United States District Court, S.D. New York
PAUL OETKEN, District Judge
this Court is Plaintiffs' motion for an award of costs
and attorney's fees pendente lite. (Dkt. No.
57.) For the reasons that follow, the motion is denied.
availability of an interim award of costs is governed by
Federal Rule of Civil Procedure 54(d), which provides that
“costs . . . should be allowed to the prevailing
party.” The phrase “prevailing party”
is a term of art: “to qualify as a prevailing party, a
. . . plaintiff must obtain an enforceable judgment against
the defendant . . . or comparable relief through a consent
decree or settlement.” Farrar v. Hobby, 506
U.S. 103, 111 (1992). A litigant may qualify as a
“prevailing party” pendente lite, but
the litigant must have “receive[d] at least some
relief on the merits of h[er] claim before [s]he can
be said to prevail.” Hewitt v. Helms, 482 U.S.
755, 760 (1987) (emphasis added). “[E]ven an award of
nominal damages suffices under this test.”
Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't
of Health & Human Res., 532 U.S. 598, 604 (2001).
Plaintiffs have not obtained the requisite
“relief.” The Court's Opinion and Order
granting partial summary judgment to Plaintiffs reached only
the question of liability. (See Dkt. No. 21-23.)
Accordingly, Plaintiffs have not secured a cognizable form of
“relief” on the merits of their claims - not even
“an award of nominal damages.”
Buckhannon, 532 U.S. at 604; cf. Garcia v.
Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir. 2009)
(noting that other forms of “relief” like a
“stay or preliminary injunction may permit the district
court to confer prevailing-party status on the plaintiff
notwithstanding the absence of a final judgment on the
underlying claim”). And without any such relief,
Plaintiffs have not yet “prevail[ed].” Thus, Rule
54(d) bars an award of costs at this juncture.
availability of an interim award of attorney's fees, on
the other hand, is governed by Nevada law. But it is unclear
whether Nevada's anti-SLAPP statute authorizes an interim
fee award at all. The Nevada statute provides only that
“[t]he person against whom the [prior] action is
brought may bring a separate action to recover . . .
[a]ttorney's fees and costs of bringing the separate
action.” Nev. Rev. Stat. § 41.670(1)(c). Fee
provisions in other statutes that have been construed to
permit an interim award employ the term “prevailing
party.” Nevada's statute does not.
the uncooperative statutory language, Plaintiffs urge the
Court to read the “prevailing party” standard
into the Nevada statute. (Dkt. No. 59 at 3.) But the Court
need not decide whether the Nevada statute incorporates the
“prevailing party” standard because, in any
event, Plaintiffs do not qualify as a “prevailing
party.” Plaintiffs' motion for an interim fee award
is therefore denied.
 “The award of costs is governed
by federal law.” 10 Charles Alan Wright et al., Federal
Practice & Procedure § 2669, at 259 (4th ed. 2014);
accord Conte v. Flota Mercante Del Estado, 277 F.2d
664, 672 (2d Cir. 1960) (“[A] court will tax ordinary
court costs in accordance with its own practice rather than
that of the state where the claim arose.”).
 Farrar concerned the
interpretation of “prevailing party” in a
fee-shifting statute, not Rule 54(d)'s cost-shifting
provision. But “a litigant who is a prevailing party
for purposes of attorney's fees is also the prevailing
party for purposes of costs.” Dattner v. Conagra
Foods, Inc., 458 F.3d 98, 101 (2d Cir. 2006).
 “[W]hen state law provides for
the recovery of an attorney's fee as a part of the claim
being asserted . . . the federal court should permit an award
of a fee on the theory that it is part of the substantive
right in issue.” 10 Wright et al., Federal Practice
& Procedure § 2669, at 263; accord Cotton v.
Slone, 4 F.3d 176, 180 (2d Cir. 1993)
(“Attorney's fees mandated by state statute are
available when a federal court sits in
See 42 U.S.C. § 1988(b)
(“prevailing party”); Hanrahan v.
Hampton, 446 U.S. 754, 758 n.4 (1980) (“The
provision for counsel fees in § 1988 was patterned upon
the attorney's fees provisions contained in Titles II and
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000a-3(b) and 2000e-5(k), and § 402 of the Voting
Rights Act Amendments of 1975,  U.S.C. [§]
(e). . . . Those provisions have been construed by the
Courts of Appeals to permit the award of counsel fees . . .
to a party who has prevailed on the merits of a
claim.”); see also 42 U.S.C. § 2000a-3(b)