Opinion
99-CV-5602(ADS)(MLO).
August 5, 2004
RAJESHWAR SINGH YADAV, Princeton Junction, New Jersey, for Plaintiff Pro Se.
SEYFARTH SHAW, New York, New York, Attorneys for the Defendants.
By: Lynn Kappelman, Esq., Edward Cerasia II, Esq., Cynthia A. Glasgow, Esq. and Devjani Mishra, Esq., Of Counsel.
ORDER
The plaintiff pro se Rajeshwar Singh Yadav ("Yadav" or the "plaintiff") brought this action against his employer Brookhaven National Laboratory ("BNL") and Brookhaven Science Associates ("BSA") (collectively, the "defendants") alleging that he was denied a promotion and subjected to unequal terms and conditions of employment based upon his race and national origin in violation of 42 U.S.C. § 1981.
On August 2, 2000, the Court dismissed all of the claims in the complaint except the Section 1981 claim against the defendants for alleged acts occurring after January 28, 1997.
Thereafter, the plaintiff filed three amended complaints. On November 30, 2001, the Court dismissed all of the claims in the third-amended complaint except the Section 1981 claim against the defendants.
In May 2002, a jury trial was held. On May 14, 2002, after completion of all the evidence in the case, the Court granted the defendants' motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure.
On May 31, 2002, the Court memorialized the May 14, 2002 decision in a written memorandum noting that: (1) the defendants proffered a legitimate, non-race based reason for not promoting the plaintiff; (2) the plaintiff did not suffer an adverse employment action; (3) the plaintiff's salary, on the low end of the scale, was insufficient to show discrimination based on race or national origin; and (4) incidents in which the plaintiff was annoyed or irritated were insufficient to prove discrimination. Yadav v. Brookhaven Nat'l Lab., 204 F. Supp.2d 509, 518-522 (E.D.N.Y. 2002).
Thereafter, the defendants submitted a Notice of Taxation of Costs to the Court pursuant to Rule 54 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), requesting that costs be taxed in the amount of $26,210.20. On January 8, 2004, the Court ordered that the Clerk of the Court determine the amount of taxable costs incurred by the defendants in their successful defense of this action using the guidelines set forth in Rule 54.1.
On February 19, 2004 the Clerk of the Court ordered that costs be taxed in the amount of $2,219.05. By letter dated February 26, 2004, the defendants objected to certain aspects of the Clerk's taxation of costs on the grounds that (1) the Clerk of the Court declined to tax the cost for design time associated with the preparation of 8" x 11" copies of demonstrative exhibits that were introduced into evidence and provided to the jury and the cost for the preparation of 36" x 48" enlargements of these exhibits; and (2) costs in the amount of $15,345.30 incurred for the purchase of daily trial transcripts on an expedited basis which the defendant claims, pursuant to Local Civil Rule 54.1(c), were "necessarily obtained for use in this court" and therefore should be taxed.
On July 28, 2004, the Court held a hearing on these issues.
The district court must exercise its discretion in determining the taxation of costs. LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995); see also Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) ("A district court reviews the clerk's taxation of costs by exercising its own discretion to decide the cost question itself.") (internal quotations omitted)).
A. As to Demonstrative Exhibits and Design Time
With respect to the defendants' request that the partial cost of the preparation of 8" x 11" demonstrative exhibits and their enlargement be taxed in the amount of $980 the Court looks to Local Civil Rule 54.1(c)(6) which states:
Maps, Charts, Models, Photographs and Summaries. The costs of photographs, 8" x 10" in size or less, is taxable if used or received in evidence. Enlargements greater than 8" x 10" are not taxable except by order of court. Costs of maps, charts, and models, including computer generated models, are not taxable except by order of Court. The cost of compiling summaries, statistical comparisons and reports is not taxable.
Because the Court did not request or order that such 8" x 11" exhibits be made and/or enlarged, the defendants' request for the taxation of these costs is denied.
2. As to the Cost of the Expedited Trial Transcripts
In its Request for Taxation of Costs, the defendant seeks $15,345.30 for the transcripts associated with the seven day trial which the defendants ordered on an expedited basis with an "ASCII Disk," "e-transcript," and transcript e-mailed to two addresses nightly. These services amounted to a transcript cost of $11.45 per page.
With respect to the trial transcripts the defendant claims that (1) without the use of expedited daily trial transcripts, counsel and the Court would not have been able to keep track of exhibits and materials that Mr. Yadav attempted to introduce into evidence; (2) after the defendant repeatedly objected to a certain exhibit, pursuant to the Court's direction, the defendants submitted a letter detailing its objections previously made during trial and appended the relevant portions of the transcripts; (3) the transcripts of the trial were used not only by the defendants during the cross examination of witnesses but also by the plaintiff; and (4) the defendants relied on the trial transcript in moving for judgment as a matter of law pursuant to Rule 50 and the Court quoted extensively from the transcript in granting judgment to the defendants.
Local Civil Rule 54.1(a)(1) governs the taxation of costs associated with trial transcripts. This section states
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. The transcript of court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the court. (emphasis added)
The Court does not agree that without the use of expedited daily trial transcripts, counsel and the Court would not have been able to keep track of exhibits and materials that Mr. Yadav attempted to introduce in evidence. During the trial the Court made a detailed list of all exhibits introduced and admitted into evidence. In addition, at the trial the defendants had two attorneys present at counsel table who could have avoided such confusion by taking notes and maintaining, as the Court does, a chart of all exhibits introduced or attempted to be introduced in evidence. See Ayiloge v. City of New York, NO. 00 Civ. 5051, 2002 WL 31907032, at *2 (S.D.N.Y. Dec. 31, 2002) ("Throughout the trial, [d]efendants were represented by two highly competent attorneys, at least one of whom was able to take notes."). In the Court's view, the use of daily transcripts to keep track of the exhibits and materials that Mr. Yadav attempted to introduce in evidence were "a convenience rather than a necessity." Morales v. Smith, No. 94 Civ. 8773, 1998 WL 352595, at *2 (S.D.N.Y. June 26, 1998).
With respect to the defendants' second contention that the Court directed the defendants to submit a letter detailing its objections previously made during trial, the Court agrees that the use of the transcript in this regard was "necessary." To this letter, dated May 21, 2002, fifteen pages of transcript were attached. Because the Court requested this submission from the defendants, the Court agrees that fifteen pages of the daily transcripts should be taxed at $11.45 for a total sum of $171.75.
As to the defendants third argument, namely that the trial transcripts were used in the cross examination of witnesses, the Court again notes that the defendants had two very competent attorneys at the counsel table who, with reasonable certainty, could have assisted in conducting a proper cross-examination. Thus, in the Court's view such transcripts were not "necessary" for cross-examination. See Malloy v. City of New York, No. 98 Civ. 5823, 2000 WL 863464, at * 1 (S.D.N.Y. 2000) (citing John and Kathryn G. v. Bd. of Educ. of Mt. Vernon Pub. Schs., 891 F. Supp. 122, 123 (S.D.N.Y. 1999) (granting motion to strike daily transcript costs; noting that, for cross examination purposes, attorneys typically take notes and need not refer to "precise language of witnesses.")).
With respect to the final contention, that the defendants relied on the trial transcript in moving for judgment as a matter of law pursuant to Rule 50 and that the Court quoted extensively from the transcript in granting judgment to the defendants, the Court declines to tax this cost and adopts the clear reasoning set forth by United States District Judge John Gleeson in Malloy v. City of New York, No. 98 Civ. 5823, 2000 WL 863464 (E.D.N.Y. June 23, 2000):
The trial was neither long nor complicated. Moreover, three defense counsel, who were more than capable of taking notes of the testimony, were present during the entire trial. Further, the fact that I referred to the trial transcript in a ruling at the close of trial does not alter this conclusion. My use of the trial transcript was occasioned [by] its ready availability. Without it, I would have been more than adequately served by a read-back of the testimony by the court reporter.Id. at *1 (internal citations omitted).
Although the Court agrees that daily transcripts were certainly useful to the Court and the parties, the circumstances of this case did not necessitate their use. See John and Kathryn G., 891 F. Supp. at 123 ("`Daily transcripts of trial testimony are not customary.'" (quoting Green Construction Co. v. Kansas Power Light Co., 153 F.R.D. 481, 484 (E.D. La. 1990))). Accordingly, the Court declines to direct the taxation of costs for daily trial transcripts with the exception of the costs associated with the transcripts used to comply with the Court's request. Thus, the amount of the taxation of the trial transcripts to be awarded as costs is the sum of $171.75.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that defendants' objections to the February 19, 2004 taxation of costs is GRANTED in part; and it is further
ORDERED, that the cost of the expedited trial transcripts is taxed in the amount of $171.75; and it is further
ORDERED, that the Clerk of the Court is directed to file an amended judgment awarding a total of $2,390.80 in costs to the defendants.