ROBERT A. FORTUNATI, Administrator of the Estate of Joseph Fortunati, ROBERT A. FORTUNATI, SUSAN FORTUNATI, and MARK FORTUNATI, Plaintiffs,
ANDREW CAMPAGNE, MARC THOMAS, JEREMY HILL, TODD PROTZMAN, ROB SNETSINGER, KARL GARDNER, HUGH O'DONNELL, MIKE DUDLEY, and WALTER GOODELL, Defendants.
MEMORANDUM AND ORDER DENYING BILL OF COSTS (Doc. 179.)
J. GARVAN MURTHA, District Judge.
The Defendants have submitted a bill of costs (Doc. 179), which the Plaintiffs have opposed. (Doc. 180.) The Defendants have filed a reply in response (Doc. 181), and the Plaintiffs have filed a sur-reply. (Doc. 182.) For the reasons that follow, the Defendants' bill of costs is denied in its entirety.
II. Factual Background
This civil rights action arises from the fatal shooting of Joseph Fortunati by Vermont State Police ("VSP") troopers. (Doc. 1 at 4.) Mr. Fortunati's estate brought excessive force claims against the troopers, as well as state negligence claims. Id. at 9-10, 12-14. Many of the allegations focused on the troopers' confrontation with Mr. Fortunati immediately before shooting him. Id. at 3-6. The allegations also addressed events leading up to this confrontation, including the deployment of a tactical, SWAT-like unit to arrest Mr. Fortunati, who was mentally ill. Id. at 2-3, 5. The estate also alleged the troopers had covered-up wrongful conduct. Id. at 4-5. Several of his family members asserted false arrest claims, based on their detention at the scene of the shooting. Id. at 11.
The troopers initially moved to dismiss the estate's claims, asserting qualified immunity in defense of many of them. (Doc. 19 at 7.) In addition to dismissing some claims on jurisdictional grounds, the Court ruled several claims failed to state meritorious bases for relief. Id. at 10-12, 18-21. At the motion to dismiss stage, however, the Court declined to dismiss any claims on qualified immunity grounds. Id. at 12-14. After a year of discovery, the troopers moved for summary judgment, again asserting qualified immunity. (Doc. 101 at 1.) The Court ruled the troopers were entitled to qualified immunity, as to the estate's excessive force claims, and granted the motion. Id. at 21, 26, 32. In dismissing claims against two supervising troopers, who deployed the tactical unit, the Court described the reasonableness of their decision as a "close call." Id. at 31. The Court noted that the Second Circuit had yet to address the underlying constitutional question-whether deploying a tactical unit could itself violate the Fourth Amendment-and that other circuits had split on this question. Id. at 27-32. The Court also dismissed the estate's state law negligence claims on summary judgment. Id. at 32.
The Court denied the troopers' motion for summary judgment on the family members' false arrest claims. Id. at 34. Following a four-day trial, a jury returned a partial verdict. (Doc. 145.) The jury ruled against Mr. Fortunati's father, but could not reach an unanimous verdict as to his other family members. Id . Based on its review of the trial record, however, the Court ultimately granted judgment as a matter of law against these remaining defendants on qualified immunity grounds. (Doc. 174 at 21.)
The Court entered judgment against the Plaintiffs on March 31, 2011. (Doc. 177.) Approximately a week later, the Defendants filed a bill of costs. (Doc. 179 at 1.) The bill seeks nearly eleven thousand dollars for costs associated with depositions taken during discovery. Id . This amount includes nearly a thousand dollars the Defendants spent to videotape the deposition of the Plaintiffs' expert, as well as over two thousand dollars the Defendants paid a court reporter to attend and transcribe that same deposition. Id. at 7-8. The bill of costs also seeks slightly less than five hundred dollars for the attendance of the Defendants' expert at trial, including his airfare from Virginia to Vermont. Id. at 28-29.
The Plaintiffs filed a notice of appeal on April 28, 2011. (Doc. 183.) As a consequence, the Court withheld consideration of the bill of costs until the appeal was resolved. Doc. 185; see also L.R. D. Vt. 54(b). On December 21, 2012, the Second Circuit affirmed this Court's grant of summary judgment and judgment as a matter of law. (Doc. 186 at 1.)
At the outset, the Court notes the clerk has yet to tax costs. Federal Rule of Civil Procedure 54(d) provides that the clerk should first tax costs, with the court reviewing the clerk's action by motion. In response to the bill of costs here, the Plaintiffs moved this Court to deny costs. (Doc. 180 at 5.) The Defendants subsequently filed a reply memorandum, which did not object to the Court's direct review of the bill. See Doc. 181 at 1-11. The Court will exercise its discretion and decide the costs issue at this time. The Court acknowledges that the proper procedure is for the clerk to first tax costs. However, the parties have fully briefed the costs issue; the Defendants have not objected to its resolution by the Court; and the Court ordinarily reviews any costs awarded by the clerk de novo. See 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 and alterations omitted). Given the procedural posture of this case, deciding the costs issue now best utilizes judicial resources. Indeed, "it makes no difference that this request for costs bypassed the Clerk's Office, because the request would have come before this Court anyway in light of the plaintiff's objections." Howell v. NYC Leadership Acad., Inc., No. 05-cv-8233, 2008 WL 5336891, at *3 (S.D.N.Y. Dec. 20, 2008).
"[T]he decision of whether to award costs... under [Rule 54(d)] is committed to the sound discretion of the district court.'" Cosgrove v. Sears, Roebuck & Co. , 191 F.3d 98, 102 (2d Cir. 1999) (quoting ARP Films, Inc. v. Marvel Entm't Group, Inc. , 952 F.2d 643, 651 (2d Cir. 1991)). Rule 54(d) provides that, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." The Second Circuit has stressed that "an award [of costs] against the losing party is the normal rule... in civil litigation, not an exception." Whitfield , 241 F.3d at 270. Notwithstanding this presumption, however, "costs may be denied because of misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources." Id . The courts have also considered whether the prevailing party acted wrongfully, whether the plaintiff filed suit in good faith, and whether the litigation was "complex and protracted." See AXA Versicherung AG v. New Hampshire Ins. Co. , 769 F.Supp.2d 623, 625-26 (S.D.N.Y. 2011) (citing cases). If awarding costs "would be inequitable or unfair, " a court may decline to do so. Id. at 625 (internal quotations omitted). The losing party bears the burden of showing that costs should not be imposed. Whitfield , 241 F.3d at 270.
28 U.S.C. § 1920 enumerates the expenses "[a] judge or clerk... may tax as costs." A court may only tax a cost under Rule 54(d) if it is listed in section 1920. Whitfield , 241 F.3d at 269. The taxable expenses set forth in that section include, in pertinent part:
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; [and] (4) Fees for exemplification and the costs of making copies of any materials ...