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India.com, Inc. v. Dalal

July 13, 2010

INDIA.COM, INC., PLAINTIFF,
v.
SANDEEP DALAL, DEFENDANT.
SANDEEP DALAL, COUNTERCLAIM-PLAINTIFF,
v.
INDIA.COM, INC., EASYLINK SERVICES CORPORATION, AND INDIA HOLDINGS, INC., COUNTERCLAIM-DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

MEMORANDUM OPINION & ORDER

On December 31, 2009, judgment was entered in favor of defendant and counterclaim plaintiff Sandeep Dalal ("Dalal"). On January 19, 2010, Dalal timely sought to recover $38,469.77 in costs from plaintiff and counterclaim-defendants India.com, Inc., EasyLink Services Corp., and India Holdings, Inc. (collectively, "EasyLink"). On January 28, EasyLink served and filed its objections to Dalal's request for a bill of costs. On January 29, EasyLink filed a notice of appeal from the December 31, 2009 judgment. Also on January 29, the Clerk of Court granted Dalal's request in part, and entered a bill of costs for $21,749.72, comprised of $10,591.55 for trial and deposition transcripts and $11,158.17 for exemplification and copies of papers.*fn1 As explained in the Order dated February 9, 2010, the entry of the bill of costs (Docket No. 117) was a clerical error since EasyLink's notice of appeal (Docket No. 116) had been filed and docketed, and under Local Civil R. 54.1, costs are not to be taxed while a case is on appeal.

On February 5, EasyLink moved to vacate the bill of costs, pointing out the clerical error and arguing more substantively that the Clerk of Court erred in not reducing the amounts allowed for the costs of transcripts and copies. By letter dated February 5, Dalal opposed the motion to vacate.*fn2 As the filing of the notice of appeal on January 29 also divested this Court of jurisdiction over the matter, this Court was without jurisdiction to either correct the clerical error or to address EasyLink's substantive objections to the bill of costs. Accordingly, the February 9 Order denied EasyLink's motion to vacate the bill of costs for lack of jurisdiction.*fn3

On June 15, the Court of Appeals entered a limited remand "for consideration of whether to correct any clerical errors pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, as well as for consideration of EasyLink's substantive objections to Dalal's bill of costs." Because the parties already had the opportunity to brief the issues raised in EasyLink's motion to vacate the bill of costs, no additional briefing was ordered.*fn4 Accordingly, the original bill of costs entered by the Clerk of Court shall be vacated, and EasyLink's substantive objections to the bill of costs shall be addressed.

DISCUSSION

"A district court reviews the clerk's taxation of costs by exercising its own discretion to decide the cost question itself." Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001); see also LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) ("The decision to award costs to a prevailing party under Fed. R. Civ. P. 54(d) rests within the sound discretion of the district court." (citation omitted)).

Rule 54(d)(1), Fed. R. Civ. P., provides 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." By its terms, Rule 54(d)(1) awards to the prevailing party costs "as of course," so "[f]or this reason, the losing party has the burden to show that costs should not be imposed." Whitfield, 241 F.3d at 270. The term "costs" in Rule 54(d)(1) refers to the items enumerated in 28 U.S.C. § 1920. Id. at 269. Such costs include "[f]ees for printed or electronically recorded transcripts" and "[f]ees for exemplification and the costs of making copies of any materials," where such transcripts and copies are "necessarily obtained for use in the case." 28 U.S.C. § 1920(2),(4).

1. Trial Transcripts

Dalal sought, and the Clerk of Court allowed, $639.00 in trial transcript costs. EasyLink objects to the portion of these costs allowed for transcripts of post-trial proceedings. The Local Rules of this Court provide that "[t]he cost of any part of the original trial transcript that was necessarily obtained for use in this court or on appeal is taxable." Local Civil R. 54.1(c)(1). "The cost of a transcript of court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the court." Id. (emphasis added).

The Clerk of Court properly allowed Dalal $147.00 for the cost of the trial transcript and decision. The Clerk erred, however, in allowing $492.00 for the cost of transcripts of what Dalal describes as "post-trial proceedings." Dalal has not shown that transcript costs for post-trial proceedings were authorized in advance or ordered by the Court. Nor has Dalal submitted invoices detailing which transcripts were ordered, or any documentation to show how such transcripts were used in the case.*fn5 As such, Dalal may recover only $147.00 from EasyLink for trial transcript costs.

2. Deposition Transcripts

The Clerk of Court granted Dalal's request for $9,952.55 in deposition transcript costs. EasyLink objects to the portion of these costs allowed for: (1) the use of more expensive court reporting services for the first two days of the deposition of Gerald Gorman ("Gorman")*fn6 ; (2) daily transcript and expedited service fees; (3) delivery fees; (4) minuscripts and ASCII discs; (5) court reporters' appearance fees; and (6) additional copies of transcripts in excess of those permitted under Local Rule 54.1. EasyLink further objects to the costs allowed for copies of Dalal's own deposition transcript and for the transcript of Debra McClister's deposition, which was taken post-trial.

With respect to costs for deposition transcripts, the Local Rules provide, in pertinent part:

Unless otherwise ordered by the court, the original transcript of a deposition, plus one copy, is taxable if the deposition was used or received in evidence at the trial, whether or not it was read in its entirety. Costs for depositions are also taxable if they were used by the court in ...


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