VAY v. HUSTON et al

Filing 390

ORDER-MEMORANDUM denying 387 Motion Review of Taxation of Costs Affirming 386 Costs Taxed. Signed by Judge Mark A. Kearney on 8/22/2018. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

KELLY J. VAY

v.

NO.

14-769

ROBERT HUSTON, et al.

ORDER-MEMORANDUM
AND NOW, this 22"d day of August 2018, upon considering Plaintiffs Motion to reduce

taxed costs (ECF Doc. No. 387) and Defendants' Response (ECF Doc. No. 389), it is ORDERED
Plaintiffs Motion (ECF Doc. No. 387) is DENIED and we affirm the Clerk of Court's taxation of
costs (ECF Doc. No. 386).

Analysis
Kelly Vay sued supervisors employed with her former public employer raising a wide
variety of civil rights claims based on her gender.

She retained and paid vigorous and

experienced civil rights advocates. Her claims attracted press attention and her former public
official employers with the Allegheny County Medical Examiner's Office defended their conduct
which, as alleged, bordered on scandalous.
She proceeded through discovery, moved for interlocutory relief in the United States Court
of Appeals 1, engaged in extensive discovery and mediation. Following reassignment to us in
October 2016, she largely defeated substantial motions for summary judgment as we found
genuine issues of material fact requiring the jury's determination of credibility.2 The parties
proceeded to trial before us in late January and early February 2017. After over a week of trial,
1

ECF Doc. No. 163

2

ECF Doc. Nos. 277, 278.

the jury returned a verdict finding Ms. Vay had not proven her claims. 3 The United States Court
of Appeals affirmed the jury verdict. 4 Defendants then moved for over $54,000 in costs and, after
considering the Plaintiffs substantial objections, the Clerk of Court taxed costs in the total amount
of$9,243.93 in favor of the Defendants and against Ms. Vay to be included in thejudgment. 5
Ms. Vay now asks us to reduce or excuse her from this cost award arguing she is financially
incapable of satisfying this obligation and Defendant's denied costs evidence bad faith. Her bad
faith claim lacks merit. The Defendants sought over $54,000 in costs and the Clerk substantially
reduced their request. We cannot hold asking for costs which are not awarded is bad faith without
evidence of intent.
Her remaining basis for vacating or reducing the costs award is she is financially incapable
of paying this award. She paid her lawyers for the litigation, including the dispute over costs with
the Clerk, but no asks to be excused from reimbursing costs to the Defendants.

Her entire proof

consists of an April 10, 2018 sworn declaration: being a single mother to a young daughter; losing
her job in 2014; now making significantly less money than she did with Allegheny County;
spending all of her savings litigating against Allegheny County; relying on her family to make
ends meet; and, now not having money to pay the reduced costs award. 6
Defendants, having won the verdict after years of vigorous civil rights litigation upheld on
appeal, oppose a further reduction of their awarded costs. They challenge her credibility based on

3

ECF Doc. No. 367.

4

ECF Doc. No. 380.

5

ECF Doc. No. 386.

6

ECF Doc. No. 385-1.
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the jury verdict. They argue she did not request to proceed in forma pauper is nor did she provide
evidence of an impediment making it difficult to pay this judgment over time. We agree with the
Defendants.
Federal Rule of Civil Procedure 54(d)(l) presumes costs should be awarded to the
prevailing party. 7 Ms. Vay bears the burden of demonstrating why the Clerk's award of costs is
inequitable and she must introduce competent evidence. 8 To agree with Ms. Vay, we must be
able to articulate reasons to reduce or deny costs to the Defendants who proceeded through over
four years of litigation to succeed. We review the Clerk's award under de nova standard and
afford no deference to the Clerk's decision. 9
We can exercise our discretion with articulated grounds if we find Ms. Vay is in fact
indigent.

In assessing indigence, we measure the losing parties "financial condition as it

compares to whatever award the Court decides to tax against him or her." 10 Even if we find Ms.
Vay is indigent or unable to pay the full measure of costs we need not automatically exempt her
from paying costs. 11
Ms. Vay presents little to no evidence of her indigence other than her own truncated
declaration. She offers no evidence of being unable to pay at least a portion of these costs
assessed by the Clerk. Ms. Vay offers no explanation as to why she cannot work. She offers no
explanation as to money she may have earned but not reported on tax returns. She appears more
7

In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462 (3d Cir. 2000).

8

Id. at 462-463.

9

Id. at 462.

10

Id. at 464 n.5.

11

Id. at 464.
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than capable of working. She is not barred by an immigration impediment, physical or mental
disability or other grounds which may allow us to excuse her obligation.
To the contrary, she did not contest the award of costs from the Court of Appeals. Other
than her bold declaration, she does not offer evidence to support her assertion of not having any
additional funds or being unable to obtain additional work.

We appreciate the potential

embarrassment in claiming being unable to work due to mental distress - but we need proof.
Having watched Ms. Vay over several hours of testimony, we have no doubt as to her competence
and ability to self-advocate. We cannot find, absent specific evidence, grounds to excuse her
obligation to pay the Clerk's taxed costs under the Federal Rules of Civil Procedure.
Ms. Vay also does not support her bald claim awarding costs against unsuccessful civil
rights litigants will "chill" future civil rights cases.

We have no evidence supporting this

assertion. Further, Federal Rule 54(d) does not except civil rights cases.

4