Summary
denying recovery for cost of expedited trial transcript because the transcript was merely a convenience for counsel and not necessary for use at trial
Summary of this case from Ayiloge v. City of New YorkOpinion
97 Civ. 417 (RCC)
August 13, 2001
OPINION AND ORDER
Plaintiff Charles L. Williams ("Williams"), an inmate at the Green Haven Correctional Facility, commenced this action pro se pursuant to 42 U.S.C. § 1983. Williams alleged that defendant correctional officer Susan Colatosi ("Colatosi") subjected him to excessive force in violation of the Eight Amendment to the Constitution. Then-District Judge Sonia Sotomayor permitted Williams to proceed in forma pauperis and placed the case on the this district's Pro Bono List. After Williams obtained counsel, the parties conducted discovery and proceeded to trial on September 13, 1999. The jury returned a verdict for defendant on September 23, 1999. Williams' subsequent appeal was dismissed on September 20, 2000.
Colatosi then sought taxation of costs against Williams pursuant to Rule 54 of the Federal Rules of Civil Procedure and Local Civil Rule 54.1. Colatosi initially filed a Notice of Bill of Costs on October 17, 2000, but Williams objected on the ground that the supporting affidavit did not recite that the costs were "allowable by law, . . . correctly stated and . . . necessarily incurred," as required by the local rule. The Judgment Clerk returned the Bill of Costs to defendant's counsel, with instructions to correct the deficiency and re-file if Colatosi intended to pursue her request. Colatosi submitted corrected papers on November 13, 2000, four days after receiving the returned documents, and the Judgment Clerk thereafter awarded costs in the amount of $3,947.02.
Williams now seeks to vacate the award on the grounds that Colatosi's Bill of Costs was untimely and that the taxation of costs would be inequitable given Williams' circumstances. In the alternative, Williams asks that this Court reduce the award by disallowing defendant's claimed costs for obtaining daily expedited trial transcripts. For the reasons set forth below, Williams' motion to vacate the award is denied, although the Court agrees that a reduction corresponding to the expense of the trial transcripts is warranted.
DISCUSSION
Rule 54 of the Federal Rules of Civil Procedure provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). Because such an award against the losing party is the normal rule in civil litigation, Williams bears the burden of showing that costs should not be imposed. Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001).
Williams argues that taxation of costs against him would be inequitable because he proceeded with this action in forma pauperis and remains incarcerated. Williams further argues his claims were not frivolous, as demonstrated by the facts that (i) Judge Sotomayor granted him leave to proceed in forma pauperis and appointed pro bono counsel, (ii) the evidence at trial showed that Williams suffered some injury; and (iii) the defendant did not file a motion to dismiss or for summary judgment prior to trial. See Plaintiff's Memorandum of Law at 4; Plaintiff's Reply Memorandum of Law at 4.
However, Williams' allegations that he is indigent and that his suit was meritorious do not require this Court to vacate the award of costs. As discussed by the Second Circuit, "good faith and the absence of frivolous claims, by themselves, do not require a district court to deny costs . . . [t]here is also widespread agreement among the courts of appeals that indigency per se does not preclude an award of costs against an unsuccessful litigant." Whitfield, 241 F.3d at 272-73 (holding that the district court did not abuse its discretion in taxing deposition costs against an indigent party). Furthermore, the statute governing in forma pauperis actions, 28 U.S.C. § 1915, specifically provides that "[j]udgment may be rendered for costs at the conclusion of the suitor action as in other proceedings." 28 U.S.C. § 1915(f)(1).
This Court finds no compelling reason why Williams should be exempted from this general rule: "Just as non-indigent litigants must consider the relative merits of their lawsuit against the pain an unsuccessful suit might inflict on their pocketbook, so must prisoners like [plaintiff] learn to exercise discretion and judgment in their litigious activity and accept the consequences of their costly lawsuits." McGill v. Faulkner, 18 F.3d 456, 460 (7th Cir.), cert. denied, 513 U.S. 889(1994). Moreover, the fact that Colatosi did not file motions to dismiss or for summary judgment does not prove that Williams' suit had merit. Colatosi may well have believed that proceeding to trial was the most cost-effective and timely method for disposing of the action. The Court notes that Colatosi did move for judgment as a matter of law at trial pursuant to Fed.R.Civ.P. 50, and although the motion was denied, this Court characterized plaintiff's case as "thin" Trial Transcript dated September 21, 1999, at 540. Given the circumstances here, the Court will not exercise its discretion to vacate the award.
Williams next argues that the Bill of Costs should be disallowed on timeliness grounds. Local Rule 54.1 requires that a party file its request for costs within (30) thirty days after the entry of final judgment or within (30) thirty days after the final disposition of the appeal, unless extended by the court for good cause shown. Local Rule 54.1(a). The Rule also provides that the Bill of Costs shall include "an affidavit that the costs claimed are allowable by law, are correctly stated and were necessarily incurred." Id.
Colatosi timely filed a Bill of Costs on October 17, 2000. Plaintiff's counsel then appeared before the Judgment Clerk and objected that the Bill of Costs was facially defective for failure to clearly state the necessary elements. The Judgment Clerk returned the Bill of Costs to the defendant and, four days thereafter on November 13, 2000, Colatosi filed corrected papers. Williams argues-that the second filing should be disregarded because it does not fall within the 30-day period. However, this Court will not penalize defendant for the technical deficiency, particularly where, as here, the original filing provided plaintiff with notice of all claimed expenses. Moreover, when the omission was brought to Colatosi's attention, she promptly refiled a corrected Bill of Costs. Thus, the Court will not vacate the award on that basis.
Finally, the Court agrees with Williams that costs in the amount of $2,961.65 for daily expedited trial transcripts were improper. In order to recover such costs, Local Rule 54.1 requires that the transcripts be "necessarily obtained." Local Rule 54.1(c)(1). Here, the daily trial transcripts were not necessary for use at trial, but were merely a convenience for counsel. The trial in this case was neither long nor complicated. Moreover, Colatosi was represented by two attorneys, one of whom could have taken notes, if needed. In such circumstances, Williams should not be charged with that expense. See Yin v. Japan Society, Inc. No. 99 Civ. 4806, 2000 WL 827671, at *2 (S.D.N.Y. June 27, 2000) (denying trial transcript costs because the case was uncomplicated and the prevailing party was represented by two attorneys); Dehoust v. Baxter Healthcare Corp., No. 98 Civ. 0774, 1999 WL 280423, at *3 (S.D.N Y May 4, 1999) (denying trial transcripts costs because the trial lasted less than two weeks and did not involve any complexities); see also John and Kathryn G v. Board of Ed. of Mt. Vernon Public Schools, 891 F. Supp. 122, 123 (S.D.N.Y. 1995) ("Daily transcripts of trial testimony are not customary.").
CONCLUSION
For the foregoing reasons, the Court finds that the taxation of costs as against plaintiff is proper. However, the Clerk is directed to reduce the award by the amount of $2,961.65 corresponding to the cost of daily trial transcripts, as defendant should not be permitted to recover that expense.