What Is a Motion to Tax Costs? Filing, Objections, and Rule 68

A motion to tax costs is a post-judgment request asking the court to order the losing party to reimburse specific litigation expenses the winning side paid during the case. In federal court, Rule 54(d)(1) presumes that the prevailing party gets these costs, but the categories are set by statute and are narrower than most litigants expect. 1Legal Information Institute. Federal Rules of Civil Procedure Rule 54 – Judgment; Costs

The rule says costs “should be allowed to the prevailing party” unless a statute, rule, or court order says otherwise. That word “should” creates a presumption, not a guarantee. Courts keep discretion to reduce or deny the request, and the losing side has real tools to push back on individual line items or the whole bill.

What Counts as a Taxable Cost

Federal taxable costs are defined by 28 U.S.C. § 1920. A court may tax only these categories: 2Office of the Law Revision Counsel. 28 USC 1920 – Taxation of Costs

  • Clerk and marshal fees, including filing fees and U.S. Marshals Service fees for serving documents.
  • Deposition and hearing transcript fees, but only when the transcript was reasonably necessary for the case.
  • Printing costs and statutory witness fees.
  • Exemplification fees for officially authenticating documents, and copying costs for materials needed in the case.
  • Compensation for court-appointed experts and for interpreters.

Witness fees sit under a separate statute with a hard cap. Under 28 U.S.C. § 1821, a witness receives $40 per day for attendance, plus mileage and a subsistence allowance when an overnight stay is required. 3Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence Those are the only witness amounts a prevailing party can tax.

What You Cannot Recover

Attorney fees are the biggest exclusion. Under the American Rule, each side pays its own lawyers unless a specific statute or contract shifts that obligation, and Rule 54(d)(1) itself treats “costs” and “attorney’s fees” as separate categories. Civil rights cases are the main exception a litigant will encounter: in actions brought under statutes like 42 U.S.C. § 1983, the court may award reasonable attorney fees to the prevailing party under 42 U.S.C. § 1988. 4Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights

Expert witness fees above the $40 statutory rate are also off the table. The Supreme Court held in Crawford Fitting Co. v. J.T. Gibbons, Inc. that federal courts cannot award expert fees beyond the § 1821 cap unless the expert was court-appointed or a separate statute explicitly authorizes higher amounts. 5Justia Law. Crawford Fitting Co. v J.T. Gibbons, Inc., 482 US 437 (1987) The gap between what an expert actually charged and $40 a day comes out of the winning party’s pocket.

Other common expenses that fall outside the statute: attorney travel, office overhead, computerized legal research, and word processing. Courts treat these as the cost of running a law practice, not something the losing party should bear.

How and When to File

Rule 54(d)(1) does not set a deadline for filing the initial bill of costs. Each district court sets its own deadline through local rules, and the window varies: some give 14 days after final judgment, others 21 or 30. Missing the local deadline can waive the right to recover costs entirely, so pull the local rules the moment judgment is entered.

Federal law requires the bill of costs to be verified. The party claiming costs must attach an affidavit stating that every item is correct, was necessarily incurred, and that the services charged for were actually performed. 6GovInfo. 28 USC 1924 – Verification of Bill of Costs In practice, that means filing a standardized form (Form AO-133 in federal court) with supporting invoices, receipts, and documentation showing what was spent and why it was necessary. The bill must also be served on the opposing party.

From there, the clerk of court taxes costs after giving 14 days’ notice to the parties. Either side then has 7 days to ask the court to review the clerk’s decision. 1Legal Information Institute. Federal Rules of Civil Procedure Rule 54 – Judgment; Costs If no objection is filed, the clerk typically taxes costs as requested.

How to Object to a Bill of Costs

The losing party is not stuck paying whatever the other side claims. Effective objections generally fall into four theories:

  • The item is not taxable because it does not fall within the categories listed in 28 U.S.C. § 1920. This is the cleanest objection because it is a pure legal question.
  • The item was not necessary. The winning party, for instance, ordered transcripts of every deposition but used only two at trial. Costs must be “necessarily obtained for use in the case,” not just convenient to have.
  • The amount is unreasonable, either exceeding customary charges or including markups beyond actual cost.
  • The documentation is insufficient, meaning the bill lacks invoices or receipts to verify the claimed amounts.

If objections are filed, the clerk reviews them and decides what should be taxed. Either side can then take the dispute to the judge during the 7-day review window Rule 54(d)(1) provides.

When Courts Deny Costs to the Winner

The presumption in favor of awarding costs is not bulletproof. The losing party carries the burden to overcome it, but these arguments have succeeded in various federal courts:

  • Genuine inability to pay. Documented financial hardship can lead a court to reduce or eliminate a cost award.
  • The case raised important or novel legal issues, where imposing costs might discourage future litigants from bringing legitimate claims.
  • The case was extremely close, with a narrow loss on a hard-fought issue weighing against full cost-shifting.

These are discretionary factors, not guaranteed defenses. Simply disagreeing with the outcome will not persuade a court to waive costs.

The Rule 68 Trap for Rejected Offers

Federal Rule of Civil Procedure 68 adds a cost-shifting consequence many litigants overlook. A defending party may serve a formal offer of judgment at least 14 days before trial. If the other side rejects it and ultimately wins a judgment less favorable than the offer, the rejecting party must pay the costs the defending party incurred after the offer date. 7Legal Information Institute. Federal Rules of Civil Procedure Rule 68 – Offer of Judgment

The stakes climb when the underlying claim involves a fee-shifting statute. In Marek v. Chesny, the Supreme Court held that when a statute like 42 U.S.C. § 1988 defines “costs” to include attorney fees, those fees count as “costs” for Rule 68 purposes as well. A plaintiff in a civil rights case who rejects a Rule 68 offer and later recovers less than the offer loses the ability to recover attorney fees incurred after the offer. 8Justia Law. Marek v Chesny, 473 US 1 (1985) Post-offer attorney fees in a case that goes to trial often dwarf the taxable costs themselves.

After Costs Are Taxed

Once the court taxes costs, the approved amount becomes part of the final judgment and carries the same legal weight as any other money judgment. If the losing party does not pay voluntarily, the prevailing party can use the standard enforcement tools: wage garnishment, bank levies, and property liens.

Post-judgment interest also applies. Interest on money judgments in federal civil cases runs from the date judgment is entered, is calculated at a rate tied to the weekly average one-year Treasury yield, and compounds annually. 9United States Courts. 28 USC 1961 – Post Judgment Interest Rates The rate is modest in most years, but on a large unpaid award it adds up.

A Note on State Court

Everything above describes federal practice. State courts set their own lists of recoverable costs, their own filing deadlines, their own forms, and their own objection procedures. Some states allow more than § 1920 does, others less. If your case is in state court, the state’s civil procedure rules and the local court rules control.