UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JEANNE BURCHAM, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:17-cv-2661 (TSC) ) OFFICE OF THE SERGEANT AT ) ARMS FOR THE UNITED STATES ) SENATE, ) ) Defendant. ) )

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.,

1 1093, 1107 (D.C. Cir. 1985) (citations omitted). “Liability for costs is a normal incident of

defeat.” Delta Air Lines, Inc. v. August,

(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,

(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.

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

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

“[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,

(D.D.C. 2007); see

also Youssef v. F.B.I.,

(D.D.C. 2011), aff’d in part,

(D.C.

2 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),

, 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,

(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),

, 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),

, 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),

, at *3 (D.D.C. May 16, 2022) (“[G]ood faith alone is not enough to alter the [Rule

54] calculus.”); Youssef,

(rejecting argument that cost award would have

chilling effect on civil rights litigation); Sykes v. Napolitano,

(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.,

(D.D.C. 2008) (rejecting the

3 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.,

(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

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.

4 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,

, 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,

(permitting recovery of private process server fees based

on Local Rule 54.1(d)(11)). Moreover, Plaintiff’s reliance on Harvey v. Mohammed,

(D.D.C. 2013) is unavailing because that court did not consider the import of

Local Rule 54.1. See Young,

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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