UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Darin Newson,

Plaintiff, Case No. 5:23-cv-13267

v. Judith E. Levy United States District Judge NYX, LLC., Mag. Judge Elizabeth A. Defendant. Stafford

________________________________/

ORDER GRANTING DEFENDANT’S MOTION FOR REVIEW OF THE CLERK’S TAXATION OF COSTS [29] AND MOTION FOR COSTS [25]

This matter is before the Court on Defendant NYX, LLC.’s motion for review of the Clerk’s taxation of costs. (ECF No. 29.) Plaintiff Darin Newson filed suit against Defendant on December 22, 2023. (ECF No. 1.) On November 4, 2025, the Court granted Defendant’s motion for summary judgment. (ECF No. 22.) Defendant timely filed its bill of costs on November 13, 2025, seeking $1,820.90 for transcript fees. (ECF No. 24.) Defendant also filed a motion for costs that included transcript- related invoices and documentation demonstrating how the deposition transcripts were used in the case. (ECF No. 25.) The Clerk denied costs because Defendant’s bill of costs did not include receipts for transcripts or supporting documents demonstrating

how and where the transcripts were utilized for this case. (ECF No. 26.) Defendant filed an amended bill of costs that included invoices for the

relevant depositions, as well as documentation showing the depositions were relied on in support of Defendant’s motion for summary judgment. (ECF No. 27.) Defendant then filed a motion for review of the Clerk’s

taxation of costs. (ECF No. 29.) Plaintiff filed a response objecting to Defendant’s motion. (ECF No. 31.) Plaintiff also filed a notice of appeal to the Sixth Circuit. (ECF No. 32.)

I. Legal Standard Absent a federal statute, federal rule, or a court order to the

contrary, costs other than attorney’s fees “should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1); see also White & White, Inc. v. American Hospital Supply Corp.,

(6th Cir. 1986)

(explaining the Rule 54(d) “creates a presumption in favor of awarding costs”). Relevant to this motion, the Court may tax the “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the

case.”

(2); see also Sales v. Marshall,

, 120 (6th Cir. 1989) (“Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the

prevailing party.”). “[A] deposition may be reasonably necessary if it is used in connection with a successful motion for summary judgment.”

Kaimowitz v. Howard,

(E.D. Mich. 1982). The party seeking costs must file a bill of costs no later than 28 days after entry of judgment. E.D. Mich. LR 54.1. Upon filing of a bill of costs,

the Clerk of the Court will tax costs as provided in the Eastern District of Michigan Bill of Costs Handbook.

The Handbook provides the specific procedures required to tax costs, including requirements that the

party seeking costs: (1) complete a bill of costs form; (2) submit an affidavit affirming that the cost is correct, that it was necessarily incurred in the case, and that the services for which fees have been

charged were actually and necessarily performed; and (3) provide supporting documentation for that affirmation. E.D. Mich. Bill of Costs Handbook, § I.C. Where a party seeks costs for transcripts used in

support of a motion, supporting documentation should include: (1) the title of the motion, (2) the date it was filed, (3) the exhibit or attachment number, and (4) either excerpts of the deposition transcripts used in support of the motion or the page number of the motion or brief where the transcript was referenced. Id. at § II.C.

The Court may review the Clerk’s taxation of costs “on motion served within the next 7 days.” Fed. R. Civ. P. 54(d)(1). The Clerk’s

decision is subject to de novo review. See BDT Prods. v. Lexmark Int'l, Inc.,

(6th Cir. 2005). While there is a presumption in favor of awarding costs, Rule 54(d) “allows denial of costs at the discretion

of the trial court.” White & White, Inc.,

. Assuming the prevailing party has met the procedural requirements to recover costs, denial of costs is proper “when ‘it would be inequitable under all the

circumstances in the case’” to award costs. Andretti v. Borla Performance Indus.,

, 836 (6th Cir. 2005) (quoting White & White, Inc.,

). “A district court does not abuse its discretion to deny

the shifting of costs when the prevailing party's expenditures are unreasonably large, when the prevailing party prolonged the litigation or injected unmeritorious issues, in cases that are close and difficult, and

where ‘the prevailing party's recovery is so insignificant that the judgment amounts to a victory for the defendant.’”

(quoting White & White, Inc.,

). II. Analysis Here, the Court granted Defendant’s motion for summary judgment

on November 4, 2025. Defendant filed its bill of costs on November 13, 2025. Accordingly, Defendant’s bill of costs was timely filed. See E.D.

Mich. LR 54.1. Defendant’s initial bill of costs contained a bill of costs form and affidavit but no supporting documentation. (See ECF No. 24.) Immediately after filing its bill of costs, however, Defendant filed a

motion for costs that did include all necessary supporting documentation: invoices for deposition transcripts, the title of the motion the transcripts were used in support of, the date that motion was filed, the exhibit

numbers, the page numbers where transcripts were referenced, and the transcripts themselves. (See ECF Nos. 25-3, 25-4.) On November 14, 2025, the Clerk denied costs because the bill of

costs itself did not include the necessary supporting documentation. (ECF No. 26.) Defendant then filed an amended bill of costs with additional documentation. (ECF No. 27.) On November 18, 2025,

Defendant also filed a motion for review of the Clerk’s taxation of costs, explaining that it had “failed to provide supporting documentation with the Bill of Costs as it erroneously believed the documents were required with a Motion,” but that it had now filed an amended bill of costs with the appropriate supporting documentation. (ECF No. 29, PageID.803.)

Accordingly, Defendant timely filed a motion for review of the Clerk’s taxation of costs. See Fed. R. Civ. P. 54(d)(1).

Plaintiff filed an objection to Defendant’s motion for review of the Clerk’s taxation of costs. (ECF No. 31.) Plaintiff argues that “[t]he Clerk properly declined . . . taxation based on Defendant’s non-compliance”

with “Fed. R. Civ. P. 54(d),

, and E.D. Mich. L.R. 54.1.” (Id. at PageID.906.) Specifically, Plaintiff contends that “Defendant submitted no receipts or invoices” and “failed to identify the purpose or

necessity of the costs.” (Id. at PageID.909.) Plaintiff insists that “[p]ermitting Defendant to supplement after the Clerk’s taxation would undermine Rule 54(d) and Local Rule 54.1.” (Id.) Plaintiff does not argue

that taxation of costs would be improper absent these procedural defects. As a preliminary matter, the Court notes that it is not unusual to allow a party to supplement their supporting documentation on a motion

for review of the Clerk’s taxation of costs. See, e.g., Borum v. Illinois Cent. R. Co., No. 13-CV-12421,

, at *1 (E.D. Mich. Oct. 8, 2014) (granting defendants’ bill of costs where defendants supplemented their supporting documentation on motion for review); Tyson v. Sterling Rental, Inc., No. 13-CV-13490,

, at *1 (E.D. Mich. May

21, 2015) (granting plaintiff’s motion for taxation of costs where plaintiff supplemented her supporting documentation on motion for review);

Ashford v. Univ. of Michigan, No. 2:20-CV-10561-TGB-EAS,

, at *8–9 (E.D. Mich. Mar. 31, 2025) (awarding costs to plaintiff where plaintiff attached missing receipts to his motion for review).

Here, following the Clerk’s denial of taxation, Defendant amended its bill of costs to include all necessary supporting documentation. (See ECF No. 27.) Specifically, Defendant’s amended bill of costs includes (1)

invoices for each deposition transcript and (2) supporting documentation indicating that each deposition transcript was used in Defendant’s successful motion for summary judgment, including the page numbers on

which each deposition transcript was referenced. (ECF Nos. 27-3, 27-4.) Accordingly, Defendant’s bill of costs now complies with the requirements set forth in the Bill of Costs Handbook. See E.D. Mich. Bill of Costs

Handbook, §§ I.C, II.C. Plaintiff does not deny that the deficiencies in Defendant’s bill of costs have now been cured. Rather, Plaintiff argues that Defendant should not be permitted to amend its bill of costs after the Clerk’s taxation, because doing so undermines the rules governing the taxation

of costs. (ECF No. 31, PageID.909.) Even if the Court agreed, however, the Court notes that Defendant submitted all necessary supporting

documentation prior to the Clerk’s denial of taxation. Defendant merely attached that documentation to its motion for costs rather than its bill of costs. (See ECF Nos. 25-3, 25-4.) The Court does not find that this small

procedural error—which has since been cured—overcomes the presumption in favor of awarding costs to the prevailing party. See White & White, Inc.,

.

In summary, Defendant filed a timely bill of costs and a timely motion for review of the Clerk’s taxation of costs. See E.D. Mich. LR 54.1; Fed. R. Civ. P. 54(d)(1). The costs—fees for deposition transcripts used in

a successful motion for summary judgment—are of the sort contemplated by

. See

(2); Kaimowitz,

. Defendant—both before and after the Clerk’s denial of taxation—

submitted all necessary supporting documentation. (See ECF Nos. 25-3, 25-4, 27-3, 27-4.) Plaintiff does not suggest, and the Court does not find, that “it would be inequitable under all the circumstances in the case” to award costs. See White & White, Inc.,

(emphasis removed). Accordingly, this is not a case where the Court should use its

discretion to deny the taxation of costs. Nor does Plaintiff’s pending appeal prevent the Court from deciding

Defendant’s motion. While “a notice of appeal ‘is an event of jurisdictional significance’ . . . [it] does not divest the Court of jurisdiction to consider the parties' dispute over the costs taxed.” Gomez v. Henry Ford Health

Sys., No. 16-13389,

, at *1 (E.D. Mich. Dec. 18, 2018) (citations omitted); see also Stevenson v. Rayloc,

, 170– 71 (6th Cir. 2004) (explaining that costs may be awarded pending appeal

because Rule 54 “contains no timetable governing the taxation of costs” and, even if the circuit court “were to overturn the district court’s decision on the merits, the awarding of costs could be remedied on remand”).

Accordingly, “district courts throughout this Circuit have routinely rejected the argument that the taxation of costs should await the conclusion of an appeal.” Hyland v. HomeServices of Am., Inc., No. 3:05-

CV-00612-TBR,

, at *1 (W.D. Ky. May 7, 2013); see also Kirk v. Shaw Env't, Inc., No. 1:09-CV-1405,

, at *4 (N.D. Ohio Aug. 12, 2010) (“The majority of courts to consider the issue have held that, in the interest of judicial efficiency, a district court should not stay consideration of a motion to review a bill of costs because it may

lead to piecemeal appeals.”); Holley v. Giles Cnty., No. 1:03-0071,

, at *2 (M.D. Tenn. Sept. 12, 2005) (describing “this Court's

customary practice not to delay the taxation of costs pending appeal”); Taglione v. Charter Communs., LLC,

, 508 (S.D. Ohio 2020) (declining to delay awarding costs pending appeal on efficiency

grounds); 1704 Farmington, LLC v. City of Memphis, No. 08-2171-STA- CGC,

, at *2 (W.D. Tenn. Mar. 9, 2010) (finding it “more efficient to rule on costs now rather than delay the decision until the

appeal is resolved”). The Court is persuaded that the proper approach is not to delay taxation of costs pending appeal. The Court therefore grants Defendant’s

motion for costs in the amount of $1,820.90. III. Conclusion For the reasons set forth above, the Court GRANTS Defendant’s

motion for costs. IT IS SO ORDERED.

Dated: December 8, 2025 s/Judith E. Levy Ann Arbor, Michigan JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on December 8, 2025. s/William Barkholz WILLIAM BARKHOLZ Case Manager