The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
On July 10, 2003, this Court granted summary judgment in favor of all
defendants in a 55-page decision, familiarity with which is assumed (Dkt.
#311). Counsel for defendant Rochester City School District ("RCSD") and
defendant Rochester Teachers Association ("RTA") each filed a Bill of
Costs (Dkt. ## 329, 330) pursuant to Fed, R. Civ. P. 54(d). The costs
were not insubstantial: RCSD requested $18, 192.86; RTA requested $12,
Plaintiff objected to the taxation of costs and filed several
submissions with the Clerk (Dkt. ## 323, 327, 328). Defendants responded
to these objections (Dkt, ## 326, and RTA counsel's letter dated
September 10, 2003, with attachments).
The Clerk issued a decision, dated October 27, 2003 (Dkt. # 346),
explaining his decision to award costs, albeit in a reduced amount. The
reduced award of costs was $ 17,973.96 in favor of RCSD and $11,995.25 in
favor of RTA.
Plaintiff appeals from that determination. This Court granted the
parties leave to file additional material concerning the appeal from the
Clerk's decision awarding costs. Plaintiff submitted an additional
affidavit (Dkt. # 349); both defendants were content to rest on the
papers previously submitted to the Clerk,
Defendants are the prevailing parties in this action. Summary judgment
was granted in their favor and the complaint dismissed. There are
consequences that flow from such an event. One of those is the taxation
of costs. Another may be, depending on the circumstances, an award of
Federal Rule of Civil Procedure 54(d) provides that "costs . . .
shall be allowed as of course to the prevailing party unless the court
otherwise directs." This rule creates a presumption that costs are to be
awarded to the prevailing party. Cherry v. Champion International
Corp., 186 F.3d 442, 446 (4th Cir. 1999). Courts should award costs
to the prevailing party as a matter of course. Those costs should be
denied only if there is some reason to deny costs, such as the prevailing
party's misconduct, or the losing party's inability to pay. See Weeks
v. Samsung Heavy Industries Co., 126 F.3d 926, 945 (7th Cir. 1997),
If the court fails to award costs, the prevailing party is punished, and
that should not occur unless there is a reason to do so. See Klein v.
Grynberg, 44 F.3d 1497, 1507 (10th Cir.) ("To deny [the prevailing
parties] costs would be in the nature of a severe penalty
imposed upon them, and there must be some apparent reason to
penalize the prevailing party if costs are to be denied"), cert.
denied, 516 U.S, 810 (1995),
The initial responsibility for assessing costs rests with the Clerk. On
appeal to the district court, the standard of review is de novo.
Baker v. Power Securities Corp., 174 F.R.D. 292, 294 (W.D.N.Y.
I am very familiar with this action more familiar than the
Clerk. I have reviewed all of the submissions made on the costs issue,
and I see no reason to modify the Clerk's decision.
The bulk of the costs submitted by both defendants involve deposition
costs. Most of the depositions in this case were noticed by plaintiff and
were, in some cases, quite extensive. Such depositions, whether noticed
by plaintiff or defendant, are routinely allowed as taxable costs.
See Whitfield v. Sculfy, 241 F.3d 264, 270 (2d Cir. 2001).
Plaintiff does not dispute that the depositions were held and that the
costs were incurred by the prevailing party. Plaintiffs objections to
taxing these costs are without merit. For example, plaintiff suggests
that defendants were not "required" to order copies of the depositions
that plaintiff noticed. That is frivolous, I know of no competent lawyer
in litigation of this sort that would neglect to obtain a copy of his
client's deposition. The other objections advanced by plaintiff are
Plaintiff should not now be heard to complain about these costs. In
large part, these costs, and certainly the magnitude of them., were
caused by the manner in which plaintiff's counsel litigated this action.
I have already commented on that in the summary judgment decision
referenced above. Plaintiff elected to sue twenty-one entities or
individuals and to depose most of them, as well as
several non-party witnesses. Plaintiffs extensive deposition
practice required defendants to expend considerable sums in the course of
the litigation and I see no reason to alter the usual situation, provided
for in Rule 54(d), that such costs should be awarded to the prevailing
party as a matter of course. There are some risks inherent in pursuing
litigation that is protracted, especially when it is plaintiff that
causes that to occur, and one of those is the risk of paying the
defendant's costs should the defendant prevail.
Plaintiffs counsel also suggests that the client's financial
circumstances warrants denying taxation of costs. I disagree. Like the
Clerk, I am not persuaded that such relief is wan-anted.
Plaintiff and his wife have considerable annual income (approximately
$116,000). That income can more than cover plaintiffs living expenses. In
addition, plaintiff owns vacation real property, in addition to the
family residence, having equity in excess of $40,000 (Dkt. # 324).
The district court may consider the non-prevailing party's financial
circumstances, but it is not required to do so. Even if the
non-prevailing party establishes indigency, that fact does not require
the court to waive costs. See Rodriguez v. Whiting Farms, Inc.,
___ F.3d ___, 2004 WL 238848 (10th Cir. Feb. 10, 2004) (even though
plaintiffs were indigent, and case presented a "close and difficult
question,"district court did not abuse discretion to award costs to
defendant, since plaintiffs failed to show why defendant should be
penalized); McGill v, Faulkner, 18 F.3d 456, 460 (7th Cir.)
("McGill should not be shielded from the costs he forced the defendants
to incur with his suit even if he was and is presently indigent"),
cert. denied, 51 3 U.S. 889 (1994). As one judge has put it,
[t]he fact, if it is a fact, that [Plaintiff]
do[es] not have access to much money is hardly
a good reason to allow [him] to impose enormous
costs upon Defendants, which have shown themselves
to have been correct in the first place. . . . I
see no reason to encourage [Plaintiff] to cause
great expense to [his] ...