UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 20, 2007
MONICA KNOLL, PLAINTIFF,
EQUINOX FITNESS CLUBS N/K/A EQUINOX HOLDINGS, INC., EQUINOX WELLNESS CENTER INC., HARVEY J. SPEVAK, AND THE EQUINOX HEALTH AND WELFARE PLAN, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Judgment in this case was entered on December 8, 2006. In an endorsement dated December 22, 2006, plaintiff was directed to file her Bill of Costs by January 12, 2007. Before doing so, plaintiff filed a Notice of Appeal on January 10, 2007. Plaintiff subsequently filed a Verified Bill of Costs on January 11, 2007. In an Order dated March 1, 2007, the Clerk of the Court was directed to remove plaintiff's Bill of Costs from the docket because it was prematurely filed as her case was then on appeal.*fn1 On March 7, 2007, plaintiff moved to vacate this Order and reinstate her Bill of Costs pursuant to Federal Rules of Civil Procedure 59(e) and 60(b). On April 11, 2007, plaintiff filed a Notice of Request for the Taxation of Costs, which sought $10,161.85 in costs incurred in connection with defendants' Counterclaim.*fn2 The taxation hearing that would have been held in connection with this Bill of Costs was stayed pending the conclusion of plaintiff's appeal to the Second Circuit.
By Order dated June 13, 2007, the Second Circuit dismissed plaintiff's appeal as untimely. Shortly thereafter, defendants sent a letter dated June 18, 2007, to David Thomas, a clerk in the Judgment Clerk's Office, objecting to plaintiff's Bill of Costs ("Objections").*fn3 On July 3, 2007, the Second Circuit certified the Mandate dismissing plaintiff's appeal as untimely to the district court. Plaintiff then filed a Notice of Request for the Taxation of Costs on July 10, 2007, which was served on defendants through the Court's Electronic Case Filing ("ECF") system. On July 16, 2007, after a hearing, the Judgment Clerk taxed costs against defendants in the amount of $10,161.85.*fn4 On July 20, 2007, defendants filed the instant motion to strike plaintiff's Bill of Costs. For the following reasons, defendants' motion is granted and plaintiff's Bill of Costs is struck in its entirety.*fn5
A. Defendants Have Not Defaulted
In her opposition to defendants' motion to strike, plaintiff argues that defendants defaulted and waived any and all objections to plaintiff's Bill of Costs because they: (1) did not "file with the court" their Objections at or before the hearing; and (2) did not appear at the taxation hearing.*fn6 Both arguments are without merit. As explained in defense counsel's Supplemental Declaration, defendants were advised by David Thomas to file their written objections directly with the Judgment Clerk's Office.*fn7 Defendants are correct that there is no requirement that objections be "filed" prior to or at the time of taxation.*fn8
Therefore, defendants are not in default.*fn9 In a similar vein, defendants were not required to appear at the formal taxation hearing given their previous submission of written objections. In sum, defendants have not defaulted, nor have they waived their objections to plaintiff's Bill of Costs.*fn10
B. The Costs Requested by Plaintiff Are Not Taxable
In her Bill of Costs, plaintiff included court reporter and process server fees, as well as charges for overnight delivery and duplication.*fn11 "In the absence of written objection, any item may be taxed within the discretion of the clerk."*fn12 Costs for depositions are "taxable if they were used by the court in ruling on a motion for summary judgment or other dispositive substantive motion."*fn13
In connection with her Bill of Costs, plaintiff seeks deposition costs allegedly incurred in "plaintiff's success in dismissing the Counterclaim filed by the defendants."*fn14 But this Court did not rely on any deposition transcripts in dismissing defendants' Counterclaim. At a conference held on June 23, 2003, after considering plaintiff's June 9, 2003 pre-motion letter,*fn15 I instructed the parties not to brief the Counterclaim issue.*fn16 Without any additional briefing, I granted plaintiff's request and dismissed the Counterclaim on summary judgment.*fn17
Because the depositions in issue were not "used" in dismissing defendants' Counterclaim, the court reporter fees associated with such depositions are not taxable. Accordingly, all of plaintiff's requests for court reporter fees are hereby struck from her Bill of Costs (Tabs # 1-4, 7, 9-10, 12).
In addition, plaintiff has already recovered fees for the deposition transcripts of Ellen Lory and Matthew Herbert, which she now includes in her Bill of Costs (Tabs # 3 & 4). In his Report and Recommendation awarding plaintiff attorney's fees and costs, Magistrate Judge Douglas F. Eaton excluded the following "Court Reporter fees for witnesses whose testimony related only to [plaintiff's] dismissed claims [fraudulent inducement, economic duress, and repudiation]:
Judge Eaton therefore allowed fees for the depositions of Matthew Herbert and Ellen Lory. In modifying and adopting the Report and Recommendation, I did not strike these costs.*fn19 Because plaintiff has already recovered the fees for the Herbert and Lory depositions in her previous fee award, she cannot recover these fees a second time.
Furthermore, Judge Eaton also noted that the court reporter fee for the deposition of Dos Condon ($1,171.70) was deducted from plaintiff's fee request because: "Plaintiff is not seeking recovery of the costs of certain depositions [plural] of witnesses whose testimony only related to the dismissed claims, including the deposition of Dos Condon."*fn20 Yet fees for these depositions reappear in plaintiff's Bill of Costs as the last item requested (Tab # 12). Plaintiff has shown no basis for recovery of these fees.
Plaintiff also includes process server and research fees related to the attempted deposition of Lorna Montano (Tabs # 5 & 11). Montano, the former benefits administrator at Equinox, had no role in the formation of the Release that was the subject of defendants' Counterclaim. Furthermore, Montano was never deposed and any testimony she could have given was unrelated to defendants' Counterclaim. Accordingly, any and all expenses related to Montano are not taxable and must be struck.
Finally, plaintiff seeks $38.61 in "Duplication Charges related to dismissal of Counterclaim" and the following Federal Express charges: $31.53 in "FedEx Charges to court and opposing counsel re: dismissal of Counterclaim;" $36.33 in "FedEx charges re: Spevak cont'd deposition;" and $46.18 in "Fed Ex charges re: deposition." The duplication costs are not taxable because they all post-date the June 23, 2003 conference in which I instructed the parties not to brief the Counterclaim issue.*fn21 Furthermore, the entries on Tab # 6 do not specify what was photocopied or for what purpose. Without these details, the charges are too vague to be recoverable. Finally, the Federal Express charges are not specifically taxable under Local Civil Rule 54.1 and, therefore, cannot be recovered. Alternatively, most of the Federal Express charges relate to depositions which were not related to the Counterclaim. If the deposition transcript fees are not recoverable, neither are the Federal Express charges incurred in connection with these depositions. Accordingly, the costs contained in Tabs # 6 and 8 are hereby struck.
For the foregoing reasons, defendants' motion is granted and plaintiff's Bill of Costs is struck in its entirety. The Clerk of the Court is directed to close this motion [Document #116]. Furthermore, the Clerk of the Court is directed to consider defendants' Verified Bill of Costs [Document # 33], together with Plaintiff's Objections, forthwith.