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Sherman v. Clark

United States District Court, W.D. New York

June 16, 2015

JASON SHERMAN, Plaintiff,
v.
C.O. KEVIN CLARK, Defendant.

DECISION AND ORDER

FRANK P. GERACI, Jr., Chief District Judge.

After a trial in which the jury found no cause of action against Correctional Officer Kevin Clark, the Defendant's counsel submitted a Bill of Costs seeking to have certain costs taxed against the Plaintiff. For the following reasons, I find that (1) mileage expenses requested by Defendant's counsel are not permissible, and are therefore disallowed, and (2) the costs for the production of transcripts are proper, and are therefore taxable.

DISCUSSION

The default rule in this circuit regarding the award of costs is that "[a]s a general matter, costs - other than attorney's fees - should be allowed to the prevailing party. Fed.R.Civ.P. 54(d)(1). The Rule codifies a venerable presumption that prevailing parties are entitled to costs." Carter v. Incorporated Village of Ocean Beach, 759 F.3d 159, 163 (2d Cir. 2014), quoting Marx v. Gen. Revenue Corp., ___ U.S. ___, 133 S.Ct. 1166, 1172 (2013) (internal quotation marks omitted). Further, "the decision to award costs under Rule 54(d)(1) is committed to the sound discretion of the district court." Carter, 759 F.3d at 164 (internal quotation and citation omitted). However, the ability to tax costs is not unlimited, and district courts are limited in awarding costs to those specifically authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 438 (1987). Where a bill of costs is challenged, the reviewing district court exercises discretion and "decide[s] the cost question [it]self." Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) (internal quotation marks and citation omitted).

The primary statute governing the award of costs, 28 U.S.C. ยง 1920, provides that:

A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursement for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(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.

It is undisputed that the Defendant is the prevailing party in this action. However, the Plaintiff argues that the costs requested by the Defendant are not appropriately taxed against him.

The Bill of Costs submitted by the Defendant on January 15, 2015 sought to have taxed (1) the sum of $633.75 that was paid to U.S. Legal Support, who produced the transcript of the Plaintiff's deposition on July 17, 2012, and (2) the sum of $293.80 in mileage expenses related to Plaintiff's witness William Brabham. ECF No. 66. The Plaintiff filed his Objection to these costs on February 19, 2015, in which he argued that an award of costs would be inappropriate, essentially because the Defendant did not alert him to the possibility of being taxed for costs if he did not prevail. ECF No. 67. On March 25, 2015, the Clerk of the Court taxed costs against the Plaintiff in the requested amount of $927.55, ECF No. 69, and on April 20, 2015, the Plaintiff again objected to costs being ...


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