Bocock v. Specialized Youth Services of Virginia, Inc. et al

Filing 109

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 4/28/2016. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
SUSAN BOCOCK,
Plaintiff,
v.
SPECIALIZED YOUTH SERVICES OF
VIRGINIA, INC.,
Defendant.

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Civil Action No. 5:14-cv-00050
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
After prevailing at trial, defendant Specialized Youth Services of Virginia, Inc. (SYS)
filed a bill of costs for $10,610.68 under Federal Rule of Civil Procedure 54(d), and the clerk
taxed that amount against plaintiff Susan Bocock. (Def.’s Bill of Costs 1–2, Dkt. No. 101;
Taxation of Costs 2, Dkt. No. 102.) Bocock now asks the court to review the clerk’s action,
contending (among other things) that she does not have the means to pay costs. (Pl.’s Opp’n to
Bill of Costs 2–4, Dkt. No. 104.) For the following reasons, the court finds that Bocock lacks the
ability to pay costs. It will thus deny SYS’s bill of costs.
I. BACKGROUND
Bocock sued SYS, claiming that it terminated her because of an actual or perceived
disability, in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§ 12101. (Compl. ¶¶ 42–53, Dkt. No. 1-1.) After the court denied SYS’s motion for summary
judgment, the case proceeded to trial. The jury returned a verdict in favor of SYS, finding that
Bocock was not disabled within the meaning of the ADA and that SYS did not terminate her

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Bocock originally brought two other claims, but she voluntarily dismissed them before trial. (Stipulation
of Voluntary Dismissal of Count Two 1, Dkt. No. 18; Stipulation of Voluntary Dismissal of Count Three 1, Dkt. No.
76.)

because of a disability. (Verdict Form 1–3, Dkt. No. 95.) The court gave the parties 28 days to
file any post-trial motions. After no motions were filed, the court entered final judgment on the
verdict. (Final J. 1, Dkt. No. 106.)
Before the court entered final judgment, SYS filed its bill of costs, seeking the following:
(1) $400 in court-filing fees; (2) $360.10 in witness-subpoena fees; (3) $3,594.47 in depositiontranscript fees; (4) $1,086.39 in witness-attendance fees and witness-travel expenses; (4)
$2,004.10 in copy expenses; (5) $84.75 in express-mailing expenses; (6) $548.42 in documentsubpoena fees; and (7) $2,532.45 in attorney and corporate-representative travel and lodging
expenses. (Bill of Costs 1–2; Itemization of Costs 1–2, Dkt. No. 101-2.) The clerk taxed these
costs, totaling $10,610.68, against Bocock. (Taxation of Costs 1.)
Bocock objects to SYS’s requested costs. She first argues that the court should deny the
costs in full because she cannot afford to pay any portion of them. (Pl.’s Opp’n to Bill of Costs
2–4.) In a sworn declaration, she says that she brings home less than $1,300 a month and that
her monthly expenses exceed that amount. (Pl.’s Decl. ¶ 4, Dkt. No. 104-1.) She further states
that she has outstanding medical bills from a hospitalization in May 2012; that she does not have
any “property to sell that would result in positive cash flow to use for payment of debts”; and
that she has no “prospects of improving [her] financial situation in the future.” (Id. ¶ 5.)
Consequently, she says, if she is required to pay SYS’s costs, then she will be forced to file for
bankruptcy. (Id. ¶ 4.)
Alternatively, Bocock contends that the court should deny SYS’s costs in part because
some of them are not allowed under the costs statute, 28 U.S.C. § 1920. (Pl.’s Opp’n to Bill of
Costs 4–10.) For instance, she submits that § 1920 does not permit the taxation of travel and
lodging expenses for attorneys or corporate representatives. (Id. at 5.) She also maintains that

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§ 1920 does not permit the taxation of service fees for private process servers or appearance fees
for court reporters. (Id. at 6, 9.)
In response to Bocock’s objections, SYS concedes that some of the costs it seeks are not
allowed under § 1920 and thus reduces its request by $2,994.01. (Def.’s Resp. to Pl.’s Opp’n to
Def.’s Bill of Costs 5–6.) But it argues that the remaining costs are permitted by § 1920 and that
they “are not excessive or cumbersome.” (Id. at 3–7.) Accordingly, it asks that the court grant
costs in the amount of $7,616.67. (Id. at 8.)
Neither party requested a hearing on SYS’s bill of costs, and the court does not think one
necessary to decide the matter. See W.D. Va. Civ. R. 11(b).
II. DISCUSSION
Rule 54(d) governs the award of costs. It provides: “Unless a federal statute, these rules,
or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). Generally, then, an award of costs involves two
separate questions: first, who is the prevailing party; and second, how much, if any, costs should
be awarded to the prevailing party. Here, there is no dispute that SYS is the prevailing party, so
the court moves directly to the second question.
Though Rule 54(d) gives rise to a presumption that costs will be awarded to the
prevailing party, Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999), it does not
give a district court “unrestrained discretion to tax costs to reimburse a winning litigant for every
expense he has seen fit to incur in the conduct of his case,” Farmer v. Arabian Am. Oil Co., 379
U.S. 227, 235 (1964). The district court must carefully scrutinize the “[i]tems proposed by
winning parties as costs.” Id.

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The prevailing party bears the initial burden of establishing that the requested costs are
permitted under § 1920. Mayse v. Mathyas, No. 5:09-cv-100, 2010 U.S. Dist. LEXIS 103393, at
*4 (W.D. Va. Sept. 28, 2010) (citing Ramonas v. W. Va. Univ. Hosps.-E., Inc., No. 5:08-cv-136,
2010 U.S. Dist. LEXIS 85537, at *6 (E.D. Va. Aug. 19, 2010)). Once that party satisfies his
burden, “the burden shifts to the losing party to show the impropriety of taxing the proposed
costs.” Id. (citing Ramonas, 2010 U.S. Dist. LEXIS 85537, at *6).
While a district “court has discretion to deny an award of costs, it must ‘articulat[e] some
good reason’ for its denial.” Ellis v. Grant Thornton LLP, 434 F. App’x 232, 235 (4th Cir. 2011)
(alteration in original) (quoting Cherry, 186 F.3d at 446). Among other factors, the Fourth
Circuit has recognized “the unsuccessful party’s inability to pay the costs” as justifying the
denial of costs. Id. (citing Cherry, 186 F.3d at 446). Before declining to award costs on that
basis, however, a district court must be satisfied that the losing party does in fact not have “the
effective ability” to pay the prevailing party’s costs. Cherry, 186 F.3d at 447.
“[T]he losing party’s good faith in pursing an action is a ‘virtual prerequisite’ to receiving
relief from the normal operation of Rule 54(d)(1).” Id. at 446 (quoting Teague v. Bakker, 35
F.3d 978, 996 (4th Cir. 1994). But “that party’s good faith, standing alone, is an insufficient
basis for refusing to assess costs against that party.” Id. (citing Teague, 35 F.3d at 996).
Here, the court is satisfied that Bocock does not have the ability to pay costs. As noted
above, she brings home less than $1,300 a month, which is not even enough to cover her monthly
expenses. Further, she is still trying to pay off medical expenses incurred four years ago. She
also lacks any assets that could be sold to satisfy her current debts, much less any future ones.
And lastly, she has no prospects of improving her financial situation in the future.

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The court is also satisfied that Bocock pursued this case in good faith. Her suit was by no
means frivolous. See McLamb v. Dugger, No. 94-7463, 1996 U.S. App. LEXIS 3211, at *5 (4th
Cir. Feb. 28, 1996) (“A case is frivolous if the plaintiff would not be entitled to relief under any
arguable construction of the law or facts.” (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
Indeed, she produced sufficient evidence of a disability, and discrimination based on that
disability, to survive not only a motion for summary judgment, but also a motion for judgment as
a matter of law. And though the jury ultimately found in favor of SYS, it could have found in
favor of Bocock, and its verdict would have been adequately supported by the evidence.
Under these circumstances, the court finds that Bocock has overcome the presumption
that costs should be awarded here. It will therefore decline to award costs to SYS.
III. CONCLUSION
For the foregoing reasons, the court will deny SYS’s bill of costs.
An appropriate order will follow.
Entered: April 28, 2016.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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