Opinion
Case No. C2-98-463
March 1, 2001
ORDER
This matter is before the court on plaintiff's motion to retax costs. The Clerk's memorandum on costs awarded defendants costs in the amount of $6,922.93.
Fed.R.Civ.P. 54(d) 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)(1). The rule vests the trial court with discretion to allow or deny costs to prevailing party.Farmer v. Arabian Am. Oil Co., 379 U.S. 227 (1964). However, the rule creates a presumption in favor of awarding costs to a prevailing party.White White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). An unsuccessful party has the burden of proving circumstances sufficient to overcome this presumption. Goostree v. State of Tennessee, 796 F.2d 854, 863-64 (6th Cir. 1986), cert. denied 480 U.S. 918 (1987). In Rosser v. Pipefitters Union Local 392, 885 F. Supp. 1068. 1071-72 (S.D. Ohio 1995) (citing White White, Inc., 786 F.2d at 730-31), the court summarized the factors that a district court should consider in exercising its discretion. See 885 F. Supp at 1071-72. with these factors in mind, the court will proceed to address the issues raised by plaintiff's motion to retax costs.
Plaintiff argues that the cost of the deposition of Timothy Boyer should not have been taxed because it was not referred to by the defendants in the summary judgment proceeding. The defendants explain, however, that Boyer was identified by plaintiff as a potential witness and the defendants took his deposition in order to discover the purpose of his testimony. The expenses of this deposition were properly taxed as costs.
Plaintiff argues that the costs of expedited deposition transcripts should not be allowed because the extra cost was the result of defendants' procrastination in taking the depositions. Defendants point out that plaintiff requested that discovery be extended and that, as a result, it was necessary for them to incur expedited deposition costs in order to meet the dispositive motions deadline. Defendants point out that six of the depositions that required expedited transcription were taken by plaintiff's counsel. The court finds that the award of expedited transcription costs for those depositions was appropriate. However, the court will disallow any expedited deposition costs for depositions taken by defendants' counsel, with the exception of the deposition of Dr. Richardson. This deposition was delayed because of plaintiff's failure to provide discovery regarding Dr. Richardson until the day before his deposition. With respect to depositions taken by defendants, other than the deposition of Dr. Richardson, defendants nonexpedited transcripts.
Defendants' expenses for expedited service of subpoenas were incurred as a result of defendants' own delay in scheduling those depositions and those costs are disallowed.
Defendants' expenses for ASCII disks are properly allowed as part of the costs inasmuch as they facilitated locating relevant testimony to cite in support of defendants' motion for summary judgment and, thus, resulted in a savings of attorney's time and fees.
Plaintiff argues that the court should deny costs because he brought this action in good faith. The court has some doubt as to whether plaintiff did in fact pursue this action in good faith. Plaintiff's claim of same sex sexual harassment bordered on the frivolous. It is noteworthy that the United States Court of Appeals for the Sixth Circuit affirmed this court's order granting summary judgment without issuing its own opinion.
Plaintiff argues that an award of costs would have a chilling effect on other employees who may be considering bringing valid constitutional claims against their employers. The court finds no merit in this argument.
Finally, plaintiff argues that an award of costs would be inequitable because he has been unemployed for the past two years and is heavily in debt. Plaintiff is an able-bodied 34-year old man with a post high school education and several years training and experience as a programmer and a machinist. Plaintiff voluntarily resigned his employment with the defendant. It is inconceivable that plaintiff could not have obtained employment in his field of expertise during a period of strong economic growth in a geographic area of unusually low unemployment.
Plaintiff's motion to retax costs is granted in part and denied in part. The Clerk shall retax costs in accordance with this order.
It is so ORDERED.