On September 11, 2017, Judge Kinkeade entered an Order in SAP v. InvestPic (available here). The Order denied SAP’s request to include in the Court’s award of costs the costs incurred by SAP related to the appointment of the case’s Special Master.
The Court denied the request because the recovery of special master costs is not authorized by statute, rule, or otherwise:
A court may only award costs of court expressly set out in 28 U.S.C. §§ 1821 and 1920. These sections do not authorize taxation of Special Master fees as costs.
Additionally, the agreed order appointing the Special Master in the case does not state anything regarding whether the Special Master’s fees will ultimately be taxed as costs against a losing party.
There’s a good lesson here—if you want a special master’s costs to be taxed in favor of the prevailing party, make sure that the court’s order appointing the special master explicitly so provides.