Craig v. Metropolitan Police Department , 197 F. Supp. 3d 268 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOANNE T. CRAIG, :
:
Plaintiff, : Civil Action No.: 11-cv-1200 (RC)
:
v. : Re Document Nos.: 149, 150
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR FEES AND COSTS AND
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S BILL OF COSTS
I. INTRODUCTION
Plaintiff Joanne Craig brought an employment discrimination action against Defendant
the District of Columbia under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”), and the District of Columbia Human Rights Act, D.C. Code § 2-1401.01 et
seq. (“DCHRA”). Following a trial, the jury returned a verdict in favor of Ms. Craig, awarding
her $20,000.00 in compensatory damages against the District. See Verdict Form, ECF No. 141.
With the judgment now final, Ms. Craig seeks reimbursement of attorney’s fees and costs
incurred in pursuing her successful claim. See Pl.’s Corr. Mot. Reas. Att’y’s Fees, Costs & Exp.
at 1–4, ECF No. 149 (“Pl.’s Mot.”); see also Pl.’s Reply Def.’s Opp’n Mot. Reas. Att’y’s Fees &
Costs at 1–2, ECF No. 158 (“Pl.’s Reply”). The District opposes Ms. Craig’s motion on the
ground that the requested award is unreasonable and excessive. See Def.’s Opp’n Pl.’s Corr.
Mot. Reas. Att’y’s Fees, Costs & Exp. at 1–12, ECF No. 151 (“Def.’s Opp’n”). Upon
consideration of the parties’ filings, the Court concludes that only some of Ms. Craig’s requested
fees and costs are reasonable. In this opinion, the Court will also address the District’s
objections to Ms. Craig’s bill of costs, and concludes that Ms. Craig has failed to justify certain
aspects of her request. Accordingly, the Court will grant in part and deny in part Ms. Craig’s
motion for fees and costs and will grant in part and deny in part Ms. Craig’s bill of costs.
II. PROCEDURAL BACKGROUND
Plaintiff Ms. Craig brought this action after being subjected to a series of sexually
charged and inappropriate comments over the course of her employment with the District of
Columbia’s Metropolitan Police Department.1 See Compl. at 2, ECF No. 1. After initially
proceeding pro se, Ms. Craig retained counsel on October 26, 2011. See Cobbina Decl. ¶ 1, ECF
No. 149-1. Thereafter, Ms. Craig filed her second amended complaint and set forth various
employment discrimination claims under Title VII and the DCHRA. See 2d Amend. Compl. at
1–19, ECF No. 26.
In response, Defendants moved to dismiss the second amended complaint. The Court
granted the motion as to Ms. Craig’s claims for unliquidated damages under the DCHRA and her
Title VII claims against Commander Maupin. See Craig v. District of Columbia, 881 F. Supp.
2d 26, 36 (D.D.C. 2012). The following claims remained: (1) sex discrimination by the District
in violation of Title VII and the DCHRA, (2) sex discrimination by Commander Maupin in
violation of the DCHRA, (3) retaliation by the District in violation of Title VII and the DCHRA,
and (4) retaliation by Commander Maupin in violation of the DCHRA. See Craig v. District of
Columbia, 74 F. Supp. 3d 349, 359 (D.D.C. 2014). After discovery, Defendants moved for
1
Ms. Craig’s initial complaint named as defendants the District of Columbia, Chief
Cathy L. Lanier, Sgt. Eric T. Levenberry, Sr., Cmdr. Joel R. Maupin, the Metropolitan Police
Department, and the Office of the Attorney General. See Compl. at 1.
2
summary judgment and prevailed on all claims except Ms. Craig’s discriminatory hostile work
environment claim against the District under Title VII and the DCHRA. See id.In May 2015, the case proceeded to trial. On the third day of trial, the Court declared a
mistrial because of a medical emergency that arose with Ms. Craig’s counsel. See May 20, 2015
Minute Entry. In January 2016, a second trial commenced. See Jan. 11, 2016 Minute Entry.
Ultimately, Ms. Craig prevailed at trial against the District and the jury awarded her $20,000.00
in damages. See Verdict Form.
Ms. Craig’s counsel has now filed a motion seeking attorney’s fees and costs for 985.30
hours of work in connection with litigating and trying this case through entry of the judgment. 2
Ms. Craig’s counsel seeks $559,650.40 in fees based on an hourly rate of $568.00 per hour. See
Pl.’s Reply Ex. 1 at 24, ECF No. 158-1. Ms. Craig’s initial fee motion failed to attach supporting
documentation and billing invoices to support the requested fee award. See Pl.’s Mot. at 1–5.
Thereafter, the District filed its opposition, emphasizing that omission. See Def.’s Opp’n at 1,
5–12. Despite Ms. Craig’s error, the Court accepted Ms. Craig’s reply to the District’s
opposition, which included the necessary documentation and evidence to support her fee request,
and sua sponte granted the District leave to file a surreply. 3 See Mar. 7, 2016 Minute Order.
2
Although Ms. Craig’s motion initially requested an award for 985.15 hours, the billing
records she provided in her reply list a total of 985 hours and 18 minutes of work, which amount
to 985.30 hours. Compare Pl.’s Mot. ¶ 4, with Pl.’s Reply Ex. 1 at 24, ECF No. 158-1.
3
Despite the District’s urging to the contrary, the Court will consider the information
provided in Ms. Craig’s reply. The Court provided the District an opportunity to fully address
those filings in a surreply. See Howard v. Office of the Chief Admin. Officer of the U.S. House of
Representatives, No. 15-5243, 2015 WL 9310036, at *1 (D.C. Cir. Dec. 21, 2015) (“[T]he
district court did not abuse its discretion in considering the argument raised in the appellee’s
reply . . . particularly because appellant was allowed to address this issue in a surreply.”); see
also Baloch v. Norton, 517 F. Supp. 2d 345, 348 n.2 (D.D.C. 2007) (“If the movant raises
arguments for the first time in his reply to the non-movant’s opposition, the court will either
ignore those arguments in resolving the motion or provide the non-movant an opportunity to
3
Separately, Ms. Craig submitted a bill of costs, seeking payment of $10,802.834 in costs for the
following: $350.00 in filing fees, $7,567.91 in deposition transcripts and pretrial transcripts,
$679.92 in witness fees, and $2,205.00 for summons and subpoena fees. See Bill of Costs, ECF.
No. 150.
III. ANALYSIS
Resolving Ms. Craig’s motions requires an analysis of two distinct requests: her requests
for reasonable attorney’s fees and costs, and her bill of costs. The Court will consider each in
turn.
A. Plaintiff’s Motion for Attorney’s Fees and Costs
1. Legal Standard
Federal Rule of Civil Procedure 54(d) requires a party seeking attorney’s fees and
“related nontaxable expenses” to file a motion with the court. Fed. R. Civ. P. 54(d)(2)(A). The
motion must “specify the judgment and the statute, rule, or other grounds entitling the movant to
the award.” Id. It must also state the amount or provide a fair estimate of the award sought. Id.;
see also Does I, II, III v. District of Columbia., 448 F. Supp. 2d 137, 139–40 (D.D.C. 2006).
Under Title VII, the court is authorized, in its discretion, to award “the prevailing party
. . . a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e–
5(k). Generally, “[a] reasonable fee is one that is adequate to attract competent counsel, but that
does not produce windfalls to attorneys.” West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013)
(quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)) (internal quotation marks omitted). In
respond to those arguments by granting leave to file a sur-reply.” (citing Ben-Kotel v. Howard
Univ., 319 F.3d 532, 536 (D.C. Cir. 2003)).
4
Although Ms. Craig’s Bill of Costs requested $10,892.83, the requested line items in
fact add up to $10,802.83. The Court will adjust its award to remove any discrepancy.
4
awarding appropriate attorney’s fees, the court’s determination is based on a two-step inquiry.
Does I, II, III, 448 F. Supp. 2d at 140.
First, the court must determine whether the plaintiff is the prevailing party. Id. Plaintiffs
are considered prevailing parties, and thus entitled to attorney’s fees, “if they succeed on any
significant issue in litigation which achieves some of the benefit the parties sought in bringing
suit.” Harvey v. Mohammed, 951 F. Supp. 2d 47, 53 (D.D.C. 2013) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)) (internal quotation marks and alterations omitted). A
litigant need not succeed at every step of the litigation in order to be a prevailing party for the
purpose of Title VII; indeed, “a litigant who is unsuccessful at a stage of litigation that was a
necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful
stage.” Ashraf-Hassan v. Embassy of Fr. in the U.S., No. CV 11-805 (JEB), 2016 WL 3014615,
at *3 (D.D.C. May 24, 2016) (quoting Air Transp. Ass’n of Can. v. FAA, 156 F.3d 1329, 1335
(D.C. Cir. 1998)) (internal quotation marks omitted).
Second, the court must determine whether the plaintiff’s fee request is reasonable. Does
I, II, III, 448 F. Supp. 2d at 140. In calculating a reasonable fee award, a district court must
determine: (1) the reasonable hourly rate (or “lodestar”) for the services rendered by the
plaintiff’s attorney, (2) the number of hours reasonably expended on the litigation, and (3)
whether the plaintiff has offered specific evidence demonstrating that this is one of the rare cases
where a lodestar enhancement or multiplier is appropriate. See Covington v. District of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995); Heller v. District of Columbia, 832 F. Supp. 2d
32, 38 (D.D.C. 2011). “The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hensley, 461 U.S. at 433. With respect to the number of hours
5
expended, the court must exclude hours that are “excessive, redundant, or otherwise
unnecessary.” Does I, II, III, 448 F. Supp. 2d at 140 (quoting Palmer v. Rice, No. CIV.A.76-
1439, 2005 WL 1662130, at *9 (D.D.C. July 11, 2005)).
Ultimately, the plaintiff bears the burden of establishing both her entitlement to
attorney’s fees and the reasonableness of the fees she seeks. See Covington, 57 F.3d at 1107;
Turner v. D.C. Bd. of Elections & Ethics, 354 F.3d 890, 895 (D.C. Cir. 2004). A plaintiff can
satisfy this burden by submitting evidence of: “the attorneys’ billing practices; the attorneys’
skill, experience, and reputation; and the prevailing market rates in the relevant community.”
Covington, 57 F.3d at 1107. Once the plaintiff has provided such information, a presumption
arises that the hours billed are reasonable and the burden shifts to the defendant to rebut the
plaintiff’s showing. Id. at 1109–10.
2. Analysis
Although Ms. Craig prevailed and is therefore entitled to reasonable attorney’s fees, the
District argues that Ms. Craig’s requested fees are excessive and lack the requisite specificity to
justify the number of hours reasonably expended. 5 See Def.’s Opp’n at 1; Mem. P. & A. Supp.
Def.’s Sur-Reply at 4–13, ECF No. 163 (“Def.’s Sur-Reply”). Specifically, the District requests
that the Court reduce Ms. Craig’s counsel’s request by eighty percent. Def.’s Sur-Reply at 15.
a. Reasonableness of Hourly Rate
Ms. Craig’s counsel seeks fees at a rate of $568 per hour—which matches the United
States Attorneys’ Office Laffey rate for an attorney with thirty-one or more years of experience.
See Pl.’s Mot. at 3. To determine whether an hourly rate is reasonable, the court considers three
5
Here, the District does not contest that Ms. Craig is the prevailing party within the
meaning of Title VII and DCHRA, see Def.’s Opp’n at 1–10, nor does Ms. Craig argue that she
merits a lodestar enhancement or multiplier, see generally Pl.’s Mot.
6
sub-elements: “(1) the attorney[’s] billing practices, (2) the attorney[’s] skill, experience, and
reputation and (3) the prevailing market rates in the relevant community.” Eley v. District of
Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Covington, 57 F.3d at 1107) (internal
quotation marks omitted). Here, although the District fails to rebut any of these elements, the
Court must still determine whether Ms. Craig satisfied her burden to justify her requested rate.
See Ashraf-Hassan, 2016 WL 3014615, at *4 (“[B]ecause the burden lies with Plaintiff to justify
the rate, the Court must nonetheless determine for itself whether she has done so.”).
Specifically, Ms. Craig must “produce satisfactory evidence—in addition to [her] attorney’s own
affidavits—that [her] requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.” Eley,
793 F.3d at 105 (emphasis omitted) (quoting Blum, 465 U.S. at 895 n.11).
After reviewing the record, the Court finds that Ms. Craig’s counsel’s requested rate of
$568 per hour is consistent with his customary billing practices and supported by counsel’s skill,
experience, and reputation. With respect to customary billing practices, Ms. Craig’s counsel
attests that the rate reflects “[m]y current normal and customary rate I charge clients.” Cobbina
Decl. ¶ 5. Additionally, Ms. Craig’s counsel’s affidavit details his extensive relevant experience.
See id. ¶¶ 2–4. Mr. Cobbina has practiced law as a member of the District of Columbia bar since
1981. See id. ¶ 2. He also asserts that “[o]ver the course of more than 30 years, my practice has
been varied but always included the representation of plaintiffs, particularly employees who have
become the focus of my practice.” See id. ¶ 3. In addition to Ms. Craig’s counsel’s own
declaration, Ms. Craig’s counsel attaches several affidavits from other attorneys who practice
employment law corroborating his extensive experience and remarking on his favorable
reputation. See, e.g., Cashdan Decl. ¶ 11, ECF No. 158-2; Leckar Decl. ¶¶ 5–6, ECF No. 158-3;
7
Karl Decl. ¶¶ 17, 22, ECF No. 158-4. Accordingly, counsel’s requested rate need not be
adjusted downward to account for any deficiency in skill or experience.
With respect to the prevailing market rate, Ms. Craig seeks reimbursement for attorney’s
fees at hourly rates set forth in the standard Laffey Matrix published by United States Attorney’s
Office for the District of Columbia [hereinafter “USAO Matrix”]. See Pl.’s Mot. ¶ 4; Cobbina
Decl. ¶ 5. Courts in this district customarily apply the USAO Matrix in determining the
“lodestar” reasonable hourly rate for attorney’s fees in complex civil litigation. See Laffey v. Nw.
Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds,
746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds en banc by Save Our
Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988). Indeed, courts in this
district have been reluctant to depart from the USAO Matrix “absent a strong showing that such
a departure is justified by the nature and complexity of the litigation.” Am. Lands All., 525 F.
Supp. 2d at 150. In this circuit, courts have concluded that Title VII cases are sufficiently
complex to merit Laffey rates, and the District does not contest the complexity of Ms. Craig’s
Title VII litigation claim. See Hansson v. Norton, 411 F.3d 231, 236 (D.C. Cir. 2005)
(acknowledging that a reasonable hourly rate is guided by the Laffey matrix in Title VII actions);
Makray v. Perez, No. CV 12-520, 2016 WL 471271, at *9 (D.D.C. Feb. 8, 2016) (declining to
engage in a determination of the “complexity of litigation” because defendant did “not contest
that the plaintiff’s successful Title VII gender discrimination lawsuit amount[ed] to complex
federal litigation” (internal quotation marks omitted)).
In advocating in favor of the Laffey rate, Ms. Craig’s counsel attests that his requested
rate is consistent with other attorney’s rates in this market. Specifically, Ms. Craig’s counsel
attaches the affidavits of several other attorneys who claim that the requested rate is consistent
8
with, or even understates, prevailing market rates for Title VII litigation in Washington, D.C.
See, e.g., Cashdan Decl. ¶ 8 (“[My] hourly market rate range for my services is $540-$570.00,
and clients . . . are regularly billed in this range.”); Leckar Decl. ¶ 4 (“My current hourly billing
rate is between $515.00-$575.00 per hour for commercial litigation matters.”); Karl Decl. ¶ 12
(“My current hourly rate for employment cases is $700.”). These supporting affidavits also
assert that similarly qualified attorneys—those with “50 years” or “30 plus years” experience—
who engage in employment discrimination cases customarily charge rates comparable to those
proposed in Ms. Craig’s counsel’s present request. See, e.g., Cashdan Decl. ¶¶ 3, 8; Leckar Decl.
¶¶ 2–4. The attached affidavits also confirm a consistent practice of billing at or near Laffey
matrix rates in Title VII cases in this market. See, e.g., Cashdan Decl. ¶¶ 8, 10; Leckar Decl. ¶¶
4, 7; Karl Decl. ¶¶ 12, 22. Thus, the Court concludes that the attached affidavits and
explanations provide adequate justification to employ the USAO Matrix in calculating Ms.
Craig’s counsel’s fee award. See Ashraf-Hassan, 2016 WL 3014615 at *4 (concluding that
plaintiff’s counsel’s affidavit and several other affidavits, including two attorneys not affiliated
with plaintiff’s counsel, justified awarding a reasonable rate guided by the Laffey matrix in a
Title VII action); see also Does I, II, III, 448 F. Supp. 2d at 139–40 (awarding fees based on the
Laffey Matrix in a Title VII action).
For its part, the District provides no counter-evidence that would justify departing from
the Laffey rate. See Def.’s Opp’n at 5–8; Def.’s Sur-Reply at 5–6. Beyond objecting on the
ground that this material was not initially included in Ms. Craig’s fee request—a ground the
Court has already rejected, see supra note 3—the District’s surrreply provides no legal or
evidentiary support for deviating from the Laffey rate. See Def.’s Sur-Reply at 5. Therefore,
9
the Court will award Ms. Craig’s counsel attorney’s fees based on his requested rate of $568 per
hour.6
b. Number of Hours Reasonably Expended
The Court turns to the reasonableness of Ms. Craig’s counsel’s request for fees covering
985.30 hours of work. An attorney seeking fees must “maintain contemporaneous, complete and
standardized time records which accurately reflect the work done by each attorney.” See Heller,
832 F. Supp. 2d at 50 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d
1319, 1327 (D.C. Cir. 1982)). The District argues that the recorded hours are excessive because
Ms. Craig “has fallen short of meeting her burden of proof that the hours she expended were
reasonable.” See Def.’s Sur-Reply at 6. Specifically, the District objects to the reasonableness
of both the number of hours expended and the specificity, or lack thereof, of counsel’s billing
invoices. Id. at 9, 13. In addition to considering the District’s argument, the Court will address
whether a reduction is warranted due to the limited success of Ms. Craig’s claims.
6
Typically, courts award fees at an hourly rate based on the year in which the work was
completed. See, e.g., Reed v. District of Columbia, 134 F. Supp. 3d 122, 136–37 (D.D.C. 2015),
appeal docketed No. 15-7119 (D.C. Cir. Oct. 28, 2015). But here, Ms. Craig seeks an award at
the rate of $568—the hourly Laffey rate for 2015–2016—for all of her counsel’s legal work
stretching back to 2011. The District does not raise this issue. In any event, in order to account
for the delay in payment courts have awarded pre-judgment interest (in addition to fees at the
respective yearly hourly rate) or fees at the current hourly rate, at least in some contexts. See,
e.g., Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“An adjustment for delay in payment [i.e.
applying current rates] is . . . an appropriate factor in the determination of what constitutes a
reasonable attorney’s fee.”). But see McAllister v. District of Columbia, 53 F. Supp. 3d 55, 58
n.2 (D.D.C. 2014) (explaining that “[i]n general, compensation for a delay in payment may be
more pertinent in civil rights matters given the lengthy duration of most civil rights litigation, as
compared to the relatively transient nature of IDEA litigation”). Here, because the District has
not raised the issue, the Court will award fees at the current Laffey rate for all past work. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 556 (2010) (Compensation for a delay in
payment “is generally made either by basing the award on current rates or by adjusting the fee
based on historical rates to reflect its present value.” (internal quotation marks and citation
omitted)); see also West, 717 F.3d at 1034.
10
i. The Reasonableness and Detail of Expended Hours
The District submits a list of objectionable entries from Ms. Craig’s counsel’s invoice
and argues that certain recorded entries were not reasonably expended or adequately detailed.
See Def.’s Sur-Reply at 6–13. In response, Ms. Craig attests that the work reflected in the time
entries was reasonable and necessary for the prosecution of this case. See Pl.’s Resp. Def.’s Sur-
Reply Filed Opp’n Pl.’s Mot. Att’y Fees, Costs, & Exp. at 2–8, ECF No. 165 (“Pl.’s Sur-
Surreply”). Regarding the contested entries, the district observes that because “[c]ases may be
overstaffed, and the skill and experience of lawyers vary widely,” the prevailing party’s counsel
“should make a good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Castle v. Bentsen, 872 F. Supp. 1062, 1066 (D.D.C.
1995) (quoting Hensley, 461 U.S. at 434). To satisfy the burden of justifying a reasonable fee,
Ms. Craig’s “supporting documentation must be of sufficient detail and probative value to enable
a court to determine with a high degree of certainty that such hours were actually and reasonably
expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004) (internal
quotation marks and alterations omitted) (quoting In re Olson, 884 F.2d 1415, 1428 (D.C. Cir.
1989) (per curiam)). Satisfactory documentation consists of “contemporaneous time records of
hours worked . . . plus a detailed description of the subject matter of the work with supporting
documents, if any.” Ashraf-Hassan, 2016 WL 3014615, at *5 (quoting In re Donovan, 877 F.2d
982, 994 (D.C. Cir. 1989) (per curiam)). “Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.” Hensley, 461 U.S. at 433. A fixed,
percentage reduction may be warranted when a large number of billing entries suffer from one or
more deficiencies. Role Models Am., Inc., 353 F.3d at 973.
11
The District first objects to an award of fees covering the time Ms. Craig’s counsel spent
preparing for the first trial, which ended in a mistrial. See Def.’s Sur-Reply at 8. Specifically,
the District argues that it should not be “penalized” for Ms. Craig’s counsel’s illness, which
necessitated the mistrial. Id. The D.C. Circuit has not specifically addressed whether a plaintiff
who prevails after multiple trials should be awarded the reasonable fees incurred in preparing for
each trial. However, several other circuits allow an award of attorney fees for multiple trials, so
long as “the plaintiff’s unreasonable behavior did not cause the need for multiple proceedings
and as long as counsel’s time was reasonably expended.” Waldo v. Consumers Energy Co., 726
F.3d 802, 826 (6th Cir. 2013) (quoting Abner v. Kan. City S. Ry. Co., 541 F.3d 372, 381–82 (5th
Cir. 2008)); accord Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1177 (10th Cir.
2010); O’Rourke v. City of Providence, 235 F.3d 713, 737 (1st Cir. 2001); Gierlinger v. Gleason,
160 F.3d 858, 877–78 (2d Cir. 1998); Jaffee v. Redmond, 142 F.3d 409, 416 (7th Cir. 1998).
These circuits have eschewed a bright-line, categorical rule declining to award fees for multiple
trials, concluding, instead, that “[t]he question of whether a party ‘prevailed’ and whether a fee
award is ‘reasonable’ is not one to parse too thinly . . . [based on] the number of trials required to
reach a result.” Waldo, 726 F.3d at 826 (quoting Abner, 541 F.3d at 382). This principle
includes additional trials necessitated by a mistrial: “where a party is not at fault for causing
mistrial, an award of attorneys’ fees may be merited.” Abner, 541 F.3d at 381 (mistrial declared
where jury was unable to reach a verdict in first trial); cf. Gierlinger, 160 F.3d at 878 (affirming
fees awarded by the district court after sua sponte declaring a mistrial due, in part, to publicity,
and even though the district court concluded that “plaintiff’s attorney is not blameless for [the]
mistrial”). The mere fact that two trials were necessary to obtain a favorable result is not
dispositive, although the court’s reasonableness analysis should, of course, “take into account
12
and discount for repetitive work, as may occur when there are two trials.” Abner, 541 F.3d at
383. Depending on the time that has elapsed between trials in any particular case, it may be
reasonable to award costs for some duplication of efforts. See Gierlinger, 160 F.3d at 878(noting that there was a two year gap between trials—due to a favorable appeal—and explaining
that “no competent attorney would embark on a retrial without some preparation”). Ultimately,
whether and to what extent to award fees for multiple trials should be a case-specific inquiry.
In this case, the need for a second trial resulted from an unforeseen medical emergency,
and the Court therefore declines to categorically omit the fees incurred in preparation for the first
trial. The Court is not insensitive to the District’s argument that the costs incurred preparing for
two trials should not be shifted to the District and, ultimately, the taxpayers. At the same time,
however, the Court does not believe that counsel’s medical emergency rises to the level of
unreasonable behavior or misconduct, or that the Court can apportion fault for the mistrial to Ms.
Craig’s counsel because of his medical needs. The District’s concern that the mistrial led to
duplicated efforts or repetitive work is a valid one. But those overbilling concerns will be
considered—and can be accommodated—in assessing whether Ms. Craig’s counsel’s hours were
reasonably expended. See Abner, 541 F.3d at 383.
The question remains whether Ms. Craig’s counsel’s recorded hours were reasonably
expended in pursuit of her successful claim. Here, the District calls for an eighty percent
reduction, arguing that the hours expended are unreasonable and that Ms. Craig’s counsel’s
billing records contain multiple deficiencies. See Def.’s Sur-Reply at 6–13. The Court will
examine whether Ms. Craig’s counsel provided sufficiently detailed entries and whether the
hours were reasonably expended. In addition, when analyzing those records and the time
expended on individual tasks, the Court recognizes that “[a] pleading-by-pleading examination
13
of the copious files in this case would be unnecessarily burdensome.” Copeland v. Marshall,
641 F.2d 880, 903 (D.C. Cir. 1980). Thus, the Court has discretion to “simply reduc[e] the
proposed lodestar fee by a reasonable amount without performing an item-by-item accounting.”
Id. (internal quotation marks omitted).
First, the District objects to both the hours expended and the specificity of the billing
records regarding Ms. Craig’s counsel’s trial preparations. See Def.’s Sur-Reply at 8. Those
billing entries only vaguely describe “preparing for trial,” and provide no detail or specificity
from which the Court could ascertain whether the preparations were reasonably expended or,
instead, were unnecessarily duplicative. See Pl.’s Reply Ex. 1 at 21–24; see also Cobell v.
Norton, 407 F. Supp. 2d 140, 158 (D.D.C. 2005) (holding that entries such as “prepare for trial,”
“further trial preparation and document review,” “trial preparation,” and “preparation for trial”
“are so vaguely generic that the Court can not determine with certainty whether the activities
they purport to describe were necessary and reasonable”); A.C. ex rel. Clark v. District of
Columbia, 674 F. Supp. 2d 149, 158–59 (D.D.C. 2009) (holding that such entries as “preparation
for hearing” and “preparation for telephone conference” lack sufficient detail to enable the Court
to ascertain that the time spent on such activity was reasonably expended). The inadequate detail
does little to satisfy Ms. Craig’s burden or rebut the District’s position that the recorded entries
are “insufficient to support entitlement to the requested fees, and is excessive billing.” See
Def.’s Sur-Reply at 8. To counter the District’s claim, Ms. Craig’s counsel unpersuasively
supplements the already vague entries with yet another vague, conclusory assertion. See Pl.’s
Sur-Surreply at 4–5 (“The preparation leading up to trial in May, 2015 and January, 2016 were
both reasonable and necessary for the prosecution of the case.”). Ultimately, Ms. Craig’s
counsel’s sparsely detailed entries do not adequately establish full entitlement to the requested
14
fees. See Kennecott Corp. v. EPA, 804 F.2d 763, 767 (D.C. Cir. 1986) (“Fee applicants bear the
heavy obligation to present well-documented claims.”).
The District also objects to the specificity provided for many other billing entries and,
after examining those entries, the Court agrees that Ms. Craig’s counsel in many instances has
not provided the sort of detailed and standardized time records necessary in order for the Court to
determine whether those hours were reasonably expended. For example, many entries
perfunctorily state that counsel “e-mailed” or sent an “email to” someone, had a “phone
discussion w/” someone, or “reviewed and responded to” an e-mail or a document. See Pl.’s
Reply Ex. 1 at 1–24. These descriptions are insufficiently detailed. See In re Meese, 907 F.2d
1192, 1204 (D.C. Cir. 1990) (reducing the fee award “where no mention is made of the subject
matter of a meeting, telephone conference or the work performed during hours billed”); In re
Olson, 884 F.2d at 1428 (reducing fees when “multitudinous billing entries . . . wholly fail to
state or to make any reference to the subject discussed at a conference, meeting or telephone
conference”). To rebut the District’s objection, Ms. Craig’s counsel replies that “the enumerated
items were largely meetings with Sgt. Craig, witnesses and suppliers such as the court reporter
and process servers . . . and [were] reasonable and necessary for the prosecution of this case.”
Pl.’s 2d Sur-Surreply at 4. Yet, Ms. Craig’s response does not provide any additional detail from
which the Court could assess the reasonableness of the hours expended. The added, conclusory
assertion does not allow the Court to conduct a meaningful review of whether these entries are
unnecessary, duplicative, or excessive. See Hensley, 461 U.S. at 434.
The District further challenges Ms. Craig’s counsel’s recorded hours for the preparation
of several filings. See Def.’s Sur-Reply at 6–13. The District argues that the hours expended on
preparing the amended complaints, discovery responses, joint pretrial statement, deposition
15
notices, and motions are excessive and unreasonable. See id. Although the Court will not
canvass all of these objections, see Copeland, 641 F.2d at 903 (noting that a court may avoid “[a]
pleading-by-pleading examination”), the Court will discuss the District’s challenges to the
entries for Ms. Craig’s amended complaints and joint pretrial statement as illustrative of the
District’s concerns.
For example, with respect to the amended complaints, Ms. Craig’s counsel requests an
award for six and a half hours expended on the Second Amended Complaint, and a substantial
number of hours working on the prior Amended Complaint. The Court has reviewed the record
and finds that the two documents are substantially similar, and contain minimal changes.
Compare 1st Am. Compl., ECF No. 16, with 2d Am. Compl. (adding only minimal details,
including two new factual paragraphs [¶¶ 54, 56] and splitting the Title VII and DCHRA claims
into two separate counts). To rebut the District’s challenge that the requested award is
“exorbitant,” Def.’s Sur-Reply at 7, Ms. Craig’s counsel replies that the hours expended were
reasonable and necessary to combat the “barrage of defendants’ motions.” See Pl.’s Sur-
Surreply at 3–4. But she does not explain how the barrage of motions led to only minimal
changes for the Second Amended Complaint—and why those minimal changes took over six
hours to implement. After review of the record, the Court agrees that the number of hours Ms.
Craig’s counsel devoted to work on the amended complaints and opposition to the District’s
motions appear excessive. Cf. Falica v. Advance Tenant Servs., Inc., 384 F. Supp. 2d 75, 80
(D.D.C. 2005) (reducing hours expended preparing the amended complaint because it “would
have been unnecessary had a better pleaded complaint been initially filed”).
Additionally, the District seeks to exclude Ms. Craig’s counsel’s hours completing and
filing the joint pretrial statement. See Def.’s Sur-Reply at 11–12. Specifically, the District urges
16
that the requested amount of $22,492.80 to cover counsel’s review of documents for and drafting
of the joint pretrial statement is “unreasonable on its face.” See id. When reviewing the fees
charged for preparing and filing the above mentioned document, it is readily apparent that the
requested document preparation fee is excessive. Most notably, in one instance, for entries dated
April 1, 2015, Ms. Craig’s counsel recorded approximately twelve hours to complete and file the
joint pretrial statement. See Pl.’s Reply Ex. 1 at 19 (entries for April 1, 2015). The Court’s
review of Ms. Craig’s portion of the pretrial statement reveals that no complex issues were
addressed in that filing and that the list of witnesses and exhibits seems entirely routine. To
rebut the District’s challenge, Ms. Craig’s counsel’s supplemental explanation provides no
justification for why the substantial number of hours expended hours are reasonable. See Pl.’s
Sur-Surreply at 6–7. In fact, Ms. Craig’s counsel attests that the District is responsible for failing
to cooperate and produce its portion of the joint pretrial statement. See id. The Court need not
referee the failure of both parties to work on the routine task of preparing a joint pretrial
statement. After reviewing the docket, and both parties’ responses, the Court finds that Ms.
Craig’s counsel, who bears the burden to show his request is reasonable, has provided no more
than a conclusory explanation for why such a large number of hours were necessary to prepare
and file the pretrial statement. Without that information, the Court is unable to conduct a
meaningful review of whether those hours are unnecessary, duplicative, or excessive. See
Hensley, 461 U.S. at 434.
The Court is ultimately guided by the principle that, “[a] fixed reduction is appropriate
given the large number of entries that suffer from one or more of the deficiencies.” Role Models
Am., Inc., 353 F.3d at 973; see, e.g., In re Meese, 907 F.2d 1192, 1204 (D.C. Cir. 1990)
(reducing the fee award by ten percent because of numerous instances in which the billing entries
17
were not adequately documented); Kennecott Corp., 804 F.2d at 767 (reducing the fee award by
fifteen percent because of poor documentation and insufficient contemporaneous time records);
Williams v. Johnson, No. CV 06-2076, 2016 WL 1257831, at *13–14 (D.D.C. Mar. 30, 2016)
(reducing fee award by fifty percent because counsel provided identical phrasing of billing
entries and no specificity for how the hours were expended). Based on the deficiencies detailed
above, the Court believes it is appropriate to reduce Ms. Craig’s total award in this case by
twenty percent to account for the lack of detail in the billing records, which leaves the Court
unable to meaningfully determine whether the expended hours were reasonable.
ii. Fees on Fees
Ms. Craig’s counsel also requests an additional award of fifteen percent of his fee request
as compensation for the time and efforts reasonably expended in seeking fees. See Pl.’s Mot. ¶
4. That request would amount to a fees-on-fees award of $83,947.56. While the “time
reasonably devoted to obtaining attorneys’ fees in the context of litigation where the court must
be petitioned for such an award is itself subject to an award of fees,” Cobell v. Norton, 231 F.
Supp. 2d 295, 306–07 (D.D.C. 2002) (quoting Envtl. Def. Fund v. EPA, 672 F.2d 42, 62 (D.C.
Cir. 1982)), an award of over $80,000 for the preparation of this routine fee petition would be
excessive. In addition to questioning the size of the request, the Court notes that Ms. Craig’s
counsel already included billing entries as part of his fee request, and as reflected in the attached
invoice, for some of the hours he expended preparing and drafting his motion for attorney’s fees
and costs. See Pl.’s Reply Ex. 1 at 24 (entries for Jan. 31, 2016; Feb. 2, 2016; and Feb. 3, 2016).
In light of counsel’s duplicative entries, and the size of the request, the Court will deny Ms.
Craig’s request for a fifteen percent award. At the same time, the Court acknowledges that the
bulk of counsel’s work on the fee petition necessarily post-dated February 3, given his later reply
18
and surreply filed on March 1, 2016 and April 6, 2016, respectively. See generally Pl.’s Reply;
Pl.’s Sur-Surreply. To account for this additional work, the Court will award Ms. Craig’s
counsel an additional 8 hours, which the Court believes is a reasonable number of hours given
the length and substance of those later filings. Cf. Envtl. Def. Fund, Inc. v. Reilly, 1 F.3d 1254,
1259 (D.C. Cir. 1993) (limiting the hours requested for a “boilerplate” fee motion that “spans all
of two pages” to “at most eight hours”); Pub. Emps. for Envtl. Responsibility v. U.S. Int’l
Boundary & Water Comm’n, 968 F. Supp. 2d 85, 88 (D.D.C. 2013) (concluding that, if a
separate motion for fees on fees would require “any more work . . . to file a reply memorandum,
additional fees shall be limited to 8 hours’ worth of compensation”).
iii. Reduction in Fees for Unsuccessful Claims
The product of the reasonable hours expended and a reasonable rate does not end the
inquiry. There remain other considerations that may lead the Court to adjust the fee downward,
including the reduction for unsuccessful claims. See Hensley, 461 U.S. at 434–36. Here, the
District does not address Ms. Craig’s level of success, but the Court will nevertheless consider
whether to deny or reduce the fee award. Specifically, a court may reduce an attorney’s fee
award to account for limited success on the merits. See id. at 436 (explaining that, when
plaintiffs prevail on only some of their claims, “a fee award based on the [total] claimed hours”
would be “excessive”). Because Ms. Craig prevailed on only one claim of the numerous claims
initially pressed in her complaint, reducing her fee award is justified. See, e.g., Medina v.
District of Columbia, 864 F. Supp. 2d 13, 22 (D.D.C. 2012) (reducing fee award with respect to
unsuccessful claims because plaintiff only prevailed on one of the initial ten counts pressed).
When reducing fees for limited degree of success, the Court may reduce fees in a number
of ways, such as by eliminating specific hours or reducing the award as a whole. See Hensley,
19
461 U.S. at 436–37 (“There is no precise rule or formula for making [fee] determinations. . . .
The court necessarily has discretion in making this equitable judgment.”). When determining
how to reduce fee awards for partially successful plaintiffs, the court must analyze the
relationships between the successful and unsuccessful claims. See id. at 434–35. If the plaintiff
presented “distinctly different claims for relief that are based on different facts and legal
theories,” then “counsel’s work on one claim will be unrelated to his work on another claim.” Id.In cases with such “distinctly different claims,” “no fee may be awarded for services on [any]
unsuccessful claim[s].” Id. But if the plaintiff’s claims “involve a common core of facts,” or are
based on “related legal theories,” “[m]uch of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”
Id. at 435. In cases with interrelated claims, the court should “focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.” Id.After a review of the record, the Court finds that Ms. Craig’s claims derive from a
“common core of facts,” id., and, hence, that the Court cannot easily divide, claim-by-claim, her
counsel’s hours expended. Specifically, each of Ms. Craig’s claims derived from her allegations
of employment discrimination against her employer and former supervisor. See Compl. at 1–2.
Accordingly, because Ms. Craig’s claims were based on interrelated facts, the Court will not
reduce her counsel’s hours expended on a claim-by-claim basis, but will instead partially reduce
her fee award. See Hensley, 461 U.S. at 434–37.
While Ms. Craig ultimately prevailed in this lawsuit, Ms. Craig’s success was limited in
certain respects. She secured a favorable verdict on only two of the claims initially pressed in
her complaint (the Title VII and the DCHRA discrimination claims)—and against only one
20
defendant: the District. Compare Verdict Form, with 2d Am. Compl. ¶¶ 59–66. In the course of
the litigation, defendants prevailed in part at the motion to dismiss and motion for summary
judgment stages. In response to the defendants’ motions to dismiss, the Court dismissed Ms.
Craig’s claims against Commander Maupin, because an individual may not be held liable under
Title VII, but Ms. Craig’s discrimination and retaliation claims and her claims against
Commander Maupin under the DCHRA survived. See Craig, 881 F. Supp. 2d at 31–36. At
summary judgment, the Court entered judgment for the defendants on Ms. Craig’s Title VII and
DCHRA retaliation claims because Ms. Craig failed to provide a factual basis for concluding that
her transfer constituted a materially adverse action, and the Court also concluded that Ms. Craig
could proceed on her discrimination claims only against the District. See Craig, 74 F. Supp. 3d
at 375–78, 379–80.
Therefore, two of the counts asserted in Ms. Craig’s complaint were resolved in
defendants’ favor, and unfavorably for Ms. Craig, at summary judgment. Yet, the judgment
entered for defendants on Ms. Craig’s retaliation claims does not take away from the fact that she
prevailed on her hostile work environment claims. And it is clear, going back to Ms. Craig’s
initial EEOC complaint, that the hostile work environment claim premised on Sergeant
Levenberry’s conduct was Ms. Craig’s central claim. Moreover, while the claims against
Commander Maupin were resolved in defendants’ favor at the motion to dismiss and summary
judgment stages, those claims were premised on the same conduct as the claims against the
District that survived for trial. The dismissal of those defendants did not materially reduce the
damages or remedies Ms. Craig was able to seek, and that she ultimately obtained, at trial. The
Court also recognizes that this case involved overlapping factual issues and related legal
theories; in light of this overlap, time that Ms. Craig’s counsel spent on the unsuccessful
21
retaliation claims undoubtedly contributed to the litigation of her hostile work environment
claims. See Hensley, 461 U.S. at 435 n.11 (disapproving of “a mathematical approach
comparing the total number of issues in the case with those actually prevailed upon” (internal
quotation marks omitted) (quoting the district court’s opinion)).
In light of this history, the Court finds that a modest reduction of thirty percent is
warranted. Because Ms. Craig prevailed on all of her claims that did go to trial, however, the
Court will only reduce the time spent prior to the Court’s summary judgment opinion. 7 A thirty
percent reduction of the pre-summary judgment hours adequately accounts for Ms. Craig’s
unsuccessful retaliation claims while also reflecting “the significance of the overall relief
obtained by [Ms. Craig] in relation to the hours reasonably expended on the litigation.” Id. at
435.
3. Costs
Ms. Craig also requests reimbursement for costs associated with the litigation of her
claims. See Pl.’s Mot. ¶ 4. Specifically, Ms. Craig requests an award of $1,995.55 in expenses,
in addition to the legal fees incurred. See id. “An award of costs for copying, faxing and postage
. . . are customarily included in fees awards.” Kaseman v. District of Columbia, 329 F. Supp. 2d
20, 28 n.7 (D.D.C. 2004); see also Sexcius v. District of Columbia, 839 F. Supp. 919, 927
(D.D.C. 1993) (noting that “[r]easonable photocopying, postage, long distance telephone,
messenger, and transportation and parking costs are customarily considered part of a reasonable
‘attorney’s fee’”); Bailey v. District of Columbia, 839 F. Supp. 888, 891–92 (D.D.C. 1993). Such
costs are only shifted to the defendant provided that they are reasonable. See Bailey, 839 F.
7The Court’s percentage reduction will be applied to the time spent prior to the Court’s
November 24, 2014 summary judgment memorandum opinion. As a result, the Court will not
reduce the hours expended to obtain the favorable outcome at trial.
22
Supp. at 892. Importantly, the costs recoverable as part of an attorneys’ fee award consist only
of “related nontaxable expenses.” Fed. R. Civ. P. 54(d)(2)(A) (emphasis added).
Here, neither Ms. Craig’s counsel’s reply nor his sur-surreply provide any explanation,
receipts, or documentation to justify the reasonableness of the requested costs. See Castle, 872
F. Supp. at 1068 (“[T]he Court shall not award any costs where the documentation is
inadequate.”); see also Harvey, 951 F. Supp. 2d at 70 (“[T]he Court will not compensate
unexplained fees. . .”). Without any supporting documentation or explanation, the Court cannot
determine whether the costs incurred are reasonable or necessary. Accordingly, the Court will
not award litigation costs. 8
4. Ms. Craig’s Award for Attorney’s Fees and Costs
The Court calculates Ms. Craig’s total attorney’s fee award by first adopting the Laffey
rate of $568.00 per hour. To calculate the number of reasonable, compensable hours, the Court
will divide Ms. Craig’s counsel’s 985.3 hours into the hours expended for work up to and
including summary judgment (608 hours of work), and the hours expended preparing for and
conducting the trial (377.3 hours). The Court then reduces each category by twenty percent for
deficiencies in the billing records’ detail and for excessive hours, yielding 486.4 and 301.84
hours, respectively. The hours expended up to and including summary judgment are further
8
The District’s opposition urged the Court to disregard the cost request because no
explanations, receipts, or documentation were provided. See Def.’s Opp’n at 11. In response,
beyond his failure to properly support her request with documentation, counsel failed to address
this argument at all. See Pl.’s Reply ¶ 2. Accordingly, counsel’s request fails for the
independent reason that he has conceded it. See Day v. D.C. Dep’t of Consumer & Regulatory
Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the
opposing party makes in a motion, the court may treat that argument as conceded.”). Counsel
also improperly submitted additional taxable costs in his reply, which the Court addresses below.
See Pl.’s Reply ¶ 2.
23
reduced by thirty percent to account for the degree of Ms. Craig’s success, yielding 340.48
hours. Adding those hours to the hours reasonably expended on trial (301.84), and an additional
8 hours to account for Ms. Craig’s fee petition, the Court arrives at a total of 650.32 hours. At a
rate of $568.00 per hour, those hours produce a total fee award of $369,381.76.
B. Bill of Costs
1. Legal Standard
The Federal Rules of Civil Procedure provide that costs “should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). Under federal statute, taxable costs include, among
other things:
(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 . . . .
28 U.S.C. § 1920. This district’s local rules provide additional guidance, and set forth a more
specific list of costs that the Clerk “shall tax” if “requested to do so in the bill of costs,” which
include:
(2) Costs of service of summons and complaint;
...
(6) Costs, at the reporter’s standard rate, of the original and one copy of any
deposition noticed by the prevailing party, and of one copy of any deposition
noticed by any other party, if the deposition was used on the record, at a hearing
or trial;
(7) Costs, at the reporter’s standard rate, of the original and one copy of the reporter’s
transcript of a hearing or trial if the transcript: (i) is alleged by the prevailing party to
have been necessary for the determination of an appeal within the meaning of Fed. R.
App. P. 39(e), or (ii) was required by the court to be transcribed;
...
24
(11) Costs of service of a subpoena on a witness who testified at a deposition,
hearing or trial . . . .
D.D.C. Local Civ. R. 54.1(d).
The Supreme Court has noted that “liability for costs is a normal incident of defeat.”
Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). Although costs are generally awarded
as a matter of course, the district court has discretion in allowing, disallowing, or apportioning
costs. See Moore v. Nat’l Ass’n of Secs. Dealers, Inc., 762 F.2d 1093, 1107 (D.C. Cir. 1985); see
also Osseiran v. Int’l Fin. Corp., 68 F. Supp. 3d 152, 155 (D.D.C. 2014) (Although “Rule
54(d)(1) codifies a venerable presumption that prevailing parties are entitled to costs . . . the
word ‘should’ makes clear that the decision whether to award costs ultimately lies within the
sound discretion of the district court.” (alteration in original) (quoting Marx v. Gen. Revenue
Corp., 133 S. Ct. 1166, 1172 (2013))). However, “a court may neither deny nor reduce a
prevailing party’s request for costs without first articulating some good reason for doing so.”
Baez v. U.S. Dep’t of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982) (en banc) (per curiam). In
accordance with the presumption that costs are awarded to the prevailing party, “federal courts
have placed on the unsuccessful parties some burden of showing circumstances sufficient to
overcome the presumption favoring the prevailing party.” Id.
2. Analysis
a. Deposition Transcripts of Non-Testifying Witnesses
The District first challenges the taxation of transcripts from the depositions of Officer
Battle, Officer Garner, Officer Govan, Assistant Chief Durham, and Lt. Ashley Rosenthal. See
Def.’s Opp’n Pl.’s Bill of Costs ¶ 2, ECF No. 156 (“Def.’s Opp’n BOC”). Deposition transcripts
are taxable if they are “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). This
district’s local rules provide that the costs “of one original and one copy of any deposition
25
noticed by the prevailing party, and of one copy of any deposition noticed by any other party,”
are taxable “if the deposition was used on the record, at a hearing or trial.” D.D.C. Local Civ. R.
54.1(d)(6). The District argues that Local Civil Rule 54.1 limits the costs taxable under section
1920, and therefore that Ms. Craig cannot recover the cost of these five depositions because they
were not used on the record, at a hearing, or during trial. See Def.’s Opp’n BOC ¶ 2. The
necessity of obtaining a deposition transcript is ascertained “as of the time the deposition was
taken rather than at the time of the trial.” Johnson v. Holway, 522 F. Supp. 2d 12, 18 (D.D.C.
2007); see also Sykes v. Napolitano, 755 F. Supp. 2d 118, 120 (D.D.C. 2010) (“If transcripts are
‘necessarily obtained for use in the case,’ they are authorized under both statute and the district
court’s local rules, thereby attaching the presumption favoring their award.” (quoting D.D.C.
Local Civ. R. 54.1(d)(6))); accord Youssef v. FBI, 762 F. Supp. 2d 76, 86 (D.D.C. 2011). Even
if Ms. Craig did not ultimately use the depositions at trial, that fact is not singularly
determinative. See Sykes, 755 F. Supp. at 121. For example, even the use of a transcript in
supporting or defending a motion for summary judgment or in preparing for trial may make that
transcript eligible for taxation. See, e.g., Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318 n.49
(D.C. Cir. 1981).
The Court finds that Ms. Craig has failed to rebut the District’s claim that the challenged
depositions were not “necessarily obtained” for use in this case. See Mann v. Wash. Metro. Area
Transit Auth., No. 13-CV-00120, 2016 WL 2757363, at *2 (D.D.C. May 12, 2016) (placing
burden on party seeking costs to demonstrate deposition transcripts were “necessarily obtained”).
Ms. Craig completely disregards the District’s objections and provides no supporting explanation
26
to demonstrate the necessity of these transcripts. 9 See Pl.’s Reply ¶ 2. These individuals did not
testify at either trial 10 and Ms. Craig’s reply fails to explain in any way the roles of these
individuals in the case or why their deposition transcripts were necessary in order to prepare for
future depositions, briefing at summary judgment, or for trial. See id. In light of Ms. Craig’s
counsel’s failure to provide some explanation about the necessity of these transcripts and the fact
that these witnesses did not testify at trial, the deposition transcripts will not be taxed. 11
b. Special Features and Shipping and Handling Related to Deposition Transcripts
The District next challenges the taxation of costs for videotaped depositions and the
delivery and handling fees for deposition transcripts. See Def.’s Opp’n BOC ¶ 2. Ms. Craig
seeks to recover the expenses for the videotaping of the following depositions: Sgt. Darlene
Bratcher-Johnson, Officer Laverne Battle, Officer Darrell Garner, Sgt. Denise Griffith, Officer
Denise Govan, Assistant Chief Alfred Durham, Lt. Patricia Janifer, Lt. Darlene Terry-Weeks, Lt.
Ashley Rosenthal, Sgt. Eric Levenberry, and Commander Joel Maupin. See id. For these costs
to be recoverable, Ms. Craig must demonstrate that the videotape depositions were “necessary or
reasonable under the circumstances, or that any use was made of the videotape[s] at trial or in
9
Because Ms. Craig failed to respond to this argument, the Court also finds the District’s
argument is conceded. See Day, 191 F. Supp. 2d at 159.
10
The Court is aware that one of the disputed witnesses, Chief Alfred Durham, was
named in the joint pretrial statement as a defense witness. See Joint Pretrial Statement at 9, ECF
No. 98. Durham was not called to testify, however. Although it may have been possible for Ms.
Craig’s counsel to claim that Chief Durham’s transcript was necessary in order to prepare for his
potential cross-examination, counsel fails to make any argument in his reply as to why the
deposition transcript was necessary. In addition, the Court notes that Chief Durham’s deposition
transcript was ordered on December 12, 2013, see Bill of Costs Ex. 2, ECF No. 150-2, well
before the Joint Pretrial Statement was filed on April 1, 2015, see Joint Pretrial Statement.
11
The bill of costs will be reduced by $1,372.10 to omit the deposition transcript costs as
follows: Officer Battle ($138.60), Officer Garner ($103.95), Officer Govan ($336.75), Assistant
Chief Durham ($445.45), and Lt. Ashley Rosenthal ($347.35).
27
motions.” Bell v. Gonzales, No. CIV. A. 03-163, 2006 WL 6000485, at *2 (D.D.C. Sept. 27,
2006) (emphasis omitted). Here, Ms. Craig fails to provide any reason for videotaping the
depositions or any explanation for why counsel required or anticipated the use of the videotapes
at trial or in future motions. See Pl.’s Reply ¶ 2.
The District also argues that Ms. Craig should not be reimbursed for shipping and
handling fees for deposition transcripts. See Def.’s Opp’n BOC ¶ 2. Indeed, Ms. Craig’s
assertion that the delivery costs are taxable is incorrect. See Bell, 2006 WL 6000485, at *2
(“[C]osts associated with delivery, shipping, and handling are not recoverable because they are
considered part of the cost of operating a business.”); see also Johnson v. Holway, 522 F. Supp.
2d 12, 19 (D.D.C. 2007) (declining to tax deposition transcript delivery costs because
“[a]dministrative fees, like delivery costs, are . . . considered ordinary business expenses that
cannot be recovered as costs” (internal quotations marks omitted)). Here, Ms. Craig provides no
explanation or reasoning to support her assertion that these costs are recoverable. See Pl.’s
Reply ¶ 2. Accordingly, the shipping and handling fees shall be reduced from the bill of costs. 12
c. Costs for Service of Subpoenas and Witness Fees
Additionally, the District challenges the request for costs associated with the service of
subpoenas and witness fees. See Def.’s Opp’n BOC ¶¶ 3–4. Specifically, the District contends
that it should not be held responsible for the costs associated with witnesses who did not appear
at a deposition, hearing, or trial, or the duplicative costs associated with the mistrial. Id.“Although neither the Local Rules nor the United States Code mandates that the subpoenaed
witnesses specifically testify at trial in order to justify reimbursement, when the subpoena is
12
The Court will further reduce the transcript costs sought by $2,475.05 for these costs
(which also include a finance charge on overdue balances, which the District should not be
required to pay).
28
issued specifically for trial and the witness does not testify, the Court is within its authority to
deny such recovery.” Medina v. District of Columbia, 864 F. Supp. 2d 13, 23 (D.D.C. 2012)
(emphasis and footnote omitted). Witness fees are expressly authorized as taxable costs, see 28
U.S.C. § 1920(3), although the Court again has discretion to limit witness fees to “the days the
witness necessarily and reasonably attended the trial as a witness.” Medina, 864 F. Supp. 2d at
23 (internal quotation marks omitted) (quoting Belfiore v. U.S. Merit Sys. Prot. Bd., No. 84–
CIV–3877, 1987 WL 10234, at *2 (D.D.C. Apr. 23, 1987)).
Here, the District provides specific examples of witnesses who were subpoenaed but did
not testify at the first trial, and whose service and witness fees Ms. Craig seeks again for the
second trial—at which those witnesses did testify. See Def.’s Opp’n BOC ¶¶ 3–5. In response,
Ms. Craig again provides no explanation for why the duplicated costs for subpoenas and witness
fees were necessary and reasonable. See Pl.’s Reply ¶ 2. Accordingly, the Court will disallow
both the claimed subpoena and witness fees because Ms. Craig fails to respond or justify the
reasonableness for the duplicated costs. 13 See Medina, 864 F. Supp. at 23 (disallowing costs
when moving party did not “indicate whether and under what circumstances the individuals
listed . . . attended the trial”).
13
The Court will reduce the bill of costs by $1,288.88 ($1,065.00 in subpoena fees and
$223.88 in witness fees from the first trial) for the following witnesses: Lt. Patricia Janifer,
Officer Tonia Jones, Commander Joel Maupin, Lisa Tapp, and Sgt. Bratcher-Johnson. This
Court will not reduce the bill of costs for subpoena and witness fees for the first trial for
witnesses Denise Griffith and Eric Levenberry, because these witnesses testified prior to the
declaration of the mistrial. See May 18, 2015 Minute Entry. In addition, the Court notes that
Ms. Craig’s counsel includes as exhibits to his bill of costs several additional subpoena-related
fees which he does not actually seek to be taxed in his bill of costs. Those two entries are: a
$150.00 fee for a stakeout during an attempt to serve Commander Maupin, see ECF No. 150-21,
and a $75.00 fee for a stakeout during an attempt to serve Officer Jones, see ECF No. 150-20.
Because Ms. Craig’s counsel does not seek these fees, they are also omitted from the Court’s
recalculated award.
29
d. Pretrial and Trial Transcripts
The District next challenges Ms. Craig’s submitted costs for copies of transcripts from
the pretrial conference on May 4, 2015 and first day of the mistrial on May 18, 2015. See Def.’s
Opp’n BOC ¶ 5. Pursuant to 28 U.S.C. § 1920(2), a party may recover “fees for printed or
electronically recorded transcripts necessarily obtained for use in the case.” Our local rules also
allow the taxed costs “of the original and one copy of the reporter’s transcript of a hearing or trial
if the transcript: (i) is alleged by the prevailing party to have been necessary for the
determination of an appeal within the meaning of Fed. R. App. P. 39(e), or (ii) was required by
the court to be transcribed.” D.D.C. Local Civ. R. 54.1(d)(7).
Here, the District asserts that the Court did not require the transcripts to be printed nor
were the transcripts necessary for appeal. See Def.’s Opp’n BOC ¶ 5. In his reply, Ms. Craig’s
counsel makes no argument to rebut the District’s contention about the necessity or required use
of these transcripts. See Youssef, 762 F. Supp. 2d at 88 (denying costs when party failed to
establish that it was necessary to use the transcripts). Accordingly, the Court will deny Ms.
Craig’s request for costs for the pretrial hearing transcript and trial transcript. 14
e. Supplemental Submission of Costs
Finally, instead of responding to the District’s objections, Ms. Craig submitted additional
costs of $2,794.40 with no corresponding explanation as to why these costs were initially omitted
from her bill of costs. See Pl.’s Reply ¶ 2. Ms. Craig should have included these costs in the
initial request as each of the supplemental invoices predate the submitted bill of costs. See Pl.’s
Reply Ex. 5, at 1–14, ECF. No. 158-5; Id. Ex. 6 at 1, ECF No. 158-6. The District objects to
these supplemented additional costs. See Def.’s Sur-Reply at 14. And this district’s local rules
14
The Court will reduce the bill of costs by $242.65 for these costs.
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provide that “[a]ny cost omitted from the bill of costs shall not be allowed, except for post-
judgment costs.” D.D.C. Local Civ. R. 54.1(a). Without an explanation or any request to
amend, the Court will not allow Ms. Craig to recover for these omitted costs. See Laffey v. Nw.
Airlines, Inc., 587 F.2d 1223, 1223–24 (D.C. Cir. 1978) (denying motion for leave to file, out of
time, bill of costs when moving party did not show good cause).
3. Taxable Costs
Overall, the Court will direct the Clerk of the Court to tax Ms. Craig’s Bill of Costs in the
amount of $5,424.15. The award takes into account the adjustments noted above, see supra
notes 11–14, and breaks out as follows:
Fees of the Clerk: $350.00
Fees for service of summons and subpoena: $1,140.00
Fees for printed or electronically recorded transcripts: $3,478.11
Fees for witnesses: $456.04
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Fees and Costs (ECF No. 149) is
GRANTED IN PART and DENIED IN PART, and Plaintiff’s Bill of Costs (ECF No. 150) is
GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: July 15, 2016 RUDOLPH CONTRERAS
United States District Judge
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