Burcham v. Office of the Sergeant at Arms for the United States Senate

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JEANNE BURCHAM, )
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Plaintiff, )
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v. ) Civil Action No. 1:17-cv-2661 (TSC)
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OFFICE OF THE SERGEANT AT )
ARMS FOR THE UNITED STATES )
SENATE, )
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Defendant. )
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MEMORANDUM OPINION
After more than three years of discovery and various motions arising from Plaintiff
Jeanne Burcham’s employment discrimination suit, the court granted Defendant’s motion for
summary judgment on February 19, 2020. ECF No. 37. Defendant filed a bill of costs pursuant
to Federal Rule of Civil Procedure 54(d)(1) and Local Civil Rule 54.1 requesting $300 for the
cost of subpoenaing two witnesses, and $10,252.74 for fees associated with ordering and printing
deposition transcripts, for a total bill of costs of $10,552.74. ECF No. 39, Bill of Costs. Plaintiff
objects to the entry of those costs. ECF No. 40, Pl. Opp’n. For reasons explained herein, the
court will award Defendant its full bill of costs in the amount of $10,552.74.
I. LEGAL STANDARD
Federal Rule 54 of Civil Procedure 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). “Though the allowance . . . of costs is in the sound
discretion of the district court, the general proposition is that the prevailing party is entitled to
costs in the district court as of course.” Moore v. Nat’l Ass’n of Sec. Dealers, Inc., 762 F.2d
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1093, 1107 (D.C. Cir. 1985) (citations omitted). “Liability for costs is a normal incident of
defeat.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). The party opposing a cost
award must demonstrate “circumstances sufficient to overcome the presumption favoring the
prevailing party.” Baez v. U.S. Dep’t of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982).
II. ANALYSIS
Plaintiff makes three objections to Defendant’s bill of costs. First, she argues that
awarding costs to Defendant would be unjust because it would punish her for bringing a lawsuit
in good faith and would have a chilling effect on future litigants. Second, she contends that
Defendant improperly seeks reimbursement for certain costs that were not necessary for
Defendant to litigate the case. And third, Plaintiff argues that the court should not award costs
for two subpoenas that were privately served.
A. “Element of Injustice”
Plaintiff first asserts that the court should not award Defendant costs because “there is an
element of injustice in a cost award in this matter.” Pl. Opp’n at 2. Specifically, she contends
that the court should factor in the disparity in “size, resources, and stability” between herself and
Defendant. Id.Plaintiff’s request that the court consider the “disparity between the parties” implies that
she may lack the financial means to pay some or all of the costs. See id. But she does not
actually say so. In fact, she makes no representations about her financial circumstances or ability
to pay the requested costs. See generally id. “[U]nsubstantiated assertions of financial
hardship,” which would include implicit suggestions of financial hardship, “are an insufficient
basis on which to deny costs.” Johnson v. Holway, 522 F. Supp. 2d 12, 17 (D.D.C. 2007); see
also Youssef v. F.B.I., 762 F. Supp. 2d 76, 85 (D.D.C. 2011), aff’d in part, 687 F.3d 397 (D.C.
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Cir. 2012) (finding that plaintiff’s assertions of financial hardship unsubstantiated where he
contended that costs were excessive but did not argue that he could not pay them); Doe v.
Garland, No. CV 18-4 (RC), 2022 WL 1908823, at *3 (D.D.C. June 3, 2022) (requiring
substantial documentation—income, expenditures, assets, and discretionary expenditures—
showing a true inability to pay); Guevara v. Onyewu, 943 F. Supp. 2d 192, 196 (D.D.C. 2013)
(finding declaration of monthly income and monthly mortgage payments insufficient
documentation to show inability to pay); Moini v. Wrighton, No. 1:19-CV-03126 (TNM), 2022
WL 2528119, at *1 (D.D.C. July 7, 2022) (denying objection to bill of costs where plaintiff
provided no documentation to support financial hardship claim). Moreover, mere financial
disparity between the parties, by itself, is an insufficient reason to deny the bill of costs. See id.
at *2 (“Rule 54 applies to Davids and Goliaths alike.”); Bark v. U.S. Forest Serv., No. CV 12-
1505 (RC), 2014 WL 12768161, at *2 (D.D.C. Dec. 31, 2014) (“[N]early all parties will have
disparate economics compared to the federal government, and the Court declines to insulate all
litigants who lose to the government from the Rule 54(d) cost-shifting presumption.”).
Plaintiff also argues that the court should not award costs because she brought her case in
good faith and thus any cost award would have a chilling effect on future litigants. Plaintiff’s
good faith in bringing her lawsuit, however, does not defeat the presumption that Defendant is
entitled to its costs. See, e.g., Breiterman v. U.S. Capitol Police, No. CV 16-893 (TJK), 2022
WL 1538693, at *3 (D.D.C. May 16, 2022) (“[G]ood faith alone is not enough to alter the [Rule
54] calculus.”); Youssef, 762 F. Supp. 2d 76 (rejecting argument that cost award would have
chilling effect on civil rights litigation); Sykes v. Napolitano, 755 F. Supp. 2d 118, 121 (D.D.C.
2010) (“[T]he fact that [plaintiff] proceeded in good faith does not reduce defendant’s right to an
award of costs.”); Long v. Howard Univ., 561 F. Supp. 2d 85, 97 (D.D.C. 2008) (rejecting the
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argument that a defendant’s costs should not be taxed because the plaintiff brought claim in good
faith; “costs are routinely awarded to prevailing defendants in civil rights cases”); Mann v. Wash.
Metro. Area Transit Auth., 185 F. Supp. 3d 189, 193 (D.D.C. 2016) (same). Consequently,
Plaintiff’s arguments regarding these costs are without merit.
B. Deposition Costs
Plaintiff next argues that Defendant improperly seeks to recover costs for “Realtime and
Rough Services,” as well as a “Video Deposition” surcharge. Pl. Opp’n at 3–4. She claims
those costs are not recoverable because they incurred for services that benefitted defense counsel
but were not necessary for Defendant to litigate the case. See id. Plaintiff’s argument appears to
be based on the receipts Defendant attaches to its bill of costs, which includes deposition-related
costs for “Realtime and Rough Services” and “Surcharge – Video Deposition.” See Bill of
Costs, Exs. 1 and 2. However, Defendant omitted these costs from the itemized bill of costs
submitted to the court. Compare Bill of Costs, Ex. 1 at 2 (receipt for costs incurred during
Burcham deposition: $1,238.55 for original and copy of transcript; $907.35 for Realtime and
Rough Services; and $35.00 for shipping and handling), with Bill of Costs Itemization at 2
(requesting reimbursement for $1,238.55 for original and copy of Burcham deposition transcript
and not for Realtime and Rough Services or for any surcharge). In other words, though
Defendant paid for “Realtime and Rough Services” and a “Video Deposition” surcharge,” it does
not seek reimbursement for those costs, and Plaintiff’s objection is therefore moot.
C. Costs for Privately Served Subpoenas
Third, Plaintiff argues that costs to subpoena two of her witnesses for depositions are not
allowed because those subpoenas were served by a private process service. Pl. Opp’n at 4. The
court disagrees.
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Local Rule 54.1 provides that the Clerk of the Court “shall tax” “[c]osts of service of a
subpoena on witness who testified at a deposition, hearing or trial.” LCvR 54.1(d)(11). Courts
interpreting this rule have held that it allows for the recovery of the costs of service by a private
process server. See, e.g., Young v. Sarles, 197 F. Supp. 3d 38, 52 n.7 (D.D.C. 2016) (quoting
Local Rule 54.1 in awarding costs for service of summons and complaint by a private process
server); Youssef, 762 F. Supp. 2d at 85 (permitting recovery of private process server fees based
on Local Rule 54.1(d)(11)). Moreover, Plaintiff’s reliance on Harvey v. Mohammed, 951 F.
Supp. 2d 47, 73 (D.D.C. 2013) is unavailing because that court did not consider the import of
Local Rule 54.1. See Young, 197 F. Supp. 3d at 52 n.7 (rejecting reasoning of Harvey because of
its failure to consider Local Rule 54.1). This court reaches the same conclusion as Young and
Youssef and holds that reimbursement for the cost of privately served subpoenas is permitted by
the local rules. Because Plaintiff has not provided any compelling reason to overcome the
presumption of awarding permissible costs to the prevailing party, the court will grant
Defendant’s motion and award those costs.
III. CONCLUSION
For the reasons stated above, the court will award Defendant its full bill of costs, ECF
No. 39, in the amount of $10,552.74.
Date: July 14, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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