Phanco et al v. R.J.M. Restaurant., Inc. et al

Filing 88

ORDER granting 81 Motion for Bill of Costs and denying 81 Motion for Attorney Fees. The Clerk of Court is drected to tax $2,015.02 in costs as part of the judgment entered in favor or defendants. Signed by Hon. H. Kenneth Schroeder, Jr on 4/19/2011. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
N. MAXINE PHANCO &
THOMAS W. PHANCO,
Plaintiffs,
v.
07-CV-687
R.J.M. RESTAURANT INC,
d/b/a R&M RESTAURANT,
RUSSELL RIDDELL and
MARY JO RIDDELL,
Defendants.
_____________________________________

DECISION AND ORDER
Judgment was entered in favor of defendants following a jury verdict
determining that plaintiff had not been subjected to a hostile work environment or the
intentional torts of battery, false imprisonment and outrageous conduct causing
emotional distress. Dkt. ##78 & 80.

Currently before the Court is defendants’ motion for attorneys’ fees and
costs. Dkt. #81. For the following reasons, defendants’ motion is granted in part and
denied in part.

Attorneys’ Fees
In any action or proceeding under Title VII of the Civil Rights Act of 1964,
the court, in its discretion, may allow the prevailing party a reasonable attorney's fee
(including expert fees), as part of the costs. 42 U.S.C. § 2000e-5(k). In exercising its

discretion, the Supreme Court of the United States has concluded that a district court
may “award attorney’s fees to a prevailing defendant in a Title VII case upon a finding
that the plaintiff’s action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.” Christiansburg Garment Co. v. Equal Emp’t
Opportunity Comm’n, 434 U.S. 412, 421 & 422 (1978).
In applying these criteria, it is important that a district court
resist the understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable
or without foundation. This kind of hindsight logic could
discourage all but the most airtight claims, for seldom can a
prospective plaintiff be sure of ultimate success. No matter
how honest one’s belief that he has been the victim of
discrimination, no matter how meritorious one’s claim may
appear at the outset, the course of litigation is rarely
predictable. The law may change or clarify in the midst of
litigation. Even when the law or the facts appear
questionable or unfavorable at the outset, a party may have
an entirely reasonable ground for bringing suit.
Id. at 421-22. The Supreme Court expressed concern that “assessing attorney’s fees
against plaintiffs simply because they do not finally prevail would substantially add to
the risks inhering in most litigation and would undercut the efforts of Congress to
promote the vigorous enforcement of the provisions of Title VII.” Id. at 422. As a result,
“it is very rare that victorious defendants in civil rights cases will recover attorneys’
fees.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 178 (2d Cir. 2006).

An award of attorneys’ fees is not appropriate in this case. This action
was not frivolous, unreasonable or without foundation. There was testimony from the
defendant, Russell Riddell that he engaged in a “romantic involvement” with plaintiff,
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including kissing and touching plaintiff on several occasions while she was working.
The defendant’s son, Jason Riddell, observed his father and plaintiff embracing and
kissing in the cooler. Other employees testified to sexual banter and physical contact
between the defendant and other employees, including plaintiff, within the restaurant.
That the jury determined such evidence insufficient to sustain plaintiff’s burden of proof
does not warrant the imposition of defendants’ attorneys’ fees against plaintiffs.

Costs
Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs –
other than attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P.
54(d). The costs which may be taxed are set forth in 28 U.S.C. § 1920 and include: (1)
fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts
necessarily obtained for use in the case; (3) fees and disbursements for printing and
witnesses; (4) fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case; (5) docket fees under 28
U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation services
under 28 U.S.C. § 1828. The prevailing party has the burden of establishing that the
items it seeks to have taxed as costs are authorized under the statute and that such
costs were reasonable and necessary and not incurred for the mere convenience of
counsel. Sevenson Envtl. Servs., Inc. v. Shaw Envtl., Inc., 246 F.R.D. 154, 155 (2007).

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Unlike attorneys’ fees, costs are generally awarded to a prevailing party
as a matter of course. See Cosgrove v. Sears, Roebuck & Co., 191 F.3d 98, 101-02
(2d Cir. 1999) (rejecting Title VII plaintiff’s argument that it was error to assess costs
because her claims were not frivolous); Mercy v. County of Suffolk, 748 F.2d 52, 54 (2d
Cir. 1984) (“The award of costs against the losing party is a normal incident of civil
litigation and is the rule rather than the exception.”). However, “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 v.
Scully, 241 F.3d 264, 270 (2d Cir. 2001). “As a general matter a district court may deny
costs on account of a losing party’s indigency, but indigency per se does not
automatically preclude an award of costs.” Id. “One of the consequences of pursuing
litigation that is determined to be without merit is the taxation of costs, as a matter of
course, in favor of the prevailing party.” Murphy v. Board of Educ. of Rochester City
Sch. Dist., 308 F. Supp.2d 148, 151 (W.D.N.Y. 2004).

The Court has reviewed plaintiffs’ financial affidavit and is sympathetic to
their financial situation, but is not persuaded that the presumption in favor of awarding
costs to the prevailing party has been overcome. The Court has reviewed defendants’
bill of costs (Dkt. #86), and finds the costs set forth to be reasonable and necessary.
Accordingly, the Clerk of the Court is directed to tax $2,015.02 in costs as part of the
judgment entered in favor of defendants and against plaintiffs.

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CONCLUSION
Based on the foregoing, defendants’ motion (Dkt. #81), is granted with
respect to the bill of costs and denied with respect to attorneys fees. The Clerk of the
Court is directed to tax $2,015.02 in costs as part of the judgment entered in favor of
defendants and against plaintiffs.

SO ORDERED.

DATED:

Buffalo, New York
April 19, 2011

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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