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Darrell Sims v. the City of New York

October 11, 2011

DARRELL SIMS,
PLAINTIFF,
v.
THE CITY OF NEW YORK,
DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

The plaintiff, Darrell Sims, moves for reconsideration of the judgment clerk's award of costs to the defendant, the City of New York.

I.

The plaintiff filed a complaint against the defendant in July 2008, alleging employment discrimination. (Lindsay Decl. ¶ 3). On September 30, 2010, the Court partially granted the defendant's motion for summary judgment. See Sims v. City of New York, No. 08 Civ. 5965, 2010 WL 3825720, at * 13 (S.D.N.Y. Sept. 30, 2010).

The first trial began on January 18, 2011, and on January 30, the jury was discharged after being unable to reach a verdict. (Lindsay Decl. ¶¶ 6-7). A second trial began on April 26, 2011. (Id. at ¶ 8). On May 5, 2011, a jury found for the defendant, and the plaintiff's complaint was dismissed. (Id. at ¶ 9-10). On June 7, 2011, the defendant filed an application with the judgment clerk for costs totaling $7,012.87. (Lindsay Decl. Ex 1 ("Application"), at ¶ 9). The judgment clerk awarded the defendant $5,334.18, which represented the costs of (1) the original and one copy of the plaintiff's deposition transcript, (2) the trial transcript from the first trial, and (3) the trial transcript from the second trial. (Lindsay Decl. ¶¶ 16-17.) The Clerk reduced the costs sought by the defendant to only the original and one copy of the plaintiff's deposition transcript, and reduced the costs of the trial transcripts by excluding the costs of diskettes and minuscripts.*fn1 In response, the plaintiff filed a motion for reconsideration, contending (1) that the defendant should not be able to recover costs for the plaintiff's deposition testimony because the plaintiff's motion for summary judgment "was not decided in [the] defendant's favor in its entirety," (2) that the defendant should not be able to use the second trial as a way to recoup the costs of the transcript from the first trial, and (3) that the plaintiff cannot bear the economic burden of the award.

II.

Generally, Federal Rule of Civil Procedure 54(d) "allows the district court to award the prevailing party its costs. However, . . . the types of costs which may be shifted are limited by 28 U.S.C. § 1920." Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 171 (2d Cir. 1996) (citation omitted). Section 1920 provides that the following costs may be taxed, among others: "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." 28 U.S.C. § 1920. Local Rule 54.1(c) gives further guidance as to items taxable as costs. It provides, in relevant part:

Items Taxable as Costs

(1) Transcripts. The cost of any part of the original trial transcript that was necessarily obtained for use in this court or on appeal is taxable. . . .

(2) Depositions. 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 trial, whether or not it was read in its entirety. Costs for depositions are also taxable if they were used by the court in ruling on a motion for summary judgment or other dispositive motion.

Local Civ. R. 54.1(c). "The burden is on the prevailing party to establish to the court's satisfaction that the taxation of costs is justified." John G. v. Board of Education of Mt. Vernon Public Schools, 891 F. Supp. 122, 123 (S.D.N.Y. 1995); see also AIG Global Sec. Lending Corp. v. Banc of America Sec. LLC, No. 01 Civ. 11448, 2011 WL 102715, at *2 (S.D.N.Y. Jan. 06, 2011).

A.

It is plain that the transcript of the plaintiff's deposition was used during the course of the second trial. See (Trial Transcript ("Tr.") at 225-27). Also, the deposition was used by this Court in its evaluation of the defendant's motion for summary judgment. See Sims, 2010 WL 3825720, at *3, *5. The plaintiff, however, claims that the defendant was not a fully prevailing party in its motion for summary judgment, and therefore it cannot recover the costs of the deposition transcript. Regardless of whether the defendant was, within the meaning of Local Rule 54.1, a "prevailing party" in the summary judgment motion, the defendant was unquestionably the prevailing party at the second trial, during which the deposition was used to impeach the plaintiff. Moreover, "it is now well-established that a deponent's testimony at trial 'alone is sufficient to end the inquiry as to whether their depositions were 'used' at the trial.'" ...


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