Appeal from (1) a final judgment of the United States District Court for the Eastern District of New York, Frank X. Altimari, Judge, awarding costs to successful defendants, and (2) an order denying motion by plaintiffs' attorney for attorney's fees under Fed. R. Civ. P. 37(a)(4). Judgment awarding costs to defendants affirmed; order denying Rule 37(a)(4) motion vacated and remanded.
Before: LUMBARD, MANSFIELD, and KEARSE, Circuit Judges.
Plaintiffs Richard John Mercy, et al., appeal from so much of a final judgment of the United States District Court for the Eastern District of New York, following a jury trial before Frank X. Altimari, Judge, as awarded defendants County of Suffolk (the "County"), et al., costs in the amount of $9,875.98 following verdicts in favor of the defendants in this action brought under 42 U.S.C. § 1983. Plaintiffs also challenge Judge Altimari's denial of a posttrial motion for attorney's fees pursuant to Fed. R. Civ. P. 37(a)(4) in connection with the pretrial denial by then-District Judge George C. Pratt of a discovery motion by defendants. We affirm the award of costs. We vacate the denial of the motion for attorney's fees and remand to Judge Altimari for a determination of the motion on its merits.
Plaintiffs commenced this § 1983 action against the County, the County Police Commissioner, and some 30 police officers in 1981, claiming acts of police brutality. The case went to trial before Judge Altimari in the fall of 1983, and the defendants prevailed. Many claims were dismissed at the close of the plaintiffs' evidence. The rest were decided by the jury in favor of the defendants.
Shortly after the end of trial, a judgment was entered dismissing the complaint. The judgment specified that it was entered "without prejudice to defendants' right to make an application for costs and a reasonable attorney's fee," and "without prejudice to plaintiff's attorney's right to make an application for reasonable costs and attorney's fees in [successfully] defending a discovery motion" before Judge Pratt in February 1982. (November 22, 1983 Judgment.)
Thereafter, defendants made application for, inter alia, costs in the amount of $25,574.56. The court awarded costs in the amount of $9,875.98. Plaintiffs' attorney moved for attorney's fees pursuant to Fed. R. Civ. P. 37(a)(4). Judge Altimari denied that motion on the ground that Judge Pratt had implicitly rejected plaintiffs' claim to fees in his opinion denying the defendants' motion for a protective order. Plaintiffs challenge both the award of costs against them and the denial of their attorney's motion for attorney's fees. For the reasons below, we affirm the award of costs, but we remand the matter of attorney's fees on the discovery matter for further consideration.
The award of costs against the losing party is a normal incident of civil litigation and is the rule rather than the exception. Fed. R. Civ. P. 54(d) provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." The district court's ruling with respect to costs will not be upset on appeal unless the court abused its discretion. In re Air Crash Disaster, 687 F.2d 626, 629 (2d Cir. 1982).
Plaintiffs challenge the award of costs against them on the grounds that their suit conferred important benefits on the public by informing the public that there is police brutality in Suffolk county, that the award of costs imposes an economic hardship on plaintiffs, and that such an award will deter future claimants from instituting meritorious litigation. We are unpersuaded. The contention that their lawsuit had value to the public in calling attention to the problem of police brutality pales beside the fact that the lawsuit did not establish such brutality here. The assessment of public benefit in such circumstances is best made by the trial court. We see no reason to disturb the court's rejection of plaintiffs' evaluation. Plaintiffs' contention that future meritorious suits will be deterred ignores the probability that those with meritorious claims will prevail and not be subject to an award of costs against them. We think the exposure to liability for normal court costs will more likely discourage the bringing of frivolous claims than the bringing of meritorious claims.
Nor do we find any abuse of discretion in the amount of the costs allowed. The defendants sought costs in the amount of $25,574.56. The court declined to award that amount; it determined that it was appropriate to award $9,875.98 to compensate the defendants for necessary costs including daily transcripts of the trial. The court found that daily transcripts were necessary because of the number of plaintiffs, the number of defendants, and the number of claims asserted by the plaintiffs, and that access to such transcripts enabled defendants to have many of ...