McKinley v. The Salvation Army International Corporation et al

Filing 127

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 6/27/17. (sas)

CLERK'S OFFICI'! U,!Jii, DI!Sf. OOIJiin'

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

LISA ANN MCKINLEY,
Plaintiff,
v.
THE SALVATION ARMY,
Defendant.

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AT ROANOKe VA
FILED '

Civil Action No. 7:15CV00166
MEMORANDUM OPINION

By: Hon. Glen E. Conrad
Chief United States District Judge

This case is presently before the court on the defendant's bill of costs, filed pursuant to
Rule 54(d)(1) ofthe Federal Rules of Civil Procedure. For the reasons that follow, the court will
award the defendant costs in the amount of $4,728.90.
Procedural History

On April 10, 2015, the plaintiff filed this action against the defendant, her former
employer, claiming that she was subjected to gender discrimination, retaliation, and a sexually
hostile work environment, in violation of Title VII of the Civil Rights Act of 1964. On June 14,
2016, the court granted summary judgment to the defendant on the claims of gender discrimination
and retaliation. On August 3, 2016, a jury found in favor of the defendant on the hostile work
environment claim.

The following day, the court entered final judgment in favor of the

defendant. On April 18, 2017, the judgment was affirmed by the United States Court of Appeals
for the Fourth Circuit.
The case is now before the court on the defendant's request for an award of costs in the
amount of $6,856.80. The matter has been fully briefed and is ripe for review.

Summary of the Applicable Law

"Under Rule 54(d)(l) ofthe Federal Rules of Civil Procedure, costs 'should be allowed to
the prevailing party' unless a federal statute provides otherwise." Williams v. Metro Life Ins.
Co., 609 F.3d 622, 636 (4th Cir. 2010) (quoting Fed. R. Civ. P. 54(d)(1)). Thus, the rule "creates
the presU1nption that costs are to be awarded to the prevailing party." Cherry v. Champion Int'l
Corp., 186 F .3d 442, 446 (4th Cir. 1999). Although the court has the discretion to deny an award
of costs, it must "articulat[e] some good reason for doing so," in order to "overcome the
presumption." Id. (internal citation and quotation marks omitted). "Among the factors that
justify denying an award of costs are: (1) misconduct by the prevailing party; (2) the unsuccessful
party's inability to pay the costs; (3) the excessiveness of the costs in a particular case; (4) the
limited value of the prevailing party's victory; or (5) the closeness and difficulty of the issues
decided." Ellis v. Grant Thornton LLP, 434 F. App'x 232, 235 (4th Cir. 2011). Although the
unsuccessful party's "good faith in pursuing an action is a virtual prerequisite to receiving relief
from the normal operation of Rule 54(d)(1), that party's good faith, standing alone, is an
insufficient basis for refusing to assess costs against that party."

Id. (internal citation and

quotation marks omitted).
The particular expenses that may be taxed as costs under Rule 54(d)(1) are set forth in 28
U,S.C. § 1920. That statute provides, in pertinent part, as follows:
A judge or clerk of any court of the United States may tax ascosts
the following:
(1)
Fees of the clerk and marshal;
(2)
Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3)
Fees and disbursements for printing and witnesses;
(4)
Fees for exemplification and the costs of making
copies of any materials where the copies are
necessarily obtained for use in the case;

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(5)
(6)

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Docketfees under section 1923 of this title; and
Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services
under section 1828 of this title.

u.s.c. § 1920.
Discussion
I.

The presumption in favor of awarding costs

Upon review of the record, the court finds that the plaintiff has not identified any
circumstances sufficient to·overcome the presumption in favor of awarding costs to the prevailing
party. In her brief in opposition to the defendant's bill of costs, the plaintiff claims that the
defendant tl,Chieved only a "limited victory" in this case, and that the "closeness and difficulty of
the issues decided" justifies denying an award of costs. As summarized above, however, the
defendant was awarded summary judgment on two of the plaintiffs claims under Title VII, and
ultimately prevailed at trial on the remaining claim. Thus, contrary to the plaintiffs assertions,
the defendant's victory was not limited. Nor was the case, which took only three days to try,
particularly complicated or difficult.

See Grochowski v. Sci. Applications Int'l Corp., No.

ELH-13-3771, 2017 U.S. Dist. LEXlS 4512, at *8, 201 TWL 121743, at *4 (D. Md. Jan. 12, 2017)
(rejecting a similar argument in a Title VII case and noting that "[c]ourts that have denied costs
based on this factor generally have done so following a lengthy trial that adjudicated novel issues")
(collecting cases). Instead, it involved a straightforward application of well-established Title VII
principles and Supreme Court precedent, including the Court's decision in Vance v. Ball State
Univ., 133 S. Ct. 2434, 2439 (2013) (holding that "an employee is a 'supervisor' for purposes of

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vicarious liability under Title VII if he or she is empowered by the employer to take tangible
employment actions against the victim").*
The plaintiff also contends that the nature of the lawsuit, involving sexual

~arassment

in

the workplace, justifies denying the requested costs. The plaintiff claims that taxing costs against
her could dissuade others from seeking relief under Title VII. This argument, however, was
rejected by the Fourth Circuit in Cherry, 186 F.3d at 448. In that case, which also involved
alleged violations of Title VII, the Court explained as follows:
The language of Rule 54(d)(l) does not provide that the
presumptive award of costs may be defeated because of the nature
of the underlying litigation. On the contrary, it provides that
"except when express provision therefor is made either in a statute
of the United States or in these rules," the cost-shifting to the
prevailing party otherwise applies to all cases, including Title VII
cases. Because any public interest exception thus must be
contained explicitly in a statute or rule, Rule 54( d)(l) should not be
interpreted to include a public interest exception as defined by the
judiciary on a case by case basis.
Id. (emphasis in original). The Cherry Court further explained that Title VII "already contains
incentives to serve the public interest .... For example, it provides that 'the court, in its discretion,
may allow the prevailing party ... a reasonable attorney's fee (including expert fees) as part of the
costs."' Id. (quoting 42 U.S.C. § 2000e-5(k)) (second omission in original). Such provision
"advances the congressional purpose to encourage suits by victims of discrimination while
deterring frivolous litigation." Id. (citation and internal quotation marks omitted). The Court
*As indicated above, the instant case proceeded to trial on the plaintiffs claim thatshe was subjected to
a sexually hostile work environment. The jury found that the plaintiff failed to prove that the sexual harassment
was perpetrated by a "supervisor," as defined in Vance. The jury also found that the plaintifffailed to prove that
the defendant knew or should have known of harassment perpetrated by nonsupervisory coworkers and failed to
take remedial action reasonably calculated to end the harassment. Based on the jury's findings, the defendant
was entitled to judgment on the hostile work environment claim. See Vance, 133 S. Ct. at 2439 ("If the
harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling
working conditions."); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) ("An employer is liable
for harassment by the victim's coworkers only if it knew or should have known about the harassment and failed
to take effective action to stop it ... [by] respond[ing] with remedial action reasonably calculated to end the
harassment.") (citations and internal quotation marks omitted).

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emphasized that "it is not for the district courts to add a similar type of provision as an exception to
Rule 54(d)(l)." Id.
For these reasons, and because no other factor weighs in the plaintiffs favor, the court
finds that the circumstances in this case are not sufficient to overcome the presumption that favors
awarding costs to the prevailing party.

II.

The costs requested by the defendant

The particular costs at issue in this case include: (1) $5,801.34 in transcript fees; (2)
$531.26 in witness fees and mileage expenses; and (3) $524.20 in printing and copying fees. The
court will address each category in turn.

A.

Transcript fees

The first category of expenses includes $5,801.34 in fees paid for obtaining deposition
transcripts, a videotape of the plaintiffs deposition, and a daily trial transcript.
Section 1920 allows a court to tax as costs "[f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case."

28 U.S.C. § 1920(2).

The cost of a

deposition transcript is generally recoverable if it is "reasonably necessary at the time of its
taking." LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 830 F.2d 522, 528 (4th Cir. 1987).
In this case, the court agrees that all of the depositions at issue, which were of the plaintiff and her
former coworkers and supervisor, were reasonably necessary to the litigation at the time they were
taken. Accordingly, the defendant will be awarded the fees paid for the deposition transcripts.
On the other hand, the court declines to tax the cost of ordering the videotape of the
plaintiffs deposition, since the defendant also obtained a copy of the deposition transcript. While
there may be circumstances in which a transcript and a videotape of a deposition may be necessary,

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the defendant has failed to explain why both recording methods were necessary in the instant case.
Accordingly, the costs associated with obtaining the videotape of the phlintiffs deposition will not
be taxed against the plaintiff, and the bill of costs will be reduced by $965.00.
The court likewise declines to tax the costs of the daily trial transcript ordered by the
defendant. While the transcript may have been helpful to defense counsel in preparing for various
aspects of trial, the court is unable to conclude that it was necessary in this particular case. As
such, the defendant's bill of costs will be further reduced by $974.05.

B.

Witness fees and mileage expenses

The defendant also seeks to recover witness fees and mileage expenses. A prevailing
party may recover fees for witnesses under 28 U.S.C. § 1920(3). Available expenses include
attendance and mileage fees, as specified in 28 U.S.C. § 1821. The attendance fee for witnesses is
$40.00 per day. 28 U.S.C. § 1821(b). Additionally, witnesses who travel by privately owned
vehicle are entitled to be paid "[a] travel allowance equal to the mileage allo'tvance which the
Administrator of General Services has prescribed, pursuant to [5 U.S.C. § 5704], for official travel
of employees ofthe Federal Government." 28 U.S.C. § 1821(c)(2). The standard mileage rate
for 2015, when three of the witnesses were deposed, was 57.5 cents per mile. See 5 U.S.C. §
5704; IRS Bulletin 2014-53, Notice 2014-79

§ 3 (Dec.

29, 2014), available at

http://www.irs.gov/irb/2014-53_IRB/ar08.html. The standard mileage rate for 2016, when three
of the witnesses appeared for trial, was 54 cents per mile. See IRS News Release IR-2015-137
(Dec. 17, 2015), available at http://www.irs.gov/uac/newsroom/2016-standard-mileage-rates-forbusiness-medical-and-moving -announced.
In this case, the defendant seeks to recover attendance and mileage fees paid to .six of the
plaintiffs former coworkers, who were deposed by the defendant and/or called to testify at triaL.
The court is of the opinion that all of these witnesses were reasonably necessary, and thus the
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defendant is entitled to recover the applicable attendance and mileage fees.

Those fees,

calculated at the rates set forth above, total $530.51.

C.

Printing and copying expenses

The final category of requested expenses includes $322.90 for copies produced in-house at
a cost of$ 0.10 per page. It also includes $201.30 in expenses incurred in obtaining copies of the
plaintiffs medical records from various health care providers.
The costs ofprinting copies of documents are reimbursable under 28 U.S.C. § 1920 when
they are "necessarily obtained for use in the case."
\

28 U.S.C. § 1920(4).

This provision

"encompasses discovery-related costs" and is not limited to "materials attached to dispositive
motions or produced at trial." Country Vintner ofN.C., LLC v. E. & J. Gallo Winery, Inc., 718
F.3d 249, 257 (4th Cir. 2013). While taxable expenses include copies "submitted to the court and
provided to opposing counsel," copies made for a party's own convenience are not allowed.
Kennedy v. Joy Techs., Inc., 484 F. Supp. 2d 502, 505 (W.D. Va. 2007) (Jones, J.); see also Webb
v. Kroger Ltd. P'ship I, No. 7:16-CV-00036, 2017 U.S. Dist. LEXIS 94775, at *12, 2017 WL
2651721, at *5 (W.D. Va. June 19, 2017) (Urbanski, J.); Schwarz & Schwarz ofVa., LLC v.
Certain Underwriters at Lloyd's, No. 6:07-CV-00042, 2010 U.S. Dist. LEXIS 10753, at *28, 2010
WL 452743, at *9 (W.D. Va. Feb. 8, 2010) (Moon, J.).
In this case, the defendant's itemized list of in-house copying expenses includes costs
associated with printing copies of documents filed by, or received directly from, the plaintiff and
the court. Consistent with the foregoing decisions, the court declines to tax these costs, totaling
$188.10, against the plaintiff. However, the costs of the remaining documents, including the
plaintiffs medical records, which were not obtained merely for the convenience of defense
counsel, will be awarded to the defendant.

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Conclusion

In accordance with the rulings set forth above, the court will grant in part and deny in part
the defendant's request for an award of costs. Litigation costs in the amount of$4,728.90 will be
taxed against the plaintiff.
The Clerk is directed to send certified copies of this memorandum opinion and the
accompanying order to all counsel of record.
f)4
DATED: This ~IJ day of June, 2017.

Chief United States District Judge

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