Simcoe v. Gray et al
DECISION AND ORDER: Simcoe's Objections (ECF No. 150) to the Clerk's decision taxing costs are sustained in part and overruled in part, and the Clerk's award of costs is modified to an award of $3,452.25 against Simcoe. Simcoe 39;s miscellaneous motions, including those for a new trial and for costs to be awarded in his favor (ECF No. 161) are also denied. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/25/17. A copy of this Decision and Order and the NEF have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 10-CV-6531-FPG
DECISION AND ORDER
LT. TIMOTHY GRAY,
OFFICER JEFFREY SMITH, and
OFFICER KEITH GLASS,
Following a five day trial, the jury returned a no cause of action verdict in favor of the
Defendants on May 13, 2015. ECF No. 138. Judgment was entered accordingly, ECF No. 140,
and Plaintiff Thomas Simcoe timely filed a Notice of Appeal on May 28, 2015. ECF No. 141. On
November 23, 2016, the United States Court of Appeals for the Second Circuit rejected Plaitniff’s
arguments on appeal, and affirmed the Judgment in this case. ECF No. 166.
Now before the Court are Simcoe’s motions (1) objecting to the Clerk’s decision taxing
costs against him (ECF No. 150), and (2) seeking various forms of relief, including imposing
sanctions against Defendants, denying all costs to Defendants, awarding costs to himself, and
vacating the jury’s verdict. ECF No. 161. For the following reasons, Simcoe’s objections to the
Clerk’s decision taxing costs is sustained in part and overruled in part, and his motion seeking
sanctions, costs and vacatur of the jury’s verdict is denied.
Bill of Costs
Simcoe objects to the taxation of costs against him for two primary reasons. First, he argues
that Defendants should be denied all costs because he is a pro se litigant. Alternatively, he argues
that costs incurred by Defendants associated with Simcoe’s successful appeal to the Second Circuit
– which vacated Judge Telesca’s prior decision granting summary judgment in favor of Defendants
and remanded the matter for trial – should not be taxed against him now.
The default rule in this circuit regarding the award of costs is that “[a]s a general matter,
costs – other than attorney’s fees – should be allowed to the prevailing party. Fed. R. Civ. P.
54(d)(1). The Rule codifies a venerable presumption that prevailing parties are entitled to costs.”
Carter v. Incorporated Village of Ocean Beach, 759 F.3d 159, 163 (2d Cir. 2014). Further, “the
decision to award costs under Rule 54(d)(1) is committed to the sound discretion of the district
court.” Carter, 759 F.3d at 164. However, the ability to tax costs is not unlimited, and district
courts are limited in awarding costs to those specifically authorized by statute. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 438 (1987). Where a bill of costs is challenged, the
reviewing district court exercises discretion and “decide[s] the cost question [it]self.” Whitfield v.
Scully, 241 F.3d 264, 269 (2d Cir. 2001)(internal quotation marks and citation omitted).
In this case, $9,991.01 in costs was awarded to Defendants by the Clerk, which included
$6,538.76 in costs expended by Defendants regarding the appeal of Judge Telesca’s summary
judgment decision. See ECF No. 148. The Court finds that these costs are not properly taxed
against Simcoe since he prevailed on that appeal, which led to the trial of this action. While
Defendants ultimately prevailed at trial, it does not follow that Simcoe should be taxed with the
costs of his successful pre-trial appeal. As such, the Court sustains Simcoe’s objections to the
$6,538.76 in appellate costs taxed by the Clerk, and the total amount taxed as costs against Simcoe
is reduced to $3,452.25. Simcoe’s objections to the taxation of costs are otherwise denied.
Simcoe’s application for miscellaneous relief merits little discussion, and must be denied.
First, Simcoe has already appealed the Court’s trial rulings and the jury’s verdict to the Second
Circuit, who affirmed this Court’s Judgment disposing of the case. As such, he cannot now seek
a new trial, as his time to do so expired long ago. Additionally, even if the application were
considered on the merits, it would still be denied. Simcoe has presented no reason upon which to
grant him a new trial, and his repeated arguments – which were previously made to, and were
rejected by both this Court and the Second Circuit – are meritless. As the Court previously stated,
Simcoe’s arguments that “the 911 dispatch recordings from the date in question are fabricated is
frivolous, and so is the contention that the rope introduced at trial (which is the rope Simcoe used
to strangle his then-wife, and was introduced at Simcoe’s state court trial where he was convicted
of attempted murder) is a fabrication.” ECF No. 147 at 2. The motion for a new trial is denied.
Simcoe’s other request that he, as the losing party, be awarded some form of costs is
without any basis in law or fact, and is also denied.
For all of the foregoing reasons, Simcoe’s Objections (ECF No. 150) to the Clerk’s
decision taxing costs are sustained in part and overruled in part, and the Clerk’s award of costs is
modified to an award of $3,452.25 against Simcoe. Simcoe’s miscellaneous motions, including
those for a new trial and for costs to be awarded in his favor (ECF No. 161) are also denied.
IT IS SO ORDERED.
September 25, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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