Vermont Right to Life Committee, Inc. et al v. Sorrell et al

Filing 220

OPINION AND ORDER denying 214 Motion for Reconsideration re 213 Taxation of Costs. Signed by Judge William K. Sessions III on 3/31/2015. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VERMONT RIGHT TO LIFE
COMMITTEE, INC. and VERMONT
RIGHT TO LIFE COMMITTEE FUND
FOR INDEPENDENT POLITICAL
EXPENDITURES,

:
:
:
:
:
:
Plaintiffs,
:
:
WILLIAM SORRELL, in his
:
official capacity as Vermont :
Attorney General; ERICA
:
MARTHAGE, T.J. DONOVAN,
:
VINCENT ILLUZZI, JAMES
:
HUGHES, DAVID MILLER, JOEL
:
PAGE, WILLIAM PORTER, ALAN
:
FRANKLIN, THOMAS KELLY,
:
TRACY SHRIVER, ROBERT SAND,
:
LISA WARREN, MARC D. BRIERRE, :
and DAVID FENSTER in their
:
official capacities as
:
Vermont State’s Attorneys;
:
and JAMES C. CONDOS, in his
:
official capacity as Vermont :
Secretary of State,
:
:
Defendants.
:

Case No. 2:09-cv-188

OPINION AND ORDER
The Plaintiffs in this case filed suit to bar enforcement of
certain provisions of Vermont’s campaign finance law.

The Court

granted summary judgment to Defendants on all claims, and that
ruling was affirmed by the United States Court of Appeals for the
Second Circuit.

Vermont Right to Life Comm. v. Sorrell, 758 F.3d

118 (2d Cir. 2014).

Defendants subsequently submitted a Bill of

Costs in the amount of $3,571.93 for transcripts, copies, and
appellate costs.

On September 26, 2014, the Clerk of this Court

awarded Defendants costs in that amount.

Plaintiffs now move the Court to review and set aside the
bill of costs.

By rule, “costs . . . should be allowed to the

prevailing party.”

Fed. R. Civ. P. 54(d)(1).

The Supreme Court

recently noted that Rule 54(d)(1) “codifies a venerable
presumption that prevailing parties are entitled to costs.”
v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013).

Marx

Although an

award of costs to the prevailing party is the norm, the Court has
discretion to deny costs for cause 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.”

Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir.

2001); see also LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d
Cir. 1995) (“The decision to award costs to a prevailing party
under Fed. R. Civ. P. 54(d) rests within the sound discretion of
the district court.”).

The burden is on the losing party to show

that costs should not be imposed.

Whitfield, 241 F.3d at 270.

Plaintiffs submit that taxation of costs is not appropriate
because (1) this was a case of public importance; (2) the
litigation was protracted; (3) Plaintiffs have limited means; and
(4) some of the costs incurred were unnecessary.

As to public

importance, there is little question that campaign finance has
been a focus of significant litigation in recent years, with
several cases reaching the United States Supreme Court.

See,

e.g., McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014);

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Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010);
Randall v. Sorrell, 548 U.S. 230 (2006).

In this case, amici

from around the country reportedly participated in the Second
Circuit appeal.

The Court thus acknowledges that this

litigation, as one of a series of efforts to challenge existing
campaign finance laws, presented questions of public importance.
In Whitfield, the Second Circuit allowed that the presence
of a single factor does not necessarily compel a denial of costs.
241 F.3d at 273 (“There is also widespread agreement among the
courts of appeals that indigency per se does not preclude an
award of costs.”); see also Wright v. Storch, Amini & Munves, PC,
2014 WL 5781056, at *1 (S.D.N.Y. Nov. 6, 2014) (“None of the
[Whitfield] factors, in and of themselves, require a court to
deny costs.”).

More recently, the Second Circuit has described

the exercise of discretion with respect to costs as “equitable in
nature.”

Moore v. Cnty. of Delaware, 586 F.3d 219, 221 (2d Cir.

2009) (internal quotation marks and citation omitted).

Here,

aside from a question of public importance, the equities do not
support departing from the usual rule and denying an award of
costs to the prevailing party.
There is no allegation of misconduct by Defendants.
Plaintiffs instead contend that the litigation was unnecessarily
protracted and complex.

Defendants respond that the protracted

nature of the case was due, in part, to the dismissal of some
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Plaintiffs, amendment of the Complaint after the initial summary
judgment briefing, and Plaintiffs’ failure to comply with
discovery requests.

Irrespective of the conduct of any one

party, this case was not unusually protracted, as final judgment
was entered less than three years after the filing of the
Complaint.

Furthermore, nothing on the docket suggests an

unusual level of complexity compared to other cases before this
Court.

Moreover, both sides were represented by able counsel

with experience in campaign finance litigation, thus minimizing
the impact of any complexity upon the costs and expenses
incurred.
Plaintiffs next claim that they have limited financial
resources, contending that an award of approximately $3,500 would
represent 15.3% of their net assets for 2009.

Defendants respond

that Plaintiff Vermont Right to Life Committee’s (“VRLC”) most
recent tax filing shows total revenues of $116,915.

Plaintiff’s

reply memorandum asserts that VRLC’s “net assets or fund balances
as of September 2014 are $68,023.”
218-2 at 2 (VRLC IRS Form 990).

ECF No. 219 at 8; ECF No.

Under either number, awarding

costs of $3,500 would not be inequitable.
Plaintiffs’ final argument is that Defendants incurred
unnecessary transcript costs.

The federal statute governing

taxation of costs, 28 U.S.C. § 1920, allows “[f]ees for printed
or electronically recorded transcripts necessarily obtained for

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use in the case.”

28 U.S.C. § 1920(2).

Plaintiffs argue that

transcripts for six State witness depositions were unnecessary,
as only one was cited in Defendants’ dispositive filings.

Those

witnesses were deposed by Plaintiffs’ counsel, and Defendants
respond that it would have been “irresponsible” not to obtain
copies.

ECF No. 218 at 8; see Cleveland v. N. Am. Van Lines,

Inc., 154 F.R.D. 37, 38 (N.D.N.Y. 1994) (finding that depositions
“properly taken within the bounds of discovery [are] necessarily
obtained for use in the case”).

Defendants also note that

Plaintiffs submitted portions of five of those depositions in
their opposition to Defendants’ motion for summary judgment.

In

response to Plaintiffs’ objection regarding summary judgment
transcripts, Defendants argue that those transcript were
necessary for their presentation on appeal.

The Court agrees

with Defendants, and finds that awarding costs for all such
transcripts was appropriate under 28 U.S.C. § 1920(2).
For the reasons set forth above, Plaintiffs’ motion to set
aside the bill of costs (ECF No. 214) is denied.
Dated at Burlington, in the District of Vermont, this 31st
day of March, 2015.
/s/ William K. Sessions III
William K. Sessions
District Court Judge

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