Cangemi et al v. The United States of America et al

Filing 237

MEMORANDUM AND ORDER granting in part and denying in part 230 Motion to Set Aside 230 MOTION to Set Aside Costs Taxed ; adopting in part Report and Recommendations as to 233 Report and Recommendations. For the stated reasons , Plaintiffs' objection as to the cost associated with the process server fee for Pfeifer is SUSTAINED, the remainder of Plaintiffs' objections are OVERRULED, the R&R is ADOPTED as modified in accordance with this Court's rulings herein, and Plaintiffs' Motion to Set Aside Costs Taxes is GRANTED IN PART AND DENIED IN PART. So Ordered by Judge Joanna Seybert on 3/28/2023. (CV)

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 1 of 19 PageID #: 12036

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
THOMAS CANGEMI and JODI CANGEMI,
MARIANN COLEMAN, FRANCIS J.
DEVITO and LYNN R. DEVITO, LEON
KIRCIK and ELIZABTH KIRCIK, CAROL
C. LANG and TERRY S. BIENSTOCK,
DANIEL LIVINGSTON and VICTORIA
LIVINGSTON, ROBIN RACANELLI,
JAMES E. RITTERHOFF and GALE H.
RITTERHOFF, ELSIE V. THOMPSON
TRUST, JOSH TOMITZ, and THELMA
WEINBERG, TRUSTEE OF THE THELMA
WEINBERG REVOCABLE LIVING TRUST,

MEMORANDUM & ORDER
12-CV-3989 (JS)(SIL)

Plaintiffs,
-againstTHE TOWN OF EAST HAMPTON,
Defendant.
--------------------------------X
APPEARANCES
For Plaintiffs:
Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
Sinnreich Kosakoff & Messina LLP
267 Carleton Avenue, Suite 301
Central Islip, New York 11722
Lisa Angela Perillo, Esq.
Messina Perillo & Hill LLP
285 West Main Street, Suite 203
Sayville, New York 11782
For Defendant:

Anthony F. Cardoso, Esq.
Steven C. Stern, Esq.
Chelsea Ella Weisbord, Esq.
Kevin Levine, Esq.
Mark A. Radi, Esq.
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, New York 11514

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 2 of 19 PageID #: 12037

SEYBERT, District Judge:
Thomas Cangemi, Jodi Cangemi, Mariann Coleman, Francis
J. Devito, Lynn R. Devito, Leon Kircik, Elizabeth Kircik, Carol C.
Lang, Terry S. Bienstock, Daniel Livingston, Victoria Livingston,
Robin Racanelli, James E. Ritterhoff, Gale H. Ritterhoff, Elsie V.
Thompson Trust, Josh Tomitz, and Thelma Weinberg, Trustee of the
Thelma

Weinberg

Revocable

Living

Trust

(collectively

the

“Plaintiffs”) move to vacate and annul or otherwise reduce the
Clerk of the Court’s March 4, 2022 Taxation of Costs in the amount
of

$60,201.19

entered

in

favor

of

(“Defendant”) (hereafter the “Motion”).

Town

of

East

Hampton

(See ECF No. 230.)

By

Report & Recommendation dated December 12, 2022, Magistrate Judge
Steven I. Locke recommended that the Court deny Plaintiffs’ Motion
in its entirety.

(Report & Recommendation (“R&R”), ECF No. 233.)

Plaintiffs timely filed objections (Obj., ECF No. 235), to which
Defendant replied.

(Resp., ECF No. 236.)

For the following

reasons, Plaintiffs’ objection as to the cost associated with the
process server fee for Robert Pfeifer (“Pfeifer”) is SUSTAINED,
the remainder of Plaintiffs’ objections are OVERRULED, the R&R is
ADOPTED as modified in accordance with this Court’s rulings herein,
and Plaintiffs’ Motion is GRANTED IN PART AND DENIED IN PART.
BACKGROUND
The

Court

adopts

the

“Relevant

Factual

Background”

stated by Magistrate Judge Locke in his R&R, finding that the R&R
2

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 3 of 19 PageID #: 12038

accurately summarized the relevant facts pertinent to this case,
and which are incorporated herein. 1

(See R&R at 3-7.)

Similarly,

the Court adopts the Magistrate Judge’s recitation of the “Relevant
Procedural History”, which is also incorporated herein.
at

4-8.)

For

the

reader’s

convenience,

however,

(See id.
the

Court

reiterates the following.
I.

Facts
After

Plaintiffs

secured

a

jury

verdict

against

Defendant on claims of private nuisance and trespass, Defendant
moved pursuant to Federal Rule of Civil Procedure (“Rule”) 50 for
judgment as a matter of law (the “JML Motion”).

(Obj. at 6.)

The

Court granted the JML Motion, vacated the jury’s compensatory award
to the Plaintiffs, entered judgment in favor of the Defendant and
granted the Defendant costs pursuant to Rule 54.

(Id.)

The

judgment entered in favor of Defendant was affirmed on appeal.
(Id.)

On November 12, 2021, Defendant filed its bill of costs

pursuant to 28 U.S.C. §§ 1920, 1923, Rule 54(d), and Local Rule
54.1.
of

(Bill-of-Costs, ECF No. 226 at 1.)

$60,201.19,

attaching

a

Defendant sought a total

supporting

declaration

and

corresponding invoices broken down by date, amount and description
of each charge.

(See id.)

On November 26, 2021, Plaintiffs

The Court adopts the relevant factual and procedural history
articulated in the R&R over Plaintiffs’ objection, which the Court
finds to be baseless.
1

3

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 4 of 19 PageID #: 12039

objected to Defendant’s Bill of Costs.
No. 227.)

(Bill-of-Costs Obj., ECF

However, on March 4, 2022, the Clerk of the Court

entered Costs Taxed in the amount of $60,201.19.
II. Procedural History
On March 28, 2022, Plaintiffs filed the instant Motion
pursuant to Rule 54(d)(1) seeking to vacate, annul or otherwise
reduce the Clerk of the Court’s taxation of costs.
No. 230.)

(Motion, ECF

Defendant filed its opposition on April 11, 2022.

(Opp’n, ECF No. 231.) Plaintiffs then filed their reply in support
of

their

Motion

on

April

19,

2022.

(Reply,

ECF

No.

232.)

Afterwards, this Court referred Plaintiffs’ Motion to Magistrate
Judge Locke for a report and recommendation on whether the Motion
should be granted.
Motion.)
2022,

(See Oct. 31, 2022 Elec. Order Referring

and

Magistrate Judge Locke issued his R&R on December 12,
Plaintiffs

timely

filed

objections,

to

which

the

Defendant responded.
III. Magistrate Judge Locke’s R&R
In the R&R, after summarizing the material facts and
procedural history of the action, Magistrate Judge Locke began by
identifying the appropriate statutes and rules which govern a
prevailing party’s entitlement to recovery of costs in a civil
action. (See R&R at 8-9.) Magistrate Judge Locke next articulated
the

relevant

associated

case

with

law

applicable

deposition

to

the

transcripts
4

recovery

and

of

costs

expedited

trial

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 5 of 19 PageID #: 12040

transcripts.

(Id. at 9-10.)

Afterwards, Magistrate Judge Locke

summarized relevant law outlining various situations in which a
Court may exercise its broad discretion in this area to not award
a prevailing party’s costs.

(Id. at 10.)

Such factors that may

weigh in favor of denying costs pursuant to Rule 54, as highlighted
in the R&R, include the indigency of the losing party, the losing
party’s good faith in bringing the action, and the level of
complexity associated with the litigation.

(Id.)

Ultimately, Magistrate Judge Locke concluded that the
Court should decline to exercise its discretion to reduce costs
taxed and that Plaintiffs’ Motion should be denied.
Judge

Locke

reasoned

that

Defendant

had

met

(Id. at 13.)

its

burden

in

“adequately documenting and itemizing the costs requested, which
were appropriately sought.”

(Id. at 11.)

Moreover, Judge Locke

acknowledged that while this litigation was complex, and that
Plaintiffs did bring the action in good faith, “other factors that
weigh[ed]

against

equitability

in

imposing

costs,

such

as

financial hardship to the losing party” were inapplicable here.
(Id.)
Magistrate Judge Locke next determined that while the
costs for expedited trial transcripts were “high,” that the trial
transcript

was

“necessarily

obtained.”

(Id.)

Judge

Locke

highlighted the fact that the trial in this case was “a complex,
four-week trial with eighteen witnesses whose testimony often
5

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 6 of 19 PageID #: 12041

spanned multiple days or was conducted piecemeal.”

(Id.)

Judge

Locke noted that both parties “consulted the transcript during the
trial in identifying exhibits to provide information during jury
deliberations as well as [using it] in post-trial briefing.” (Id.)
Likewise, Judge Locke found that the costs associated with Section
50-h

hearings

and

deposition

transcripts

(collectively

the

“Pretrial Transcripts”) should be awarded since “[e]ven if all
transcripts may not have been used at trial or certain witnesses
did

not

testify

at

trial . . . the

testimony

was

reasonably

necessary to the litigation at the time it was taken.”
12.)

(Id. at

Next, Judge Locke found that Defendant was entitled to the

costs of title searches under Local Rule 54.1 as “it was reasonable
for the [Defendant] to ascertain the ownership of the properties
and

chain

of

title”

given

that

Plaintiffs

alleged

that

the

Defendant “created a nuisance and trespassed on their properties.”
(Id.) Finally, pursuant to Local Rule 54.1, Judge Locke determined
that “witness expenses, docketing expenses and process server
fees” were “all recoverable . . . and the [Defendant] met its
burden

of

adequately

requested.”

documenting

and

itemizing

the

costs

“Legal

Standard”

stated

(Id.)
DISCUSSION

The

Court

adopts

the

by

Magistrate Judge Locke in his R&R, finding that the R&R accurately
summarized the relevant law pertaining to the taxation of costs,
6

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 7 of 19 PageID #: 12042

and which is incorporated herein. 2
legal

principles

applicable

The Court adds the following

to

its

analysis

of

Plaintiffs’

objections to the R&R.
I.

Legal Standard
A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
The

district

however,

judge

where

a

must
party

evaluate
“makes

proper
only

objections

conclusory

de

or

novo;

general

objections, or simply reiterates [the] original arguments, the
Court reviews the Report and Recommendation only for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)
(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1
(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3).
not

review

the

findings

objection has been made.

and

conclusions

to

The Court need

which

no

proper

Thomas v. Arn, 474 U.S. 140, 150 (1985).

Similarly, the Court “will not consider [] arguments . . . [that]
were

not

properly

presented

to

the

magistrate

judge

in

the

While it is unclear whether Plaintiff objects to the legal
standard articulated by Judge Locke given the vague, allencompassing objection included in Plaintiffs’ papers that the
Court has already rejected, the Court notes that Plaintiffs concede
that Judge Locke identified the “caselaw that would provide for
costs to be vacated or reduced as inequitable.”
Plaintiffs’
objections pertain to how Magistrate Judge Locke applied that law.
2

7

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 8 of 19 PageID #: 12043

underlying motion papers.”

Brand v. AIF Ins. Co., No. 15-CV-6286,

2018 WL 4344972, at *1 (E.D.N.Y. Sept. 11, 2018).
II.

Analysis
Turning to Plaintiffs’ objections, with the exception of

the cost associated with the process server fee for Pfeifer, the
Court finds them to be general and “mere reiterations of the
arguments in [the] original papers that were fully considered, and
rejected, by” the Magistrate Judge.

Out of the Blue Wholesale,

LLC v. Pac. Am. Fish Co., Inc., No. 19-CV-0254, 2020 WL 7488072,
at *2 (E.D.N.Y. Dec. 21, 2020) (quoting Rizzi v. Hilton Domestic
Operating

Co.,

Inc.,

No.

19-CV-1127,

2020

WL

(E.D.N.Y. Oct. 23, 2020) (collecting cases)).
the

extent

Plaintiff

raises

arguments

not

6243713,

at

*2

Additionally, to
previously

briefed

regarding the Taxation of Costs, the Court declines to review them.
See Brand, 2018 WL 4344972, at *1.

Thus, with the exception of

the cost associated with process server fee for Pfeifer, the Court
reviews Magistrate Judge Locke’s analysis for clear error and finds
none.
Nonetheless, out of an abundance of caution, considering
Plaintiffs’ objections, the Court adopts the R&R under de novo
review, as discussed below.
A. Defendant’s Bill of Costs
First, Plaintiffs object to the R&R on the basis that,
while correctly identifying the caselaw that would provide for
8

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 9 of 19 PageID #: 12044

costs to be vacated or reduced, Magistrate Judge Locke failed to
correctly apply the law and “fail[ed] to provide any analysis of
the issue.”

(Obj. at 8.)

Plaintiffs continue that the R&R “sets

out an overly simplistic rule that is plainly contrary to law.”
(Id.) Plaintiffs contend that the Magistrate Judge’s conclusion,
that

Defendant

prevailed”

was

despite

entitled
this

to

being

costs
“a

because
complex

litigation,” was plain error. (Id. at 8-9.)

it

“ultimately

and

protracted

Plaintiffs aver that

“[i]f a prevailing party is entitled to costs because it prevailed,
then there is no basis upon which anyone could ever seek to reduce
costs.”

(Id. at 9.)

This Court does not read the R&R so narrowly.

As noted by Magistrate Judge Locke, the complexity and
protracted nature of the litigation is only one factor to be
considered in determining whether to exercise discretion to vacate
or otherwise reduce costs. Other factors to be considered include,
the indigency of the losing party, the good faith of the party
bringing the action, and whether the losing party can demonstrate
misconduct on the part of the prevailing party.

See Thompson v.

Clark, 357 F. Supp. 3d 224, 226 (E.D.N.Y. 2019) (noting that “the
awarding of costs is discretionary with the trial judge” and,
exercising that discretion, finding that, costs should not be
awarded “[i]n view of plaintiff’s good faith in bringing this
action to enforce his constitutional rights, the close, difficult,
and protracted nature of the litigation, and plaintiff’s reduced
9

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 10 of 19 PageID #: 12045

financial resources”);

see also AXA Versicherung AG v. N.H. Ins.

Co., 769 F. Supp. 2d 623, 625-26 (S.D.N.Y. 2011) (finding that
where

defendant

prevailed

on

appeal

based

on

a

statute

of

limitations defense it would nonetheless be inequitable to award
costs because defendant was originally found to have defrauded
plaintiff “to such a deplorable extent” that its conduct “merited
an award of punitive damages” (citing USM Corp. v. SPS Tech, Inc.,
102 F.R.D. 167, 172 (N.D. Ill. 1984))). Moreover, the losing party
bears “the burden to show that costs should not be imposed.”
Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001), abrogated
on other grounds by Bruce v. Samuels, 577 U.S. 82 (2016).
Here, Judge Locke concluded that Defendant had met its
burden

in

requested.

adequately

documenting

and

itemizing

the

costs

Judge Locke then determined that while “[t]his was a

complex and protracted litigation . . . brought . . . in good
faith” there were “other factors that weigh[ed] against” a finding
that awarding costs would be inequitable.
agrees.

(R&R at 11.)

This Court

For example, Plaintiffs in this case are not financially

indigent and there are multiple named Plaintiffs such that imposing
costs would not be a financial hardship on any single one of them.
Compare Vidal v. Lampon, No. 16-CV-5006, 2019 WL 10270262, at *1
(S.D.N.Y.

Aug

15,

2019)

(vacating

costs

where

plaintiff

was

“indigent as he receives minimal prison wages and limited outside
income, and imposing [d]efendants’ costs on him would create
10

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 11 of 19 PageID #: 12046

significant financial hardship”); Wisniewski v. Claflin, No. 05CV-4956,

2008

WL

11412045,

at

*1

(E.D.N.Y.

Dec.

10,

2008)

(exercising discretion to vacate costs where “plaintiff [was]
financially destitute [because he had] lost his job and [was]
collecting

unemployment

benefits

of

$405

per

week”).

Additionally, there are no allegations of misconduct levied by
Plaintiffs against Defendant such that an award of Defendant’s
costs would be unfair or inequitable.

Consequently, the Court

finds, like Magistrate Judge Locke, that other factors weighing
against equitability council against the Court exercising its
discretion to deny Defendant’s costs.
B. The Cost of Daily Trial Transcripts
Second, Plaintiffs argue that Defendant “seeks excessive
costs for daily trial transcripts without any demonstration of
necessity.”

(Obj. at 12-14.)

Plaintiffs aver that the daily

transcripts at issue in this case “were a mere convenience for
counsel and had nothing ultimately to do with the Court’s finding
in Defendant’s favor.”

(Id. at 15.)

The Court agrees with Plaintiff that “[t]he relevant
inquiry is whether the transcripts of [the] trial testimony were
necessary for defendant’s use in the case.”
Union

Free

Sch.

Dist.,

(citation omitted).

238

F.R.D.

126,

Bucalo v. E. Hampton
129

(E.D.N.Y.

2009)

However, while “daily trial transcripts are

not customary, costs for daily transcripts generally are awarded
11

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in long and complicated cases.”

Bauta v. Greyhound Lines, Inc.,

No. 14-CV-3725, 2019 WL 8060181, at *4 (E.D.N.Y. June 17, 2019).
As such, the Court agrees with Judge Locke’s assessment that
Defendant’s use of the transcripts in this case went beyond mere
convenience.

For example, Defendant notes that, not only was this

a complex case, but that the case “involve[ed] eleven sets of
Plaintiff homeowners; six years of litigation prior to trial; [and]
a 153-page pre-trial order listing over 1,000 exhibits.”
at 7.)

(Resp.

Compare Syracuse Broad. Corp. v. Newhouse, 319 F.2d 683,

690 (2d Cir. 1963) (holding that district court’s award of costs
for daily transcript was not an abuse of discretion where “daily
transcript was necessary because of the complicated and blurred
issues involved and the mass of evidence that was introduced”).
Moreover, as noted by Defendant, at trial, “[e]ighteen witnesses
testified over [] four weeks, many of whose testimony straddled
multiple days, and some testified piecemeal.”

(Resp. at 7.)

Compare Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 285
F.R.D.

225

(E.D.N.Y.

2012)

(finding

costs

of

daily

trial

transcripts necessary in case where “trial went on for four weeks
and involved testimony from sixteen witnesses”).

Additionally,

Defendant highlights that numerous issues arose during the trial
that required the parties and the Court to use the transcripts to
resolve them.

(Id. at 8.)

Defendant states that the daily

transcripts were also necessarily obtained in that they aided the
12

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lawyers during summation, allowed the Court to set an expedited
briefing schedule on post-trial motions, and were part of the
record on appeal.

(Id.)

Again, in instances such as these, courts

in this Circuit have found that daily transcripts are necessary
and thus taxable as costs.

See, e.g. Perks v. Town of Huntington,

331 F. App’x 769, 770 (2d Cir. 2009) (affirming district court’s
award

of

costs

for

daily

transcripts

where

“[t]he

record

indicate[d] that both the district court and defendants relied
extensively on daily transcripts to determine which documents had
been submitted into evidence, to recall prior testimony . . . and
to prepare the jury charge”); Colon v. Fashion Inst. of Tech.
(State Univ. of N.Y.), No. 12-CV-7405, 2014 WL 1979875, at *2
(S.D.N.Y. May 15, 2014) (“[w]hen trial transcripts are used in
post-trial motions, the Court may find that the transcripts were
‘necessarily obtained,’ and thus taxable”) (quoting Settlement
Funding, LLC v. AXA Equitable Life Ins. Co., No. 09-CV-8685, 2011
WL 2848644, at *2 (S.D.N.Y. Jul. 18, 2011)).
In view of the foregoing, the Court finds that the costs
of the daily transcripts should be included in Defendant’s Bill of
Costs.
C. Defendant’s Other Costs
Third,

Plaintiffs

argue

that

Magistrate

Judge

Locke

should not have awarded Defendant other costs including those
for: (1)

the

Pretrial

Transcripts;
13

(2) title

searches

of

the

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 14 of 19 PageID #: 12049

Plaintiffs’

properties;

(3) witness

fees

for

David

Weaver

(“Weaver”); and (4) process server fees for Weaver and Pfeifer.
(See Obj. at 15-20.)

The Court addresses each of Plaintiffs’

objections in turn.
i. Pretrial Transcripts
Plaintiff argues that Defendants failed to specify which
of the pretrial transcripts were used by Defendant or for what
purpose.

(Id. at 16.)

Specifically, Plaintiffs argue that “the

[Section] 50-h transcripts [] were not meaningfully used, and in
most cases, were not used at all.”

(Id.)

Plaintiffs advance a

similar argument regarding the deposition transcripts.
17.)

(Id. at

For example, Plaintiffs highlight that the Section 50-h

transcripts

“of

[P]laintiffs

Carol

Lang,

Jodi

Cangemi,

John

Tomitz, Lynn DeVito, Elizabeth Kircik, Victoria Livingston, Ernest
Thompson, and Gale Ritterhoff were not used at all and were not
necessary expenses since none of these individuals testified at
trial.”

(Id. at 16.)

Similarly, Plaintiff notes that the costs

for the deposition transcripts of Ernest Thompson, John Tomitz,
Anthony Ciorra, and Diane Rahoy “should not be taxed because they
were not used, and because these individuals did not testify at
trial.”

(Id. at 17-18.)

Defendant counters that all of the

Pretrial Transcripts “were used extensively in preparation for
trial, as well as during cross-examinations.”

(Resp. at 10.)

Moreover, Defendant notes that all of the transcripts, including
14

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those of the individuals identified by Plaintiff, “were used in
connection with the extensive briefing of the summary judgment
motions.”

(Id.)

Defendant expounds that it “heavily relied on

all the Plaintiffs’ [Pretrial] [T]ranscripts” as evidenced by its
Rule 56.1 Statement.

(Id. at 11.)

Moreover, Defendant contends

that the Rule 56.1 Statement “was [also] a valuable reference at
trial about each of the properties, with specific citations to
each of the Plaintiffs’ [Pretrial] [T]ranscripts.”

(Id.)

“Under 28 U.S.C. § 1920(2), the Court has discretion to
award costs for transcripts of pretrial hearings.”

Hadid v. City

of N.Y., No. 15-CV-0019, 2018 WL 3999018, at *2 (E.D.N.Y. July 31,
2018).

Based upon Defendant’s extensive use of the pretrial

transcripts to prepare for trial and cross examination and based
upon their use in connection with the summary judgment briefing,
the Court agrees with Judge Locke that Defendant is entitled to
the costs of the Pretrial Transcripts.
defendant

costs

include[d]

the

of

pretrial

transcript

Accord id. (awarding

transcript

. . . in

because

their

motion

“[d]efendants
for

summary

judgment, and it is reasonable to infer that the transcript was
used in deciding the summary judgment motion”).
ii. Process Server Fee and Witness Fee for Weaver
In their objection to Judge Locke’s R&R, Plaintiffs
argue, for the first time, that Defendant’s “request for a witness
fee for David Weaver should be denied.”
15

(Obj. at 18.)

Plaintiff

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 16 of 19 PageID #: 12051

makes a similar objection as to Defendant’s “request for process
server fee[s] for service of a ‘trial subpoena’ upon David Weaver.”
(Id. at 19.)
Judge

in

Since this issue was not presented to the Magistrate

the

first

instance,

this

Plaintiffs’ arguments regarding Weaver.

Court

will

not

consider

See Zhao v. State Univ.

of N.Y., No. 04-CV-210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15,
2011), aff’d sub nom. Jin Zhao v. Warnock, 551 F. App’x 18 (2d
Cir. 2014) (“In this district and circuit, it is established law
that a district judge will not consider new arguments raised in
objections to a magistrate judge’s report and recommendation that
could have been raised before the magistrate but were not.”).
iii. Process Server Fee for Pfeifer
Regarding Pfeifer, Plaintiff argues that Defendant’s
process server fee should be denied or reduced because the invoice
“indicates a fee for ‘rush service’” and exceeds the fee that the
Marshals’ office charges under federal statute.

(Obj. at 19.)

Defendant counters that if the fee were impermissible “[t]he Clerk
of the Court would have reduced this fee.”

(Resp. at 13.)

The Court agrees with Judge Locke’s conclusion that
process server fees are a valid taxable cost.
54.1(c)(10).

See Local Rule

However, in the absence of any discussion why rush

service was necessary or warranted, the Court also agrees with
Plaintiffs that the cost associated with the process server fee
should be reduced.

See Barrera v. Brooklyn Music, Ltd., 346 F.
16

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 17 of 19 PageID #: 12052

Supp.

2d

400,

405

(E.D.N.Y.

2004)

(“[D]istrict

courts

have

discretion to grant appropriate process server fees to the extent
that they do not exceed the costs that would have been incurred
had the Marshals’ office effected service”); Olaf Soot Design, LLC
v.

Daktronics,

Inc.,

No.

15-CV-5024,

2022

WL

2530358,

at

*7

(S.D.N.Y. March 31, 2022) report & recommendation adopted, 2022 WL
3448693 (S.D.N.Y. Aug. 17, 2022).

Presently, the Marshals’ office

charges “$65 per person per hour for each item served.”
§ 0.114(a)(3).

28 C.F.R.

Accordingly, the process server fee for service of

a trial subpoena on Pfeifer should be reduced to $130.00.
iv. Title Searches
Finally, Plaintiffs argue that Defendant’s request for
costs associated with title searches of the Plaintiffs’ properties
should be denied as inequitable.

Plaintiffs content that “[t]he

title search was not used at trial or, upon information and belief,
during any of the prior proceedings.” (Obj. at 18.) Additionally,
Plaintiffs

argue

that,

since

Defendant

“is

the

municipal

government that has jurisdiction over all of the Plaintiffs’
properties . . . [t]he Defendant was already in possession of
extensive, official information concerning the properties.”

(Id.)

Defendant counters that “[t]his case involved Plaintiffs’ claims
that they owned the properties at issue, and that Defendant caused
a nuisance and trespassed on their properties because [] erosion
diminished their beach.”

(Resp. at 11.)
17

Defendant avers that

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 18 of 19 PageID #: 12053

“[i]t was important for Defendant to ascertain the ownership of
the properties, chain of title, and understand their metes and
bounds over time.”

(Id. at 11-12.)

Pursuant to Local Rule 54.1(c)(9) “[a] party is entitled
to tax necessary disbursements for the expenses of searches made
by title insurance, abstract or searching companies.”

In view of

the foregoing, the Court finds no error in Magistrate Judge Locke’s
recommendation that Defendant be allowed to recover these costs.
See also Close-Up Intern., Inc. v. Berov, No. 02-CV-2363, 2007 WL
4053682, at *11 (E.D.N.Y. Nov. 13, 2007) (“[C]osts for title
searches

are

specifically

permitted

54.1(c)(9).”).

18

under

Local

Rule

Case 2:12-cv-03989-JS-SIL Document 237 Filed 03/29/23 Page 19 of 19 PageID #: 12054

CONCLUSION
For the stated reasons, Plaintiffs’ objection as to the
cost

associated

with

the

process

server

fee

for

Pfeifer

is

SUSTAINED, the remainder of Plaintiffs’ objections are OVERRULED,
the R&R is ADOPTED as modified in accordance with this Court’s
rulings herein, and Plaintiffs’ Motion to Set Aside Costs Taxes is
GRANTED IN PART AND DENIED IN PART.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: March 28, 2023
Central Islip, New York

19