The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs move this Court, pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure, to issue an order relieving them of their obligation to pay the Bill of Costs imposed by the Clerk of the Court in the amount of $2,724.40. For the reasons set forth below, the plaintiffs' motion to vacate the award of costs is denied, except for that portion of the motion relating to the issue of whether there was any extra charge for a second transcript photocopy, which the Court will decide upon receipt of additional documentation from defendants. With respect to that issue, the Court orders defendants to provide documentary evidence to the Court from the court reporting company by April 22, 2008, confirming that the invoice only reflects a charge for an original transcript and a single photocopy.
On October 27, 2005, plaintiffs Delphine Pierre, mother and natural guardian of Christopher Sylla, and Colleen Glasgow, mother and natural guardian of Andrew Glasgow (collectively, "plaintiffs") commenced the instant civil rights action against defendants the City of New York, New York Police Department ("NYPD") Officer John Hachadoorian, NYPD Sergeant Michael White, and NYPD Officers John and Jane Does #1-10 (collectively, "the City Defendants" or "defendants"). By Memorandum and Order dated August 17, 2007 (the "August 17 Memorandum and Order"), the Court granted defendants' motion for summary judgment in its entirety.
On September 14, 2007, as the prevailing parties, defendants moved for costs against plaintiffs pursuant to Rule 54 of the Federal Rules of Civil Procedure. Specifically, defendants requested that the Court tax plaintiffs for costs associated with the depositions of Colleen Glasgow, Christopher Sylla, Showkat Hussein, Delphine Pierre, and Andrew Glasgow. (See invoices appended to defendant's motion for costs, dated September 14, 2007 (the "invoices").) According to the invoices, the requested costs included appearance fees for the court reporter and an "original two transcripts" for each deposition. (See, e.g., invoice for deposition of Colleen Glasgow.) The sum of the fees reflected in the invoices was $2,724.40. On September 25, 2007, following a telephone conference with counsel for all parties, the Clerk of Court entered a Bill of Costs against plaintiffs in that amount (the "Bill of Costs"). According to the Bill of Costs, the costs taxed consisted of the "[f]ees of the court reporter for all of any part of the transcript necessarily obtained for use in the case." (Bill of Costs at 1.)
By letter dated October 2, 2007 (the "October 2 Letter"), pursuant to Rule 54, plaintiffs moved the Court to review the Bill of Costs. Specifically, plaintiffs argue that they should not be taxed costs because they brought the instant action in good faith and plaintiffs have limited financial resources. (See Pls.' Motion at 1.) Plaintiffs further argue that, in the alternative, because the Court "relied exclusively on the deposition testimony of the police officer defendants and the complaining witness" in the August 17 Memorandum and Order, the Court should disallow costs for the depositions of Delphine Pierre, Colleen Glasgow, Christopher Sylla, and Andrew Glasgow ("plaintiffs' depositions"). (See id. at 2.) Finally, plaintiffs argue that, at a minimum, the Court should disallow costs for one of the two deposition transcript photocopies listed in the Bill of Costs. Defendants responded to plaintiffs' motion by letter dated October 3, 2007. Plaintiffs submitted a reply by letter dated October 4, 2007.
For the reasons set forth below, having fully considered plaintiffs' arguments and the various equitable factors that the Court may consider under the law, the Court concludes that an insufficient showing has been made by plaintiffs to vacate the Bill of Costs. Moreover, as to the objections to the types of costs sought, the Court further finds that taxation for costs of plaintiffs' depositions is appropriate under the circumstances. However, in order for the Court to rule on the disputed issue regarding the exact amount of costs for the photocopied transcripts, the Court requires additional information. Thus, the Court orders defendants to submit to the Court, by April 22, 2008, documentary evidence in support of defendants' claim, discussed infra, that plaintiffs were only charged for one transcript photocopy per deposition.*fn1
A district court reviews de novo any appeal by the unsuccessful litigant of the Clerk of the Court's taxation of costs. 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 itself.'") (quoting Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964)). Thus, "the decision of whether to award costs . . . `is committed to the sound discretion of the district court.'" Cosgrove v. Sears, Roebuck, & Co., 191 F.3d 98, 102 (2d Cir. 1999) (quoting ARP Films, Inc. v. Marvel Entm't Group, Inc., 952 F.2d 643, 651 (2d Cir. 1991)); see also Ne. Holdings, L.L.C. v. Town of Riverhead, No. 04-CV-2262, 2007 U.S. Dist. LEXIS 56897, at *4 (E.D.N.Y. Aug. 1, 2007) ("Taxation of costs if [sic] left to the discretion of the Court, and may be overturned on appeal `only in the event of an abuse of discretion.'") (quoting In re Air Crash Disaster at John F. Kennedy Int'l Airport, 687 F.2d 626, 629 (2d Cir. 1982)).
Rule 54 of the Federal Rules of Civil Procedure states that "[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." Fed. R. Civ. P. 54(d)(1).*fn2 Given the language of Rule 54(d), "an award against the losing party is the normal rule obtaining in civil litigation, not an exception. . . . For this reason, the losing party has the burden to show that costs should not be imposed. . . ." Whitfield v. Scully, 241 F.3d at 270 (citation omitted); see also Cosgrove, 191 F.3d at 101 ("Fed. R. Civ. P. 54(d) grants costs to a prevailing party as a matter of course in the absence of a countervailing statute or rule, unless the trial judge directs otherwise."); Zacharowicz v. Nassau Health Care Corp., No. 02-CV-4510, 2007 U.S. Dist. LEXIS 20946, at *4-*5 (E.D.N.Y. Mar. 22, 2007) ("After the prevailing party demonstrates the amount of its costs and that they fall within an allowable category of taxable costs, that party enjoys a presumption that its costs will be awarded."). "[F]or example, costs may be denied because of misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources." Whitfield, 241 F.3d at 270. Here, therefore, plaintiffs bear the burden of showing that defendants, as the prevailing party, are not entitled to the costs taxed by the Clerk of Court. However, for the reasons set forth below, the Court finds that the arguments plaintiffs present in their motion papers, including that plaintiffs brought this action in good faith and the disparity between the City's resources and plaintiffs' resources, do not meet this burden.
The Court is unpersuaded by plaintiffs' argument that their purported good faith in bringing the instant action should exempt them from taxation of costs. Specifically, plaintiffs argue that the Bill of Costs "would appear to be the dictionary definition of inequitable," in part because "Christopher Sylla and Andrew Glasgow, two entirely innocent teenagers who were the victims of an accusation based upon mistaken identity, lost three years of their youth living in the shadow of a felony prosecution." (Motion at 1.) As a threshold matter, the question of plaintiffs' innocence remains in dispute. As the Court noted in the August 17 Memorandum and Order, because the criminal cases against plaintiffs were dismissed only when the complaining witness failed to appear at Family Court to testify, these dismissals "fail to demonstrate the innocence of plaintiffs. . . ." (August 17 Memorandum and Order at 14.) Moreover, apart from the issue of innocence, the foundation of this civil rights action was extremely weak because it was certainly clear after discovery (if not from the commencement of the lawsuit) that plaintiffs Christopher Sylla and Andrew Glasgow were arrested because a crime victim, with no prior relationship to them, called the police and identified them as the individuals who violently threatened and robbed him.*fn3 As the Court noted in the August 17 Memorandum and Order granting defendants' motion for summary judgment in its entirety, there was no factual or legal basis for plaintiffs' claims.*fn4 However, the Court has not made any finding of bad faith by plaintiffs and, thus, for purposes of the costs issue, is assuming that plaintiffs acted in good faith. Nevertheless, the Second Circuit has held that "good faith and the absence of frivolous claims, by themselves, do not require a district court to deny costs, let alone require an appellate court to vacate a district court's award of costs." Whitfield, 241 F.3d at 272; see also Cosgrove, 191 F.3d at 101 ("In her objection to the bill of costs, Plaintiff contends that because her Title VII claims against Defendant were not `useless, baseless or frivolous,' the assessment of costs against her was erroneous. We disagree."); ...