Summary
denying transcript costs for trial that lasted less than two weeks and two defense attorneys were present
Summary of this case from Hogan v. Novartis Pharms. Corp.Opinion
Case No. 00-CV-9063 (KMK).
January 9, 2008
Joyce Morin Utz, Esq., Law Offices of Joyce Morin Utz, New York, New York, Counsel for Plaintiff.
Robert L. Herbst, Esq., Beldock, Levine Hoffman LLP, New York, New York, Counsel for Plaintiff.
Deborah Sharp, Esq., Corporation Counsel of the City of New York, New York, New York, Counsel for Defendants.
Pamela S. Richardson, Esq., Patton Boggs LLP, Washington, D.C., Counsel for Defendants.
OPINION ORDER
Before the Court is Plaintiff Joanne Karmel's Appeal of Award of Costs to Defendants Pursuant to Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.1. Plaintiff is appealing the Clerk of Court's award of $23,714.68 to Defendants as costs incurred in the course of a civil rights litigation that took place between the Parties.
I. Background
In November 2000, Plaintiff Joanne Karmel, a retired New York City Police Detective, brought a civil rights action against her former employer, Defendant City of New York, and individual defendants, alleging sexual harassment and retaliation by her colleagues and supervisors. ( See Pl.'s Appeal of Award of Costs to Defs. 3 ("Pl.'s Appeal"); Defs.' Mem. of Law in Resp. to Pl.'s Appeal of the Award of Costs to Defs. 1-2 ("Defs.' Mem.").) In late 2005, there was a 22-day jury trial before this Court, which ended in the jury rendering a verdict in favor of Defendants on all claims. ( See Pl.'s Appeal 3; Defs.' Mem. 2.) After Plaintiff's post-trial motions were denied by this Court, the Parties' respective counsel appeared before the Clerk of Court for a decision on Defendants' Application for Costs, in which Defendants requested $33,647.47 in costs from Plaintiff. (Pl.'s Appeal 4.) The Clerk of Court awarded Defendants costs in the amount of $23,714.68, the decision from which Plaintiff is now appealing. (Pl.'s Appeal 5; Defs.' Mem. 2.)
Plaintiff's action was brought pursuant to 42 U.S.C. § 1983, New York State Human Rights Law, New York City Human Rights Law, and Title VII of the Civil Rights Act.
Defendant submitted a "Bill of Costs" itemizing the costs that make up this amount as follows: fees for service of summons and subpoena ($40.00), fees of the court reporter for all or any part of the transcript ($22,830.87), fees for witnesses ($644.00), fees for exemplification and copies of papers ($600.38), compensation of court-appointed experts ($4,250.00), and other costs ($5,282.22). (Pl.'s Appeal Ex. A (Bill of Costs endorsed by Clerk of Court).)
The Clerk of Court awarded Defendants costs as follows: fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case ($22,376.06), fees for exemplification and copies of papers necessarily obtained for use in the case ($600.38), and other costs ($738.24). (Defs.' Notice of Mot. to Renew Application for Costs Sought Against Pl. Ex. A ("Defs.' Mot. to Renew") (Bill of Costs endorsed by Clerk of Court).)
II. Discussion
A. Standard of Review
Fed.R.Civ.P. 54(d)(1) provides, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the prevailing party." The Supreme Court has interpreted the word "costs" in Rule 54(d)(1) to mean only those categories of costs enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Local Civil Rule 54.1 further outlines those costs which are taxable in the Southern District of New York.Where an unsuccessful litigant appeals the Clerk of Court's award of costs, the district court reviews the award de novo. See Owen v. Georgia-Pacific Corp., No. 03-CV-378, 2005 WL 3542407, at *1 (D. Conn. Nov. 28, 2005) (citing In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 453 (3rd Cir. 2000)); see also Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) ("A district court reviews the clerk's taxation of costs by exercising its own discretion to decide the cost question itself." (internal quotation marks omitted)). The Second Circuit has made clear that "because 54(d) allows costs `as of course,' such an award against the losing party is the normal rule obtaining in civil litigation, not an exception." Whitfield, 241 F.3d at 270; accord Mercy v. County of Suffolk, 748 F.2d 52, 54 (2d Cir. 1984) ("The award of costs against the losing party is a normal incident of civil litigation and is the rule rather than the exception.").
In light of this general rule, the losing party bears the burden of convincing the district court to exercise its discretion to vacate the Clerk of Court's award of costs. See Whitfield, 241 F.3d at 270. Ordinarily, however, "costs will be taxed against the losing party provided such costs were reasonably necessary." Seymore v. Reader's Digest Assoc., No. 77-CV-4825, 1981 WL 90, at *1 (S.D.N.Y. Jan. 7, 1981). In exercising its discretion, a district court is free to consider a variety of equitable factors. See Whitfield, 241 F.3d at 270 (listing reasons for which denying costs may be appropriate, such as "misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources"). Further, though a district court may deny a prevailing party costs, see Crawford Fitting Co., 482 U.S. at 441 ("Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party."), its reasons for doing so must be articulated, see Whitfield, 241 F.3d at 270.
B. Analysis
1. Plaintiff's Overarching Policy Arguments
Plaintiff argues that, for reasons grounded in equity, no costs should be taxable against her. First, Plaintiff argues that because she brought a civil rights action in good faith, an award of costs against her would thwart Congress' intent "of facilitating rather than hindering access to the courts of those alleging civil rights actions." (Pl.'s Appeal 5.) Though the Court fully appreciates Plaintiff's point, there is no per se rule prohibiting taxing costs upon unsuccessful civil rights Plaintiffs. See Wray v. City of New York, No. 01-CV-4837, 2007 WL 2908066, at *1 (E.D.N.Y. Oct. 4, 2007) ("Nor does the concern about the deterrent effect that a costs award might have on commencing civil rights actions justify the disallowance of costs. . . . Congress has not sought to exclude civil rights cases from the reach of Rule 54(d)(1)"). In fact, Defendants identified numerous cases in which costs were found to be taxable against unsuccessful civil rights plaintiffs. ( See Defs.' Mem. 4-6.) Further, good faith alone is insufficient to prevent the award of costs. See Whitfield, 241 F.3d at 272-73; Wray, 2007 WL 2908066, at * 1; see also Commer v. McEntee, No. 00-CV-7913, 2007 WL 2327065, at *3 (S.D.N.Y. Aug. 13, 2007) (finding good faith to be irrelevant to costs determination); Graber v. United States, No. 01-CV-1269, 2003 WL 22743085, at *1 (S.D.N.Y. Nov. 20, 2003) ("[A] party's good faith, or lack thereof, is irrelevant to the determination of who should bear the necessary costs of a trial; rather, it is a function of who prevailed and who lost."). That being said, the Court is free to — and will — consider these factors, among others, in exercising its discretion.
Plaintiff also argues that the financial disparity between her and Defendants makes the taxing of costs upon her inequitable. (Pl.'s Appeal 7.) Plaintiff asserts that she is living on a regular pension and social security disability benefits, which makes the costs taxed upon her by the Clerk of Court "unduly burdensome, particularly in comparison to the ability of the City of New York to absorb these costs." ( Id.) In the Second Circuit, a court may properly deny the imposition of costs on the ground of indigency if the losing party makes a sufficient enough showing, but indigency per se is not a grounds for denying costs. See Whitfield, 241 F.3d at 273. Plaintiff, however, has claimed a financial disparity, not indigency. If indigency does not provide for a per se rule against costs, financial disparity certainly does not. However, the Court will consider the financial disparity between the Parties as a factor in the Court's determination, but a claim of financial disparity alone will not satisfy Plaintiff's burden of showing that costs should not be awarded. See Commer, 2007 WL 2327065, at *3. This is true even where the prevailing party is the City of New York. See Graber, 2003 WL 22743085, at *1 ("[P]laintiff . . . simply argues that the disparity in wealth between him and the Government should preclude the awarding of costs. On this unprecedented theory, the Government would never obtain costs."). While being mindful of these equitable factors, the Court will now consider the propriety of the specific costs taxed against Plaintiff and — more specifically — whether Plaintiff has satisfied her burden of demonstrating to the Court that these costs should not have be taxed upon her.
2. Specific Costs Awarded a. Costs Awarded for Daily Trial Transcripts ($20,697.95)
The Clerk of Court awarded Defendant $22,376.06 for "[f]ees of the court reporter for all or any part of the transcript necessarily obtained for use in the case." (Defs.' Mot. to Renew Ex. A (Bill of Costs endorsed by Clerk of Court).) Daily trial transcripts accounted for $20.697.95 of that amount. ( See Pl.'s Appeal 8.) It is well-settled that only transcripts that were "necessarily obtained" are taxable under Rule 54(d)(1) and Local Civil Rule 54.1. See Bucalo v. E. Hampton Union Free Sch. Dist., 238 F.R.D. 126, 129 (E.D.N.Y. 2006) ("The relevant inquiry is whether the transcripts . . . were necessary for [the prevailing party's] use in the case." (internal quotation marks omitted)); Williams v. Colatosi, No. 97-CV-417, 2001 WL 913922, at *2 (S.D.N.Y. Aug. 13, 2001). In considering whether daily trial transcripts were "necessarily obtained" in this case, the Court notes that "daily transcripts of trial testimony are not customary." See John Kathryn G. v. Bd. of Educ. of Mount Vernon Public Sch., 891 F. Supp. 122, 123 (S.D.N.Y. 1995). Where, as here, daily transcripts were a mere convenience for counsel, such are not taxable against the losing party. See Williams, 2001 WL 913922, at *3 ("The daily trial transcripts were not necessary for use at trial, but were merely convenience for counsel. The trial in this case was neither long nor complicated."). The trial in the present case was not overly long or complicated, and Defendants had at least two attorneys present at all times during the trial, one of whom could have been taking sufficient enough notes during the proceedings to make daily trial transcripts unnecessary. See Bucalo, 238 F.R.D. at 129 (denying costs for trial transcripts because "it is not necessary for counsel to rely on a trial transcript when counsel can take notes during trial"); Williams, 2001 WL 913922, at *3 (denying trial transcript costs, in part, because the prevailing party had "two attorneys, one of whom could have taken notes, if needed"). The Court will not tax Plaintiff with this cost simply because Defendants chose not to follow this standard procedure. No reason has been proffered as to why it was actually necessary — and not merely convenient — for Defendants' counsel to obtain a daily transcript of the trial. Absent such a justification, the Court elects not to impose this substantial cost on Plaintiff.
Plaintiff, living on pension and social security disability benefits, brought a viable yet unsuccessful civil rights claim against the City of New York, an entity with financial means that far exceed Plaintiff's. None of these factors by itself would lead the Court to conclude that daily trial transcripts were improperly taxed upon Plaintiff, but when these factors are considered together with the fact that the transcripts were not "necessarily obtained," the Court is convinced that requiring Plaintiff to pay in excess of $20,000.00 would be inequitable. Cf. Bucalo, 238 F.R.D. at 129-30 (holding "an award as large as $19,214.37 imposed on an individual plaintiff of apparently modest means would result in financial hardship [and, therefore,] it would be inequitable to assess such costs against the Plaintiff"). The Court vacates the Clerk of Court's award to Defendants of $20,697.95 for daily transcripts and finds that such costs are not taxable upon Plaintiff. b. Costs Awarded for Plaintiff's Deposition Transcript ($1.548.12)
The Court has considered the option of imposing upon Plaintiff the cost of a final transcript. Because the Court is not convinced that Defendants' acquisition of a final transcript would have been "necessarily obtained," the Court will not impose this cost on Plaintiff either.
Local Civil Rule 54.1 allows for deposition costs to be taxable in certain situations. In addition, the question of whether the cost of deposition transcripts is taxable is subject to the overarching requirement of 28 U.S.C. § 1920 that the transcript be "necessarily obtained." See Whitfield, 241 F.3d at 271. Plaintiff was taxed costs in the amount of $1,548.12 for one original and two copies of the transcript of Plaintiff's deposition. ( See Pl.'s Appeal 10; Defs.' Mem. 12.) Plaintiff asks the Court to vacate this award, or, at the very least, subtract from it the cost of one of the copies, which Plaintiff calculates to be $516.04. ( See Pl.'s Appeal 10.) Local Civil Rule 54.1 is clear in providing that only "the original transcript of a deposition, plus one copy, is taxable" so the Court does not hesitate to determine that Plaintiff at the least should not be taxed for the second copy.
Local Civil Rule 54.1 provides, in pertinent part: "Unless otherwise ordered by a court, the original transcript of a deposition, plus one copy, is taxable if the deposition was used or received in evidence at the trial, whether or not it was read in its entirety."
Defendants had requested $2,047.62 in costs associated with Plaintiff's deposition transcript, but the Clerk of Court did not allow Defendants to collect the $436.50 paid for expedited service. ( See Pl.'s Appeal 10; Defs.' Mem. 12.)
Defendants take issue with Plaintiff's determination that the cost of one copy is $516.04, or one-third of the cost awarded. ( See Defs.' Mem. 12-13.) Defendants suggest no alternative amount, and the cost of one copy is not apparent from the face of the court reporter's bill, so the Court will accept Plaintiff's reasonable calculation.
The next question is whether the transcript was "necessarily obtained," and, if so, whether other factors properly considered by the Court in exercising its discretion militate for or against the imposition of these costs on Plaintiff. Defendants claim that the transcript was necessary because they used it at trial to cross-examine Plaintiff. ( See Defs.' Notice of Application for Costs Sought Against Pl. ("Defs.' Application") ¶ 9.) Plaintiff, who bears the burden here, does not address the issues of whether the transcript was necessarily obtained or whether Defendant used the transcript at trial. Instead, Plaintiff relies solely on the previously discussed equitable considerations. ( See Pl.'s Appeal 5-7.) These factors by themselves, however, are insufficient, especially because the Court finds that the transcript was necessarily obtained. Therefore, the cost of one original and one copy of Plaintiff's deposition transcript was properly taxed upon Plaintiff ($1,032.08), but the Court vacates the Clerk of Court's award of cost for the second copy of the transcript ($516.04).
c. Costs Awarded for Pretrial Conference Transcripts ($738.24)
The Clerk of Court awarded Defendants costs for pretrial transcripts in the amount of $738.24, which reflects the cost of the transcripts plus expedited service. ( See Pl.'s Appeal 9.) As is evident from transcript pages excerpted by Defendant, Magistrate Judge Peck ordered the Parties to purchase the transcript after each pretrial conference. ( See Defs.' Application Ex. F.) Therefore, the Court finds that the transcripts were "necessarily obtained." However, Defendants point to nothing in the record suggesting that Judge Peck required the Parties to purchase the transcripts with expedited service, and Defendants do not claim that such service was necessary. Therefore, Plaintiff will not be taxed for the cost of expedited service, the price for which is not apparent from the court reporter's bills. Therefore, the Court will cut the taxable cost of the pretrial transcripts in half in order to be sure to remove the expedited fee from the cost of the transcripts. Having found that the transcripts were necessarily obtained, the Court will not set aside the award of costs based solely on Plaintiff's equitable arguments for reasons discussed above. The Court finds that Plaintiff should be taxed for the cost of pretrial transcripts in the amount of $369.12, and the Clerk of Court's award for pretrial transcripts in excess of that amount is vacated.
d. Costs Awarded for Obtaining Plaintiff's Medical Records ($414.90)
The Court of Clerk also found taxable upon Plaintiff $414.90 for the costs associated with Defendants obtaining Plaintiff's medical records. ( See Pl.'s Appeal 10; Defs.' Mem. 11.) Section 1920 and Local Civil Rule 54.1 require that such copies be "necessarily obtained" in order to be taxable. Defendants sought costs only for medical records that were admitted into evidence or otherwise used at trial. ( See Defs.' Mem. 11.) Plaintiff argues that it was unnecessary for Defendants to obtain their own copies of Plaintiff's medical records because Plaintiff had produced copies of the records to Defendants. ( See Pl.'s Appeal 10-11.) In response, Defendants assert that they should not have to depend on Plaintiff's production, but instead should have the right to obtain their own copies to ensure the records' accuracy. ( See Defs.' Mem. 11-12.) While the Court recognizes there was some discrepancy in the accuracy of other medical records in this case, any claim of necessity is counter-balanced by the factors discussed above, which suggest reducing this cost. Therefore, the Court will cut this cost by half ($212.45).
e. Costs Awarded for Trial Subpoena ($40.00)
Plaintiff appeals the $40.00 taxed upon her for the cost to Defendants of serving Dr. MacFarlane Tempelman with a trial subpoena. (Pl.'s Appeal 11.) Plaintiff argues that this was an unnecessary cost because Defendants failed to show that Dr. MacFarlane Tempelman would not appear in the absence of a subpoena. ( See id.) The Court agrees with Plaintiff, and finds that Defendants have not shown any necessity in issuing the subpoena. See Seymore, 1981 WL 90, at * 1 (holding that costs would be imposed on plaintiff in Title VII case where "such costs were incurred necessarily and not merely for the convenience of defendant or its attorneys"). The Court, therefore, will reduce the total award to Defendants by $40.00.
f. Other Costs Awarded ($275.47)
Finally, the Clerk of Court awarded to Defendant additional costs in the amount of $275.47. The Bill of Costs does not specify, and the Parties do not identify, which costs this figure represents. This leaves the Court unable to review the Clerk of Court's determination, and consequently unwilling to impose this award on Plaintiff. The amount of $275.47 is further deducted from Defendants' award of costs.
III. Conclusion
For the reasons stated herein, it is hereby ordered that the previously taxed costs of $23,714.68 be reduced by $22,111.03, and that, therefore, costs totaling $1,603.65 be paid by Plaintiff to Defendants. The Clerk of Court is respectfully directed to terminate the Plaintiff's Appeal (#129).SO ORDERED.