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Howell v. NYC Leadership Academy

December 20, 2008

AGNES HOWELL, PLAINTIFF,
v.
THE NYC LEADERSHIP ACADEMY, INC., DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

This motion for costs arises from an employment discrimination action brought by the plaintiff, Dr. Agnes Howell, against the defendant, The NYC Leadership Academy (the "Academy"). The action was removed from the New York State Supreme Court, New York County, to this Court on September 23, 2005. On June 29, 2007, the defendant moved for summary judgment. On March 26, 2008, the Court denied the motion. On August 28, 2008, the defendant made an Offer of Judgment pursuant to Fed. R. Civ. P. 68 to allow the plaintiff to take a judgment against it in the amount of $75,000. The plaintiff rejected the Offer of Judgment. Trial commenced on October 6, 2008, and on October 13, the jury returned a verdict for the defendant. On October 20, 2008, the Court entered judgment in favor of the defendant. The plaintiff filed a Notice of Appeal on November 19, 2008.

The defendant now moves for costs in the amount of $6,326.56 against the plaintiff, pursuant to Rules 54(d) and 68(d) of the Federal Rules of Civil Procedure. However, the defendant is not seeking to enforce any judgment of costs until either the plaintiff's appeal is decided, or the plaintiff's time to perfect her appeal expires without her having done so, whichever occurs first. The defendant requests only the "taxation," or determination, of costs, with any judgment to be stayed until the plaintiff's appeal is resolved.

I.

The defendant's motion for costs is governed by Rules 54(d) and 68(d) of the Federal Rules of Civil Procedure.

Rule 54(d)(1) provides: "Unless 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 term "costs" refers to the categories of "taxable costs" enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). The costs enumerated in 28 U.S.C. § 1920 are:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title; and,

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

Rule 68(d) applies in situations where an Offer of Judgment has been made and rejected. The rule provides: "If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the ...


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