Wheeler v. Commonwealth Of Virginia et al
Filing
202
MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 08/09/2019. (ssm)
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
AUG·1 2 2019
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TRACEY WHEELER,
Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al.,)
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)
Defendants.
UTYCLERK
Civil Action No. 7:17CV00337
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge
On March 21, 2019, a jury returned a verdict in favor of the Commonwealth of Virginia,
the Virginia Department of Alcoholic Beverage Control, and the Virginia Alcoholic Beverage
Control Board (collectively, the "ABC defendants") on the plaintiffs claim of hostile work
environment based on sexual harassment, in violation of Title VII of the Civil Rights Act of 1964
("Title VII"). The ABC defendants have since filed a bill of costs pursuant to Rule 54(d)(1) of the
Federal Rules of Civil Procedure. For the reasons that follow, the court will award the ABC
defendants costs in the amount of$2,472.97.
Procedural History
Tracey Wheeler filed this action against the ABC defendants on July 18, 2017, asserting a
claim of hostile work environment under Title VII. 1 Wheeler later amended her complaint to
include a claim of retaliation against the ABC defendants. On February 20, 2019, the court
granted summary judgment to the ABC defendants on the claim of retaliation. On March 21,
2019, a jury found in favor of the ABC defendants on the hostile work environment claim. On
March 25, 2019, the court entered final judgment in favor of the ABC defendants.
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Wheeler also asserted claims of assault and battery against David Chrisley.
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The case is now before the court on the ABC defendants' request for an award of costs in
the amount of$5,985.03. 2 The matter has been fully briefed and is ripe for review.
Summary of the Applicable Law
"Under Rule 54(d)(1) of the 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)). The United States
Court of Appeals for the Fourth Circuit has recognized that the language of Rule 54(d)(l) gives
rise to a "presumption 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)(l), 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)(l) are set forth in 28
U.S.C. § 1920. That statute provides, in pertinent part, as follows:
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The ABC defendants originally requested an award of costs in the amount of $6,927 .96. They reduced
their request in response to the plaintiffs objections.
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A judge or clerk of any court of the United States may tax as costs the
following:
(1)
(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;
(5)
Docket fees under section 1923 of this title; and
(6)
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Fees ofthe clerk and marshal;
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.
Requested Costs
In this case, the ABC defendants' bill of costs includes $3,977.15 in transcript fees and
$2,007.88 in witness fees and travel expenses. For the following reasons, the court declines to tax
a substantial portion of the requested costs.
A.
Transcript Fees
The first category of expenses includes $3,977.15 in fees paid for obtaining deposition
transcripts, daily trial transcripts, and a transcript from the hearing on the defendants' motions in
limine.
Section 1920 allows a court to tax as costs "fees 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
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taking." La Vay 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, which were of the plaintiff, her former
coworkers and managers, and a human resources representative, were reasonably necessary to the
litigation at the time they were taken. Accordingly, the fees paid for the deposition transcripts are
allowable costs.
The court reaches the same conclusion with respect to the transcript of the pretrial motions
hearing. During the hearing, which lasted over an hour and a half, the court orally ruled on a
multitude of issues raised in the ABC defendants' motions in limine. Thus, the court finds that
the transcript of the hearing was necessarily obtained for use in preparing for trial.
On the other hand, the court declines to tax the costs of the daily trial transcripts ordered by
the ABC defendants. While the transcripts may have been helpful to defense counsel in preparing
for· various aspects of trial, the court is unable to conclude that they were necessary in this
particular case. As such, the ABC defendants' bill of costs will be reduced by $1,329.80.
C.
Witness Fees and Travel Expenses
The defendant also seeks to recover $2,007.88 in witness fees and expenses. A prevailing
party may recover fees for witnesses under 28 U.S.C. § 1920(3). Available expenses include
attendance, travel, and subsistence fees, as specified in 28 U.S.C. § 1821. The attendance fee for
witnesses is $40.00 per day. 28 U.S.C. § 1821.
The majority of the witness fees and travel expenses for which the ABC defendants seek
reimbursement are associated with the appearances of John Singleton and Faith Richardson.
Richardson.appeared as the agency representative for the Commonwealth, and Singleton appeared
as the agency representative for the Virginia Department of Alcoholic Beverage Control and the
Virginia Alcoholic Beverage Control Board. Although Singleton and Richardson were present
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for all four days of trial, they each testified as a witness on only one of those days. Consistent
with this court's previous decision in Bellofatto v. Red Robin International, Inc., No.
7:14-cv-00167, 2015 U.S. Dist. LEXIS 76517, at *9 (W.D. Va. June 12, 2015) (Conrad, J.), the
court finds that only a portion of the agency representatives' expenses may be taxed against the
plaintiff. See Bellofatto, 2015 U.S. Dist. LEXIS 76517, at *9 (noting that '"many courts have
determined that [a corporate] representative is entitled to the statutory attendance fee and
subsistence provided for witnesses under 28 U.S.C. § 1821, although only for the day or days he
appeared as a witness") (alteration omitted) (quoting Honestech, Inc. v. Sonic Solutions, 725 F.
Supp. 2d 573, 583 (W.D. Tex~ 2010)); see also Goldstein v. Costco Wholesale Corp., No.
1:02-cv-1520, 2004 U.S. Dist. LEXIS 22041, at *13 (E.D. Va. June 14, 2004) ("Where a person
serves as both a fact witness and as a corporate representative, the Court may tax costs for the
portion of the witness' time when he was serving as a witness and disallow costs for the portion
where he served as a corporate representative advising counsel.").
Specifically, the costs
associated with the appearances of Singleton and Richardson will be reduced by $1,122.41 to
account for their dual roles as agency representatives and witnesses.
II.
Plaintiff's Inability to Pay
In addition to objecting to particular costs requested by the ABC defendants, the plaintiff
argues that she is unable to pay the costs for which the ABC defendants seeks reimbursement.
The plaintiffhas submitted an affidavit indicating that she currently earns $11.00 per hour working
at a day support center for disabled individuals, that she has no health insurance or other
employment benefits, and that the balance of her checking account is less than $100.00.
It is well settled that indigence does not automatically excuse the losing party from paying
the prevailing party's costs. See Flint v. Haynes, 651 F.2d 970, 972 (4th Cir. 1981) (holding that
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"a district court is empowered to award costs even when it has previously granted a litigant the
benefits" of in forma pauperis status). The power to award costs is a discretionary function of the
court, and the court may impose costs against an unsuccessful litigant if the court finds that the
litigant has not convinced the court that she "will not ever be able to pay the order imposing costs."
McGill v. Faulkner, 18 F.3d 456, 460 (7th Cir. 1994); see also Green v. Winchester Med. Ctr., No.
5:13-cv-00064, 2015 U.S. Dist. LEXIS 5895, at *7 (W.D. Va. Jan. 20, 2015) (Jones, J.) (finding
that the plaintiffs financial condition militated against an award of costs in any amount where "the
permanent injury suffered by the plaintiff ... substantially reduced her present and future earnings
potential").
In this case, after hearing from the plaintiff and her former co-workers, many of whom
testified that she excelled in her job as a sales associate, the court is not convinced that the plaintiff
will never be able to pay an order imposing costs against her. Nonetheless, in light of her current
financial situation, the court will exercise its discretion to reduce the available costs by 30%. See,
~Cross
v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983) (affirming a partial award
of costs against a plaintiff with limited financial resources).
Conclusion
In accordance with the rulings set forth above, the court will award the ABC defendants
costs in the amount of $2,472.97.
The court concludes that this award constitutes a fair
contribution to the ABC defendants' costs, given the plaintiffs current financial circumstances.
The Clerk is directed to send certified copies of this memorandum opinion and the
accompanying order to all counsel of record.
DATED: This tiJ-+d day of August, 2019.
Senior United States District Judge
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