920(1) and Fed. R. Civ. P. 54(d). The panel holds that they are not taxable, thus joining the Eighth Circuit and parting from the Seventh and Eleventh Circuits.
The District Court granted summary judgment to Temple University on plaintiff Knowles’s due process claims. “As the prevailing party, Temple filed a bill of costs for service of subpoenas, deposition and hearing transcripts, and copies, which Knowles moved to strike. After holding a conference, the District Court denied the motion and awarded Temple $2,578.93 pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920, which included $625 for private process servers, $1743.55 for transcripts, and $210.38 for copies. Knowles appeals.”
On appeal, the Third Circuit strikes the $625 award for the private process servers.
“The word ‘marshal’ is undefined, so we interpret it ‘in accordance with [its] ordinary meaning.’ Dictionaries help us with this task. At the time of § 1920(1)’s enactment, the term ‘marshal’ referred to a public, not private, actor. Interpreting the word ‘marshal’ in § 1920 to mean a public actor is consistent with § 1921, which refers to ‘[t]he United States marshals or deputy marshals[,]’ as those who serve process and does not mention private process servers.” [Citations omitted]
“Other textual clues lead us to conclude that the statute does not apply to private actors. First, the plain language of the statute tells us that the actors subject to its terms are the singular ‘clerk’ and ‘marshal.’ This suggests that the statute does not cover an array of actors. Second, the statute’s use of the word ‘of’ is informative. The word ‘of’ means ‘proceeding from’ or ‘belonging to[.]’”
“Third, canons of statutory construction and case law also support the conclusion that costs for private servers are not taxable. Interpreting the phrase to capture only public actors is consistent with the canon noscitur a sociis, which provides that ‘a word is known by the company it keeps’ . . . . Section 1920 uses the terms ‘marshal’ and ‘clerk’ together, 28 U.S.C. § 1920(1), both of whom are public officials, and this indicates that Congress intended the provision to cover expenses incurred by only government actors.”
Fourth, the panel notes that Congress could, at any time, amend the statute to cover private service costs.
Finally, while noting that Seventh and Eleventh Circuit cases had construed Section 1920(1) to cover private service costs, and the Ninth Circuit had also held that a district court could do so in its discretion, the panel criticizes those decisions as “ignore[ing] the plain text of the statute and contorts the plain meaning of ‘fees of the marshal’ to mean fees ‘measured by’ the amount authorized for marshal service.”
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