Opinion
00 Civ. 5051 (THK), (Pro Se)
December 30, 2002
MEMORANDUM OPINION AND ORDER
This employment discrimination action was tried before the Court in December 2001, and in an Opinion dated June 28, 2002 the Court concluded that Plaintiff, Olabanji Ayiloge, had failed to establish that he was discriminated against on the basis of his alienage or retaliated against for engaging in First Amendment protected activity. A Judgment was entered in favor of Defendants on July 2, 2002. On July 19, 2002, Defendants, as the prevailing parties, filed an application for costs in the amount of $6,646.04. The application was served on Plaintiff's counsel. The return date on the application was August 15, 2002. Plaintiff's counsel did not respond to the application. Although Plaintiff appears to have submitted objections to the application to the Court's Pro Se Office on August 13, 2002 (the same date Plaintiff filed a notice indicating that he was proceeding pro se), the objections were not formally docketed and filed until August 27, 2002. On August 15, the Clerk entered a Judgment for Costs for Defendants in the amount that had been requested ("the Judgment" or "the Judgment for Costs").
In the course of the trial, Plaintiff withdrew other claims he had asserted for denial of a liberty interest without due process of law, and denial of equal protection.
Presently before the Court is Plaintiff's motion to vacate the Judgment for Costs entered by the Clerk. As grounds for relief Plaintiff asserts that he was misled by the Court's Pro Se Office. As a result, his opposition to Defendants' application was not considered by the Clerk, and he did not appear before the Clerk on the return date of the application. Plaintiff contends that had his objections been considered he is confident that the Clerk would not have awarded costs against him. As to the substance of his objections to the award of costs, Plaintiff argues that the costs awarded were excessive because (1) his deposition was sought in discovery, the deposition was unnecessarily lengthy, and thus the transcript costs were excessive, and (2) there was no need for Defendants to have ordered the trial transcript.
The Court need not address the bona fides of Plaintiff's claim that he was prejudiced by the conduct of the Pro Se Office, which in turn led to the Clerk's failure to consider his objections to the application for costs. Instead, the Court will address the merits of Plaintiff's objections. See 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 [it]self.'") (quoting Farmer v. Arabian Am. Oil, 379 U.S. 227, 233, 85 S.Ct. 411 (1964)).
DISCUSSION
Rule 54(d) of the Federal Rules of Civil Procedure provides that "costs . . . shall be allowed as of course to the prevailing party unless the court otherwise directs." Thus, "such an award against the losing party is the normal rule obtaining in civil litigation, not an exception."Whitfield, 241 F.3d at 270 (citing Mercy v. County of Suffolk, 748 F.2d 52, 54 (2d Cir. 1984)). The burden is therefore on the losing party to show why costs should not be awarded.
Plaintiff contends that the costs sought by, and awarded to, Defendants were excessive and unjustified, particularly in view of the fact that the trial was a bench trial. In fact, Defendants sought only a portion of the costs they might otherwise have been entitled to. They sought and were awarded the cost of Plaintiff's deposition transcript, in the amount of $3221.24, and the cost of the trial transcript, in the amount of $3424.80, for a total of $6646.04.
Those items for which costs may be awarded are specified in 28 U.S.C. § 1920. That statute provides for the taxing of costs for,inter alia, "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Similarly, this Court's rules provide, in pertinent part, for the taxation of costs as follows:
(1) Transcripts. The cost of any part of the original trial transcript that was necessarily obtained for use in this court or on appeal is taxable . . . .
(2) Depositions. Unless otherwise ordered by the 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 . . . .
S.D.N.Y. Local Civ. R. 54.1(c)(1-2) (2002) ("Local Rule 54.1").
The rules clearly authorize the award of deposition transcript costs, if the depositions were used at trial. See Whitfield, 241 F.3d at 270-271. Plaintiff's deposition was used at trial, during his cross-examination. That his deposition was lengthy was largely a function of the broad scope of his claims, which spanned a period of several years and involved numerous incidents. The taxation of costs for the deposition transcript was therefore appropriate.
Similarly, where the trial transcript was "necessarily obtained for use in this court," its cost may be taxed. See Local Rule 54.1(c)(1). Plaintiff contends that because the trial was a bench trial, and post-trial memoranda of law were not required, the transcript was unnecessary "for preparation of any close, or appeal since I did not appeal." Objection To Bill of Costs, ¶ 3. Defendants claim that the transcript was used to facilitate cross-examination of witnesses and argument at the close of the case. See Letter of Cindy M. Schmitt, Esq., dated December 16, 2002.
While the transcript may have been helpful to Defendants' counsel, it is the Court's view that it was not "necessary" to obtain a trial transcript in this case, so as to result in Plaintiff being taxed for its cost. This was not a complex case and the trial was not very long. Throughout the trial, Defendants were represented by two highly competent attorneys, at least one of whom was able to take notes. All of the witnesses had been deposed in advance of the trial. Moreover, with the exception of Plaintiff and his therapist, the remaining witnesses were either named as Defendants or worked for the City of New York. Therefore, their testimony could not have come as a surprise to defense counsel.
The therapist was cross-examined on the day of his direct testimony, and thus the transcript was of no use with respect to this witness.
Because this was a bench trial, there were no motions for judgment as a matter of law, pursuant to Rule 50, Fed.R.Civ.P. While a pro forma motion was made after the close of evidence, pursuant to Rule 52(c), Fed.R.Civ.P., there was no argument on the motion since the Court indicated that it would be issuing a written decision on the merits. Finally, in an effort to streamline the proceedings and save all parties additional expense, the Court did not require post-trial memoranda of law. Instead, in lieu of formal closing arguments, the Court asked the parties to respond orally to questions posed by the Court about the claims and the defenses.
A Joint Pretrial Order and memoranda of law had been submitted in advance of the trial.
Under the circumstances, there was no need to order a trial transcript, and Defendants should not be permitted to recover its cost.See Williams v. Colatosi, No. 97 Civ. 417 (RCC), 2001 WL 913922, at *3 (S.D.N.Y. Aug. 13, 2001) (denying recovery for cost of expedited trial transcript because the transcript was merely a convenience for counsel and not necessary for use at trial); Yin v. Japan Society, Inc., 99 Civ. 4806 (HB), 2000 WL 827671, at *2 (S.D.N.Y. June 27, 2000) (same); Dehoust v. Baxter Healthcare Corp., No. 93 Civ. 0774 (HB), 1999 WL 280423, at *3 (S.D.N.Y. May 4, 1999) (same).
CONCLUSION
For the foregoing reasons, Plaintiff's motion to vacate the Judgment for Costs is granted in part and denied in part. The Clerk is directed to reduce the Judgment by the amount of $3424.80, leaving Plaintiff liable to Defendants for costs in the amount of $3221.24.