United States District Court, District of Columbia
MEMORANDUM AND ORDER
A. HOWELL, CHIEF JUDGE
the D.C. Circuit's affirmance of the grant of summary
judgment to the remaining defendants in this case, see
McGovern v. Brown, 891 F.3d 402 (D.C. Cir. 2018), George
Washington University (“GWU”), as a prevailing
party, has renewed its request for costs from plaintiff
Raymond McGovern, GWU's Renewed Req. For Costs, ECF No.
64. This request was first filed on April 18, 2017,
see GWU's Verified Bill of Costs and Expenses of
Defendant the George Washington University (“GWU's
April 2017 Bill of Costs”), ECF No. 58, within 21 days
of this Court's grant of summary judgment in GWU's
favor, but stayed pending resolution of the appeal, Minute
Order, dated May 12, 2017. The renewed request for costs is
granted in part and denied in part, for the reasons set out
Rule of Civil Procedure 54(d) provides, in relevant part,
that “costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). As the Supreme Court has noted, "liability for
costs is a normal incident of defeat." Delta Air
Lines, Inc. v. August, 450 U.S. 346, 352 (1981). Federal
law enumerates the costs that may be taxed, see,
e.g., 28 U.S.C. § 1920, with additional guidance
set out in the Local Civil Rules of this Court, see
D.D.C. LCvR 54.1. In evaluating motions to tax costs, the
court must “determine first which, if any, of the costs
requested by the prevailing party are statutorily authorized,
” Sun Ship, Inc. v. Lehman, 655 F.2d 1311,
1318 (D.C. Cir. 1981), with “[a] finding that some or
all of the costs requested are statutorily authorized 
giv[ing] rise to the rule 54(d) presumption favoring their
award, ” id. Next, the court is “obliged
to determine whether the prevailing party engaged in any
misconduct during the lawsuit ‘rendering the litigation
… unnecessarily prolix and expensive, '" and
warranting “a denial or reduction” of the
requested costs. Id. at 1318-19 (quoting Chicago
Sugar Co. v. American Sugar Refining Co., 176 F.2d 1, 11
(7th Cir. 1949)). “Finally, whether or not
the trial judge finds that the victor engaged in misconduct,
he retains broad discretion under rule 54(d) to disallow any
non statutory cost items on the victor's bill which seem
excessive under the circumstances.” Id. at
1319; see also Craig v. District of
Columbia, 197 F.Supp.3d 268, 285-86 (D.D.C. 2016)
(“the district court has discretion in allowing,
disallowing, or apportioning costs” (citing Moore
v. Nat'l Ass'n of Secs. Dealers, Inc., 762 F.2d
1093, 1107 (D.C. Cir. 1985)). Given the presumption favoring
the award of statutorily authorized costs, "a court may
neither deny nor reduce a prevailing party's request for
costs without articulating some good reason for doing
so." Siegel v. Mazda Motor Corp., 878 F.2d 435,
439 (D.C. Cir. 1989) (quoting Baez v. United States
Department of Justice, 684 F.2d 999, 1004 (D.C. Cir.
case, the plaintiff challenges the Bill of Costs on two
grounds. First, while both parties agree that GWU failed to
use the “court-approved form, ” as required by
LCvR 54.1(a), when initially filing its Bill of Costs in
April 2017, see GWU's April 2017 Bill of Costs
at 1, ECF No. 58, the parties disagree as to the legal effect
of this error. In the plaintiff's view, GWU's failure
to use the correct form renders that filing a nullity,
Pl.'s Opp'n & Objs. to Def.'s “Renewed
Request For Costs” (“Pl.'s Opp'n”)
at 3, ECF No. 65, with the further consequence that GWU's
filing of an “Amended Bill of Costs, ” which uses
the correct form, see GWU's Renewed Request for
Costs, Ex. 1 (“Amended Bill of Costs”), ECF No.
64-1, is “untimely, ” Pl.'s Opp'n at 4.
The Court disagrees.
initial failure to use the correct form, while unfortunate,
is an error that can be cured and therefore does not render
the amended Bill of Costs on the correct form untimely.
Accord In re Ellipso, Inc., No. 09-00148, 2010
Bankr. LEXIS 635, at *2 (Bankr. D.D.C. Mar. 5, 2010) (finding
that failure to “verify the bill of costs as required
by 28 U.S.C. § 1924…can be cured, ” and
therefore granting leave to file an amended bill of
costs). Amendments to Bills of Costs occur
regularly and, in fact, such amendments are appropriate to
address legitimate objections raised by opposing parties,
without forcing judicial intervention. See, e.g., Flythe
v. District of Columbia, 317 F.R.D. 596 (D.D.C. 2016)
(approving amended Bill of Costs); Butera v. District of
Columbia, 83 F.Supp.2d 25, 40 (D.D.C. 1999) (denying
Bill of Costs without prejudice pending resubmission of an
amended Bill of Costs that does not include certain costs).
Indeed, in addition to using the correct form, GWU's
Amended Bill of Costs also “reduces the amount
requested in accordance with various objections previously
lodged by the Plaintiff, ” GWU's Reply to Pl.'s
Opp'n & Objs. To GWU's Renewed Req. for Costs
(“GWU's Reply”) at 2, ECF No. 66, by reducing
“the amount requested for Christopher Brown's
deposition, and remov[ing] requests for CD/Flash Drive
reproduction and in-house copying costs.” GWU Renewed
Req. for Costs, at 1.
plaintiff cites as support for its position two cases that
are inapposite. See Pl.'s Opp'n at 2. For
example, in Mason v. Belieu, 543 F.2d 215, 222 (D.C.
Cir. 1976), the D.C. Circuit reversed the award of costs to a
party, which had failed to file any Bill of Costs at all, in
violation of the statutory requirement and causing prejudice
to the counter party. In the instant case, by contrast, use
of the court-approved form is neither mandated by statute nor
by federal rule, but rather by LCvR 54.1(a) alone. This
defect of GWU's otherwise timely filing of a Bill of
Costs has been cured to comport with LCvR 54.1(a). In
addition, the plaintiff cites Laffey v. Nw.
Airlines, Inc., 587 F.2d 1223, 1224 (D.C. Cir.
1978), where the Bill of Costs was denied due to an untimely
filing without good cause, and stresses that the time limit
requirements for the award of costs under the Federal Rules
of Appellate Procedure must be “scrupulously observed,
” Pl.'s Opp'n at 2 (quoting Laffey,
587 F.2d at 1224). Laffey would only be relevant if
the plaintiff's novel position were accepted that use of
the wrong form rendered GWU's original timely filing a
nullity. This position has been rejected in favor of the more
sensible approach on these facts to regard the timeliness
requirement as satisfied by the GWU's initial filing, and
to regard the error in use of form as properly corrected in
the amended filing.
plaintiff further challenges a total of $1, 001.54 of the $5,
987.64 in costs. Pl.'s Opp'n at 7-11. The plaintiff
objects to $152.30 in PACER charges, described by GWU as
“Fees of the Court, ” even though such charges
are “disallowed online research charges.”
Pl.'s Opp'n at 7-8; see also Osseiran v.
Int'l Fin. Corp., 68 F.Supp.3d 152, 160 (D.D.C.
2014) (removing non-statutory PACER charges from taxable
amount on Bill of Costs). GWU offers no specific defense to
this objection, which is therefore sustained. The plaintiff
also objects to $836.59 for reimbursement of the cost of
expedited processing, delivery, and sales tax for deposition
transcripts since such transcripts may only be reimbursed
“at the reporter's standard rate.” Pl.'s
Opp'n at 8 (quoting LCvR 54.1(d)(6)). The D.C. Circuit
has explained that the cost of expedited deposition
transcripts is taxable only when expedited processing was
“necessarily obtained  for use in the case.”
Sun Ship, Inc., 655 F.2d at 1318 (quoting 28 U.S.C.
§ 1920(2)). GWU has provided no explanation for why
expedited processing was necessary or otherwise offered any
defense to this objection, which is therefore sustained.
Finally, the plaintiff correctly objects to reimbursement for
a “Search and Retrieval Fee” and for the cost of
postage, which GWU claims as “copying costs.”
Pl.'s Opp'n at 11; see also Zdunek v. Washington
Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.D.C.
1983) (holding postage not a taxable cost under 28 U.S.C.
§ 1920); Moss v. ITT Continental Baking Co., 83
F.R.D. 624, 627 (E.D. Va. 1979) (same); Wahl v. Carrier
Mfg. Co., Inc., 511 F.2d 209, 217 (7th Cir.
1975) (same). Again, GWU offers no specific response to this
objection, which is therefore sustained, thereby reducing
GWU's request for costs by $12.65.
GWU's renewed request for costs totaling $5, 987.64 is
reduced by $1, 001.54, and the final taxable amount is $4,
986.10. Accordingly, it is hereby
that defendant's Renewed Request for Costs, ECF No. 64,
is GRANTED IN PART and DENIED IN PART; and it is
ORDERED that the Clerk of the Court is directed to
tax Plaintiffs Bill of Costs in the amount of $4, 986.10.