Dedjoe v. McHugh

Filing 135

DECISION & ORDER: It is Ordered that Plaintiff's # 104 and # 117 Motions for Judgment as a Matter of Law or, in the alternative for a New Trial are DENIED; Defendant's # 105 Motion for Bill of Costs is GRANTED; it is further Ordered that the # 114 MOTION to Redact the # 106 , # 108 and # 109 Transcripts is DENIED. Signed by Senior Judge Thomas J. McAvoy on 2/19/2019. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
BENJAMIN DEDJOE,
Plaintiff,
-against-

1:15-CV-1170

DR. MARK T. ESPER,
in his official capacity as the
Secretary of the Army,1
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Following a jury verdict in favor of Defendant Department of the Army on Plaintiff

Benjamin Dedjoe’s sole remaining claim, Plaintiff moves for judgment as a matter of law or,
in the alternative, a new trial. Dkt. Nos. 104 & 117. Also, Defendant moves to confirm its Bill
of Costs (Dkt. No. 105), and to redact portions of the trial transcript (Dkt. No. 114). The
Court addresses these motions seriatim.
II.

BACKGROUND
The Court presumes familiarity with the procedural and factual background of this
1

As of the date of this Decision and Order, Ryan D. McCarthy, the Defendant named by Plaintiff in
this matter, is no longer the Acting Secretary of the Army, having been succeeded by Dr. Mark T. Esper. The
Clerk of Court is therefore instructed to substitute “Dr. Mark T. Esper, in his official capacity as the Secretary
of the Army” as the Defendant, in accordance with Federal Rule of Civil Procedure 25(d).

1

case, and recites portions of this background only where necessary to decide the pending
motions.
III.

DISCUSSION
a. Plaintiff’s Motion for Judgment as a Matter of Law or New Trial
1. Rule 50 Standard of Review
Plaintiff moves for a judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b).

In reviewing the motion, “[t]he court must consider the evidence in the light most favorable
to the non-movant and ‘give that party the benefit of all reasonable inferences that the jury
might have drawn in his favor from the evidence” bearing in mind that a jury is free to
believe or disbelieve any part of a witness' testimony. Jones v. Town of E. Haven, 691 F.3d
72, 80 (2d Cir. 2012) (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)). The
Court may “disregard all evidence favorable to the moving party that the jury is not required
to believe,” Zellner, 494 F.3d at 371 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 135 (2000)), and is required “to give [the non-moving] party the benefit of all
reasonable inferences that the jury might have drawn in his favor from the evidence. The
court cannot assess the weight of conflicting evidence, pass on the credibility of the
witnesses, or substitute its judgment for that of the jury.” Tolbert v. Queens College, 242
F.3d 58, 70 (2d Cir. 2001) (citation omitted).
The moving party thus bears a heavy burden, especially where, as here, “the jury has
deliberated in the case and actually returned its verdict in favor of the non-movant.” Cash v.
Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)(internal quotation marks omitted). “A
judgment notwithstanding the verdict may only be granted if there exists such a complete

2

absence of evidence supporting the verdict that the jury's findings could only have been the
result of sheer surmise and conjecture, or the evidence in favor of the movant is so
overwhelming that reasonable and fair minded persons could not arrive at a verdict against
it.” Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 112 (2d Cir. 2015) (internal quotation marks
omitted).
2.

Rule 59 Standard of Review

In the alternative, Plaintiff moves for a new trial pursuant to Fed. R. Civ. P. 59. The
Court may “grant a new trial on all or some of the issues . . . 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). “The general grounds for a new trial are that (1) the verdict is against the clear
weight of the evidence; (2) the trial court was not fair; (3) substantial errors occurred in the
admission or rejection of evidence or the giving or refusal of instructions to the jury; or (4)
damages are excessive.” Lawson v. Cty. of Suffolk, 920 F. Supp. 2d 332, 339 (E.D.N.Y.
2013)(citing 12 Moore's Federal Practice, § 59.13[1] at 59–43 (3d Ed. 2005)).
“A district court should grant a new trial motion if it ‘is convinced that the jury has
reached a seriously erroneous result or that the verdict is a miscarriage of justice.’” United
States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (quoting Smith v. Lighting Bolt
Productions, Inc., 835 F.2d 966, 970 (2d Cir. 1987)); see Raedle v. Credit Agricole
Indosuez, 670 F.3d 411, 417-18 (2d Cir. 2012) (“‘[A] decision is against the weight of the
evidence . . . if and only if the verdict is (1) seriously erroneous or (2) a miscarriage of
justice.’”)(quoting Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002)).
Such a motion may be granted “even if there is substantial evidence to support the jury’s

3

verdict.” Landau, 155 F.3d at 104. Though a trial judge “is free to weigh the evidence
himself, 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 jury's verdict should
“rarely be disturbed.” Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002)
(per curiam); see also Carroll v. Cty. of Monroe, 712 F.3d 649, 653 (2d Cir. 2013); Raedle,
670 F.3d at 417–18. Evaluations of the evidence should be made with a “high degree of
deference ... to the jury's evaluation of witness credibility...,” ING Global v. United Parcel
Serv. Oasis Supply Corp., 757 F.3d 92, 97–98 (2d Cir. 2014) (internal quotation marks and
citation omitted), and “a trial judge’s disagreement with the jury’s verdict is not a sufficient
reason to grant a new trial.’” Lawson, 920 F. Supp.2d at 344 (internal quotation marks and
citation omitted).
3. Analysis - Sufficiency of the Trial Evidence
The only claim before the jury was whether Plaintiff was ordered to leave the U.S.
Army Watervliet Arsenal on November 7, 2012 in retaliation for his prior informal complaints
of race-based discrimination. The jury was instructed that to prevail on this claim, Plaintiff
must prove by a preponderance of the evidence that: (1) he engaged in "protected activity"
under Title VII by making prior informal complaints of race-based discrimination; (2)
Defendant was aware of this protected activity; (3) Plaintiff was then subjected to a material
adverse action, and (4) Plaintiff's protected activity was the determinative factor in the
material adverse action. See Trial Trans. (“TT”) at 714. The dispute on the instant motion
concerns whether Plaintiff satisfied the fourth element. On this element, the Court
instructed the jury:

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Plaintiff must prove that the adverse action would not have been taken, or
would have been substantially less adverse, were it not for Plaintiff's protected
activity. This does not require proof that retaliation was the only cause of the
adverse action, but Plaintiff must prove that the adverse action would not have
occurred in the absence of a retaliatory motive. Put another way, Plaintiff must
prove that but for his prior complaints, he would not have been subjected to
the alleged adverse action on November 7, 2012.
Id. at 715.
The Court also instructed the jury that “[a]n employer may take adverse decisions
against an employee for any reason, good or bad, as long as it is not retaliatory,” id. at 716,
and that whether Arsenal security officers’ interactions with Plaintiff were motivated by racial
animus was not an issue before the jury. Id. at 718. Rather, the Court instructed the jury:
“The issues for you to decide are whether Arsenal security officers retaliated against
Plaintiff for having made complaints of unlawful employment practices when they instructed
him to leave the Arsenal property on November 7, 2012, and whether the Defendant is
liable for such conduct.” Id.
Here, when viewing the trial evidence in the light most favorable to Defendant, it
cannot be said that there was such a complete absence of evidence that the jury's verdict
could only have been the result of sheer surmise and conjecture. The jury heard testimony
that at midday on November 7, 2012, Arsenal Security Officer Brad Frasco was dispatched
to the Arsenal Visitor Center to provide assistance to other security officers dealing with a
dispute with Plaintiff. Id. at 544-45, 636-38. Before entering, Frasco heard loud yelling
coming from inside, id. at 546, 553, and once inside the Visitor Center saw that Plaintiff was
very upset, was “pounding” on the counter, and yelling that the two security officers behind
the counter were “messing” with him. Id. at 555, 559. Frasco learned that Plaintif f was

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upset because he was told he had to provide his full Social Security number on an Arsenal
parking form. Id. at 557. Frasco told Plaintiff to go about his business filling out the
parking form, id. at 558, 559, but Plaintiff accused Frasco and members of the security
force of being “gangsters” and singling Plaintiff out for harassment. Id. at 559. Plaintiff said
he was “a hot commodity,” that the federal government needed him more than he needed it,
and that he could work anywhere. Id. Frasco told Plaintiff “that’s fine,” but if he planned on
staying he needed to fill out the paperwork properly and then go about his day. Id. Plaintiff
responded by asking Frasco if he wanted to assault him. Id. Plaintiff then stated that the
security officers were harassing him because he is black. Id. Frasco believed Plaintiff was
trying to incite an altercation and bait the officers into acting unprofessionally. Id. at 561. He
responded by saying to Plaintiff: “[N]ow it's time for you to go, you're not gonna sit here and
call us racists,” telling Plaintiff that he would have to leave the Arsenal for the rest of the
day. Id. at 560. Plaintiff said he was not going anywhere. Id. at 561. Frasco yelled at
Plaintiff to “get the f - - k outta the Visitor Center,” id. at 561, at which point Plaintiff walked
into the parking lot followed by Frasco. Id. at 562.
Frasco called his supervisor, Captain Osgood, to effectuate removing Plaintiff from
the Arsenal. Id. at 562-63. When Osgood arrived at the Visitor Center, Frasco and Dedjoe
were standing in the parking lot. Id. at 638. Frasco informed Osgood that Dedjoe became
belligerent and aggressive inside the Visitor Center, accused the officers of singling him out
because of his race, called the officers racists and gangsters, and was yelling and banging
on the counter. Id. at 565-66, 641. Frasco advised that he told Dedjoe several times to
leave as a result of his actions, but Dedjoe refused to leave. Id. at 641. Osgood asked

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Dedjoe if he was told to leave, which he conceded had occurred. Id. at 642. Osgood then
told Plaintiff the he needed to follow the officer’s instructions and leave, and that he could
either get in his car and leave voluntarily, or he would be escorted off post in handcuffs and
his car would be towed. Id.; see id. at 660. Mark Boomhower, a contractor who was
signing into the Arsenal at the Visitor Center during this incident, observed Dedjoe in the
parking lot loudly yelling and arguing with security officers about the documents he needed
to enter the Arsenal, id., at 598, 602, and also observed that the security officers remained
calm, patient and professional. Id. at 603.
Frasco testified that it was “absolutely” upsetting that Dedjoe accused him of singling
him out because of his race and called him a racist, id. at 574, but that was not why he told
Dedjoe to leave. Id. at 575. Rather, Frasco testified that he told Plaintiff to leave the
Arsenal because it was Frasco’s job “to protect property, personnel and maintain order,”
and Dedjoe was “acting very disruptively, very aggressively, he was making the other
visitors in the Visitor Center uncomfortable.” Id. at 573, see id. at 591. Frasco testified that
another reason he told Dedjoe to leave was “[b]ecause he refused to comply with filling out
the proper form to get his registration sticker.” Id. at 575. Frasco also testified that
knowledge of Plaintiff’s prior informal race-based complaints did not enter his mind when he
made the decision to tell Plaintiff to leave the Arsenal. Id. at 590.
Osgood testified that he instructed Dedjoe to leave the Arsenal to back up his officer
and ensure compliance with Frasco’s directive. See id. at 666-67. Osgood also indicted
that, although Dedjoe was calm by the time Osgood arrived, he believed that if he excused
Dedjoe from compliance with Frasco’s order simply because he had calmed down, that

7

would have stripped Frasco and other officers of their authority. See id. at 669.
Under these circumstances, there was more than sufficient evidence to permit a
reasonable juror to find that Plaintiff failed to satisfy his ultimate burden - that is, to prove
that Frasco and Osgood’s “desire to retaliate was the but-for cause of the challenged
employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).
While evidence exists that Frasco became upset, raised his voice, and was aware of
Plaintiff’s prior protected conduct, the jury was entitled to credit Frasco’s testimony that
knowledge of Plaintiff’s prior protected activity did not enter his mind when he instructed
Plaintiff to leave the Arsenal. The jury was also entitled to credit Osgood’s non-retaliatory
reasons for supporting Frasco’s directive.
It also cannot be concluded that the evidence in Plaintiff’s favor was so
overwhelming that reasonable and fair minded persons could not have arrived at a verdict
against him. Plaintiff offers his own interpretations of the conclusions that should have
been drawn from the evidence, but the evidence he points to does not overwhelmingly
support his ultimate burden of establishing that but for his prior protected activity he would
not have been expelled on November 7. “The Court recognizes the depth of [Plaintiff’s]
belief that he was the victim of [unlawful retaliation] but his sincerity does not affect the lack
of evidence.” Bailey v. NYC Dep't of Transportation, No. 93 CIV. 1121 (LBS), 1998 W L
472010, at *1 (S.D.N.Y. Aug. 3, 1998), aff'd sub nom. Bailey v. New York City Dep't of
Transp., 173 F.3d 843 (2d Cir. 1999). Having reviewed Plaintiff’s arguments and the totality
of the evidence, the Court finds that the trial evidence, viewed in the light most favorable to
Defendant, was sufficient to permit a reasonable juror to find for Defendant. Accordingly,

8

Plaintiff’s Rule 50 motion addressed to the sufficiency of the evidence is denied.
To the extent Plaintiff offers this challenge to the sufficiency of the trial evidence
under Rule 59, the Court is of the opinion the jury did not reach a seriously erroneous result,
and that the verdict is not a miscarriage of justice. Accordingly, Defendant’s Rule 59 motion
on this ground is denied.
4. Analysis - Evidentiary Ruling
Plaintiff also contends he is entitled to a new trial because the Court allowed the
defense to question him regarding his response to a discovery interrogatory. This
interrogatory asked Plaintiff to identify complaints of racial discrimination and/or retaliation
he previously filed with any court or administrative agency, to which he answered “none”.
Defendant sought to impeach Plaintiff’s credibility based on what it deemed a false
response. See TT 3-11, 14. The Court permitted inquiry only so far as necessary to
establish that Plaintiff’s response to the specified interrogatory was false, but prohibited
inquiry into the substance of the underlying claims so as to avoid portraying Plaintiff as a
serial Title VII or civil rights litigant. See id. at 185-92. However, after initially denying that
he was untruthful in answering the interrogatory because he thought it pertained only to
court cases, see id. at 349:2-5, Plaintiff then said that the response was incorrect because
the instant case was pending at the time he answered the interrogatory and blamed his
attorney for submitting an inaccurate response. Id. at 346:8 - 350:25. The Court found that
Plaintiff’s attempt to avoid directly answering the question posed by Defense Counsel
opened the door to further inquiry into whether Plaintiff previously filed specific complaints
of racial discrimination and/or retaliation. Id. at 351-354. In allowing this line of questioning,

9

the Court limited the inquiry to whether such complaints were filed, and did not allow inquiry
into the substance of the underlying claims. Id. at 352, 354, 355.
Contrary to Plaintiff’s contention, this case is distinguishable from Outley v. City of
New York, 837 F.2d 587 (2d Cir. 1988), and Arlio v. Lively, 474 F.3d 46 (2d Cir. 2007).
Here, unlike in Outley, the defense did not overtly portray Plaintiff as a chronic or perpetual
litigant, see id., at 591 (“An important part of the City's overall defense was to undermine
Outley's credibility by, inter alia, portraying him as a chronic litigant.”); 592 (referring to
plaintiff as a “perpetual litigant” in the defense opening statement). Also unlike in Outley,
the Court limited inquiry to evidence probative of whether Plaintiff was truthful when
responding to the interrogatory, and did not allow inquiry into the substance of the
underlying claims. See e.g. id. at 293 (“The total impact of the evidence was to show that
Outley is ‘claim-minded,’ and that the claims before the court were just two more in a long
line of lawsuits. Excepting this type of evidence from the general rule of 404(b) would
permit an exception to swallow the rule.”). Although Plaintiff opened the door to further
inquiry by essentially denying that he was untruthful in his interrogatory response, the Court
allowed this further inquiry only to the extent it showed that Plaintiff had previously filed
complaints of racial discrimination and/or retaliation and thus probative of his credibility. In
the Court’s opinion, this limited line of questioning did not result in unfair prejudice to
Plaintiff, and did not amount to a substantial evidentiary error warranting a new trial. See
e.g. Outley, 837 F.2d at 593 (“[T]he defense was properly permitted to impeach [plaintiff]
with inconsistent statements on his August 1982 application to proceed in forma pauperis in
connection with the lawsuit as to the 1981 incident.”). Moreover, because this further

10

inquiry did not directly delve into the merits of the underlying claims,2 it did not deprive
Plaintiff of a fair determination of the claim before the jury, as occurred in Outley. See e.g.
id., at 595 (“We feel that in this context it was likely that the jury regarded Outley first and
foremost as a bringer of nuisance lawsuits, and that as a result his claims did not receive a
fair hearing.”).
In Arlio, the Second Circuit found that the district court abused its discretion by
allowing irrelevant evidence of a prior arbitration decision, resulting in substantial prejudice
to the defendant. See Arlio, 474 F.3d at 53. Here, by contrast, the Court did not allow
evidence of prior adjudications, and, as indicated above, limited evidence to whether prior
complaints were filed in order to assess Plaintiff’s veracity in answering the identified
interrogatory. Viewing this line of questioning in the context of the totality of the trial
evidence, Plaintiff has not established that the jury's judgment was swayed in a material
fashion by these questions, or that he suffered an impairment of a substantial right justifying
a new trial. See id. at 51 (“[A] new trial should be granted only if a substantial right of a party
is affected - as when a jury's judgment would be swayed in a material fashion by [a district
court’s evidentiary error].”). Accordingly, Plaintiff’s motion for a new trial on this ground is
denied.
5. Analysis - Principles of Fairness and Substantial Justice
Plaintiff also contends that he is entitled to a new trial before the Court rather than a
jury due to what he asserts is inherent racial bias in the jury pool for the Northern District of

2

In answering Defense Counsel’s questions whether he previously filed specific claims of racial
discrimination or retaliation, Plaintiff voluntarily divulged specifics of one of the previously-filed claims. See
TT 355.

11

New York. The argument is without merit.
This case was heard by a jury consisting of eight white individuals.3 Plaintiff did not
challenge the composition of the jury pool or the empaneled jury, but rather consented to
the empaneled jury without objection. See TT at 63 (indicating through counsel that the jury
was satisfactory to Plaintiff). By failing to challenge the racial composition of the jury pool or
the empaneled jury before the completion of jury selection, Plaintiff waived his challenge to
the jury verdict on this ground. See Bailey v. New York City Dep't of Transp., 173 F.3d 843
(2d Cir. 1999)(“Bailey's challenge to the jury verdict on the ground that the all-white jury was
biased against him is deemed waived because he did not challenge the racial make-up of
the jury prior to the completion of jury selection.”)(citing McCrory v. Henderson, 82 F.3d
1243, 1249 (2d Cir.1996)); see also Joiner v. Chartwells, 486 Fed. Appx 196, 198 (2d Cir.
2015).4
Moreover, Plaintiff fails to provide sufficient evidence indicating that the jury venire
impermissibly excluded African-Americans,5 or did not represent a fair cross section of the

3

Plaintiff asserts that his case was “before a six person jury that was exclusively Caucasian and
exclusively male.” Ptf. Mem. L. (Dkt. No. 117-9) at 24. Defendant asserts that the jury consisted of “two white
females and six white males.” Def. Mem. L. (Dkt. No. 126) at 14. The record is clear that the jury consisted
of 8 persons, see 05/07/18 Minute Entry (“Jury trial commences on 5/7/2018 . . . . Jury selection held. Jury
sworn w/8 jurors empaneled.”), and the Court accepts the parties’ representations that all trial jurors were
white.
4

("Joiner, who was represented by counsel at trial, failed to raise any challenge to the racial
composition of the jury. As a consequence, the record contains little or no evidence regarding the racial
composition of the jury pool or the reasons for defense counsel's challenge to the juror Joiner now alleges
was the only African-American in the jury pool. Because Joiner failed to raise the issue below, and because
the record is therefore inadequate to address it here, we will not now consider the issue.")(citing
Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)).
5

Based on prior cases examining the Northern District of New York’s jury selection process, it is
doubtful that Plaintiff could demonstrate systematic exclusion of African-American’s from the jury selection
process. See e.g. United States v. Bullock, 550 F.3d 247, 251–52 (2d Cir. 2008)(“Judge McAvoy explained at
trial that in constructing the jury pool, the court drew potential jurors from the rolls of voters and drivers. The
(continued...)

12

community. Without this evidence, the motion for a new trial on the ground that the trial
was unfair because of the racial composition of the jury pool or trial jury must be denied.
See Espaillat v. Cont'l Express, Inc., 33 F. App'x 567, 569 (2d Cir. 2002)(“Espaillat's
arguments that the jury selection excluded Hispanic jurors are neither supported by the
evidence nor sufficiently particularized or proven to require a new trial.”); Williams v. City of
Newburgh, 830 F. Supp. 770, 773–74 (S.D.N.Y. 1993).6
Finally, the Court is not convinced that the jury reached a seriously erroneous result
or that the verdict is a miscarriage of justice. Accordingly, Plaintiff’s motion for a new trial
based upon considerations of fairness and substantial justice is denied.
b. Defendant’s Bill of Costs
Defendant filed a Bill of Costs (Dkt. No. 105) in the total amount $3,902.86,
consisting of $1,912.55 for transcript fees, $1,910.31 for witness fees, $20 for docket fees,
and $60.00 for other costs. Plaintiff challenges (1) those costs associated with witnesses
David Roe, Paul Edwards, and Lauren Smith; (2) mileage fees claimed for Smith to travel
from her half-year residence in Alburgh, Vermont; and (3) all costs associated with Brad
5
(...continued)
motor vehicle roll was included specifically ‘to make sure that [the] jury pool [wa]s balanced.’ That the district
court failed in its attempt to achieve such balance does not detract from the court's demonstrably race-neutral
approach to juror selection.”).
6

In Williams, the Southern District wrote:

In addition, nothing in the record indicates that the jury which heard the case did not reflect "a fair
cross section of the community." Holland v. Illinois, 493 U.S. 474, 479, 110 S. Ct. 803, 807, 107 L.
Ed.2d 905 (1990) (citing Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 696, 42 L. Ed.2d 690
(1975)). Although Williams is now proceeding pro se, he is obligated to point to something—i.e. the
manner in which the jury panel was assembled or the peremptory challenges were
exercised—suggesting racial bias in the jury selection process. The mere fact that Williams is black
and only one black juror was selected does not, without more, support a finding of such bias or
warrant a new trial.
830 F. Supp. at 773–74.

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Frasco. Plaintiff also contends that Defendant should not be allowed any costs because the
issues in the case were “close and difficult.” After Plaintiff submitted his opposition,
Defendant conceded that $67.45 in costs f or Frasco’s pre-trial interview are not taxable, but
also seeks an additional $690.30 for the trial transcript fees necessitated by Plaintiff’s Rule
50 and Rule 59 motions.
1. Standard of Review - Bill of Costs
Federal Rule of Civil Procedure 54(d)(1) allows the Court to award the prevailing
party its costs. Fed. R. Civ. R. 54(d)(1); Kohus v. Toys R Us, Inc., 282 F.3d 1355, 1357
(Fed. Cir. 2002). Defendant is the prevailing party in this action and, therefore, entitled to
costs under Rule 54.
The term “costs” as used in Rule 54 includes the specific items enumerated in 28
U.S.C. § 1920. Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) (citations omitted). As
a threshold matter, the prevailing party must establish to the court's satisfaction that the
taxation of costs is justified. John and Kathryn G. v. Board of Ed. of Mt. Vernon Public
Schools, 891 F. Supp. 122, 123 (S.D.N.Y.1995); see 28 U.S.C. § 1924. “After the prevailing
party demonstrates the amount of its costs and that they fall within an allowable category of
taxable costs, that party enjoys a presumption that its costs will be awarded.” Natural
Organics, Inc. v. Nutraceutical Corp., 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009)
(quotation marks and citations omitted). "[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. For this reason, the losing party has the burden to show that costs should not be
imposed.” Whitfield, 241 F.3d at 270 (citations omitted).

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A district court has authority to review, adjust, or deny an award of costs, and that
decision “is committed to the sound discretion of the district court.” Cosgrove v. Sears,
Roebuck, & Co., 191 F.3d 98, 102 (2d Cir.1999) (quotation marks and citation omitted). A
court's decision to deny costs depends on a number of equitable factors, including
"misconduct by the prevailing party, the public importance of the case, the difficulty of the
issues, or the losing party's limited financial resources." Whitfield, 241 F.3d at 269.
2. Analysis - Witnesses David Roe, Paul Edwards, and Lauren Smith
Plaintiff challenges the costs associated with witnesses Roe, Edwards, and Smith,
arguing: (a) these witnesses, as employees or former employees of Defendant, are not
entitled to witness fees because they each testified as party representatives; (b) Defendant
did not include supporting documentation for the witness fees associated with these
witnesses, and (c) Smith is not entitled to travel expenses .
A. Party Representatives
The only named defendant and the only real party in interest in this case was the
United States Department of the Army. While Roe, Edwards, and Smith testified to specific
involvement with Plaintiff and/or with members of the Arsenal security staff, none testified in
a representational capacity on behalf of the Department of the Army. Plaintiff’s objection on
this ground is overruled.
B. Supporting Documentation
As to supporting documentation, Plaintiff subpoenaed each of these witnesses. See
Dkt. No. 116-1 at ¶ 2 & Ex. A; Dkt. No. 129-1. Statutory witness fees are set forth in 28
U.S.C. § 1821 and include a $40 per day attendance fee, id. at § 1821(b), a mileage

15

allowance if the witness uses a private automobile, id. at § 1821(c)(2), and parking fees, id.
at § 1821(c)(3). Roe, Edwards, and Smith’s statutory witness fees were Plaintiff’s
responsibility, and because Plaintiff failed to provide the fees with the subpoenas, he may
be taxed these statutory expenses through a Bill of Costs without the need for
documentation of the expense.7
C. Smith’s Witness Costs
Regarding Smith’s witness costs, the record is clear that Defense Counsel explained
to Plaintiff’s Counsel that upon retirement from the Arsenal in 2014, Smith began living in
Alburgh, Vermont from May through October each year, and in Clifton Park, New York from
November through April. Dkt. No. 116-1, ¶¶ 3-7; Dkt. No. 122, ¶¶ 1-2; Dkt. No. 129-1.
Because both parties wanted to call Smith to testify at the trial in May 2018, counsel agreed
to split Smith’s statutory witness fees, including the milage expense for the trip to and from
Alburgh, Vermont. Dkt. No. 116-1, ¶ 8 & Ex. F; Dkt. No. 129-1, at 17.
Plaintiff’s counsel indicated that she expected to call Smith on May 8, 2018, Dkt. No.
116-1, ¶ 8 & Ex. F; Dkt. No. 129-1, at 17, so Smith appeared and remained at the
Courthouse the entire day but was not called to testify. Dkt. No. 116-1, ¶ 9; Dkt. No. 122, ¶
6. Smith spent the night at her Clifton Park, New York residence, returned the next day,
testified, and then returned to her Alburgh, Vermont residence. Dkt. No. 116-1, ¶ 9-10; Dkt.
No. 122, ¶¶ 6-9. Even assuming that Smith was served with a subpoena ad testificandum
in March requiring her testimony in May, the subpoena did not require her to alter her plans
to move into her Alburgh, Vermont residence in the beginning of May. Because Plaintiff

7
Defendant argues in the alternative that its response to Plaintiff’s challenge to the Bill of Costs
should be treated a motion to compel Plaintiff to pay his statutory witness fees.

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was aware of Smith’s half-year residence in Vermont and agreed to pay one-half of Smith’s
witness costs, one-half of those costs is a statutory obligation Plaintiff assumed. The other
half is an expense born by Defendant that is taxable pursuant to §1920(3). Plaintiff fails to
satisfy his burden of demonstrating that the sought-after costs for Smith’s testimony are
improper or should be denied. Consequently, his objection to Smith’s witness costs is
overruled.
3. Analysis - Frasco’s Witness Costs
Plaintiff argues that expenses for Frasco’s testimony should be excluded because
Defendant failed to produce Frasco for a deposition or disclose his whereabouts in a timely
fashion. The issue of Defendant’s knowledge of Frasco’s whereabouts, and whether
Frasco should be allowed to testify, was the subject of an in limine motion brought by
Plaintiff. The Court resolved the issue in Defendant’s favor, see e.g., Dkt. No. 94; TT at 2829, and Frasco was allowed to testify. Objection to the Bill of Costs is not the proper vehicle
to re-litigate this issue. Because Frasco did testify, and because Plaintiff offers no other
valid reason to prohibit taxing Frasco’s witness costs, the objection on this ground is
overruled.
4. Analysis - Close and Difficult Case
The retaliation claim that was tried to the jury was not, in the Court’s opinion, such a
close or difficult case that expenses should not be taxed under Rule 54(d)(1).
While Plaintiff evidently believes that the factual issues were close and the jury reached the
wrong conclusion, that position is based on a view of the evidence though Plaintiff’s eyes.
But a party’s resolute stance in his position, even after a contrary jury conclusion, does not

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make the case so close that costs should not be tax ed. Otherwise, every case brought in
good faith would avoid taxation of costs, making Rule 54 meaningless. Similarly, the claim
tried to the jury was not legally difficult, and it certainly was not so legally difficult or so
close that costs should not be taxed. Plaintiff’s objection to the taxing of costs on this
ground is overruled.
5. Analysis - Trial Transcripts
The cost for trial transcripts purchased by Defendant to defend against Plaintiff’s
Rule 50 and Rule 59 motions is a taxable expense. 28 U.S.C. §1920(2). Because the need
for these transcripts arose after Defendant submitted its Bill of Costs, this cost can be
added. Thus, $690.30 for the trial transcript fees is added to the Bill of Costs.
6. Conclusion - Bill of Costs
For the reasons set forth above, the Court approves a Bill of Costs in the total
amount of $4,525.71. This amount is reached by taking the $3,902.86 total in the original
Bill of Costs (Dkt. No. 105), subtracting $67.45 for Frasco's pre-trial interview, and adding
$690.30 for the trial transcript fees.
c. Defendant’s Motion to Redact Trial Transcript
Defendant moves to redact portions of the trial transcript, essentially requesting
these portions be sealed. All of the transcript lines Defendant wants redacted center
around Lauren Smith’s testimony that, as the former Arsenal Chief of Staff, she imposed a
5-day suspension upon Security Officer Michael Valle. Defendant asserts that information
concerning Valle’s suspension is covered by the Privacy Act, 5 U.S.C. § 552a, was
disclosed to Plaintiff only under a stipulated protective order signed by Magistrate Judge

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Hummel, and should be not be made publically available. Plaintiff does not oppose the
motion. Dkt. No. 125.
Defendant’s motion implicates First Amendment and common law presumptions in
favor of public access to court proceedings and transcripts.8 See Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597-98 (1978); Newsday LLC v. Cnty. of Nassau, 730 F.3d
156, 163 (2d Cir. 2013); In re N.Y. Times Co. to Unseal Wiretap & Search Warrant
Materials, 577 F.3d 401, 409 (2d Cir. 2009); Lugosch v. Pyramid Co. of Onondaga, 435
F.3d 110, 119–20 (2d Cir. 2006).
[T]he right of access afforded by the common law and First Amendment is not
absolute, and the need for disclosure may be overcome where there are
“countervailing factors” (in the common law framework), see United States v.
Amodeo, 71 F.23d at 1050, or where sealing is necessary to preserve “higher
values” (in the First Amendment context), see [United States v. Erie Cty, N.Y.,
763 F.3d 235, 239 (2d Cir. 2014)]. Under certain circum stances the privacy
interests of the person resisting disclosure can be sufficient to overcome the
public right of access. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d at 120.
USA v. Reynolds, 3:18-CR-0321 (N.D.N.Y. ), 01/09/19 Dec. & Ord. (Dkt. No. 54) at 3-4
(Stewart, MJ)(addressing requested redaction of portions of a detention hearing transcript).
The party moving to redact a transcript of a public court proceeding “ultimately bears
the burden of establishing that sealing is warranted.” Id. at 4 (citation omitted). In this
regard, the moving party must demonstrate “that higher values overcome the presumption
of public access.” Giuffre v. Maxwell, 325 F. Supp. 3d 428, 441–42 (S.D.N.Y. 2018)(citing
DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997)).

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Given the importance of these presumptions inuring to the benefit of entities not before the court,
the Court sua sponte considers their application. See e.g. Prescient Acquisition Group, Inc. v. MJ Publ'g
Trust, 487 F. Supp.2d 374, 375 (S.D.N.Y. 2007) (court sua sponte required party seeking to maintain court
filings under seal to “identif[y] with particularity (i.e. page and line) the precise information ... which the party
maintains should be kept under seal [and] demonstrat[e] the particular need for sealing the information”).

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While the Court recognizes the importance of protective orders for discovery
purposes, Defendant’s interest in maintaining the privacy of Valle’s disciplinary history did
not override Plaintiff’s right to present relevant evidence to the jury. Thus, the Court ruled
that Plaintiff’s counsel could question Smith regarding Valle’s 5-day suspension. This ruling
is the functional equivalent of a Court Order allowing disclosure of material covered by the
Privacy Act. See 5 U.S.C. § 552a(b)(11). Moreover, Smith testified in open court regarding
her decision to uphold a 5-day suspension for Valle. The facts surrounding Valle’s 5-day
suspension “became public the moment [they were] uttered.” Miller v. City of Ithaca, No.
3:10-CV-597, 2013 WL 12310675, at *1 (N.D.N.Y. Feb. 15, 2013). Once uttered, the
subject of Smith’s testimony became part of the public domain, see Craig v. Harney, 331
U.S. 367, 374 (1947)(“What transpires in the court room is public property.”), and as such,
“cannot be redacted after-the-fact.” Miller, 2013 WL 12310675, at *1 (citing United States v.
Strevell, No. 05-CR-477(GLS), 2009 WL 577910, 2009 U.S. Dist. LEXIS 19020 (N.D.N.Y.
Mar. 3, 2009) (in turn citing Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir.
2004) (“[O]nce the genie is out of the bottle because an otherwise protected document is in
the public domain, the court has no power to remove it from that domain.”))). Since the
"genie is out of the bottle," this Court has "no power to remove it from that domain" by way
of redaction. Strevell, 2009 WL 577910, at *5, 2009 U.S. Dist. LEXIS 19020,*14–15.
Defendant’s motion is denied as to any statements about Valle’s suspension made in open
court.
Defendant also seeks to redact related discussions that occurred during the pre-trial
conference and at side bars. These discussions, although not in open court, provide

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context to the Court’s decision to allow Smith’s testimony and thereby fall within the scope
of the First Amendment and common law presumptions in favor of public access. See
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)(“The presumption of access is
based on the need for federal courts, although independent–indeed, particularly because
they are independent—to have a measure of accountability and for the public to have
confidence in the administration of justice."). Defendant has not demonstrated that the
need to redact chambers and side bar discussions about evidence disclosed in open court
overcomes the First Amendment and common law presumptions in favor of public access to
the transcripts. Accordingly, Defendant’s motion to redact these portions of the trial
transcript is also denied.
IV.

CONCLUSION
For the reasons discussed above,
- Plaintiff’s motion for judgment as a matter of law or, in the alternative, a new trial,

Dkt. Nos. 104 & 117, is DENIED.
- Defendant’s motion to confirm its Bill of Costs, Dkt. No. 105, is GRANTED as
amended, with the Court approving Defendant’s Bill of Costs in the total amount of
$4,525.71.
- Defendant’s motion to redact portions of the trial transcript, Dkt. No. 114, is
DENIED.
IT IS SO ORDERED.
Dated:February 19, 2019

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