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Johnson v. Holway

October 31, 2007


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


This matter is before the Court on review of the costs taxed by the Clerk of Court on August 1, 2007. All parties seek to have costs retaxed pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Civil Rule 54.1(e), and plaintiff Valda Johnson has also moved for a new trial. As set forth herein, the Court will grant in part and deny in part the plaintiffs' motions to retax, deny defendants' cross-motion to retax, and deny Johnson's motion for a new trial.


Following a bench trial in April 2006, the Court issued findings of fact and conclusions of law and entered judgment in favor of defendants and against plaintiffs. As the prevailing party, defendants thereafter submitted a bill of costs seeking to recover a total of $23,278.84 in docket fees, transcript and exhibit costs, other copying costs, and witness travel and subsistence costs.*fn1 (See Defs.' Bill of Taxable Costs Pursuant to Fed. R. Civ. P. 54(d)(1).) Plaintiffs opposed defendants' bill of costs, and defendants later reduced their request to $21,165.36. (See Defs.' Reply in Support of Bill of Taxable Costs at 22.)

On August 1, 2007, the Clerk of Court taxed costs against plaintiffs in the amount of $18,251.90, denying reimbursement for approximately $3,000 of the expenses claimed by defendants. (Dkt. #175.) On August 8, 2007, both plaintiffs filed motions to retax, urging the Court to exercise its discretion to deny defendants' bill of costs in its entirety or, in the alternative, to limit defendants' recovery to $8,665.34, and plaintiff Johnson also moved for a new trial. Defendants opposed plaintiffs' motions and filed a cross-motion to retax, seeking reimbursement for certain costs that the Clerk had disallowed.


I. Motions to Retax

A. Legal Standard

Taxation of costs against the non-prevailing party is authorized by Rule 54(d), which provides that "[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ." Fed. Rule Civ. P. 54(d)(1). The categories of allowable costs are set forth in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42. Although Rule 54(d) grants the Court discretion "to decline to tax, as costs, the items enumerated in § 1920," the Court may not tax costs above and beyond those listed in the statute. Id. Local Civil Rule 54.1 provides additional guidance in this judicial district, setting forth a more specific list of costs that the Clerk "shall tax" if "requested to do so in the bill of costs." See LCvR 54.1(d). Costs taxed by the Clerk are subject to review by the Court, which may, "for good cause shown[,] . . . tax additional costs or . . . deny costs allowed by the Clerk pursuant to [LCvR 54.1(d)]." LCvR 54.1(e); see also Fed. R. Civ. P. 54(d)(1) ("On motion served within 5 days [after costs are taxed by the clerk], the action of the clerk may be reviewed by the court.").

B. Plaintiffs' Request That All Costs Be Denied

Rule 54(d) embodies a strong presumption that the prevailing party "is normally entitled to costs in the district court as a matter of course . . . ." Baez v. U.S. Dep't of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982) (en banc); Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1317 (D.C. Cir. 1981). The Rule, as noted, "generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party," Crawford Fitting Co., 482 U.S. at 442; however, the Court "may neither deny nor reduce a prevailing party's request for costs without first articulating some good reason for doing so." Baez, 684 F.2d at 1004. As the D.C. Circuit has observed, "[t]he result is that trial judges have rarely denied costs to a prevailing party whose conduct has not been vexatious when the losing party has been capable of paying such costs." Id.

Plaintiffs argue that the Court should exercise its discretion to deny all costs because certain post-judgment conduct by defendant National Association of Government Employees ("NAGE") shows that defendants misrepresented their motivation for imposing a trusteeship on the Pension Benefit Guaranty Corporation ("PBGC") bargaining unit at trial. (Pls.' Mem. at 4-5; Pl. Johnson's Opp'n to Defs.' Bill of Taxable Costs and Mot. for New Trial ["Johnson Mem."] at 2.) In particular, plaintiffs note that in May 2007, NAGE filed a petition with the FLRA disclaiming all interest in the PBGC bargaining unit and requesting that the FLRA rescind NAGE's certification as the exclusive representative of PBGC bargaining unit employees. Observing that NAGE took this action just one month after the local union had elected a new president who had publicly expressed her appreciation towards plaintiffs, plaintiffs argue that the filing of the petition shows that defendants "were never really concerned about the interests of the employees who the Defendants had a duty to serve" and that defendant David Holway's representation at trial that the decision to impose a trusteeship was motivated by his fiduciary responsibility to the union and its members was false. (Pls.' Mem. at 4-5; Pls.' Reply at 1-2; Johnson Mem. at 2.)

The Court cannot agree. NAGE's request to terminate its relationship with the PBGC bargaining unit was filed in May 2007, some three and a half years after the trusteeship was imposed and more than a year after the trial in this case took place. The Court cannot say that NAGE's post-judgment conduct shows that Holway's earlier testimony was false or that defendants proceeded in the litigation in bad faith, and it certainly cannot conclude that plaintiffs have made the kind of showing necessary to overcome the presumption favoring an award of costs to the prevailing party. See Baez, 684 F.2d at 1004 (noting that federal courts "have placed on the unsuccessful parties some burden of showing circumstances sufficient to overcome the presumption favoring the prevailing party").

Plaintiff Johnson also argues that imposition of costs would cause an "undue financial burden," asserting that defendants are seeking costs in retaliation for her objection to plaintiffs' witnesses' trial testimony and for her continued pursuit of her claims against PBGC. (Johnson Mem. at 1-2, 4; Pl. Johnson's Opp'n to Defs.' Bill of Taxable Costs and Mot. to Retax Billable Costs ["Johnson Reply"] at 1, 3.) Such unsubstantiated assertions of financial hardship and retaliatory motive, however, are an insufficient basis on which to deny costs.*fn2 See Chapman v. Al Transport, 229 F.3d 1012, 1039 (11th Cir. 2000) (court may consider non-prevailing party's financial status in awarding costs but should require "substantial documentation of a true inability to pay"); Williams v. The Thresholds, Inc., No. 02-9101, 2003 WL 22478784, at *1 (N.D. Ill. Oct. 31, 2003) ("Actual indigence, not just limited financial resources, must be demonstrated in order to overcome the strong presumption favoring an award of costs."); Greene v. Fraternal Order of Police, 183 F.R.D. 445, 449 (E.D. Pa. 1998) (counsel's unsubstantiated statement that non-prevailing ...

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