                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
David V. Mann,                            )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                Civil No. 13-cv-00120 (APM)
                                          )
Washington Metropolitan Area Transit      )
Authority (WMATA),                        )
                                          )
      Defendant.                          )
_________________________________________ )

                                  MEMORANDUM OPINION

I.     INTRODUCTION

       In this civil rights case, Plaintiff David Mann asserted that Defendant Washington

Metropolitan Area Transit Authority (WMATA) terminated him unlawfully based on his race.

The court granted summary judgment in favor of Defendant. See Mem. Op. & Order, ECF Nos.

41, 42. Thereafter, Defendant filed a Bill of Costs under Federal Rule of Civil Procedure 54(d)(1),

seeking taxation of costs in the amount of $4,454.01 for “transcripts necessarily obtained for use

in the case.” Bill of Costs, ECF No. 44. Plaintiff then filed an “Opposition to Defendant’s Bill of

Costs or, in the Alternative, [a] Motion to Stay Enforcement of Award of Costs Pending Appeal.”

ECF No. 46 [hereinafter Pl.’s Opp’n.].

       Defendant’s Bill of Costs and Plaintiff’s Motion to Stay Enforcement are now before the

court. For the reasons explained below, Defendant’s Bill of Costs is granted in part and denied in

part, and Plaintiff’s Motion to Stay is denied.

 
II.          DISCUSSSION

             A.            Bill of Costs

                           1.           Plaintiff’s objection to the bill of costs in its entirety

             The Supreme Court has observed that “Rule 54(d)(1) codifies a venerable presumption that

prevailing parties are entitled to costs.” Marx v. General Revenue Corp., 133 S. Ct. 1166, 1172

(2013). However, because Rule 54(b)(1) provides that costs “should be allowed to the prevailing

party,” Fed. R. Civ. P. 54(d)(1) (emphasis added), the rule makes “clear that the decision whether

to award costs ultimately lies within the sound discretion of the district court,” Marx, 133 S. Ct. at

1172 (citation omitted). Although Rule 54(d)(1) confers discretion upon district courts, because

of the presumption in favor of awarding costs, “federal courts have placed on the unsuccessful

parties some burden of showing circumstances sufficient to overcome the presumption favoring

the prevailing party.” Baez v. DOJ, 684 F.2d 999, 1004 (D.C. Cir. 1982). “The result is that trial

judges have rarely denied costs to a prevailing party whose conduct has not been vexatious when

the losing party has been capable of paying such costs.” Id.

             Plaintiff here does not dispute that Defendant was the “prevailing party.” Instead, citing a

case from the Fourth Circuit, he argues that the court should deny costs because “‘there would be

an element of injustice in a presumptive cost award.’” Pl.’s Opp’n at 3 (quoting Ellis v. Grant

Thorton LLP, 434 Fed. Appx. 232, 235 (4th Cir. 2011)).1 Our Court of Appeals has not adopted

an “element of injustice” standard like the one articulated by the Fourth Circuit. But even if it had

adopted such a standard, the factors that Plaintiff points to do not overcome the presumption in

favor of awarding costs to Defendant.



                                                       
1
 Although Ellis is an unpublished decision, the “element of injustice” standard it articulates derives from the published
decision Cherry v. Champion International Corporation, 186 F.3d 442, 446 (4th Cir. 1999).

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       Plaintiff argues that the “limited value of the prevailing party’s victory” and the “closeness

and difficulty of the issues decided,” id. (quoting Ellis, 434 Fed. App. at 235), “as well as his good

faith in pursuing claims against Defendant under Title VII,” id., warrant the denial of Defendant’s

bill of costs. Plaintiff asserts that this was a “close” case that “offers little to no value” to

Defendant; that the court’s grant of summary judgment in Defendant’s favor was premised on “a

mischaracterization of the facts”; and that it would be unfair to “penalize a plaintiff who brought

suit in good faith.” Id. at 3-4. None of those arguments are convincing.

       This was not a close case. The court conducted a detailed review of the record and found

that Defendant, after undertaking a thorough investigation, terminated Plaintiff for a non-

discriminatory reason, namely, he used excessive and unnecessary force in arresting a citizen.

Plaintiff offered no direct evidence of discrimination, and his attempt to show discrimination

through more favorable treatment of similarly situated officers of another race was unconvincing.

Finally, Plaintiff has cited no case for the proposition that a good faith filing under Title VII

relieves a non-prevailing plaintiff from the presumption that favors taxing of costs. The court,

therefore, rejects Plaintiff’s request to deny Defendant’s Bill of Costs in its entirety.

               2.      Plaintiff’s objections to specific costs

       Plaintiff also objects to some of the specific costs that Defendant seeks. Namely, he objects

to the costs of obtaining the deposition transcripts and associated exhibits for witnesses Ron Pavlik,

Randolph Dawson, Shannon Bohrer, Jack Leeb, and Jerome Paige, because Defendant used none

of the transcripts at a trial or to support its Motion for Summary Judgment. Pl.’s Opp’n at 5.

Additionally, Plaintiff objects to the cost of Defendant obtaining copies of transcripts from a

criminal trial proceeding in Prince George’s County, Maryland, in which Plaintiff was criminally




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charged for the conduct that led to his firing. Id. Plaintiff ultimately was acquitted of those

charges.

       Title 28 U.S.C. § 1920 permits taxation of costs for “[f]ees for printed or electronically

recorded transcripts necessarily obtained for use in the case.”           Whether a transcript was

“necessarily obtained for use in the case” is determined as of the time the deposition is taken or

when the transcript was ordered. Osseriran v. Int’l Fin. Corp., 68 F. Supp. 3d 152, 158 (D.D.C.

2014); Guevara v. Onyewu, 943 F. Supp. 2d 192, 197 (D.D.C. 2013). The fact that a transcript is

not ultimately used at trial or on the record is not “singularly determinative.” Id. Rather, a party’s

use of a transcript meets the “necessarily obtained” standard if it is “used to prepare for future

depositions, motions, pretrial proceedings, or trial.” Sykes v. Napolitano, 755 F. Supp. 2d 118,

120 (D.D.C. 2010) (emphasis added).

       In response to Plaintiff’s objections, Defendant counters that “it was clearly reasonable for

WMATA’s counsel to assume that the deposition transcripts of the Plaintiff, witnesses and experts

would be necessary for use at the time the depositions were taken.” Def.’s Reply to Pl.’s Opp’n

[hereinafter Def.’s Reply], ECF No. 48, at 2. In particular, as to the trial transcripts of Plaintiff’s

criminal trial, Defendant states that obtaining those transcripts was necessary for use in the case

because Plaintiff “heavily relied” upon the fact of his acquittal “as evidence in his favor.” Id.

       The court finds that Defendant has carried its burden of showing that some of the transcripts

were “necessarily obtained” for use in this case, but not others. See Robertson v. McCloskey,

121 F.R.D. 131, 133 (D.D.C. 1988) (placing burden on party seeking costs). As to the transcripts

from Plaintiff’s criminal trial, it is self-evident why Defendant acquired them: to prepare for

Plaintiff’s deposition and his potential testimony at trial, as well as more generally to defend this

case. Indeed, obtaining the transcripts from Plaintiff’s criminal case—which included testimony



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from his use-of-force expert, Shannon Bohrer—would provide Defendant with invaluable insight

into how Plaintiff planned to defend his actions in this case. It is also clear from the parties’

summary judgment papers why Defendant obtained the transcripts from the depositions of

Randolph Dawson and Shannon Bohrer. Captain Rudolph Dawson is the use-of-force instructor

with whom Defendant’s lead investigator, Deputy Chief Kevin Gaddis, conferred during his

investigation into Plaintiff’s use of force. Mem. Op., ECF No. 41, at 7. Dawson opined that

Defendant had used excessive and unnecessary force in effecting the citizen’s arrest. Id. Shannon

Bohrer was Plaintiff’s use-of-force expert. He testified at Plaintiff’s criminal trial, and Plaintiff

designated him as an expert in this case. See Pl.’s Opp’n to Def.’s Mot. for Summ. J. [Pl.’s Summ.

J. Opp’n], Ex. 2, ECF No. 38-2. It was reasonable for Defendant to obtain transcripts of Bohrer’s

and Dawson’s depositions to prepare for briefing summary judgment and for trial.

       The court reaches a different conclusion, however, as to the deposition transcripts of

witnesses Ron Pavlik, Jack Leeb, and Jerome Paige. Defendant’s Reply does not explain at all the

roles of those persons in this case or why Defendant required their transcripts to prepare either for

briefing summary judgment or for trial. Def.’s Reply at 5. It is simply not enough to say that those

people were “witnesses.” Id. The statute demands some explanation about the necessity of their

testimony to the case, which Defendant has failed to offer. Therefore, the court will exclude from

the Bill of Costs the fees associated with obtaining the transcripts of deponents Ron Pavlik, Jack

Leeb, and Jerome Paige.

       B.      Plaintiff’s Motion to Stay

       Plaintiff asks the court to stay enforcement of the Bill of Costs pending the outcome of

appeal. The court declines to do so.




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        A stay pending appeal is an “extraordinary remedy.” Cuomo v. U.S. Nuclear Regulatory

Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985). It is an “intrusion into the ordinary processes of

administration and judicial review” and thus “is not a matter of right, even if irreparable injury

might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation and

internal quotation marks omitted). The court considers four factors in evaluating a motion for stay:

        (1) whether the stay applicant has made a strong showing that he is likely to succeed
        on the merits; (2) whether the applicant will be irreparably injured absent a stay;
        (3) whether issuance of the stay will substantially injure the other parties interested
        in the proceeding; and (4) where the public interest lies.

Id. at 434 (citation omitted). Although these factors are considered on a sliding scale, such that a

strong showing of one factor may offset a relatively weaker showing on another, “[t]he first two

factors . . . are the most critical.” Id.; see also Baker v. Socialist People’s Libyan Arab Jamahirya,

810 F. Supp. 2d 90, 97 (D.D.C. 2011) (citing Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288,

1291 (D.C. Cir. 2009), and Cuomo, 772 F.2d at 974). Here, Plaintiff has established neither of the

first two factors.

        The court starts with the second factor—irreparable harm.             Plaintiff’s argues that

“WMATA is a government agency with disproportionately greater economic resources than that

of Plaintiff Mann, a wrongfully terminated and under-employed police officer since November

2011.” Pl.’s Opp’n at 9. It “is well-settled,” however, “that economic loss does not, in itself,

constitute irreparable harm.” Baker, 810 F. Supp. 2d at 97. For economic loss to constitute

irreparable harm, “legal remedies after the fact must be inadequate to restore the party seeking a

stay to the status quo ante.” Id. Plaintiff has not attempted to make such a showing, and he plainly

cannot do so. If the Court of Appeals were to reverse this court’s grant of summary judgment,

Plaintiff could be made whole by return of the costs awarded. And notably, Plaintiff has made no

attempt to make the requisite showing that he lacks the ability to pay due to financial hardship.

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See Guevara, 943 F. Supp. 2d at 196 (stating that, “[w]hen a district court chooses to consider the

unsuccessful party’s financial hardship, ‘it should require substantial documentation of a true

inability to pay’”) (quoting Chapman v. Al Transp., 229 F.3d 1012, 1039 (11th Cir. 2000)).

       Plaintiff also has not made a strong showing as to the second factor—the likelihood of

success on the merits. Plaintiff argues that the court erred (1) in deciding as a matter of law, as

opposed to submitting to a jury, that his proffered comparators were not similarly situated, and

(2) in finding that Gaddis’ investigation report was not biased. Pl.’s Opp’n at 7. As to Plaintiff’s

first argument, the court acknowledged the general legal principle that whether two employees are

similarly situated is ordinarily a question of fact for the jury. Mem. Op. at 20. The court, however,

closely scrutinized the record evidence and concluded that no reasonable jury could find that any

of Plaintiff’s proposed comparators had nearly identical employment situations to Plaintiff or had

engaged in offenses similar to Plaintiff’s. See id. at 15-21. That decision was within the court’s

authority and did not invade the province of the jury. See Holbrook v. Reno, 196 F.3d 255, 261-

62 (D.C. Cir. 1999) (affirming the district court’s decision on summary judgment that comparators

were not similarly situated to Plaintiff).

       As to Plaintiff’s second argument—that the court erred in finding that Gaddis’

investigation report was not biased—Plaintiff offers a list of factual errors made by the court. Pl.’s

Opp’n at 8. None of these, taken individually or collectively, give rise to a strong likelihood of

success on the merits.

       First, Plaintiff asserts that the court was wrong to find that “Plaintiff never raised a specific

concern with Gaddis” that Dowtin was on PCP, id. (quoting Mem. Op. at 26), because Plaintiff

did make the statement during his interview with Gaddis, referring to the arrestee, “Now I’m

thinking maybe PCP.” Plaintiff correctly cites what he told Gaddis. See Pl.’s Summ. J. Opp’n,



                                                  7
 
Ex. 4, ECF No. 38-4, at 10:17. However, a single passing reference to “maybe PCP” in the course

of a (once transcribed) 49-page-long interview hardly constitutes raising a “specific concern,”

especially given that Plaintiff concedes that he did not mention the citizen’s suspected use of PCP

in his written statement. But even considering Plaintiff’s passing reference to PCP during his

interview with Gaddis, the court’s conclusion that Gaddis made no effort to conceal Plaintiff’s

statements is unaffected. Gaddis attached Plaintiff’s entire statement, including the passing

reference to PCP, to his report—a fact that Plaintiff does not contest. See Mem. Op. at 26.

       Second, Plaintiff argues that the court “minimized” the fact that Gaddis did not include in

his report that the citizen threw his shoes and socks into the street and cursed belligerently. Pl.’s

Opp’n at 8. The court gave that fact adequate weight and consideration. The court acknowledged

that there was no reference in the body of Gaddis’ report to the citizen throwing shoes and cursing.

It pointed out, however, that Gaddis had not attempted to bury, or “minimize,” those facts, because

they were contained in both Plaintiff’s written and oral statements, which Gaddis attached to his

report. Mem. Op. at 26.

       Third, Plaintiff contends that the court erroneously stated that Gaddis had obtained a

written statement from a civilian bystander who made the video of Plaintiff arresting the citizen

“when it is clear in the report that he did not.” Pl.’s Opp’n at 8. The court made no such error.

To the contrary, the court recognized that “Gaddis . . . interviewed the person who recorded the

arrest, but was unable to obtain a written statement from him.” Mem. Op. at 5.

       Fourth, according to Plaintiff, the court wrongly assumed that Gaddis had a transcript

prepared of Plaintiff’s interview when in fact that transcript was prepared at the request of Plaintiff

for purpose of opposing Defendant’s Motion for Summary Judgment. Pl.’s Opp’n at 9. Plaintiff

is correct that the court made an erroneous assumption about the provenance of the interview



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transcript. But that is hardly a material fact that would sway the balance in favor of denying of

summary judgment.

       Finally, Plaintiff argues that the court “ignored” the fact that Gaddis turned to an in-house

use-of-force expert, Randolph Dawson, instead of an outside expert, and provided the expert only

with a copy of the video of the arrest. Pl.’s Opp’n at 9. The court, however, recognized that

Dawson was an in-house expert and was shown a video of the arrest. Mem. Op. at 7. The fact

that Gaddis did not share additional information with Dawson does not change the court’s

conclusion that the investigation, in its totality, was not so “incomplete and unfair” as to constitute

evidence of discrimination. Id. at 27.

III.   CONCLUSION

       For the foregoing reasons, Defendant is awarded costs in the amount of $3,556.39. That

sum excludes the fees incurred in obtaining the deposition transcripts and associated exhibits of

Ronald Pavlik ($221.25), ECF No. 44 at 3; Jack Leeb ($521.28), id. at 9; and Jerome Paige

($155.10), id.    Plaintiff’s Motion to Stay is denied.       A separate Order accompanies this

Memorandum Opinion.




Dated: May 12, 2016                                    Amit P. Mehta
                                                       United States District Judge




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