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Eldaghar v. City of New York Dep't of Citywide Administrative Services

May 4, 2010

ASEM ELDAGHAR, PLAINTIFF,
v.
THE CITY OF NEW YORK DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, DEFENDANT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

ORDER

I. Introduction

Plaintiff Asem Eldaghar ("Plaintiff") brought this action against Defendant City of New York Department of Citywide Administrative Services ("DCAS") for (1) discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA"); (2) retaliation in violation of Title VII and the ADEA; and (3) hostile work environment in violation of Title VII and the ADEA. This Court granted in part and denied in part DCAS's motion for summary judgment on all of Plaintiff's claims. (Docket Entry ("DE") No. 56.) Following a three-day bench trial before Judge Samuel Conti in October 2008, Judge Conti found that DCAS was entitled to judgment on all remaining claims. (DE No. 79.) Plaintiff appealed the decision. On November 13, 2009, Plaintiff's appeal was dismissed. On January 21, 2010, Plaintiff's motion for reconsideration of the order dismissing the appeal was also denied.

As the prevailing party, DCAS moved pursuant to Rule 54 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 1920 and 1921 for an order granting it fees and costs. DCAS seeks costs with respect to six depositions taken by the parties. The testimony from these depositions was used in the parties' briefing on DCAS's motion for summary judgment and in preparation for trial. On March 12, 2010, the Clerk of the Court issued a Bill of Costs in favor of DCAS in the amount of $5,876.90. On April 2, 2010, Plaintiff, appearing pro se, appealed the imposition of costs on the grounds that: (1) it will cause a significant financial hardship for Plaintiff; (2) Plaintiff's case was meritorious; (3) DCAS failed to prove the necessity of costs; and (4) the litigation was complex and difficult.

Based on the equitable factors of this case, including the economic hardship to Plaintiff and the circumstances of this litigation, Plaintiff's motion is granted. No costs are awarded to DCAS.

II. Law and Analysis

A. Rule 54(d) of the Federal Rules of Civil Procedure

Rule 54(d)(1) of the Federal Rules of Civil Procedure states in relevant part as follows:

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 clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.

Fed. R. Civ. P. 54(d)(1).

An award of costs to a prevailing party may include deposition expenses when such expenses were "necessarily incurred" for use in the litigation of the case. See Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001); see also S.D.N.Y. & E.D.N.Y. Local Civ. R. 54.1(c)(2).*fn1

Although costs are generally awarded to a prevailing party as a matter of course in the absence of a countervailing statute or rule, the district court has the authority to review, adjust, or deny an award of costs. This decision "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 Entertainment Group, Inc., 952 F.2d 643, 651 (2d Cir. 1991)); see also In re Air Crash Disaster at John F. Kennedy Int'l Airport, 687 F.2d 626, 629 (2d Cir. 1982) (finding that taxation of costs is left to the discretion of the district court, and may be overturned on appeal only where there is an abuse of discretion). An award of costs may be denied based on the misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, and other equitable considerations that are applicable in a particular case. See Whitfield, 241 F.3d at 270. Among the equitable considerations that may be weighed by the Court are a plaintiff's indigence or financial hardship and a plaintiff's good faith in bringing the action. See Figueroa v. City of New York, No. 00 Civ. 7559, 2005 U.S. Dist. LEXIS 6490, at *2-3 (S.D.N.Y. Apr. 14, 2005); Brodie v. Pressley, No. 95 Civ. 1197, 1999 U.S. Dist. LEXIS 13768, at *1 (S.D.N.Y. Sept. 7, 1999); Bekiaris v. United States, No. 96 Civ. 302, 1998 U.S. Dist. LEXIS 16574, at *1 (S.D.N.Y. Oct. 20, 1998).

B. Timeliness of Plaintiff's Motion

The Clerk of the Court issued its Bill of Costs in favor of DCAS ...


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