United States District Court, W.D. Virginia, Abingdon Division
Caitlin Marie Kasmar, Andrew R. Louis, and John Bell Williams
III, Buckley Sandler LLP, Washington, D.C., for Plaintiff;
W. Rosen and Christina E. Cullom, Pender & Coward, PC,
Virginia Beach, Virginia, and Laura Maughan, Office of the
Attorney General, Richmond, Virginia, for Defendants.
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE
my entry of summary judgment in their favor, the defendants
submitted a Bill of Costs and the Clerk taxed costs totaling
$30, 634.90 to the plaintiff. The plaintiff has now filed a
timely Motion to Review and Reverse the Clerk's Taxation
of Costs. Because I find that the plaintiff is indigent and
unable to pay the costs taxed, I will grant the
plaintiff, Reginald Cornelius Latson, is a 26-year-old man
who has autism spectrum disorder, post-traumatic stress
disorder, and intellectual disability. In support of his
motion, he submitted a declaration of Nathaniel D. Porter,
III, as well as his own declaration. The affirmations
contained in these declarations are undisputed.
is a Program Coordinator with Attain, Inc., which operates a
group home in which Latson has resided since August 2018.
Porter works with Latson on life skills such as personal
hygiene, taking his medication, completing chores, and
interacting with others socially. Latson is not employed, and
according to Porter, he is unable to obtain employment due to
his disabilities and the constraints of his living situation.
Latson asserts that he does not have a bank account and does
not own any land, a house, or a car. He received a settlement
from related litigation in the United States District Court
for the Eastern District of Virginia, and those funds are
held in a special needs trust.
defendants here seek costs totaling $30, 634.90, representing
court reporter fees and fees for deposition and hearing
transcripts and photocopies, among other things. The
plaintiff makes specific objections to certain items, but
generally objects to the award of costs on the grounds of the
plaintiff's financial situation and that the issues in
the case were difficult and close. The defendants counter
that the plaintiff should not be permitted to exempt the
settlement proceeds from being available to pay taxed costs
in this case. I previously ordered the defendants to pay the
plaintiff's fees and costs related to a discovery motion,
and the defendants now request that if I decide to reverse
the taxation of costs to the plaintiff, I offset the $16,
132.50 the defendants were ordered to pay. See Op. &
Order, Nov. 6, 2018, ECF No. 251.
Rule of Civil Procedure 54(d)(1) establishes a general rule
that costs of litigation, other than attorney's fees,
should be awarded to a prevailing party. However, whether to
award costs and the amount of costs to be awarded are matters
within the discretion of the trial court. Marx v. Gen.
Revenue Corp., 568 U.S. 371, 377 (2013). Costs may be
refused under Rule 54(d)(1) only if the district court
“justif[ies] its decision by ‘articulating some
good reason for doing so.'” Teague v.
Bakker, 35 F.3d 978, 996 (4th Cir. 1994) (quoting
Oak Hall Cap & Gown Co. v. Old Dominion Freight Line,
Inc., 899 F.2d 291, 296 (4th Cir. 1990)). The losing
party's good faith is not sufficient on its own to
warrant a denial of costs, although it is a prerequisite to
denying costs to the winner. See Cherry v. Champion
Int'l Corp, 186 F.3d 442, 446 (4th Cir. 1999).
Fourth Circuit has held that financial inability to pay may
be considered by the court in denying an award of costs.
See id at 446; Teague, 35 F.3d at 996.
Similarly, this court has previously ruled that the losing
party's financial resources merit consideration in
determining whether to deny costs. Musick v. Dorel
Juvenile Grp., No. 1:11CV00005, 2012 WL 473994, at *1
(W.D. Va. Feb. 13, 2012); Crusenberry v. Boddie-Noell
Enters., Inc., No. 2:99CV00129, 2001 WL 418737, at *2
(W.D. Va. Mar. 15, 2001). When a case is particularly close
and difficult, courts are willing to deviate from the general
rule and deny a request for costs. A case's closeness
“is judged not by whether one party clearly prevails
over another, but by the refinement of perception required to
recognize, sift through and organize relevant evidence, and
by the difficulty of discerning the law of the case.”
Va. Panel Corp. v. MAC Panel Co., 203 F.R.D. 236,
237 (W.D. Va. 2001) (quoting White & White, Inc. v.
Am. Hosp. Supply Corp., 786 F.2d 728, 732-33 (6th Cir.
that this case was a relatively close and difficult one. I
further find that Latson brought his claims in good faith.
The closeness of the case and the good-faith nature of the
plaintiff's claims are apparent from the size of the
summary judgment record and the sheer length of my opinion
granting summary judgment. See Op. & Order, Nov. 6, 2018,
ECF No. 252.
his disabilities and living situation, Latson is currently
unable to pay costs to the defendant and is unlikely to
become able to pay costs in the future. I further find that
the settlement funds in the special needs trust are needed to
support Latson, and it would be unjust to require him to use
those funds to pay taxed costs in this case. Moreover, the
settlement proceeds are protected from unsecured creditors
under Virginia law. See Va. Code Ann. §
34-28.1; In re Webb, 210 B.R. 266, 274 (Bankr. E.D.
Va. 1997). Under all of these circumstances, I believe that
costs should not be awarded in this case.
unpersuaded by the defendants' argument that I should
essentially waive my earlier order that they pay the
plaintiff's attorneys' fees and costs associated with
the plaintiff's Motion to Compel. Those fees and costs
were awarded because VDOC had failed to meet its discovery
obligations, unnecessarily causing the plaintiff to incur
additional expenses. Op. & Order, May 14, 2018, ECF No.
230. The plaintiff's inability to pay taxable ...