Opinion
1:08-CV-00230 EAW
12-10-2020
Billian JO, as Personal Representative of the Estate of Mee Jin-Jo, Plaintiff, v. JPMC SPECIALTY MORTGAGE LLC, Defendant.
Billian Jo, Detroit, MI, pro se. Kenneth J. Flickinger, Eckert Seamans Cherin & Mellott, LLC, White Plains, NY, for Defendant.
Billian Jo, Detroit, MI, pro se.
Kenneth J. Flickinger, Eckert Seamans Cherin & Mellott, LLC, White Plains, NY, for Defendant.
DECISION & ORDER
ELIZABETH A. WOLFORD, United States District Judge
BACKGROUND
Mee Jin-Jo, now deceased and represented in this action by her daughter and personal representative Billian Jo ("Plaintiff"), commenced this pro se lawsuit on March 18, 2008, alleging that JPMC Specialty Mortgage, LLC ("Defendant") improperly retained control over her property after she was evicted as a no-fault tenant from her residence. (Dkt. 1). The Court held a jury trial commencing on June 18, 2018. (Dkt. 365). The jury returned a "no cause of action" verdict on June 21, 2018 (Dkt. 372), and judgment was entered in Defendant's favor the same day (Dkt. 373). On March 28, 2019, the Court denied Plaintiff's motion for a new trial. (Dkt. 381). Plaintiff pursued an appeal before the Second Circuit Court of Appeals, and the judgment was affirmed. (Dkt. 403).
On October 2, 2013, representatives of Mee Jin-Jo filed a notice or her death. (Dkt. 252). On December 19, 2014, Sughe Jo was permitted to proceed on behalf of Mee Jin-Jo's estate. (Dkt. 270). On June 15, 2015, the Court granted a motion to substitute Billian Jo as the personal representative of the estate of Mee Jin-Jo. (Dkt. 287).
On July 19, 2018, Defendant filed a Bill of Costs, seeking costs in the amount of $3,675.72 (Dkt. 377), which included travel expenses for two witnesses (Jordan J. Manfro and Diane Tiberend), and the cost of the transcript for Plaintiff's May 22, 2018 deposition (Dkt. 377-1). Plaintiff filed responses in opposition on April 15, 2019 and May 13, 2019. (Dkt. 383; Dkt. 388). On July 14, 2020, the Clerk of Court issued an Order, which significantly reduced Defendant's requested costs to $1,234.96. (Dkt. 399). Thereafter, on July 24, 2020, Plaintiff filed a motion for the Court's review of the costs pursuant to Fed. R. Civ. P. 54(d)(1), and Defendant responded to the motion on August 24, 2020. (Dkt. 400; Dkt. 402).
DISCUSSION
"Pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure, ‘costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.’ " Dattner v. Conagra Foods, Inc. , 458 F.3d 98, 100 (2d Cir. 2006) (quoting Fed. R. Civ. P. 54(d)(1) ). While "[t]he burden is on the prevailing party to establish to the court's satisfaction that the taxation of costs is justified ... [t]he language of Rule 54(d) (1) ... suggests that such an award against the losing party is the normal rule obtaining in civil litigation, not an exception." Cohen v. Bank of N.Y. Mellon Corp. , No. 11 Civ. 0456(RA), 2014 WL 1652229, at *1 (S.D.N.Y. Apr. 24, 2014) (internal quotations and citations omitted). Accordingly, once the prevailing party establishes that the taxation of costs is justified, "there is a presumption that costs will be awarded to the prevailing party ... [and] the losing party bears the burden of convincing a court to exercise its discretion to vacate the Clerk's award of costs." Burchette v. Abercrombie & Fitch Stores, Inc. , No. 08 Civ.8786 RMB THK, 2010 WL 3720834, at *4 (S.D.N.Y. Sept. 22, 2010) ; see also Cohen , 2014 WL 1652229, at *1.
"The decision to award costs to a prevailing party under Fed. R. Civ. P. 54(d) rests within the sound discretion of the district court." 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 quotation, citation, and alteration omitted)), abrogated on other grounds by Bruce v. Samuels , 577 U.S. 82, 136 S.Ct. 627, 193 L.Ed.2d 496 (2016) ). "The Second Circuit has advised that the losing party's burden to show that costs should not be imposed can be met by a showing of the prevailing party's misconduct, public importance, or the losing party's financial circumstances." Adkins v. Gen. Motors Corp. , No. 03-CV-3613 (JS)(MLO), 2007 WL 9697666, at *2 (E.D.N.Y. Sept. 30, 2007) (citing Whitfield , 241 F.3d at 270 ); see also Murphy v. Bd. of Educ. of Rochester City Sch. Dist. , 308 F. Supp. 2d 148, 150 (W.D.N.Y. 2004) ("Those costs should be denied only if there is some reason to deny costs, such as the prevailing party's misconduct, or the losing party's inability to pay.... If the court fails to award costs, the prevailing party is punished, and that should not occur unless there is a reason to do so." (citations omitted)). Further, "[t]he district court may consider the non-prevailing party's financial circumstances, but it is not required to do so," and "[e]ven if the non-prevailing party establishes indigency, that fact does not require the court to waive costs." Id. at 151 ; see also Adkins , 2007 WL 9697666, at *2 ("the non-prevailing party must make a strong showing of financial hardship.").
Plaintiff's first argument is that Defendant's request for costs is premature due to her appeal, which was pending before the Second Circuit Court of Appeals at the time she filed her motion for review of costs, and therefore the Court should deny or stay the award of costs to Defendant. (Dkt. 400 at 2-3, 7). On October 29, 2020, the Second Circuit issued a Mandate affirming the Court's Decision and Order denying Plaintiff's motion for a new trial. (Dkt. 403). Accordingly, Plaintiff's request that the Court deny or stay the award of costs on the basis that her appeal is pending is moot.
Plaintiff next argues that certain items in the Bill of Costs are improper or unreasonable. (Dkt. 400 at 3). Plaintiff points specifically to costs related to her deposition, which was taken on May 22, 2018, contending that it "was not used or even introduced at the trial" because it was inadmissible, and depositions not used in the pleading that terminated the litigation are non-taxable pursuant to the Court's Guidelines for Bills of Costs ("the Guidelines"), Rule II(F)(2). (Id. at 3-4). Defendant argues that Plaintiff's deposition was used at trial "to clarify the testimony of Billian Jo as to the appearance of the personal property when witnessed at the storage facility." (Dkt. 402 at 1).
Whether the deposition was used at trial is not the standard for permitting costs for a deposition transcript. 28 U.S.C. § 1920 delineates the categories of costs that may be recovered by a prevailing party, and that section specifically authorizes the recovery of "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case [.]" See 28 U.S.C. § 1920(2) (emphasis added). "Parties can recover costs for deposition transcripts under 28 U.S.C. § 1920(2) when the depositions appear to have been reasonably necessary to the litigation at the time they were taken, even if those transcripts are not used during trial." Cush-Crawford v. Adchem Corp. , 94 F. Supp. 2d 294, 303 (E.D.N.Y. 2000), aff'd , 271 F.3d 352 (2d Cir. 2001) ; see also Adrea, LLC v. Barnes & Noble, Inc. , No. 13 Civ. 4137(JSR), 2017 WL 3223955, at *2 (S.D.N.Y. July 26, 2017) ("Deposition transcripts are likewise taxable if, at the time the deposition was taken, the deponent's testimony appeared to be reasonably necessary to the litigation."). The Local Rules also specifically contemplate the recovery of costs for deposition transcripts, and do not limit recovery of costs to transcripts used at trial. See L. R. C. P. 54(e) ("If a party proceeds to record a deposition stenographically and on video pursuant to L. R. Civ. P. 30, the additional costs incurred for video recording will not be taxed by the Clerk of Court without a prior order from the Court or agreement of the parties."); see also Guidelines for Bills of Costs , Rule II(D) (listing deposition transcript of party to the case, as well as deposition transcript of person who testified at trial, as among taxable costs).
Plaintiff is a party to the lawsuit and testified at trial, and therefore the Court easily concludes that her deposition was reasonably necessary to the litigation. Although Defendant submitted costs in the amount of $812.75 for Plaintiff's deposition transcript, the Court has reduced those costs to $708.95. (See Dkt. 399). Accordingly, the costs associated with Plaintiff's deposition transcript are reasonable and proper.
Further, Plaintiff argues that Defendant has not provided the proper documentation to support certain items included the Bill of Costs. (Dkt. 400 at 4). Specifically, Plaintiff contends that the evidence provided as support for Mr. Manfro's travel costs is an email, rather than an official receipt the Court may use for review. (Id. ). Plaintiff also contends that Defendant may not collect costs associated with an economy plus airline seat, which is listed on the aforementioned receipt. (Id. at 4-5; see also Dkt. 377-1 at 5).
The Court has reviewed the documentation provided by Defendant for Mr. Manfro's travel expenses, including the claimed $311.40 in airfare for his flight from Newark to Rochester and return flight (see Dkt. 377-1 at 1), and concludes that it is acceptable. The receipt provided for Mr. Manfro's travel expenses—an "eTicket Itinerary and Receipt for Confirmation" from United Airlines, Inc. sent to Mr. Manfro (which appears to have been forwarded to defense counsel's email address)—is sufficient documentation of the cost of Mr. Manfro's airfare. (See Dkt. 377-1 at 4-9). Confirmation and receipts for airline travel are routinely provided in an electronic format, and the Guidelines do not require that receipts be provided in any other form. See Guidelines for Bills of Costs , Rule II(F)(1)(d) ("A witness is required to utilize a carrier at the most economical rate reasonably available and furnish a receipt or other evidence of actual cost ." (emphasis added)). Although the receipt reflects additional expenses in the amounts of $19.00 and $25.00 for economy plus seats (see Dkt. 337-1 at 5), those additional costs were not included in Defendant's computation of airfare costs for Mr. Manfro. Rather, only $311.40 was included as part of the Bill of Costs which, according to the travel receipt, included only airfare, transportation tax, flight segment tax, security fee, and a passenger facility charge. (Id. at 1, 4-5). In other words, the additional $19.00 and $25.00 charges for economy plus seats were in addition to the $311.40 included in the Bill of Costs, and Plaintiff is therefore not responsible for paying costs relating to Mr. Manfro's economy plus seats.
The original Bill of Costs submitted by Defendant was significantly reduced by the Clerk of Court because Defendant did not provide the required documentation for those costs, as outlined in the Guidelines. For example, costs associated with Ms. Tiberend's travel from Los Angeles to Rochester were excluded due to Defendant's failure to provide receipts, and the costs of subsistence for both Ms. Tiberend Mr. Manfro also were excluded due to Defendant's failure to provide receipts for those costs. (See Dkt. 399 at 3-4).
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Finally, Plaintiff contends that three days of witness fees were approved for Ms. Tiberend, when she acted as a witness for only one day. (Dkt. 400 at 5). Ms. Tiberend was present at counsel's table during trial as Defendant's corporate representative, and she was also called as a fact witness for one day of trial. (See Dkt. 381 at 7; see also Dkt. 365; Dkt. 366; Dkt. 368). Defendant initially submitted witness fees relating to Ms. Tiberend for five days, but the Clerk of Court reduced the witness fees to three days, for two days spent traveling to and from trial and one day giving testimony. (See Dkt. 399 at 4). Pursuant to the Guidelines, Rule II(F)(1), a witness is entitled to $40.00 per day of testimony, which also includes the time the witness was going to and returning from the place of attendance. Accordingly, three days of witness fees for Ms. Tiberend is proper, given that she traveled roundtrip from Los Angeles, California, to provide testimony. (Id. ).
In evaluating Plaintiff's motion, the Court has also considered any misconduct by Defendant, public importance, and Plaintiff's financial circumstances. Adkins , 2007 WL 9697666, at *2. As explained above, while Defendant did not properly document some of the expenses originally included in its Bill of Costs, there is no evidence that Defendant engaged in misconduct. The Court has also considered that the costs awarded to Defendant have been drastically reduced from Defendant's original submission and are not excessive. Although Plaintiff suggests that she is not able to pay costs (see Dkt. 400 at 6), she has offered no evidence establishing indigency, such that she is unable to pay this relatively modest amount. Further, while Plaintiff believes that taxing costs may have a "chilling effect ... on future plaintiffs, who may be discouraged from pursuing litigation against larger companies in fear of costs" (id. at 6-7), the Court must balance this against the fact that "[i]f the court fails to award costs, the prevailing party is punished," and "that should not occur unless there is a reason to do so." Murphy , 308 F. Supp. 2d at 150. Plaintiff has failed to overcome the presumption in favor of awarding costs to Defendant.
CONCLUSION
In sum, the Court has reviewed the Bill of Costs issued by the Clerk of Court and finds that taxation of costs in the amount of $1,234.96 is reasonable and necessary. Accordingly, Plaintiff's motion pursuant to Rule 54(d)(1) is denied. Plaintiff must pay costs to Defendant in the amount of $1,234.96, as assessed by the Clerk of Court.
SO ORDERED.