Opinion
01 Civ. 11297 (RCC).
August 16, 2005
MEMORANDUM ORDER
On March 31, 2003, the Court granted a motion to dismiss filed by ConAgra Foods, Inc., ConAgra International, Inc., and Donald Da Parma ("Defendants") based on forum non conveniens "on the condition that Defendants submit themselves to French jurisdiction for the purposes of resolving this action." Dattner v. ConAgra Foods, Inc., No. 01 Civ. 11297(RCC), 2003 WL 1740448, at *6 (S.D.N.Y. Apr. 3, 2003). The Clerk of the Court entered the judgment against Yeheskel Dattner ("Plaintiff") on April 8, 2003, and Plaintiff appealed. On February 25, 2004, the Second Circuit affirmed the Court's dismissal of the action. Dattner v. ConAgra Foods, Inc., 91 Fed. Appx. 179, 180 (2d Cir. 2004). Defendants now move for judicial review of the items taxable as costs, requesting an order granting Defendants $3,060.75 in deposition-transcription costs and $9,022.48 in translator fees. For the reasons stated below, Defendants' motion is GRANTED.
Although Defendants also initially requested that the Court grant them $5,000.00 in expert-witness fees (see Bill of Costs, Apr. 23, 2004 (itemizing $5,000.00 for "that portion of the expert witness fees paid to Professor George Bermann for expert report")), Defendants informed the Court on May 19, 2004 that they "no longer seek costs for that portion of the expert witness fees paid to Prof. George Bermann for the expert report" (Zlotchew Decl. at ¶ 17). The Court therefore addresses only Defendants' requests for deposition-transcription and translation costs.
Decisions concerning the taxation of costs lie within the sound discretion of the district court. LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995). Pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure, "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d)(1). Local Rule 54.1(a) provides that "[w]ithin thirty (30) days after the entry of final judgment, or, in the case of an appeal by any party, within thirty (30) days after the final disposition of the appeal . . . any party seeking to recover costs shall file with the clerk a request to tax costs annexing a bill of costs and indicating the date and time of taxation." U.S. Dist. Ct. Rules S. E.D.N.Y. Civ. R. ("Local Rule") 54.1(a). The bill of costs must include "an affidavit that the costs claimed are allowable by law, are correctly stated and were necessarily incurred," and receipts for the claimed costs must be attached to the bill of costs as exhibits. Id.
Defendants enjoy a presumption that the deposition-transcript and translation costs at issue will be awarded. After a prevailing party demonstrates the amount of its costs and that they fall within an allowable category of taxable costs, see Local Rule 54.1(a), that party enjoys a presumption that its costs will be awarded, Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). Defendants seek to recover $3,060.75 spent on transcripts of Plaintiff's June 17-18, 2002 deposition and $9,022.48 spent to translate French court documents — including complaints, indictments, and police reports filed against Plaintiff in France; various extensions of police custody of Plaintiff by the French authorities; transcripts of hearings of Plaintiff in France; and opinions by the French courts in the civil and criminal actions against Plaintiff — which were filed (along with their English translations) as exhibits in support of Defendants' motion to dismiss. Defendants have demonstrated the precise amount of these costs by attaching receipts documenting the costs to their bill of costs, and deposition-transcript costs and translator fees fall within allowable categories of taxable costs, see Local Rules 54.1(c)(2), (4).
Plaintiff has not carried his burden to overcome the presumption that Defendants are entitled to the deposition and interpreting costs at issue by showing that the costs should not be imposed. See Whitfield, 241 F.3d at 270. Plaintiff makes two arguments against imposition of costs. First, Plaintiff argues that the Court's judgment in this case was not "final" as required by Local Rule 54.1(a). Second, Plaintiff argues that the deposition transcript and translated documents at issue were not "used" by the Court as required by Local Rule 54.1(c), which states that deposition-transcript costs are taxable if the depositions "were used by the court in ruling on a motion for summary judgment or other dispositive motion" but not if they were "solely for discovery," id. at 54.1(c)(2), and that the "reasonable fee of a translator is also taxable if the document translated is used or received in evidence," id. at 54.1(c)(4). Both of Plaintiff's arguments are flawed.
For one, the Court's April 8, 2003 judgment granting Defendants' motion to dismiss was a final judgment despite Plaintiff's contention that the judgment was merely "conditional." The Court's order dismissing the case on forum non conveniens grounds was entered as a judgment set forth on a separate document in compliance with Rule 58 of the Federal Rules of Civil Procedure, and the Court intended that judgment to represent the final decision in the case. See Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli, 805 F.2d 47, 49 (2d Cir. 1986) (noting that the finality of a judgment is determined by whether the district court intended the judgment to represent the final decision in the case); see also Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1285-86 (11th Cir. 2001) (noting that "[t]he separate judgment rule of Rule 58 is important, having been designed to eliminate the confusion that previously arose regarding whether a particular order was a final judgment" (quotation omitted)); Sanders v. Clemco Indus., 862 F.2d 161, 167 (8th Cir. 1988) (noting that "the separate-document rule . . . plays an important role in making a judgment `final'").
Although the Court's decision to dismiss Plaintiff's case based on forum non conveniens was "on the condition that Defendants submit themselves to French jurisdiction for the purposes of resolving this action," Dattner, 2003 WL 1740448, at *6, a dismissal based on the doctrine of forum non conveniens "puts an end to the action and hence is final and appealable," Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955) (quotation omitted). This is true regardless of whether a district court imposes the condition that defendants accept jurisdiction and service of process in suits filed in an alternate forum. See Picco v. Global Marine Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir. 1990) ("[C]onditional dismissal on forum non conveniens grounds [i]s an appealable final order even though a failure to comply with the conditions of the dismissal could result in the district court's reassertion of jurisdiction . . . [because] such conditional dismissals are the functional equivalents of a dismissal without prejudice notwithstanding the possibility that the court may eventually reassert jurisdiction."); Sigalas v. Lido Mar, Inc., 776 F.2d 1512, 1516 (11th Cir. 1985) ("[T]he disposition of a case under the doctrine of forum non conveniens, even with certain prophylactic conditions, constitutes an appealable final order"); see also Boosey Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 491 (2d Cir. 1998) (reversing a forum non conveniens dismissal for grounds including the district court's failure to condition the dismissal on the defendant's consent to jurisdiction in a foreign forum); Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 984 (2d Cir. 1993) ("[F]orum non conveniens dismissals are often appropriately conditioned to protect the party opposing dismissal."); Doe v. Hyland Therapeutics Div., 807 F.Supp. 1117, 1123 (S.D.N.Y. 1992) (holding that a district court "can grant defendants' motion to dismiss conditioned upon defendants accepting jurisdiction and service of process in suits filed in [an alternate forum]"); Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 915 (S.D.N.Y. 1977) (noting that "the condition of an available alternate forum to the dismissal of an action on the ground of inconvenience has been steadfastly adhered to by our courts" since the Supreme Court's decision in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1946)).
Second, despite Plaintiff's argument to the contrary, both the deposition transcription and translated court documents at issue were "used" by the Court in ruling on Defendants' motion to dismiss, as required by Local Rule 54.1(c). In deciding Defendants' motion to dismiss, the Court considered all material submitted by the parties in conjunction with the motion, including excerpts from Plaintiff's deposition and the translated documents at issue, which were referenced throughout the parties' memoranda of law. The deposition transcript was directly cited by the Court in its March 31, 2003 opinion dismissing the action. See Dattner, 2003 WL 1740448, at * 3 (directly citing Plaintiff's June 17-18, 2002 deposition in analyzing the forum non conveniens claim). And although the translated documents at issue were not directly cited in the Court's March 31, 2003 opinion, they too were used by the Court in ruling on Defendants' motion to dismiss. A court need not cite to a document to have "used" it in deciding a dispositive motion. See Patterson v. McCarron, No. 99 Civ. 11978 (RCC), 2005 WL 735954, at *2 (S.D.N.Y. Mar. 30, 2005) (noting that the verb "use" is broader than the verb "cite," and in fact subsumes the latter: in citing to a deposition or translation, a court necessarily uses it, but a court may use these materials without citing to them). The Court made reference to the translated documents throughout its March 31, 2003 opinion, despite the lack of direct citations thereto. See, e.g., Dattner, 2003 WL 1740448, at *2 (providing background regarding Plaintiff's arrest and incarceration in France, Plaintiff's acquittal by the Paris Criminal Court, the dismissal of Defendants' civil action against Plaintiff, and the appeals from the acquittal and dismissal); id. at *5 (noting that the fair administration of the case by the Court would require the translation of thousands more documents that were used in the French criminal proceedings). Therefore, both the deposition transcription and translated court documents at issue were "used" within the meaning of Local Rule 54.1(c).
Defendant's motion for taxable costs is therefore GRANTED in the amount of $12,083.23. The Clerk of the Court is directed to close the case and remove it from the Court's active docket.
So Ordered.