Watkins v. The City Of New York , et al

Filing 127

OPINION AND ORDER: re: 121 MOTION to Appeal Clerk's Decision on Taxation of Costs re: 120 Taxation of Costs, filed by Shauntay Watkins. For the reasons stated above, Watkins' appeal of the Clerk's taxation of costs isgranted a s to the daily trial transcripts, subpoena fee for David, and witness fee for Wadley, and denied as to the subpoena fee for Wadley. The Clerk of Court is respectfully requested to amend the bill of costs as follows: Fees for service of summons and s ubpoena reduced from $ 94.85 to $569.85; Fees for transcripts reduced from $3,323.16 to $1,781.04; Fees for witnesses reduced from $150.86 to $78.00 for a total of $2,428.89. The Clerk of Court is further respectfully directed to terminate the motion, Doc. 121. SO ORDERED. (Signed by Judge Edgardo Ramos on 2/18/2022) (ama) Transmission to Orders and Judgments Clerk for processing.

Case 1:16-cv-04161-ER Document 127 Filed 02/18/22 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAUNTAY WATKINS,
Plaintiff,
v.

OPINION AND ORDER
16 Civ. 4161 (ER)

NEW YORK CITY TRANSIT
AUTHORITY,
Defendant.
Ramos, D.J.:
In 2016, Shauntay Watkins brought suit against her former employer, the New
York City Transit Authority (“NYCTA”), alleging discrimination in the workplace. Doc
1. On December 21, 2018, following trial, a jury returned a verdict for the NYCTA,
finding that Watkins had not established by a preponderance of the evidence that she was
subjected to a hostile work environment. Doc. 85. Now pending before the Court is
Watkins’ appeal of the Clerk’s taxation of costs. Doc. 121. For the reasons set forth
below, the motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
On June 3, 2016, Watkins brought suit against the NYCTA for workplace

discrimination on the basis of her race in violation of 42 U.S.C. § 1981 and the New York
City Human Rights Law. 1 Doc 1. Watkins, a Black woman, alleged that while she was a
probationary employee of the NYCTA, fellow probationary employee Tequisha Jenkins
(“Jenkins”), a darker-skinned Black woman, repeatedly directed race-based insults at her
during their training sessions, within earshot of their fellow students and instructors. Doc
1 ¶¶ 13–18. Following dismissal on summary judgment of related aiding and abetting and
Plaintiff stipulated to voluntarily dismiss her claims against New York City on June 30, 2016, and
withdrew her claim under Administrative Code § 8-107(19) on January 31, 2018. Docs. 12, 49 at 1.

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retaliation claims, the Court held a four-day trial from December 17 to 20, 2018, on the
sole remaining issue of whether the NYCTA had allowed a hostile work environment to
exist during Watkins’ training in contravention of federal and city law. Doc. 50 at 11-18;
see Docs. 86–94. As relevant to the instant motion, during trial, the NYCTA requested
trial transcripts each day. Doc. 118-1; see also Doc. 124 at 3–4. Following trial and a
jury verdict in favor of the NYCTA, the Court entered judgment on January 30, 2019.
Doc. 99. Watkins appealed, and her appeal was held in abeyance pending resolution of
her motion for a new trial. Docs. 100, 104.
On April 16, 2020, the Court denied Watkins’ motion for a new trial. Doc. 113.
On May 15, 2020, Watkins filed her amended notice of appeal. Doc. 114. On June 15,
2021, the Court of Appeals for the Second Circuit entered its mandate affirming the
Court’s order denying a new trial. Doc. 115. On June 29, 2021, the NYCTA filed its
notice of taxation of costs and submitted a declaration in support of the same. Docs. 117,
118. Watkins objected to the bill of costs, Doc. 119, and on July 19, 2021, the Clerk of
Court entered the bill of costs against Watkins. 2 Doc. 120. On August 3, 2021, Watkins
brought the instant motion. Doc. 121.
The bill of costs consists of: $794.85 for fees for service of summons and
subpoenas; $3,323.16 for fees for daily trial transcripts; and $150.86 in fees for
witnesses, for a total of $4,268.87. Doc. 120 at 1.
II.

LEGAL STANDARD
Rule 54 of the Federal Rules of Civil Procedure provides that “[u]nless a federal

statute, these rules, or a court order provides otherwise, costs—other than attorney's
fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1); see also
Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001), abrogated on other grounds
by Bruce v. Samuels, 577 U.S. 82 (2016) (“such an award against the losing party is the
The Clerk’s taxation of costs is dated July 19, 2021, but it was modified and entered on the docket on July
27, 2021. Doc. 120.

2

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normal rule obtaining in civil litigation, not the exception.”). To qualify as prevailing
party, the party must have succeeded “on a significant issue in the litigation[.]”
Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 50 (S.D.N.Y. 1994)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
“Construing this provision, the Supreme Court has held that the term ‘costs’
includes only the specific items enumerated in 28 U.S.C. § 1920.” Whitfield, 241 F.3d at
269 (citations omitted). Pursuant to § 1920, the Court, or the Clerk of Court, may tax
as costs the following:
[f]ees of the clerk and marshal; (2) [f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case; (3) [f]ees and
disbursements for printing and witnesses; (4) [f]ees for exemplification and
the costs of making copies of any materials where the copies are necessarily
obtained for use in the case; (5) [d]ocket fees ...; [and] (6) [c]ompensation of
court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services.
Local Civil Rule 54.1 further outlines the costs taxable in this district and controls to the
extent that it addresses a particular cost. See Balance Point Divorce Funding, LLC v.
Scrantom, 305 F.R.D. 67, 70 (S.D.N.Y. 2015). As relevant here, Local Rule 54.1(c)(1)
provides:
Transcripts. The cost of any part of the original trial transcript that was
necessarily obtained for use in this Court or on appeal is taxable. Convenience of
counsel is not sufficient.
If the Clerk of Court taxes costs against a non-prevailing party, that party has
seven days to appeal the Clerk’s decision to the Court. Fed. R. Civ. P. 54(d)(1). “A
district court reviews the clerk’s taxation of costs by exercising its own discretion to
decide the cost question [it]self.” Whitfield, 241 F.3d at 269 (internal quotation marks
and citation omitted); see also Bucalo v. E. Hampton Union Free Sch. Dist., 238 F.R.D.
126, 128 (E.D.N.Y. 2006). “Where an unsuccessful litigant appeals the Clerk of Court’s
award of costs, the district court reviews the award de novo.” Karmel v. City of New

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York, No. 00 Civ. 9063 (KMK), 2008 WL 216929, at *1 (S.D.N.Y. Jan. 9, 2008) (citation
omitted).
Since the “award of costs against the losing party . . . is the rule rather than the
exception,” the losing party bears the burden of convincing the district court to exercise
its discretion to vacate the Clerk’s award of costs. Whitfield, 241 F.3d at 270. In general,
“costs will be taxed against the losing party provided such costs were reasonably
necessary.” Seymore v. Reader’s Dig. Ass’n., Inc., No. 77 Civ. 4825 (WCC), 1981 WL
90, at *1 (S.D.N.Y. Jan. 7, 1981). “In exercising its discretion, a district court is free to
consider a variety 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.’” Karmel, 2008 WL 216929, at *2 (quoting Whitfield, 241 F.3d at
270). While the district court has the discretion to deny a prevailing party costs,
see Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 442 (1987) (“Rule 54(d)
generally grants a federal court discretion to refuse to tax costs in favor of the prevailing
party.”), it must explain its reasons for doing so, see Whitfield, 241 F.3d at 270.
III.

DISCUSSION
There is no dispute that the NYCTA is the prevailing party. Watkins now appeals

the Clerk’s taxation of costs, first, as to trial transcripts, and second, as to two witnesses.
Specifically, she appeals $225.00 in costs for service of a subpoena on her former
therapist Mr. David, LSW (“David”) 3; $309.95 for service of a trial subpoena on her
former therapist Dr. James Wadley (“Wadley”); and $72.86 for Wadley’s witness fee.
See Doc. 122.
A. Transcripts
The cost of “trial transcripts . . . necessarily obtained for use in this court or on
appeal” is taxable. Local Rule 54.1(c)(1); see also 28 U.S.C. § 1920 (“a judge or clerk of

3

Neither the parties’ briefing nor the Clerk’s taxation of costs includes his complete name.

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any court of the United States may tax as costs . . . [f]ees of the court reporter for all or
any part of the stenographic transcript necessarily obtained for use in the case”).
Watkins contends that the NYCTA’s transcript costs were not necessarily
incurred, because it has not established why it required daily transcripts at the rate of
$4.59 per page rather than transcripts at the regular rate of $2.46 per page. Doc. 122 at
2–3. She further argues that caselaw does not support daily trial transcripts as an
allowable cost, and that courts in this Circuit have rejected daily trial transcripts as an
allowable cost in trials of similar complexity. Doc. 126 at 1–2. The NYCTA counters
that the award of transcript fees is within the discretion of the Court, and that daily
transcripts were warranted to allow counsel to prepare for cross-examinations and closing
argument given the compressed timeframe of trial. Doc. 124 at 3–4. The Court agrees
with Watkins that the NYCTA has not established that daily trial transcripts were a
necessary expense.
“Daily transcripts of trial testimony are not customary.” John and Kathryn G. v.
Bd. of Educ. of Mount Vernon Public Sch., 891 F. Supp. 122, 123 (S.D.N.Y. 1995)); see
also Carmody v. Pronav Ship Mgmt., Inc., No. 02 Civ. 7158 (DF), 2004 WL 1837786, at
*2 (S.D.N.Y. Aug. 17, 2004). “[T]he relevant inquiry is whether the transcripts of
plaintiff’s trial testimony were necessary for defendant’s use in the case.” Cohen v.
Stephen Wise Free Synagogue, No. 95 Civ. 1659 (PKL), 1999 WL 672903, at *2
(S.D.N.Y. Aug. 27, 1999). “Although the [d]efendant argues that counsel used the
transcript to prepare for cross examination, summation and the jury charge, ‘[u]se of the
transcripts during trial . . . does not mean they were “necessarily obtained.”’” Bucalo,
238 F.R.D. at 129 (quoting John and Kathryn G., 891 F. Supp. at 123); see also Galella
v. Onassis, 487 F.2d 986, 999 (2d Cir. 1973).
Here, the trial took place over only four days, and the NYCTA was represented by
two attorneys. See Docs. 88–94. Eleven witnesses testified, including Watkins. See
Doc. 113 at 4–5. “On balance, courts have occasionally concluded that circumstances
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warranted the awarding of costs for a daily trial transcript, particularly upon
consideration of factors including the amount of representation, the length of the trial,
and the complexity of the issues in the case.” Nat. Organics, Inc. v. Nutraceutical Corp.,
No. 01 Civ. 0384 (GBD) (RLE), 2009 WL 2424188, at *3 (S.D.N.Y. Aug. 6, 2009)
(citing Galella, 487 F.2d at 999). However, in cases similar to this one, involving “trials
that are not particularly long or complex,” courts in this Circuit have routinely found
daily trial transcripts not to be a necessary expense justifying taxation of costs,
particularly where counsel may instead take notes during trial to prepare for crossexamination and closing arguments. Bucalo, 238 F.R.D. at 129 (collecting cases); Nat.
Organics, 2009 WL 2424188, at *3–4 (collecting cases).
The NYCTA does not argue that the trial was particularly complex, only that
counsel used the transcripts to prepare for cross-examination and summations. See Doc.
124 at 3–4. However, “[t]he mere convenience to counsel is insufficient to justify the
taxation of costs.” John and Kathryn G., 891 F. Supp. at 123 (internal quotation marks
and citations omitted). Moreover, as Watkins points out, all the cases that the NYCTA
has cited in support are distinguishable as they all took place over multiple weeks and
involved more complex proceedings. Doc. 126 at 1–2 (citing Palm Bay Int’l, Inc. v.
Marchesi Di Barolo S.P.A., 285 F.R.D. 225, 235 (E.D.N.Y. 2012) (four-week trial with
sixteen witnesses, three of whom testified in Italian through an interpreter); Perks v.
Town of Huntington, No. 99 Civ. 4811 (JS), 2008 WL 8091034, at *2–3 (E.D.N.Y. Mar.
31, 2008), aff'd, 331 F. App’x 769 (2d Cir. 2009) (four-week trial where defendants had
established “extraordinary circumstances); Cohen, 1999 WL 672903, at *2 (three-week
trial)). Indeed, even for a trial that involved “numerous witnesses,” and “trade dress
claims [that] were undoubt[edly] complex,” a court in this district has denied taxation of
costs for daily transcripts where a party was represented by multiple attorneys at trial and
the trial was relatively short. Nat. Organics, 2009 WL 2424188, at *4 (denying taxation
of costs for expedited transcripts but finding that defendant’s request for non-expedited
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trial transcripts was appropriate); see also AIG Glob. Sec. Lending Corp. v. Banc of Am.
Sec. LLC, No. 01 Civ. 11448 (JGK), 2011 WL 102715, at *2 (S.D.N.Y. Jan. 6, 2011)
(denying plaintiffs’ request for realtime transcripts because “they have failed to establish
that realtime transcripts, the most expensive transcription option available, were
necessary, as opposed to merely convenient or helpful, to the prosecution of their case.”)
Taxation of costs for daily trial transcripts is therefore not warranted.
Furthermore, in consideration of equitable factors including Watkins’ presumptive
financial resources, the Court grants Watkins’ appeal as to daily trial transcripts. As
Watkins agrees that transcripts at the regular rate were warranted, see Doc. 122 at 3, the
taxable cost of the transcripts is hereby reduced from $3,323.16 to $1,781.04.
B. Witness and Subpoena Fees
Pursuant to 28 U.S.C. § 1920(3), fees and disbursements for witnesses may
be taxed as costs. Section 1821 details the allowable per diem and mileage costs for
witnesses. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298
(2006). Local Civil Rule 54.1(c)(3) provides that witness fees and travel expenses
authorized by § 1821 are taxable if the witness testifies. Courts have also held that fees
for serving subpoenas are “basic and proper taxable cost[s], supported by the Local Rules
and the precedents” because “subpoenas are an integral part of the litigation process.”
Palm Bay Int'l, 285 F.R.D. at 239 (explaining that § 1920 refers to fees of the marshal for
serving process and for serving subpoenas or summons for witnesses); see also United
States, et al. v. Merritt Meridian Constr. Co., 95 F.3d 153, 172 (2d Cir. 1996); Jeanty v.
Cerminaro, No. 616 Civ. 966 (BKS) (TWD), 2021 WL 3856739, at *4 (N.D.N.Y. Aug.
30, 2021)
Watkins argues that the NYCTA has not shown that the $225 in costs related to
service of the subpoena on David was “necessarily incurred,” because he did not testify at
trial and because she had previously signed a HIPAA authorization releasing her medical

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records from his office to the NYCTA. Doc. 122 at 3. The NYCTA responds that,
although Watkins signed the HIPAA authorization, David “would have been under no
obligation to produce [her medical records] in the absence of a subpoena. Thus, the
Transit Authority necessarily incurred the subpoena” fee. Doc. 124 at 5. Watkins replies
that this argument is conclusory, and the NYCTA does not indicate what documents were
necessary to obtain by subpoena rather than by HIPAA authorization. Doc. 126 at 3.
The Court agrees.
There is no indication that David refused to produce Watkins’ records in the
absence of a subpoena; in fact, the NYCTA’s argument in the conditional tends to show
that this was not an issue. Furthermore, a review of the indices of examination for the
trial transcripts, see Docs. 88, 90, 92, 94, reveals that Watkins’ therapy records from
David were not introduced into evidence at trial. 4 “As none of these documents were
used as exhibits at trial, and [the prevailing party] has provided no explanation for why
these subpoenas were necessary, the service of these subpoenas is not taxable.” Bauta v.
Greyhound Lines, Inc., No. 14 Civ. 3725 (RER), 2019 WL 8060181, at *3 (E.D.N.Y.
June 17, 2019). The Court grants Watkins’ appeal of the $225 fee for the subpoena on
David.
As for Wadley, Watkins argues that the NYCTA has not established that
subpoenaing him was necessary because he was in fact on her witness list and she called
him as a witness at trial. Doc. 122 at 3. The NYCTA responds that, regardless of the fact
that Wadley was on Plaintiff’s witness list, it “paid him a witness fee . . . to ensure his
attendance,” and “appropriately subpoenaed him in order to secure his attendance should
Plaintiff have changed her mind and chosen not to call him as a witness, and to obtain
In the parties’ joint pre-trial order, dated November 16, 2018, Watkins reserved the right to offer medical
records from David and Wadley as exhibits at trial. Doc. 69-11 at 13. At least some of the documents—for
example, the intake assessment—from David’s office, All Access Mental Health, were used by the
NYCTA at trial to refresh Watkins’ recollection as to certain statements she made on the assessment. See
Doc. 90 at 70–100 (Dec. 18, 2018 Trial Tr.). However, upon review of the trial transcripts, they were not
introduced into evidence.
4

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relevant documents.” Doc. 124 at 4–5. The Court agrees with Watkins that Wadley’s
witness fee and subpoena to appear at trial were unnecessary costs because the NYCTA
“failed to show that [Wadley] would not appear in the absence of a subpoena.” Karmel,
2008 WL 216929, at *5. The NYCTA’s arguments to the contrary are speculative.
Because Wadley was not deposed, the NYCTA claims that it had to subpoena him
to produce testimony and records at trial. Doc. 124 at 5. Certain of Watkins’ therapy
records maintained by Wadley were introduced into evidence at trial, albeit by Watkins,
and the NYCTA used them in cross-examination. See Doc. 88 at 31–32, 49–52
(December 17, 2018 Trial Tr.). On cross-examination, Wadley testified that he
“forwarded [the NYCTA] the documents that [he] had after [he] received the subpoena.”
Id. at 51. While the Court does not agree that the subpoena was necessary for him to
appear at trial and give testimony, the record supports a finding that the subpoena to
produce documents was “reasonably necessary,” Seymore, 1981 WL 90, at *1,
particularly since Watkins does not argue that these records were or could have been
produced in discovery, see Colon v. Fashion Inst. of Tech. (State Univ. of New York), No.
12 Civ. 7405 (HB), 2014 WL 1979875, at *3 (S.D.N.Y. May 15, 2014) (denying costs
related to retrieval of medical records were Plaintiff produced these records during
discovery); Bauta, 2019 WL 8060181, at *3 (reducing costs for service of a subpoena for
medical records where the losing party claimed, and the prevailing party did not contest,
that the records could have been obtained in discovery).
Accordingly, the Court finds the $309.95 for serving Wadley with the trial
subpoena to be taxable, but not the witness fee.
IV.

CONCLUSION
For the reasons stated above, Watkins’ appeal of the Clerk’s taxation of costs is

granted as to the daily trial transcripts, subpoena fee for David, and witness fee for

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Wadley, and denied as to the subpoena fee for Wadley. The Clerk of Court is
respectfully requested to amend the bill of costs as follows:
•
•
•

Fees for service of summons and subpoena reduced from $794.85 to
$569.85;
Fees for transcripts reduced from $3,323.16 to $1,781.04;
Fees for witnesses reduced from $150.86 to $78.00

for a total of $2,428.89.
The Clerk of Court is further respectfully directed to terminate the motion, Doc.
121.
SO ORDERED.
Dated:

February 18, 2022
New York, New York
________________________
EDGARDO RAMOS, U.S.D.J.

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