Batton v. Communication Workers of America, AFL-CIO et al

Filing 82

MEMORANDUM Order entered 1/13/16 and filed 1/14/16: This matter comes before the Court on Defendant's Bill of Costs, ECF No. 80, and Plaintiff's Objection to Bill of Costs, ECF No. 81. For the reasons discussed below, Plaintiff's Objection to Bill of Costs is SUSTAINED and Defendant's Bill of Costs is DENIED. Remaining items in the Bill of Costs are addressed in this Order, as outlined. (See Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 1/13/16). Copies provided as directed 1/15/16.(ecav, )

UNITED

STATED DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DONNISE BATTON,

Plaintiff,
v.

Civil Action No.

2:13cv426

COMMUNICATION WORKERS OF AMERICA,
AFL-CIO, et al.,
Defendants.

MEMORANDUM ORDER

This

Costs,
ECF

matter

ECF No.

No.

comes

80,

81.

before

and

For

on

Defendant's

the

reasons

discussed

to

Bill

below,

Bill

of

of Costs,

Plaintiff's

is SUSTAINED and Defendant's Bill

of

is DENIED.

I.

On

August

5,

FACTUAL AND

2013,

alleging

that

employment

contract

and

("CWA"),

Verizon,

HISTORY

filed

her

Communication

granted

summary

ECF No.

67.

this

Compl.

judgment

Plaintiff

Court's

to

SI 34,

all

timely

ruling

a

an

of

her

America

"violated the duty of
No.

defendants

in

against

breached

Workers

ECF

appealed,

Complaint

employer,

the labor union representing her,

representation."

affirmed

PROCEDURAL

Plaintiff

Defendants,

fair

Court

Plaintiff's Objection

Objection to Bill of Costs
Costs

the

but

on

4.

The

Court

4,

2014.

August

the

Fourth

unpublished

per

Circuit

curiam

opinion on October

8,

2015.

ECF No.

77.

issued its mandate on October 30, 2015.
CWA

filed

$574.00

for

appeal.
Bill

its

six

cost

ECF No.

of

Costs

Bill

on

or

for

such

R.

some

Costs

items

80.

Plaintiff
23,

the

properly

costs"

was

referred

Therefore,

First,

lists

Plaintiff

payment

of

three

Def.'s

Bill

in

Bill

of

should

Circuit.

of

Costs
have

untimely.
recover

the

fees
Id.

filed

the

her

2015.

to

9,

2015,

instant

seeking
case

Objection

ECF

No.

to

81.

and

CWA's

Because

at

4.

Court.

the

E.D.

application

Va.

Loc.

Civ.

to

CWA's

Bill

of

related

Bill

of

Costs,

to

pro

Costs.
seeking

hac

vice

and Certificates of Good Standing,

Court,

is

untimely.

Pi's

Obj.

to

Second,

Plaintiff

argues

that

the

seeks
in

Third,
to

CWA's

costs

2.

sought

related

costs,

DISCUSSION

copying,

3.

the

that

improperly

at

to

chargeable

pre-appeal

Costs

at

November

objections

District

been
Id.

four

argues

attorney admission,
incurred

79.

the matter is ripe for review.
II.

Plaintiff

ECF No.

Fourth Circuit

filed and the Clerk [was] unable to determine

of

54(D)(2).

on

related

November

"objections [were]
all

of

The

appellate

the

Plaintiff

attorney

Fourth,

should deny recovery for cost

Fourth

copying
Circuit

argues

admission

Plaintiff

argues

costs
and

that
to

that

is

now

CWA cannot
the

that

the

Fourth
Court

of the transcript because it was

not "needed to determine the appeal."

Id. at 5.

address each objection, and items of cost,
A.

As

noted

above,

The Court will

in turn.

District Court Costs

Plaintiff

first

objects

to

CWA's

for three pre-appeal costs incurred in this Court.
Rule

54 provides

that

a party entitled to

Local Civil

costs in this

"shall file a bill of costs as provided in 28 U.S.C.
1924 within eleven

such

time

is

Civ.

R. 54 (D) .

(11) days from the entry of

extended

by

order

of

the

a motion to

of

E.D.

Good

dismiss;

Standing

and

(3)

related

(2)

No. 67; Clerk's Judgment, ECF No. 68.
of Costs until November 9,
entered.

CWA's

2015,

Bill

Civil Rule 54 is, therefore,
its

Bill

of

Va.

Loc.

$30.80 for copies

$36 filing

to

fee

attorney

CWA did not file its Bill

more than a year after judgment

Costs

seeking

costs

under

Local

untimely because CWA failed to file
the

entry of

! The six categories of costs that may be taxed are:

(1)

clerk and

fees;

"within

Order, ECF

from

marshal

Costs

of

for two

admission.

Judgment was entered in this case on August 4, 2014.

was

unless

Specifically, CWA seeks payment for (1) $150

filing fee for two pro hac vice motions;

Certificates

§§ 1920 and

judgment,

Court."

Court

Section 1920 lists six categories of costs that

may be recovered.1

related to

request

eleven

(2) transcript fees;

(11)

days

(3) printing and witness

fees;

(4)

copying fees;
(5)
docket
fees under 28 U.S.C.
1923;
and
(6)
compensation of court appointed experts, interpreters, and special
interpretation services.
28 U.S.C. § 1920; Intellectual Ventures I
LLC v. Capital One Fin. Corp., No. I:13cv0740,
(E.D. Va. Nov. 17, 2015) (unpublished).

2015 WL 7283108,

at *6

judgment," and there was no request for an extension.2

As such,

Plaintiff's first objection to CWA's Bill of Costs is SUSTAINED,
and CWA's request for costs for pro hac vice attorney admission,

copying, and Certificates of Good Standing is DENIED.

Remaining

items in the Bill of Costs are addressed below.

B. Fourth Circuit Appeal Costs

Second,
incurred

in

Procedure

the

39

must-within
circuit

Plaintiff
Fourth

requires

14

clerk"

39(d)(1).

objects

days
the

After

Circuit.

that

after

requisite
a

to

bill

of

"[a]

CWA's

request

Federal

party

entry
bill
costs

of
of

Rule

who

for

of

wants

Appellate

costs

judgment-file
costs.

is

filed

Fed.
with

costs

taxed

with
R.

the

App.

the

P.

circuit

clerk, the "clerk must prepare and certify an itemized statement

of costs for insertion in the mandate."3

Id.

39(d)(3).

Under

2 Plaintiff filed a Notice of Appeal on August 22, 2014.
ECF No. 69.
Even if the Notice of Appeal had been filed within the 11 day deadline
noted in Local Civil Rule 54, a Notice of Appeal does not extend the
deadline for seeking costs in the District Court.
Amdocs (Israel)
Ltd. v. Openet Telecom, Inc., No. I:10cv910 LMB/TRJ, 2013 WL 1192947,
at *2 (E.D. Va. Mar. 21, 2013) (unpublished); see Singleton v. Pep't
of Corr. Educ, No. I:03cv00004, 2003 WL 22299039, at *2 (W.D. Va.
Oct.
3,
2003)
(unpublished)
(explaining
that
an
intermediate
determination of costs benefits "judicial efficiency" because "any

appeal from the award of costs could feasibly be consolidated with the
pending appeal on the merits") (internal citations omitted).
3 Fourth Circuit Local Rule
costs are

'taxable'

39(c)

further notes that "[a]lthough some

in the Court of Appeals,

all costs are recoverable

in the district court after issuance of the mandate.
If the matter of
costs has not been settled before issuance of the mandate, the clerk

will

send

a supplemental

'Bill of Costs'

to

the

district

court

for

inclusion in the mandate at a later date."
4th Cir. Loc. R. 39(c).
The Court understands Fourth Circuit Local Rule 39(c), in concert with

Federal Rule of Appellate Procedure 39, to require a prevailing party,

Fourth

Circuit

taxable

in

Local

the

fee . . . ; and

Rule

court
(2)

and appendices."

39(c),

of

the

appeals

"only

are:

costs

generally

the

docketing

(1)

the costs of printing or reproducing briefs

Specifically,

CWA's Bill of Costs seeks $73.80

for copies of its appellate brief and the appendix.

The Fourth

Circuit's judgment was entered on October 8, 2015.
CWA

filed

its

Bill

of

appellate brief and the

2015.
and

including

appendix,

in

copying

this

Court

costs
on

78.

for

its

November

9,

CWA's Bill of Costs seeking costs under Appellate Rule 39
Fourth

because

after
Bill

Costs,

ECF No.

Circuit

CWA

entry
with

failed

of
the

Local
to

file

judgment,"
circuit

Rule

39(c)

its

Bill

and

is,
of

because

clerk.

As

therefore,

Costs

it

"within

failed

such,

untimely

to

14

days

file

such

Plaintiff's

objection to CWA's Bill of Costs is SUSTAINED,

second

and CWA's request

for appellate copying costs is DENIED.
C.

Next,

Fourth Circuit Admission Costs

Plaintiff

objects

to

for attorney admissions to the
Appellate

Procedure

39(e)

CWA's

request

Fourth Circuit.

provides

that

the

for

filing

fees

Federal Rule of

only

costs

that

a

seeking costs under Appellate Rule 39 and Fourth Circuit Local Rule
39, to file their Bill of Costs with the circuit clerk within 14 days
of entry of judgment in the Fourth Circuit.
Such costs,
after
verification by the circuit clerk, shall be included in the Fourth
Circuit's mandate.
If the clerk is unable to verify the Bill of Costs
prior to issuance of the mandate,
the circuit clerk may send a

supplemental Bill of Costs to the district court for inclusion in the
mandate at a later time.

Fed.

R. App.

P. 39(d)(3).

prevailing party may seek post appeal at the District Court are
(1)

costs

for

"preparation

the

reporter's

(3)

premiums

and

transcript,

if

paid

for

a

transmission

needed

supersedeas

preserve rights pending appeal;
notice of appeal."

Fed.

to

R.

and

App.

(4)

Ryobi

111.

July 6,

Inc.,

2015)

No.

the

admission

attorney

admissions,

are

regarding

no

"because

grounds

Fourth

upon

Circuit

appeal;
bond

to

CWA seeks $216 for
Appellate Rule

See Stollings v.

4100479,

at

*8

(N.D.

(rejecting request for costs of

Rule

copying,

WL

the

(2)

for filing the

However,

2015

record;

other

fee

P. 39(e).

08C4006,

(unpublished)

attorney

there

or

not include attorney admission fees.

Techs.,

the

determine

bond

Fourth Circuit attorney admission fees.
39 does

of

39(e)

or

which

does

not

cover

costs

of

printing

briefs").

As

such,

to

CWA's

of

Costs

attorney

grant

admission

Bill

fees.

Therefore,

Plaintiff's third objection to CWA's Bill of Costs is SUSTAINED,
and CWA's request for Fourth Circuit attorney admission fees is
DENIED.4

4 The Court notes that other courts
admission

Crooked

fees

Creek

to be

taxable

Props.,

Inc.

have found appellate

as

a

clerk's

fee

v.

Hutchinson,

under

No.

28

U.S.C.

2:09cvll04,

attorney
§ 1920.
2013 WL

1857625,
at
*2
(M.D.
Ala.
May
2,
2013)
(unpublished)
(finding
admission fee for practice in the Eleventh Circuit was taxable as a

clerk's fee); cf^ Amdocs (Israel) Ltd., 2013 WL 1192947 at *3 (finding
that fees for pro hac vice admission to the district court are "fees
of the clerk" and listing cases in support) .
However, the Court has
not found a case from the Fourth Circuit determining that appellate
admission

fees

are

taxable

as

a

clerk's

fee.

Even

if

the

Court

were

to construe CWA's request for Fourth Circuit admission fees as a
request for fees under 28 U.S.C. § 1920, the request would be untimely
because the Bill of Costs was not filed "within eleven (11) days from

D. Transcript Costs

Finally,
$67.50

for

Plaintiff objects to the only remaining cost item,

the

summary

necessary for the
39(e)(2)

allows

reporter's

if

the

appeal.
a

transcript"

is

transcript,

Federal

prevailing

transcript

Plaintiff

judgment

in

was

correct

the

party

the

"to

did not

was

2014,

Tr.

19.
As

the

the

Joint

Appendix,

ECF No.

determine the appeal."
CWA's

Bill

of

Therefore,

Costs

is

appeal,

appeal."

69,

ordered the
72,

App.,

CWA's

"the

obtained by CWA,

was

No.

Plaintiff's
and

transcript

14-1889,

copy was

SUSTAINED,

and CWA

and the transcript

ECF No.

ECF NO.

Plaintiff had already ordered the transcript,

included in

for

following

CWA only purchased a copy of the transcript.

1.

to

ECF No.

included in the joint appendix,

not

Plaintiff was the only

Plaintiff

Req.,

was

Procedure

costs

determine

Notice of Appeal,

file a cross-appeal.

on September 16,

seek

transcript,

it

Appellate

court

not necessary "to determine the appeal."
party to note an appeal,

of

to

district

necessary

that

Rule

because

not

80-

and it was

"needed to

fourth objection

CWA's

request

for

transcript costs is DENIED.
III.

For

the

Defendant's

reasons

Bill

of

II.A.

stated

Costs

the entry of judgment."

CONCLUSION

E.D.

is

Va.

above,

Plaintiff's

SUSTAINED.

Loc.

Civ.

As

Objection

such,

R. 54(D);

to

Defendant's

see supra Sect.

Bill

of Costs,

forward

a

as

copy

a

whole,

of

this

is DENIED.

Memorandum

The

Order

Clerk

to

is DIRECTED

all

counsel

to

of

record.

IT

IS

SO

ORDERED

/s/M©
Mark
UNITED

Norfolk, Virginia

January

\3

2016

STATES

S.

Davis

DISTRICT

JUDGE