The opinion of the court was delivered by: Hurley, Senior District Judge
Following a jury trial in this matter, both plaintiffs and defendants filed requests to tax costs, which were assessed by the Clerk in plaintiffs' favor on July 8, 2010. Presently pending before the Court are the motions by both sides objecting to the Clerk's taxation of costs. For the reasons that follow, both motions are denied in part and granted in part.
The Court assumes familiarity with the facts and procedural background as stated in the Court's many prior decisions in this action. Thus, the Court states only those facts necessary for disposition of the instant motion.
Plaintiffs Hamptons Locations, Inc. and Nancy Grigor ("Grigor") (collectively, "Plaintiffs") filed the present action against defendants Richard Rubens ("Richard"), Barbara Rubens ("Barbara"), and Darrell Rubens ("Darrell") (collectively, "Defendants") claiming damages arising out of Defendants' use of an allegedly infringing website. The Complaint asserted five causes of action against each of the three Defendants.
After, inter alia, a motion by Defendants to dismiss the Complaint, a motion by Plaintiffs to dismiss counterclaims, two summary judgment motions, and one motion for reconsideration, all claims against Barbara, as well as Defendants' counterclaims, were dismissed. In addition, three claims each as against Richard and Darrell were dismissed.
Thereafter, the case proceeded to trial against Richard and Darrell on two causes of action, viz. violations of the Lanham Act, 15 U.S.C. § 1125, and unfair competition. On January 29, 2007, the jury returned a verdict for $1,000.00 in favor of Plaintiffs against Darrell on Plaintiffs' first cause of action for a violation of section 1125(d) of the Lanham Act, 15 U.S.C. § 1125(d), also known as the Anticybersquatting Consumer Protection Act. Richard was found not liable on all counts.
After the trial, Darrell moved to set aside the jury verdict pursuant to Federal Rule of Civil Procedure ("Rule") 50(b). Both sides also moved for attorneys' fees and taxation of costs. By Memorandum and Order dated June 2, 2009, Darrell's motion to set aside the verdict was denied. The parties' motions for attorneys' fees were referred to Magistrate Judge Wall.
Darrell then filed an appeal of the jury verdict. Defendants also filed an appeal of this Court's Order dismissing their counterclaims. The parties' motions for fees and costs were held in abeyance pending the appeal.
By Summary Order filed February 5, 2010, the Second Circuit denied the appeals and affirmed the Orders of this Court. The Mandate was filed on June 22, 2010.
Thereafter, the Clerk conducted a telephone conference with counsel for both parties with regard to their requests to tax costs. Plaintiffs' motion requested taxation of the following costs: (1) the trial transcripts pursuant to Local Civil Rule 54.1(c)(1); (2) three depositions pursuant to Local Civil Rule 54.1(c)(2); (3) witness fees, mileage, and subsistence pursuant to Local Civil Rule 54.1(c)(3); (4) exemplification and copies of papers pursuant to Local Civil Rule 54.1(c)(5); and (5) the fee for filing this action pursuant to Local Civil Rule 54.1(c)(10). On July 8, 2010, the Clerk struck Plaintiffs' request for the costs of the trial transcripts and awarded costs to Plaintiffs against "defendants" in the following amounts:
(1) $1,858.00 for the costs of the three depositions; (2) $510.00 for witness fees, mileage, and subsistence; (3) $260.50 for exemplification and copies of papers; (4) $150.00 for the filing fee; and (5) $185.63 for appellate costs taxed by the Circuit on appeal, for a total sum of $2,964.13. Both parties have filed motions to vacate certain portions of the Clerk's decision. For the reasons stated below, the parties' motions are granted in part and denied in part.
Rule 54(d) generally governs the taxation of costs against an unsuccessful litigant in federal court. Rule 54(d)(1) provides in pertinent 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. . . .
Fed. R. Civ. P. 54(d)(1). The term "costs," as used in Rule 54 "includes only the specific items enumerated in 28 U.S.C. § 1920." Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001). Section 1920 provides six categories of expenses that may be taxed as costs in federal court: (1) fees of the clerk and marshal; (2) fees for transcripts necessarily obtained for use in the case; (3) fees for printing and witnesses; (4) fees for exemplification and copies necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of interpreters and court-appointed experts. 28 U.S.C. § 1920. Local Civil Rule 54.1 expands on § 1920 and sets forth what costs are taxable in more detail.
Upon motion, the Court may review the Clerk's taxation of costs. Fed. R. Civ. P. 54(d)(1). "The decision to award costs pursuant to Rule 54(d)(1) and Local Rule 54.1 'rests within the sound discretion of the district court.'" Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006) (quoting LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995)). Thus, a district court "reviews the clerk's taxation of costs by exercising its own discretion to 'decide the cost question [it]self.'" Whitfield, 241 F.3d at 269 (quoting Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964)). However, an award of costs in favor of the prevailing party "'is the normal rule obtaining in civil litigation, not an exception.'" Adkins v. Gen. Motors Acceptance Corp., 363 F. App'x 97, 99 (2d Cir. 2010) (unpublished) (quoting Whitfield, 241 F.3d at 270). Thus, the burden is on the losing party to show that costs should not be imposed. Id.
As noted above, following the trial, Plaintiffs moved the Clerk of Court to tax costs for: (1) the trial transcripts; (2) three depositions; (3) witness fees, mileage, and subsistence; (4) exemplification and copies of papers; and (5) the fee for filing this action. On July 8, 2010, the Clerk struck Plaintiffs' request for the costs of the trial transcripts but otherwise granted Plaintiffs' requests.*fn1 The Court addresses the parties' objections to the Clerk's decision separately below.
I. Costs Should Be Taxed Against Darrell Only
The Clerk's taxation of costs awarded costs "in favor of plaintiffs against "defendants." (ECF No. 266.) Defendants' first argument is that costs should be assessed against Darrell only. Plaintiffs agree, noting that the judgment was entered against Darrell alone. Accordingly, costs shall be taxed against Darrell and not Richard and Barbara.
II. Plaintiffs are Entitled to Prevailing Party Status
Defendants' next argument is that Plaintiffs should not be afforded "prevailing party" status because Plaintiffs only prevailed on one cause of action against one defendant. More specifically, Defendants note that the Complaint asserted five causes of action against each of the three Defendants "for a total of 15 claims." (Defs.' Mem. of Law 3, July 12, 2010, ECF No. 268.) The Court granted summary judgment in Barbara's favor and dismissed three of the five claims against both Richard and Darrell. At trial, Richard was found not liable on all counts; Darrell was found liable on one claim only, viz. under § 1125(d) of the Lanham Act. Defendants argue that because they "won the dismissal of 14 of the 15 claims," Plaintiffs had only a "nominal, technical win." (Id. at 4.) Defendants also emphasize that Plaintiffs were "only awarded a nominal statutory ...