Oliver v. New York State Police

Filing 500

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff's motion for a new trial (Dkt. No. 462 ) is DENIED. It is further ORDERED that the motion to strike (Dkt. No. 483 ) by Defendants NYSP, Kelly, and Olson is DENIED. It is furthe r ORDERED that the motion for costs (Dkt. No. 478 ) by Defendants NYSP, Kelly, and Olson is GRANTED in part to the extent that Defendants are awarded $8,783.73 in costs, but is otherwise DENIED. It is further ORDERED that Plaintiff's cross-motion for a stay of Defendants' motion for costs pending appeal (Dkt. No. 479 ) is DENIED. Signed by Chief Judge Brenda K. Sannes on 1/18/2023. (nmk)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JEAN OLIVER,
Plaintiff,

1:15-cv-00444 (BKS/DJS)

v.
NEW YORK STATE POLICE; WAYNE OLSON, in his
individual capacity; MARTIN MCKEE, in his individual
capacity; PAUL KELLY, in his individual capacity,
Defendants.
Appearances:
Plaintiff pro se:
Jean Oliver
Elma, NY 14059
For Defendants New York State Police,
Olson, and Kelly:
Daniel J. Moore
Joshua D. Steele
Daniel J. Palermo
Harris Beach PLLC
99 Garnsey Road
Pittsford, NY 14534
For Defendant McKee:
Lisa F. Joslin
Gleason, Dunn, Walsh & O’Shea
40 Beaver Street
Albany, NY 12207
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff pro se Jean Oliver brought this employment discrimination and retaliation action

against her former employer, the New York State Police (“NYSP”), and three of her former

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supervisors, Paul Kelly, Wayne Olson, and Martin McKee. Following a nine-day trial, at which
Plaintiff was assisted by stand-by counsel, 1 the jury returned a verdict finding that Plaintiff had
failed to prove her claims by a preponderance of the evidence. (Dkt. No. 459). The Court entered
judgment in accordance with that verdict. (Dkt. No. 460). Presently before the Court is: (1)
Plaintiff’s motion for a new trial under Federal Rule of Civil Procedure 59(a), 2 (Dkt. No. 462),
which is fully briefed, (Dkt. Nos. 471, 472 (Defendants’ oppositions); Dkt. Nos. 473, 474, 475,
476, 477 (Plaintiff’s reply affirmation and exhibits)); (2) Defendants’ motion to strike Plaintiff’s
reply affirmation and exhibits, (Dkt. No. 483), and Plaintiff’s opposition, (Dkt. Nos. 484 to 495);
and (3) Defendants’ motion for a bill of costs, (Dkt. No. 478), and Plaintiff’s opposition and
cross-motion for a stay pending appeal, (Dkt. No. 479). For the following reasons, the Court
denies Plaintiff’s motion for a new trial and Defendants’ motion to strike and grants Defendants’
motion for a bill of costs.
II.

RULE 59 MOTION
A.

Standard of Review

Under Rule 59(a), a court may “grant a new trial . . . for any reason for which a new trial
has heretofore been granted in an action at law in federal court,” Fed. R. Civ. P. 59(a)(1)(A),
“including if the verdict is against the weight of the evidence.” Raedle v. Credit Agricole
Indosuez, 670 F.3d 411, 417 (2d Cir. 2012). The Second Circuit has explained that “a decision is

The Court appointed, as stand by counsel for Plaintiff, a partner from the labor and employment practice of a
prominent Syracuse law firm, to assist Plaintiff with the orderly presentation of her case at trial. (Dkt. No. 440).

1

Plaintiff does not specify the legal basis on which she seeks relief. However, as her post-trial motion objects to the
Court’s “mishandling of the jury trial,” (Dkt. No. 461, at 1), and Plaintiff made no motion at trial for judgment as a
matter of law under Rule 50(a), a prerequisite to a post-trial motion under Rule 50(b), see Holmes v. United States, 85
F.3d 956, 962 (2d Cir. 1996) (“A Rule 50(b) motion can be made after the jury verdict, but only if a Rule 50(a) motion
was made prior to the close of the evidence.”), the Court, like Defendants, has construed Plaintiff’s motion as one for
a new trial under Rule 59(a), (see Dkt. No. 471-1, at 5 (noting in memorandum of law that “Plaintiff has not offered
a legal basis for the relief she requests, but she appears to be seeking relief pursuant to FRCP Rule 59”)).
2

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against the weight of the evidence . . . if and only if the verdict is [1] seriously erroneous or [2] a
miscarriage of justice.” Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002). On
a Rule 59 motion for a new trial, the court “is free to weigh the evidence . . . and need not view it
in the light most favorable to the verdict winner.” DLC Mgmt. Corp. v. Town of Hyde Park, 163
F.3d 124, 134 (2d Cir. 1998). “A court considering a Rule 59 motion for a new trial must bear in
mind, however, that the court should only grant such a motion when the jury’s verdict is
‘egregious.’” Id. (quoting Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992)).
Although a court “may weigh the evidence and the credibility of witnesses” when considering a
Rule 59 motion, “a judge should rarely disturb a jury’s evaluation of a witness’s credibility and
may not freely substitute his or her assessment of the credibility of witnesses for that of the jury
simply because the judge disagrees with the jury.” Raedle, 670 F.3d at 418 (citation and internal
quotation marks omitted).
B.

Motion to Strike

Before considering the merits of Plaintiff’s motion for a new trial, the Court must address
Defendants’ motion to strike, (Dkt. No. 483), the reply Plaintiff filed in connection with her
motion for a new trial, (Dkt. No. 473). Defendants assert that Plaintiff, by her own admission,
mistakenly filed these submissions with this Court, instead of with the Second Circuit, where her
appeal and motion to vacate this Court’s judgment are pending. (Dkt. No. 483-1, ¶ 8); see Oliver
v. NYSP, et al., No. 22-979 (2d Cir.), ECF Nos. 1 (Notice of Civil Appeal filed May 2, 2022), 10
(Motion to Vacate Judgment filed May 5, 2022). Defendants further assert that Plaintiff’s fiftythree page reply affirmation and exhibits, which total more than 700 pages of documents, go “far
beyond the scope of both Plaintiff’s original, three-page motion, and the Defendants’ response.”
(Dkt. No. 483-1, ¶ 11). Plaintiff opposes Defendants’ motion to strike, and although she has filed

3

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more than 1,000 pages in support of her opposition, (Dkt. Nos. 484, 485, 486, 487, 488, 489,
490, 491, 492, 493, 494, 495), she has not responded to either of Defendants’ arguments.
Defendants’ first assertion—that Plaintiff did not intend her submissions to constitute her
reply papers to her motion for a new trial, but to constitute her reply papers to the motion to
vacate she filed in the Second Circuit—appears to be correct. Plaintiff represented as much to the
Second Circuit Court of Appeals in a letter dated May 25, 2022, stating she “mistakenly filed
[her] original Reply to the Defendants’ Response [to her motion to vacate] on May 20, 2022, in
the District Court, as [she] was unsure whether the Reply needed to be filed with the District
Court or the Court of Appeals” and “sincerely apologiz[ing] for any confusion this may have
caused.” (Dkt. No. 483-1, at 6). Defendants’ second assertion is also correct; the matters Plaintiff
addressed in her reply papers impermissibly exceed the scope of the issues Plaintiff raised in her
three-page motion for a new trial. See Morgan v. McElroy, 981 F. Supp. 873, 876 n.3 (S.D.N.Y.
1997) (“It is well settled in the Second Circuit that a party may not raise an argument for the first
time in [her] reply brief.”). Indeed, Plaintiff’s fifty-three-page affirmation recounts the “History
of the Facts in this case,” the discovery process and the issues that arose during that process,
Plaintiff’s motion for a preliminary injunction, the summary judgment stage, pre-trial
conferences and motions, and trial, highlighting alleged errors at each stage of the litigation. (See
generally Dkt. No. 473). Further, the exhibits Plaintiff filed in support of her reply include
documents related to the expert she hired, the search of her residence, and discovery responses—
none of which are relevant to the arguments Plaintiff made in her motion for a new trial. (See
generally Dkt. Nos. 473-1 to 473-4). However, given her status as a pro se litigant—albeit one
that is very adept at briefing and filing documents with the Court—the Court declines to strike
Plaintiff’s reply submissions in their entirety. Instead, the Court will limit its consideration of

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Plaintiff’s reply submissions to those aspects that concern the arguments Plaintiff raised in her
initial motion for a new trial. Accordingly, Defendants’ motion to strike is denied and the Court
turns to the merits of Plaintiff’s motion for a new trial.
C.

Discussion
1.

Exhibits

Plaintiff argues that she is entitled to a new trial because the Court erroneously “refused
to allow [her] to present the evidence [she] needed in order to establish” her claims. (Dkt. No.
463, at 1). Plaintiff observes that the Court permitted “every exhibit the defendants submitted” to
be “presented to the jury,” but permitted her to present “only very select and very specific
exhibits” to the jury. (Id.). Plaintiff does not identify any specific exhibit the Court found
inadmissible, but points to the Court’s treatment of Plaintiff’s Exhibit 62-2 as an example of the
Court’s unfair treatment of her evidence. (Id.). Specifically, Plaintiff represents that during the
April 15, 2022 pretrial conference, the “Court insisted” that Plaintiff’s Exhibit 62-2 was “not on
the thumb drive [Plaintiff] provided to the parties in this case.” (Dkt. No. 462, at 1). However, in
working with one of Defendants’ attorneys “to confirm several” exhibits during trial, Plaintiff
“discovered” that the attorney “did in fact have Exhibit P62-2 on her thumb drive.” (Id.).
Plaintiff asserts that if she “had not observed this exhibit on Ms. Joslin’s computer and pointed
out to here that the exhibit was right there on her computer, a portion of these exhibits would
have also never been admitted into evidence by this Court.” (Id.).
The history of the difficulty the Court and the parties experienced in attempting to parse
Plaintiff’s exhibits and locate documents, and reconcile the documents Plaintiff provided on
thumb drives—which often lacked individual exhibit labels, contained multiple documents
within a single exhibit, and reflected different numbers than those on Plaintiff’s exhibit lists—
with Plaintiff’s exhibit lists, is laid out in the Court’s Memorandum-Decision and Order denying
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Defendants’ motion for sanctions and is incorporated herein. (Dkt. No. 451). It is also reflected
in the Court’s extensive and time-consuming pretrial conferences during which the Court and the
parties worked to review and determine the admissibility of Plaintiff’s exhibits. (Text Minute
Entry for first pretrial conference on February 25, 2022; Dkt. No. 464 (transcript of second
pretrial conference on April 13, 2022); Dkt. No. 465 (transcript of third pretrial conference on
April 14, 2022); Dkt. No. 466 (transcript of fourth pretrial conference on April 15, 2022)). Even
after trial began, the Court permitted Plaintiff to continue to organize and label her exhibits,
often directing the parties to meet and confer over breaks and in the evenings to work toward an
agreement concerning Plaintiff’s exhibits.
As the following description of Plaintiff’s Exhibit 62-2, illustrates, it was not so much a
question of whether Plaintiff had provided the documents that comprised that exhibit, it was a
question of locating the documents within the thumb drives, and reconciling the numbering
provided on the thumb drives, which often differed from the numbering on Plaintiff’s exhibit
lists. Plaintiff’s Exhibit List, filed April 8, 2022, (Dkt. No. 443, at 12–13), divided P62 into P621 (“The removal of Plaintiff’s undercover duties – Plaintiff”) and P62-2 (“The Defendants file
false statements to remove Plaintiff’s undercover duties”), (id.). P62-1 was further divided into
eighteen sub-exhibits denoted by letters P62-1A through P62-1R, (Dkt. No. 443, at 12–13), and
P62-2 was further divided down into thirty-seven sub-exhibits denoted as P62-2A through P622HH, (id. at 13). However, the exhibits contained on the thumb drive Plaintiff provided to the
Court were labeled “P-62(A)” through “P-62(NN)” and while the exhibits appeared to contain
some of the documents listed on Plaintiff’s April 8 Exhibit List, the documents were mislabeled.
For example, the “Martin McKee memorandum to Mark Koss dated May 23, 2014” was labeled
as “P-62NN” in the thumb drive, but listed as “P62-2GG” on Plaintiff’s April 8 Exhibit List.

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(Dkt. No. 443, at 13; see also Dkt. No. 466, at 5–22 (transcript of April 15, 2022 pretrial
conference, including the lengthy discussion of P62 and P62-2 and the efforts made by all
present to locate and reconcile them)). On day three of the trial, Plaintiff produced a hard copy of
the exhibits comprising P62, including the P62-2 sub-exhibits. After the parties met and
conferred, all but four of the thirty-seven exhibits within P62-2 were admitted into evidence,
many on the stipulation of defense counsel. (Dkt. No. 454, at 65–74). 3 In all, more than 120 of
Plaintiff’s exhibits were admitted into evidence at trial. (Dkt. No. 454; Dkt. No. 454-1).
As further evidence of the Court’s alleged unfairness and bias toward Plaintiff and her
exhibits, Plaintiff cites the Court’s admission of all of Defendants’ proposed exhibits into
evidence. (Dkt. No. 462, at 1). However, not only did Plaintiff fail to object to any of
Defendants’ exhibits, but Plaintiff stipulated to the admission into evidence of all of Defendants’
thirty-nine exhibits. (Dkt. No. 455). Plaintiff’s argument is therefore without merit.
The Court’s handling of Plaintiff’s exhibits and requirement that they be properly
organized and labeled and that the copies each party, the Court, and the jury possessed were
identical, served to ensure the orderly presentation of the evidence to the jury. See Anderson v.
Great Lakes Dredge & Dock Co., 509 F.2d 1119, 1131 (2d Cir. 1974) (explaining that a trial
judge must “set the tone of the proceedings and exercise sufficient control to insure that the trial
will be an orderly one in which the jury will have the evidence clearly presented”). To be sure, a
significant amount of trial time focused on Plaintiff’s exhibits and presentation of evidence,
while comparatively little time was spent on Defendants’ exhibits and witnesses, which were
fewer in number, properly labeled and organized, and stipulated to by all parties. However,

3
P62-2B, P62-2Z, P62-AA, and P62-2BB were not admitted into evidence and Plaintiff does not challenge the
exclusion of these exhibits here.

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because Plaintiff’s exhibits were numerous, disorganized, and often mislabeled, such time was
necessary to ensure all parties, including Plaintiff herself, a fair trial. Thus, “[w]hile a judge
should strive to create an ‘atmosphere of perfect impartiality,’ the law assures litigants a fair
trial, not a perfect one.” Luca v. Cnty. of Nassau, 344 F. App’x 637, 639 (2d Cir. 2009) (first
quoting Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir. 1998); and then citing
Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 436 (2d Cir. 1993)). Accordingly,
Plaintiff’s motion for a new trial based on the Court’s handling of her exhibits at trial is denied.
2.

Witnesses

Plaintiff seeks a new trial on the ground that she was not permitted to call Timothy Bour,
Michael Davis, Michael Bruggman, or Theresa Temple to testify as witnesses at trial. (Dkt. No.
462, at 2). Defendants oppose Plaintiff’s motion. (Dkt. Nos. 471, 472).
On January 19, 2022, after reviewing Plaintiff’s first witness list, which included a
request for “guidance on the process for obtaining” trial subpoenas for her witnesses, (Dkt. No.
383, at 1), the Court issued a Text Order advising Plaintiff that she “must provide sufficient
details of each witness’s proposed testimony to allow the Court to determine whether the
testimony is relevant to the remaining claims; the Court will only issue subpoenas for witnesses
who have relevant testimony.” (Dkt. No. 386). In addition, the Court directed Plaintiff “to
coordinate with defense counsel to determine the witnesses for whom Plaintiff does not need to
have subpoenas issued,” as there were likely witnesses whom both Plaintiff and Defendants
intended to call at trial. (Dkt. No. 386). In an email dated January 28, 2022, defense counsel
notified Plaintiff that Defendants intended to issue subpoenas for, among others, Bour, Davis,

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Bruggman, and Temple, thereby “obviating the need for you to issue your own subpoenas for
their testimony.” 4 (Dkt. No. 462-1, at 1).
On the sixth day of trial, Defendants notified the Court that they were planning to
eliminate Bour, Davis, Bruggman, and Temple from their witness list in order to meet the trial
schedule and because they no longer needed them given how the case was going. Plaintiff
responded that, based on Defendants’ representation that they would subpoena those witnesses,
she had not requested the issuance of subpoenas for those witnesses and indicated that she was
concerned that Davis, in particular, would not be called as a witness. Defense counsel
acknowledged that the parties had spoken about “Davis some time ago,” but noted that Plaintiff’s
recent witness lists had not included Davis. The Court then asked Plaintiff: “What relevant
information do you seek to elicit from Mr. Davis?” Plaintiff provided a convoluted and wideranging response 5 that is best deciphered as indicating that Davis’s testimony was relevant to her

In all, Plaintiff filed seven witness lists. (Dkt. Nos. 383, 384 (filed January 10, 2022), Dkt. No. 398 (filed January
26, 2022), Dkt. No. 405 (filed February 16, 2022), Dkt. No. 408 (filed March 2, 2022); Dkt. No. 410 (filed March 7,
2022); Dkt. No. 420 (filed March 17, 2022); Dkt. No. 444 (filed April 8, 2022)). Plaintiff identified Davis as a witness
on her first five witness lists, but not on her last two witness lists. Bour, Bruggman, and Temple never appeared on
Plaintiff’s witness lists.
4

Although Plaintiff argued at length in response to the Court’s inquiries as to the relevance of Davis’s testimony, she
only briefly addressed the testimony Davis might provide; much of Plaintiff’s argument concerned an alleged ongoing
pattern of cover-ups and false statements by her supervisors and others in the NYSP as part of a joint and ongoing
effort to retaliate against her:

5

THE COURT: . . . [Y]ou’re talking a lot because you’re talking about an
undercover transaction that was supposed to take place May 13 . . . 2014, so you
have a lot of complaints with how they describe what happened, but even
assuming you were right on those complaints, what’s the relevance to your claim
that you were forced to transfer?
MS. OLIVER: Ma’am, the relevance is if you look at every single incident, there
are memorandas, there’s documents being put together at the direction of these
defendants, they have been falsified, they are false statements, there’s false sworn
testimony, and in every single time, I am the one who faces the consequences of
that. It is one retaliatory act after another. And to not allow those documents in, if
you look at the letter that Wayne Olson sent to Frank Koehler in May of 2014,
that is three months, it’s actually four months after Jeremy Peterson sexual
harassment complaint is founded. Wayne Olson never discloses to Frank Koehler
that in fact Jeremy Peterson was found to have sexually harassed me, because he

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retaliatory transfer claim, i.e., that in May 2014, Defendants NYSP and McKee retaliated against
her for filing EEO complaints of harassment and retaliation by forcing her to transfer from
CNET to CTIU. Specifically, Plaintiff asserted that she expected to elicit information about the
May 13, 2014 operation that immediately preceded the allegedly retaliatory transfer in order to
contradict Defendants’ contentions that she was “rushing” and “wasn’t planning out” the
operation. Plaintiff further asserted that she intended to show that that the memos and documents
Bruggman, who was working on the operation with Plaintiff, and Davis, who was Plaintiff’s
supervisor at the time, prepared regarding the May 13 operation were false. Plaintiff also
explained that it was her “contention” that when Davis “testified under oath, he committed
perjury.” 6 After listening to Plaintiff’s proffer, the Court, after weighing the evidence in
accordance with Federal Rule of Evidence 403, 7 declined to permit Plaintiff to call Davis or
Bruggman as witnesses:
I’ve tried to listen very carefully to your claims and I’ve tried to look
at the documents that you’ve submitted to me very carefully, and I
don’t find that you’ve made a proffer of how the testimony of Mike
has no excuse for transferring me on to the same team as Jeremy Peterson. So he
hides that fact.
And if you look at the letter of censure from Kevin Gagan, it’s hidden again. Why
is nobody willing to indicate that Jeremy Peterson was founded, because they
forced me to transfer. And when they did, your Honor, you’re not going to
participate in any unit investigations, you’re not going to go do anything, you’re
going to sit there by yourself and we’re going to isolate you and we're going to
keep coming after you and we're going to keep building these documents.
You saw it, your Honor, in the testimony that I presented, the documents that
Martin McKee is streamlining, the memorandums of his individuals to go directly
to Wayne Olson who sent that right up to division level. They didn’t see those
documents, there is no one in the Division of State Police that would ever send an
undercover in a situation where the target had already threatened that informant
with a gun, but he’ll stand there under sworn, under sworn testimony and say that
. . . that he would.
6

Plaintiff did not identify the testimony to which she was referring.

Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”

7

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Davis or Mr. Bruggman would be relevant and admissible at this
point in the trial, and that . . . any relevant testimony they have
would be outweighed by the confusion of issues, misleading the
jury, and cumulative evidence because we already have a fair
amount of evidence regarding these transactions.
Neither the parties nor the Court further addressed Defendants’ decision not to call Bour and
Temple as witnesses. As noted above, of the four witnesses at issue, only Davis appeared on
Plaintiff’s witness lists. However, given Plaintiff’s pro se status and Defendants’ representation
that she need not seek subpoenas for these witnesses, the Court nonetheless considers whether
the absence of these witnesses from trial warrants a new trial in this case.
3.

Davis and Bruggman

Neither at trial nor in her post-trial motion did Plaintiff provide a proffer calling into
question the Court’s conclusion that the danger of presenting cumulative evidence, confusing the
issues, or misleading the jury substantially outweighed any minimal probative value of Davis’s
or Bruggman’s testimony. Plaintiff, Defendant Kelly, Defendant McKee, Defendant Olson,
Jacqueline Baldwin, June Bradley, and Francis Christensen provided extensive testimony
regarding the events of May 13, 2014 and/or Plaintiff’s transfer out of CNET. Bradley, whom
Plaintiff called to tell she had found a memo Bruggman had drafted about her on the office share
drive, testified that Plaintiff was “so upset” when she called that Bradley asked Investigator Scott
Gilman in the NYSP’s employee assistance unit to contact her. Christensen stated that he helped
to orchestrate Plaintiff’s transfer after receiving a call from Gilman, who was concerned not only
about a personnel complaint against Plaintiff in connection with taking a file, but also about
Plaintiff “not being in the best work environment for her.” Plaintiff presented her version of
these events at trial, including the planning for the May 13 operation, Bruggman’s actions at the
office that day, her discovery of Bruggman’s memo, her belief that Bruggman’s memo was “not
accurate,” her reporting of the memo to Bradley, her overhearing Defendant McKee “telling
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someone on the phone” that “she’s stealing files,” and the memo she received that night
regarding her transfer.
Plaintiff has not identified any additional information that Davis or Bruggman could have
provided and argues only that she would have shown that both made false statements regarding
the underlying May 13 undercover operation that led to Bruggman’s memo. Thus, given the
minimal probative value of any testimony by these witnesses, and the danger of presenting
cumulative evidence and confusing the issues—the May 13 undercover operation was an
underlying event, tangential to her transfer—the Court’s denial of Plaintiff’s request that Davis
and Bruggman testify does not warrant a new trial. “Rule 403 determinations command especial
deference because the district court is in ‘the best position to do the balancing mandated by Rule
403.’” United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir. 2011) (quoting United States v.
Stewart, 590 F.3d 93, 133 (2d Cir. 2009)). The Second Circuit has explained that “[s]o long as
the trial court ‘conscientiously balanced the proffered evidence’s probative value with the risk
for prejudice,’” it “will reverse its conclusion ‘only if it is arbitrary or irrational.’” Id. (quoting
United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006)). “Even manifest error does not
require reversal if the error was harmless,” that is, if we can conclude with fair assurance that the
evidence would not have substantially influenced the jury. Id. (citing United States v. Miller, 626
F.3d at 682, 687–88 (2d Cir. 2010)). Moreover, it is clear that the jury credited Defendants’
version of events regarding the transfer, while discrediting Plaintiff’s. The Court declines to
disturb the jury’s evaluation of the credibility of the trial witnesses. Raedle, 670 F.3d at 418
(noting that “a judge ‘should rarely disturb a jury’s evaluation of a witness’s credibility’”
(quoting DLC Mgmt. Corp., 163 F.3d at 134)).

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4.

Temple and Bour

As to Temple and Bour, Plaintiff presented no argument at trial and made no specific
objection to Defendants’ announcement that they no longer intended to call Temple and Bour as
witnesses. Further, Plaintiff makes no proffer as to the testimony either might have provided at
trial; she asserts only that she had evidence that “would have contradicted the false statements
contained in the memoranda these witnesses submitted to Martin McKee and Wayne Olson in
support of my forced transfer” to CTIU. 8 (Dkt. No. 462, at 2). For all the reasons discussed
above, the Court therefore finds Defendants’ decision not to call Temple or Bour provides no
basis on which to grant a new trial.
D.

Impeachment of Witnesses

Plaintiff argues that the Court prohibited her from impeaching Defendants McKee and
Kelly with “the false statements they filed and the false sworn testimony defendant, Martin
McKee, repeatedly offered in this case . . . all of which would have certainly established my
claims against these defendants beyond a preponderance of the evidence.” (Dkt. No. 462, at 2).
As Plaintiff does not identify the statements or testimony to which she refers in her post-trial
motion and given the large number of exhibits discussed at trial, the Court has no basis on which
to evaluate Plaintiff’s argument. In addition, Plaintiff conducted an extensive cross-examination
of both McKee and Kelly, during which she repeatedly questioned not only the procedures they
used in collecting memoranda regarding Plaintiff’s conduct and various events at issue in this
case, but also the veracity of statements they made in the memoranda they issued. Indeed,
Plaintiff cross-examined McKee regarding his prior deposition testimony in this case. Plaintiff is
therefore not entitled to a new trial based on the Court’s refusal to admit unidentified evidence.

8

Plaintiff does not identify this evidence.

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In sum, none of Plaintiff’s arguments—whether taken singly or in combination—raises a
possibility that the jury verdict in this case was “seriously erroneous” or a “miscarriage of
justice.” Farrior, 277 F.3d at 635. The Court therefore denies Plaintiff’s motion for a new trial.
III.

BILL OF COSTS
A.

Applicable Standard

Federal Rule of Civil Procedure 54(d)(1) states in relevant part that, “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs . . . should be allowed to the
prevailing party.” “[T]he Supreme Court has held that the term ‘costs’ includes only the specific
items enumerated in 28 U.S.C. § 1920.” Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001),
abrogated on other grounds by Bruce v. Samuels, 577 U.S. 82 (2016). Section 1920 provides that
the following costs are taxable: (1) fees of the clerk and marshal; (2) fees for transcripts
“necessarily obtained for use in the case”; (3) fees for printing and witnesses; (4) fees for
exemplification and copying costs “where the copies are necessarily obtained for use in the
case”; (5) docketing fees under 28 U.S.C. § 1923; and (6) fees for court-appointed experts and
interpreters. 28 U.S.C. § 1920. “The burden is on the prevailing party to establish to the court’s
satisfaction that the taxation of costs is justified.” Cohen v. Bank of N.Y. Mellon Corp., No. 11cv-456, 2014 WL 1652229, at *1, 2014 U.S. Dist. LEXIS 57829, at *2 (S.D.N.Y. Apr. 24, 2014)
(quoting John G. v. Bd. of Educ., 891 F. Supp. 122, 123 (S.D.N.Y. 1995)). “[B]ecause Rule
54(d) allows costs ‘as of course,’ such an award against the losing party is the normal rule
obtaining in civil litigation, not an exception.” Whitfield, 241 F.3d at 270.
B.

Discussion

Defendant NYSP, Paul Kelly, and Wayne Olson seek a total of $12,081.64 in costs
associated with defending this action. (Dkt. No. 478). Plaintiff filed a response and cross-motion
for a stay of Defendants’ motion for costs pending appeal. (Dkt. No. 479). However, Plaintiff
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does not advance any argument otherwise opposing Defendants’ motion for costs. Defendants
seek $11,047.78 for transcripts and $1,033.86 for witness fees.
1.

Transcript Fees

A prevailing party is “ordinarily . . . permitted to recover costs for the original and one
copy of [a] transcript[].” C.C. ex rel. Camarata v. Polaris Indus., Inc., No. 14-cv-0975, 2018 WL
3031848, at *5, 2018 U.S. Dist. LEXIS 101785, at *18 (N.D.N.Y. June 19, 2018). Stenographer
fees are generally recoverable, Hines v. City of Albany, 862 F.3d 215, 219 n.2 (2d Cir. 2017), as
are exhibit fees, because “exhibits are a necessary part of an original deposition transcript,” In re
Omeprazole Patent Litig., No. 00-cv-6749, 2012 WL 5427849, at *4, 2012 U.S. Dist. LEXIS
160046, at *18 (S.D.N.Y. Nov. 7, 2012); see N.D.N.Y. Guidelines for Bills of Costs, II(D)(1)(h),
(i) (listing “[c]ourt reporter fees for attendance and travel for depositions” and “copies of papers
obtained as exhibits in the deposition” as taxable costs). 9
Here, Defendants seek costs for an original and two copies of Plaintiff’s deposition, for a
total of $9,581.73. (Dkt. Nos. 478-1, at 5–8). It appears that one of the copies of Plaintiff’s
deposition was for Defendant McKee, who is separately represented and who has not made an
application for costs. Therefore, as Defendants NYSP, Kelly, and Olson are only entitled to an
original and one copy, the Court reduces Defendants’ award by one-third, to $6,419.76. That
amount is further reduced by $156, the amount charged for “postage and handling fees” in
connection with Plaintiff’s deposition transcript. Delivery fees are generally disallowed. See
Sevenson Envtl. Servs., Inc. v. Shaw Envtl., Inc., 246 F.R.D. 154, 156 (W.D.N.Y. 2007); Cutie v.
Sheehan, No. 11-cv-66, 2016 WL 3661395, at *5, 2016 U.S. Dist. LEXIS 86548, at *16
(N.D.N.Y. July 5, 2016); see also N.D.N.Y. Guidelines for Bills of Costs, II(D)(2)(d) (providing

9

Available at https://www.nynd.uscourts.gov/sites/nynd/files/Guidelines_Bill_of_Costs_091021.pdf.

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that “[c]ourt reporter postage or delivery charges for a transcript” are not taxable). Therefore, the
total to which Defendants are entitled for Plaintiff’s transcript is $6,283.82. Defendants’ request
for an award of costs for transcripts of several pretrial proceedings, which total $1,466.05,
appears to be for a single copy, (see Dkt. No. 478-1, at 10–15), and is therefore warranted.
Accordingly, Defendants are entitled to a total award of costs in the amount of $7,749.87 for
transcript fees.
2.

Witness Fees

Defendants seek an award of costs in the amount of $240.00 for the attendance of six
witnesses at trial, as well as $793.86 in mileage for those witnesses. (Dkt. No. 478-1, at 3). As
the statutory attendance fee is $40.00 per witness, and the mileage for each of those witnesses
has been calculated at the rate of $0.585, as prescribed under 28 U.S.C. § 1821(c)(2) and the
United States General Services Administration Privately Owned Vehicle Mileage Rates,
effective January 1, 2022, see https://www.gsa.gov/travel/plan-book/transportation-airfare-povetc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived (last visited Jan. 17,
2023), Defendants’ request for costs in the amount of $1,033.86 is granted. See N.D.N.Y.
Guidelines for Bills of Costs II(F)(1)(a), (b) (providing that “[w]itnesses are entitled to $40.00
per day of testimony” and mileage at the rate “set by the General Services Administration”).
C.

Stay Pending Appeal

Plaintiff moves for a stay of Defendants’ motion for costs “pending a decision by the
U.S. Court of Appeals.” (Dkt. No. 479, ¶ 3). Under this Court’s Guidelines for Bills of Costs,
“[u]less otherwise ordered by the District Court, or the Circuit Court of Appeals pursuant to Fed.
R. App. P. 8, the filing of an appeal shall not stay the taxation of costs.” N.D.N.Y. Guidelines for
Bills of Costs I(F)(2). While Plaintiff does not identify the legal authority for such a stay, the
Court notes that while Fed. R. Civ. P. 62, which governs stays of proceedings to enforce a
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judgment and “outlines the mechanism for how a stay may be obtained while an appeal is
pending,” does not appear applicable to a bill of costs. Miller v. City of Ithaca, No. 10-cv-597,
2017 WL 61947, at *4, 2017 U.S. Dist. LEXIS 1310, at *12 (N.D.N.Y. Jan. 5, 2017). However,
because “Rule 62 it does not limit the district court’s inherent power to issue a stay in a manner
that does not fall within the scope of the Rule,” id.; accord Eddystone Rail Co., LLC v. Jamex
Transfer Servs., LLC, No. 17-cv-1266, 2019 WL 181308, at *4, 2019 U.S. Dist. LEXIS 5416, at
*10–11 (S.D.N.Y. Jan. 11, 2019) (“It is well-settled that a district court has discretionary power
to stay proceedings pursuant to its inherent power to control its docket.” (citing Landis v. N. Am.
Co., 299 U.S. 248, 254–55 (1936))), the Court utilizes its framework for evaluating Plaintiff’s
request. The Court concludes that Plaintiff has failed to meet her burden of showing that a stay is
warranted.
“The party requesting a stay bears the burden of showing that the circumstances justify an
exercise of th[e court’s] discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). In deciding
whether to stay proceedings, courts consider four factors, the first two of which “are the most
critical”: “(1) whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)); accord In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007).
Here, Plaintiff has not made any showing of a likelihood of success on the merits or
irreparable injury absent a stay. Having considered the applicable factors, the Court finds that
Plaintiff has failed to meet her burden of showing that the circumstances here warrant a stay, and
her motion for a stay of taxation of costs pending appeal is therefore denied.

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IV.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s motion for a new trial (Dkt. No. 462) is DENIED; and it is

further
ORDERED that the motion to strike (Dkt. No. 483) by Defendants NYSP, Kelly, and
Olson is DENIED; and it is further
ORDERED that the motion for costs (Dkt. No. 478) by Defendants NYSP, Kelly, and
Olson is GRANTED in part to the extent that Defendants are awarded $8,783.73 in costs, but is
otherwise DENIED; and it is further
ORDERED that Plaintiff’s cross-motion for a stay of Defendants’ motion for costs
pending appeal (Dkt. No. 479) is DENIED.
IT IS SO ORDERED.
Dated: January 18, 2023
Syracuse, New York

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