Hansen v. Warren County et al
Filing
98
DECISION AND ORDER: Ordered that Plaintiff's motion for a new trial (Dkt. No. 89 ) is Denied and Ordered that Defendants' motion for a bill of costs (Dkt. No. 86 ) is Granted in Part and Denied in Part such that costs are awarded to Defendants from Plaintiff in the amount of $1101.48. Signed by Magistrate Judge Therese Wiley Dancks on 08/20/2020. (hmr)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CHRIS HANSEN,
Plaintiff,
1:17-cv-1134
(TWD)
v.
WARREN COUNTY and PEYTON OGDEN,
Defendants.
_____________________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF MARTIN J. MCGUINNESS
Attorneys for Plaintiff
MARTIN J. MCGUINNESS, ESQ.
JOHNSON & LAWS, LLC
Attorneys for Defendants
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Chris Hansen (“Plaintiff” or “Hansen”) commenced this action pursuant to 42
U.S.C. § 1983 and New York state law against Defendants Warren County and Sheriff’s
Deputies Peyton Ogden (“Ogden”) and Daniel Habshi (“Habshi”). (Dkt. No. 2.) After motion
practice, only Plaintiff’s Fourth Amendment excessive force claim against Ogden and state law
battery claims against Ogden and Warren County remained for trial. (Dkt. Nos. 30, 52.) On
November 18, 2019, following a four-day trial, including approximately eight-hours of
deliberations, the jury rendered a verdict in favor of Defendants. (Dkt. No. 79.) Judgment was
entered in favor of Defendants on November 19, 2019. (Dkt. No. 84.)
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Currently pending before the Court are: (1) Plaintiff’s motion for a new trial pursuant to
Rule 59 of the Federal Rules of Civil Procedure (“Rule 59”) and Defendants’ motion for a bill of
costs pursuant to Rule 54 of the Federal Rules of Civil Procedure (“Rule 54”). (Dkt. Nos. 86,
89.) The motions are fully briefed. (Dkt. Nos. 90, 95, 97.) For the reasons that follow,
Plaintiff’s motion for a new trial is denied and Defendants’ motion for a bill of costs is granted in
part and denied in part.
II.
BACKGROUND
Familiarity with the procedural and factual background of this case is presumed, and
portions of the background are recited only where necessary to decide the pending motions.
III.
PLAINTIFF’S RULE 59 MOTION
Plaintiff argues a new trial is warranted because (1) he was precluded from offering
expert testimony on the central issue of the case while Defendants were allowed to present
heavily biased fact and expert testimony from Habshi; (2) the verdict was against the weight of
the evidence; and (3) defense counsel made improper comments during opening and closing
statements which unfairly influenced the jury’s verdict. (Dkt. No. 89-2.) Defendants oppose the
motion, and Plaintiff has replied. (Dkt. Nos. 95-5, 97.)
A.
Legal Standard
Rule 59 provides that, after a jury trial, 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). Generally, a district court should grant a motion for a new trial where, in its
opinion, the jury has reached a “seriously erroneous result” or the verdict is a “miscarriage of
justice.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quoting
Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). Grounds for a new trial include
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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
jury instructions; and (4) excessive damages. Utica Mut. Ins. Co. v. Century Indem. Co., 419 F.
Supp. 3d 449, 466-67 (N.D.N.Y. 2019) (citation omitted).
A new trial is also warranted where “opposing counsel’s conduct causes prejudice to that
party . . . thereby unfairly influencing its verdict.” Tesser v. Bd. of Educ. of the City Sch. Dist. of
New York, 370 F.3d 314, 321 (2d Cir. 2004) (citations omitted). The totality of the
circumstances must be considered, “including the nature of the comments, their frequency, their
possible relevance to the real issue before the jury, [and] the manner in which the parties and the
court treated the comments.” Hopson v. Riverbay Corp., 190 F.R.D. 114, 122 (S.D.N.Y.1999)
(internal quotation marks omitted).
“[I]n addressing a Rule 59 motion, the court may independently weigh the evidence
presented at trial to determine whether the jury’s verdict is seriously erroneous or resulted in a
miscarriage of justice.” Edwards v. Schrader-Bridgeport Int’l., Inc., 205 F. Supp. 2d 3, 8
(N.D.N.Y. 2002) (quotation marks and citation omitted). “In doing so, the court ‘is afforded
considerable discretion.’” Id.; see also Dotson v. City of Syracuse, No. 5:04-CV-1388
(NAM/GJD), 2011 WL 817499, at *11 (N.D.N.Y. Mar. 2, 2011) (“The standard for granting
such a motion is high and rulings on motions under Rule 59(a) are committed to the sound
discretion of the district court.”) (quotation marks and citation omitted).
A trial court has considerable discretion in determining whether or not evidence is
admissible. See Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 346 (2d Cir.
1999). A new trial on the basis of improper evidentiary rulings will be granted only where the
improper rulings “affect[] a substantial right of the moving party.” Mem’l Drive Consultants,
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Inc. v. ONY, Inc., 29 F. App’x 56, 61 (2d Cir. 2002) (summary order) (citing Malek v. Fed. Ins.
Co., 994 F.2d 49, 55 (2d Cir. 1993)). Whether an evidentiary error implicates a substantial right
depends on “the likelihood that the error affected the outcome of the case.” Malek, 994 F.2d at
55. Additionally, “[i]t is well-settled that Rule 59 is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
second bite at the apple.” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations
omitted).
B.
Analysis
After carefully considering the matter, the Court denies Plaintiff’s Rule 59 motion.
Initially, and as pointed out by Defendants, for the bulk of Plaintiff’s arguments, he fails to cite
to any transcript or record from the trial to support them. (See generally Dkt. No. 89-2.) These
“unsupported contentions . . . are insufficient to justify the grant of a new trial.” AMW Materials
Testing, Inc. v. Town of Babylon, No. 01 CV 4245 (ADS) (ETB), 2008 WL 11449231, at *18
(E.D.N.Y. Mar. 13, 2008); see also Robinson v. Ballard, 9:13-CV-01213 (TWD), 2019 WL
4686355, at *3 (N.D.N.Y. Sept. 26, 2019). Nevertheless, the Court has considered each of
Plaintiff’s arguments and will address them in the same order as presented by Plaintiff.
1.
Expert Testimony
Plaintiff first argues a new trial is warranted because (1) this Court, in a pretrial motion in
limine ruling, precluded Plaintiff from calling Ken Cooper (“Cooper”) as an expert and allowed
Habshi to testify both as an expert and fact witness; and (2) Habshi’s strong partiality toward
Defendants and advocacy for Ogden, combined with the lack of a curative or limiting instruction
regarding his dual role as witness, may have improperly influenced and/or confused the jury.
(Dkt. No. 89-2 at 13-16.) Plaintiff also contends Habshi was evasive and non-responsive during
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cross examination. Id.; see also Dkt. No. 97. Defendants respond that (1) the Court’s pretrial in
limine rulings were adequately supported and well within the Court’s discretion to decide
evidentiary matters; and (2) neither the fact that Habshi was an interested witness nor the
absence of a limiting instruction—to which Plaintiff did not propose or raise an objection—is
grounds for a new trial. (Dkt. No. 95-5 at 10-15.)
First, the Court finds the preclusion of Plaintiff’s proposed expert testimony by Cooper
does not warrant a new trial. A district court has “broad discretion” to carry out the Daubert
gatekeeping function and ensure expert testimony is reliable and relevant. See In re Pfizer Inc.
Sec. Litig., 819 F.3d 642, 658 (2d Cir. 2016). While Plaintiff faults the Court’s pretrial ruling for
relying on the fact that Cooper has never been a police officer or arrested anyone (Dkt. No. 89-2
at 15), the Court thoroughly considered all of Cooper’s training and experience in determining he
was not qualified to testify as an expert about the use of non-lethal force by a police officer to
effectuate a lawful arrest at the scene of a domestic dispute (see Dkt. No. 74). Plaintiff makes no
showing that the exclusion of Cooper’s testimony affected a substantial right by likely affecting
the outcome of the case. See Malek, 994 F.2d at 55; see also Fed. R. Civ. P. 61 (“Unless justice
requires otherwise, no error in admitting or excluding evidence . . . is ground for granting a new
trial.”). Moreover, Plaintiff does not raise any new legal arguments or authority to support his
contention that Cooper’s testimony should have been allowed. As noted above, it is well-settled
that Rule 59 “is not a vehicle for relitigating old issues . . . or otherwise taking a second bite at
the apple.” Sequa Corp., 156 F.3d at 144.
Second, the Court finds Plaintiff has not shown Habshi’s “dual role” as a fact and expert
witness resulted in the jury reaching a seriously erroneous result or a miscarriage of justice.
Initially, Plaintiff’s complaints that Habshi and Ogden are friends and therefore Habshi was an
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“interested” witness are not grounds for a new trial. As Plaintiff notes, the evidence at trial
indicated that Habshi and Ogden were colleagues, socialized together, and traveled to the trial
together. (See Dkt. No. 89-2 at 14.) The jury was free to take into account the relationship
between Habshi and Ogden when assessing Habshi’s credibility and the weight to which his
testimony was entitled. In considering a Rule 59 motion for a new trial, moreover, a court
should “rarely disturb a jury’s evaluation of a witness’s credibility.” DLC Mgmt. Corp., 163
F.3d at 134 (citations omitted).
Plaintiff also argues a curative or limiting instruction should have been given to help the
jury differentiate between Habshi’s expert and fact testimony. (Dkt. No. 89-2 at 15.) As
Defendants note, however, Plaintiff failed to include a curative instruction in his proposed jury
instructions, stated he had no issues with the jury charges during the charge conference, and
otherwise failed to object to the absence of an instruction regarding Habshi’s dual role as expert
and fact witness. (See Dkt. No. 95-5 at 14-15.) Moreover, to the extent a motion for a new trial
is premised on an objection to a jury instruction, Rule 51 of the Federal Rules of Civil Procedure
(“Rule 51”) requires the movant to have raised that objection before the jury retires to preserve
the objection. See Brenner v. World Boxing Council, 675 F.2d 445, 456 (2d Cir. 1982), cert.
denied, 459 U.S. 835 (1982). As noted, Plaintiff made no such objection.
However, Rule 51 provides, in pertinent part, that “[a] court may consider a plain error in
the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects
substantial rights.” Fed. R. Civ. P. 51(c), (d). As such, “to establish plain error, [the movant]
must show there was (1) error (2) that is plain and (3) that affects substantial rights.” U.S. v.
Cossey, 632 F.3d 82, 86-87 (2d Cir. 2011) (citations omitted). The error should be corrected
only if it “seriously affects the fairness, integrity, or public reputation of the judicial
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proceedings.” Id. at 87 (citations and punctuation omitted). “The plain error doctrine should
only be invoked with extreme caution in the civil context.” Feeley v. City of New York, 362 F.
Supp. 3d 153, 160 (S.D.N.Y. 2019) (citation and quotation marks omitted). “To constitute plain
error, a court’s action must contravene an established rule of law and the substantial right
affected must go to the very essence of the case.” Id. (citations and internal punctuation
omitted).
Here, there is no such error. A jury instruction is erroneous, and a new trial warranted,
only if it misleads a jury as to the correct legal standard or does not adequately inform the jury
on the law. Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994). Moreover, an omission in
jury instructions is less likely to be prejudicial than a misstatement of the law. Lore v. City of
Syracuse, 670 F.3d 127, 156 (2d Cir. 2012). Plaintiff has not shown the jury instructions were
legally incorrect, led to any jury confusion, or caused any prejudice. Therefore, Plaintiff has
failed to show that the absence of a curative instruction regarding Habshi’s dual role resulted in a
seriously erroneous result or a miscarriage of justice. See DLC Mgmt. Corp., 163 F.3d at 133.
Based on the foregoing, the Court finds no error in the preclusion of Cooper’s testimony,
Habshi’s testimony as both a fact and expert witness, and/or the absence of a jury instruction
regarding Habshi’s “dual role” as a fact and expert witness. Therefore, a new trial is not
warranted on these grounds.
2.
Weight of the Evidence
Plaintiff next argues a new trial is warranted because the verdict was against the weight
of the evidence. (Dkt. No. 89-2 at 16-18.) Generally, Plaintiff argues the testimony and
evidence at trial disproved the notion that Plaintiff was choking Gina Canale (“Canale”) at the
time Ogden entered the residence and he attempts to cast doubt on Defendants’ evidence. See id.
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Defendants respond that the verdict was consistent with the evidence and argue Plaintiff’s
motion is based on post-trial subjective credibility assessments. (Dkt. No. 95-5 at 15-19.)
Here, the Court finds Plaintiff has not come forth with evidence which shows the jury
reached a seriously erroneous result or the verdict was a miscarriage of justice. Plaintiff largely
argues his evidence was more credible than Defendants’ evidence. However, as noted above, a
court should “rarely disturb a jury’s evaluation of a witness’s credibility.” DLC Mgmt. Corp.,
163 F.3d at 134 (citations omitted); see also Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544,
558-59 (S.D.N.Y. 2010) (“In weighing the evidence, however, the Court should not ordinarily
ignore the jury’s role in resolving factual disputes and assessing witness credibility.”) (internal
quotation marks and citation omitted). Accordingly, the Court declines to disturb the jury’s
findings on this basis.
Moreover, to the extent Plaintiff argues the verdict goes against the weight of the
evidence because the evidence disproved the notion that he was choking Canale, this argument is
unavailing. As pointed out by Defendants, the ultimate question of the reasonableness of the
force used by Ogden does not turn on whether or not Plaintiff was in fact choking Canale nor the
precise placement of Plaintiff’s hand or hands around her neck. (Dkt. No. 95-5 at 16-18.) The
Court has thoroughly reviewed Plaintiff’s arguments and exhibits in this regard and finds that
Plaintiff has not come forward with any evidence to show that the jury reached a seriously
erroneous result or that the verdict was a miscarriage of justice. See Manley v. AmBase Corp.,
337 F.3d 237, 244 (2d Cir. 2003). In fact, in other submissions to the Court, Plaintiff submits the
litigated “issues were close.” (See Dkt. No. 90 at 1.)
Accordingly, Plaintiff has not demonstrated the verdict goes against the weight of the
evidence and the Court declines to disturb the jury’s findings on this basis and order a new trial.
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3.
Statements Made by Defense Counsel
Plaintiff contends statement made by defense counsel during his opening and closing
statements were prejudicial and require a new trial. (Dkt. No. 89-2 at 19-21.) Specifically,
Plaintiff complains that (1) during opening statements, defense counsel stated the Court had
already determined Hansen’s arrest was “constitutional and legitimate” and (2) during closing
statements, defense counsel stated Ogden had worked his way up the ranks and implied that an
adverse verdict would harm his career and also asked the jury to consider what “message” their
verdict would send to law enforcement personnel more generally. See id. Plaintiff agues
defense counsel’s reference to his “constitutional and legitimate” arrest was not relevant to any
of the issues in the case, was substantially prejudicial because of the “risk” the jury would place
undue emphasis on the Court’s order, and was “misleading” because it implied that there was
“nothing wrong with the arrest.” Id. at 20 (emphasis in original). Plaintiff further contends the
comment was “misplaced” because no evidence relating to the dismissal of the false arrest claim
was ever introduced into evidence. Id. As to the challenged remarks during defense counsel’s
summation, Plaintiff contends the comments at issue were “naked attempts to appeal to the
passion of the jurors and were designed to generate sympathy for Ogden.” Id. at 21.
A court may order a new trial on the basis of attorney misconduct when, inter alia, “the
conduct of counsel in argument causes prejudice to the opposing party and unfairly influences a
jury’s verdict.” Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 540 (2d Cir. 1992). “[I]n
evaluating a motion for a new trial based on counsel’s alleged misconduct, the court must
consider such a claim in the context of the trial as a whole, examining, among other things, the
totality of the circumstances, including the nature of the comments, their frequency, their
possible relevancy to the real issues before the jury, and the manner in which the parties and the
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court treated the comments.” Graham v. City of New York, 128 F. Supp. 3d 681, 698 (E.D.N.Y.
2015) (internal citations and quotation marks omitted). “Determining if counsel’s conduct was
so improper as to warrant a new trial is committed to the sound discretion of the trial judge.” Id.
As the Second Circuit has recognized, the trial court holds a “superior vantage point when
evaluating the possible impact of the alleged prejudicial conduct” as “[a] printed record is unable
to replicate in full all the circumstances–for example, tones of voices, demeanor of witnesses and
jurors and the like–that occur in the course of an unfolding trial.” Pappas, 963 F.2d at 540.
“The relevant inquiry in assessing undue prejudice is whether there is a ‘reasonable
probability’ that the jury’s verdict was influenced by the improper conduct of counsel.” Claudio,
955 F. Supp. 2d at 156 (quoting Chang v. City of Albany, 150 F.R.D. 456, 459 (N.D.N.Y. 1993)).
“[R]arely will an attorney’s conduct so infect a trial with undue prejudice or passion as to require
reversal.” Marcic v. Reinauer Transp. Companies, 397 F.3d 120, 124 (2d Cir. 2005) (internal
quotation marks omitted).
Taking into consideration the totality of the circumstances, the Court finds a new trial is
not warranted based on defense counsel’s statements. At the beginning of the trial, the jury was
instructed that “statements, arguments, and questions by the lawyers are not evidence.” (Dkt.
No. 95-2 at 4.) As to the challenged remarks made during defense’s counsel opening statement,
that “[t]his Court has already determined that that arrest was constitutional and legitimate,” to
which Plaintiff’s counsel did not object, the Court finds the statement was not unduly prejudicial
or confusing, and thus does not provide a basis for a new trial. As pointed out by Defendants,
inasmuch as Plaintiff’s counsel attempted to “justify and legitimize” his October 23, 2016,
conduct, by devoting most of his opening statement describing the history of events leading up to
Hansen’s arrest, it was critically important that the jury understand that the issues of whether
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Plaintiff was lawfully arrested was not an issue before them. (Dkt. No. 95-5 at 21-22.)
Additionally, during his summation, Plaintiff’s counsel explained that “what’s not at issue in this
case is whether the arrest was lawful. You’re not deciding that.” (Dkt. No. 95-4 at 77.)
As to the challenged statements made during defense’s counsel summation, concerning
“messages” the jury’s verdict would “send” to Ogden and police officers generally, and any
impact a verdict may have on Ogden’s career and legacy, Plaintiff’s counsel objected, and the
objections were sustained. (Dkt. No. 95-4 at 61, 62.) No additional statements of this type were
made by defense counsel. On the other hand, Plaintiff’s counsel began his summation as
follows:
Ladies and gentlemen of the jury, let me tell you what this case is
not about. This case is not about Peyton Ogden’s police career and
whether he’s been successful or whether he’s moved on to become
a state trooper and the tarnish this lawsuit might put on his career.
This has nothing to do with that. This case doesn’t have anything
to do with sending messages to police in general, and Mr. Hansen
isn’t suing police in general. He’s not suing the law enforcement
of the United States of America. He’s not putting police
departments on trial. He’s not asking you to send a message to
anyone except Peyton Ogden for bashing him up. . . .
This case is about what happened on October 23 of 2016, and it’s
about that and the six months after that when Mr. Hansen had to
endure the injuries, the bruising, the inability to sleep in his own
bed, because that man right there sitting at that table, all 245
pounds of him, decided to get on top of him and beat him while
he’s unconscious. That’s what this case is about. It’s not about his
police career.
Id. at 62-63.
In addition to sustaining the above-noted objections during defense counsel’s summation,
at the conclusion of the trial, the jury was instructed that the closing statements of counsel were
not evidence. (Dkt. No. 95-4 at 81.) The jury was also instructed that “in deciding the facts of
this case, you must not be swayed by feelings of bias, prejudice, or sympathy towards any
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party[.]” Id. at 80. The jury was instructed that “every person has the constitutional right not to
be subjected to excessive force while being arrested, even where the arrest is otherwise lawful.”
(Dkt. No. 95-4 at 93.) Here, there is no indication the jury was unable to follow these
instructions. See C.C. by and through Camarata v. Polaris Industries, Inc., No. 14-CV-0975
(GTS/TWD), 2018 WL 3031848, at *3 (N.D.N.Y. June 19, 2018) (“A jury is presumed to follow
the instructions given by the Court and Plaintiff has not shown any evidence to suggest that the
jury failed to properly follow these instructions when considering Plaintiff’s claims.”). Thus,
even assuming arguendo that defense counsel’s remarks were improper, the Court finds any
potential prejudice was cured by the jury instructions. See Pappas, 963 F.2d at 540 (“Some
misconduct is de minimis in the context of the entire trial, and some is promptly dealt with by the
trial court’s rulings and curative instructions.”); see also Claudio, 955 F. Supp. 2d at 149 (noting
that a warning to counsel, a sustained objection, and/or a curative instruction may sufficiently
counteract any risk of prejudice posed by attorney misconduct).
Accordingly, given the totality of the circumstances, a new trial is not warranted based on
defense counsel’s statements.
For all the foregoing reasons, the Court denies Plaintiff’s Rule 59 motion for a new trial.
IV.
DEFENDANTS’ MOTION FOR A BILL OF COSTS
As the prevailing party in this action, Defendants seek costs in the total amount of
$1720.98. (Dkt. No. 86.) Plaintiff opposes the motion. (Dkt. No. 90.)
A.
Legal Standard
Rule 54 allows the Court to award the prevailing party its costs. Fed. R. Civ. P. 54(d)(1);
see also N.D.N.Y. L.R. 54.1(a). 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
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omitted). As a threshold matter, the prevailing party must establish to the court’s satisfaction
that the taxation of costs is justified. Dedjoe v. Esper, No. 1:15-CV-1170 (TJM), 2019 WL
697824, at *6 (N.D.N.Y. Feb. 19, 2019) (citing John and Kathryn G. v. Board of Ed. of Mt.
Vernon Public Schools, 891 F. Supp. 122, 123 (S.D.N.Y. 1995)). “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.” Id. (quoting 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; for example, costs may be denied
because of misconduct by the prevailing party, the public importance of the case, the difficulty of
the issues, or the losing party’s limited financial resources. ” Whitfield, 241 F.3d at 270
(citations omitted). 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).
B.
Analysis
As noted, Defendants seek costs in the amount of $1720.98, which is the combination of
$400.00 for fees of the Clerk, $170.00 for service of summons and subpoena, $1049.50 for
printed or electronically recorded transcripts, and $101.48 for witness fees. (Dkt. No. 86.) Each
is a specific item enumerated in 28 U.S.C. § 1920 and Defendants have provided documentation
supporting their sought-after costs. Id. Thus, Defendants are presumptively entitled to these
costs under Rule 54. See Dizak v. Hawks, No. 9:15-CV-1171 (TJM), 2020 WL 204297, at *7
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(N.D.N.Y. Jan. 13, 2020) (citing Natural Organics, 2009 WL 2424188, at *2) (“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.”).
Despite this presumption, the Court can deny taxation of costs if Plaintiff meets his burden of
demonstrating that some or all the costs should not be taxed. See id.
Generally, Plaintiff argues the costs sought by the Defendants should be rejected because,
inter alia, Plaintiff litigated the matter in “good faith” and the “issues were close.” (Dkt. No. 90
at 1. 1) Plaintiff asserts the taxable costs would cause financial hardship, 2 and notes Ogden likely
has no responsibility for any incurred costs and that Warren County, a taxing municipal entity
with significant resources, was likely responsible for all costs. Id.
Regardless, as to the removal fee, Plaintiff submits he already paid $210.00 to commence
this action in Supreme Court, Warren County, and argues he should not have to pay an additional
$400.00 “to reimburse the Defendants for their discretionary choice of forum decision.” Id. at 2.
As to the depositions, Plaintiff states he already paid $150.00 for the January 24, 2018,
deposition of John LaBombard (“LaBombard”), and has submitted evidence of same, and asserts
he should not have to pay twice for the deposition transcript. 3 Relative to the pre-
1
The Court notes Plaintiff also references his pending motion for a new trial. (Dkt. No. 90 at 1.)
However, for reasons explained above, that motion is denied. See Part III., supra. Additionally,
in this District, an appeal does not stay a motion for a bill of costs or the timeframe within which
the prevailing party may seek costs. N.D.N.Y. L.R. 54.1(a). The Local Guidelines state, in
relevant part, that “[u]nless 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, entry of judgment thereon, or the judgment.” See Local Guidelines I.F.2.
2
Specifically, Plaintiff states that he lost his job as a corrections officer and several months of
pay in part because of his arrest on charges which were dismissed and, therefore, should not have
to reimburse Defendants any amount of money. (Dkt. No. 90 at 1.)
3
Specifically, Plaintiff suggests that if Defendants wanted a copy of LaBombard’s deposition,
they should have requested a free copy from Plaintiff, and he would have provided a copy of the
deposition free of charge (as Plaintiff’s counsel did with both Ogden’s and Habshi’s deposition
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commencement 50h hearing, held June 1, 2017, Plaintiff argues, upon information and belief,
there is no law providing that a state law notice of claim examination is a taxable cost in a
federal action. Id. As to Hansen’s post-commencement examination, held April 10, 2018,
Plaintiff argues he paid his share of the deposition in the amount of $209.00, and has submitted
evidence of same, and asserts Defendants are seeking a “windfall.” Id.
Here, as to the imposition of costs generally, the Court finds Plaintiff has not met his
burden to establish he is entitled to an exception to the normal rule of taxation. While Plaintiff
believes the litigated “issues were close” and the jury reached the wrong conclusion, “a party’s
resolute stance in his position, even after a contrary jury conclusion, does not make the case so
close that costs should not be taxed. Otherwise, every case brought in good faith would avoid
taxation of costs, making Rule 54 meaningless.” Dedjoe v. Esper, 2019 WL 697821, at *8; see
also Dash v. Montas, 17-CV-515 (PKC/RER), 2020 WL 2198175, *1 (E.D.N.Y. May 6, 2020)
(“The filing of an action in good faith does not, by itself, compel the denial of costs.”) (citing,
inter alia, Castro v. City of New York, No. 10-CV-4898 (NG/VVP), 2014 WL 4659293, at *3
(E.D.N.Y. Sept. 17, 2014)).
“Moreover, even if the Court were to assume that the amount sought by Defendants
would represent some degree of financial difficulty for Plaintiff, the Court is not obliged to deny
costs on this basis alone.” Kane v. City of Ithaca, No. 3:18-CV-0074 (ML), 2020 WL 372747, at
*3 (N.D.N.Y. Jan. 22, 2020) (citations omitted); see also Burchette v. Abercrombie & Fitch
Stores, Inc., 08-CV-8786, 2010 WL 3720834, at *5 (S.D.N.Y. Sept. 22, 2010) (notwithstanding
its acceptance of the plaintiff’s “modest financial circumstances,” the court refused to deny the
transcripts). The Court notes, however, both Ogden and Habshi were named as parties to this
action, whereas LaBombard was not.
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defendants’ recovery of more than $2,000 in costs)); see also Zulu v. Barnhart, No. 9:16-CV1408 (MAD/ML), 2019 WL 4544420, at *1 (N.D.N.Y. Sept. 19, 2019) (“Although a court may
deny costs because of the losing party’s indigency, indigency per se does not automatically
preclude an award of costs.”).
Turning to Plaintiff’s specific objections, among the items listed in 28 U.S.C. § 1920(1)
as taxable costs are “fees of the clerk,” which the Local Guidelines describes as including the
“[f]iling fee for a complaint, removal, or habeas corpus petition filed in federal court[.]” Local
Guidelines II.B.a. Thus, the Court finds Defendants are entitled to the $400.00 removal fee. See
Kane, 2020 WL 32747, at *5 (granting the defendants’ motion for costs and taxing the plaintiff
the $400.00 removal fee).
As to “fees for printed or electronically recorded transcripts necessarily obtained for in
use in the case,” considering Plaintiff’s specific objections and the equitable considerations
discussed above, the Court exercises its discretion and reduces the costs from $1049.50 to
$430.00. The Court arrives at this amount by starting with Defendants’ requested amount
$1049.50, and subtracts from it $410.50 (Plaintiff’s June 1, 2017, pre-commencement 50(h)
hearing) and $209.00 (the amount of Plaintiff’s share of the April 10, 2018, deposition that
Plaintiff already paid). As to the deposition of LaBombard, a non-party, the Court finds the
transcript fee in the amount of $139.75 to be reasonable. Plaintiff does not specifically challenge
the requested fees to secure Canale’s testimony at trial, which the Court also finds reasonable.
Accordingly, Defendants’ motion for a bill of costs is granted in part and denied in part.
The amount of costs owed to Defendants by Plaintiff is reduced from $1720.98 to $1101.48.
V.
CONCLUSION
Accordingly, for the reasons discussed above, it is hereby
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Case 1:17-cv-01134-TWD Document 98 Filed 08/20/20 Page 17 of 17
ORDERED that Plaintiff’s motion for a new trial (Dkt. No. 89) is DENIED; and it is
further
ORDERED that Defendants’ motion for a bill of costs (Dkt. No. 86) is GRANTED IN
PART AND DENIED IN PART such that costs are awarded to Defendants from Plaintiff in the
amount of $1101.48.
SO ORDERED.
Dated: August 20, 2020
Syracuse, New York
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