Latson v. Clarke et al

Filing 269

OPINION and ORDER granting 261 Motion to Review and Reverse the Clerk's Taxation of Costs; denying 256 Bill of Costs. Signed by Judge James P. Jones on 2/5/19. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
REGINALD CORNELIUS LATSON,
Plaintiff,
v.
HAROLD W. CLARKE, ET AL.,
Defendants.

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Case No. 1:16CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Caitlin Marie Kasmar, Andrew R. Louis, and John Bell Williams III,
Buckley Sandler LLP, Washington, D.C., for Plaintiff; Jeff W. Rosen and Christina
E. Cullom, Pender & Coward, PC, Virginia Beach, Virginia, and Laura Maughan,
Office of the Attorney General, Richmond, Virginia, for Defendants.
Following my entry of summary judgment in their favor, the defendants
submitted a Bill of Costs and the Clerk taxed costs totaling $30,634.90 to the
plaintiff. The plaintiff has now filed a timely Motion to Review and Reverse the
Clerk’s Taxation of Costs. Because I find that the plaintiff is indigent and unable
to pay the costs taxed, I will grant the plaintiff’s motion.
I.
The plaintiff, Reginald Cornelius Latson, is a 26-year-old man who has
autism spectrum disorder, post-traumatic stress disorder, and intellectual disability.
In support of his motion, he submitted a declaration of Nathaniel D. Porter, III, as

well as his own declaration. The affirmations contained in these declarations are
undisputed.
Porter is a Program Coordinator with Attain, Inc., which operates a group
home in which Latson has resided since August 2018. Porter works with Latson
on life skills such as personal hygiene, taking his medication, completing chores,
and interacting with others socially. Latson is not employed, and according to
Porter, he is unable to obtain employment due to his disabilities and the constraints
of his living situation. Latson asserts that he does not have a bank account and
does not own any land, a house, or a car. He received a settlement from related
litigation in the United States District Court for the Eastern District of Virginia,
and those funds are held in a special needs trust.
II.
The defendants here seek costs totaling $30,634.90, representing court
reporter fees and fees for deposition and hearing transcripts and photocopies,
among other things. The plaintiff makes specific objections to certain items, but
generally objects to the award of costs on the grounds of the plaintiff’s financial
situation and that the issues in the case were difficult and close. The defendants
counter that the plaintiff should not be permitted to exempt the settlement proceeds
from being available to pay taxed costs in this case. I previously ordered the
defendants to pay the plaintiff’s fees and costs related to a discovery motion, and
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the defendants now request that if I decide to reverse the taxation of costs to the
plaintiff, I offset the $16,132.50 the defendants were ordered to pay. See Op. &
Order, Nov. 6, 2018, ECF No. 251.
Federal Rule of Civil Procedure 54(d)(1) establishes a general rule that costs
of litigation, other than attorney’s fees, should be awarded to a prevailing party.
However, whether to award costs and the amount of costs to be awarded are
matters within the discretion of the trial court. Marx v. Gen. Revenue Corp., 568
U.S. 371, 377 (2013). Costs may be refused under Rule 54(d)(1) only if the district
court “justif[ies] its decision by ‘articulating some good reason for doing so.’”
Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994) (quoting Oak Hall Cap &
Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir. 1990)).
The losing party’s good faith is not sufficient on its own to warrant a denial of
costs, although it is a prerequisite to denying costs to the winner. See Cherry v.
Champion Int’l Corp, 186 F.3d 442, 446 (4th Cir. 1999).
The Fourth Circuit has held that financial inability to pay may be considered
by the court in denying an award of costs. See id at 446; Teague, 35 F.3d at 996.
Similarly, this court has previously ruled that the losing party’s financial resources
merit consideration in determining whether to deny costs.

Musick v. Dorel

Juvenile Grp., No. 1:11CV00005, 2012 WL 473994, at *1 (W.D. Va. Feb. 13,
2012); Crusenberry v. Boddie–Noell Enters., Inc., No. 2:99CV00129, 2001 WL
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418737, at *2 (W.D. Va. Mar. 15, 2001). When a case is particularly close and
difficult, courts are willing to deviate from the general rule and deny a request for
costs. A case’s closeness “is judged not by whether one party clearly prevails over
another, but by the refinement of perception required to recognize, sift through and
organize relevant evidence, and by the difficulty of discerning the law of the case.”
Va. Panel Corp. v. MAC Panel Co., 203 F.R.D. 236, 237 (W.D. Va. 2001) (quoting
White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 732–33 (6th Cir.
1986)).
I find that this case was a relatively close and difficult one. I further find
that Latson brought his claims in good faith. The closeness of the case and the
good-faith nature of the plaintiff’s claims are apparent from the size of the
summary judgment record and the sheer length of my opinion granting summary
judgment. See Op. & Order, Nov. 6, 2018, ECF No. 252.
Due to his disabilities and living situation, Latson is currently unable to pay
costs to the defendant and is unlikely to become able to pay costs in the future. I
further find that the settlement funds in the special needs trust are needed to
support Latson, and it would be unjust to require him to use those funds to pay
taxed costs in this case. Moreover, the settlement proceeds are protected from
unsecured creditors under Virginia law. See Va. Code Ann. § 34-28.1; In re Webb,

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210 B.R. 266, 274 (Bankr. E.D. Va. 1997). Under all of these circumstances, I
believe that costs should not be awarded in this case.
I am unpersuaded by the defendants’ argument that I should essentially
waive my earlier order that they pay the plaintiff’s attorneys’ fees and costs
associated with the plaintiff’s Motion to Compel. Those fees and costs were
awarded because VDOC had failed to meet its discovery obligations, unnecessarily
causing the plaintiff to incur additional expenses. Op. & Order, May 14, 2018,
ECF No. 230. The plaintiff’s inability to pay taxable costs does not relieve VDOC
of the responsibility to pay for its discovery failures. I find that no set-off is
warranted.
III.
For the foregoing reasons, it is ORDERED that the plaintiff’s motion, ECF
No. 261, is GRANTED and, upon review, the defendant’s Bill of Costs ECF No.
256 is DENIED.
ENTER: February 5, 2019
/s/ James P. Jones
United States District Judge

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