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Losing employee must pay prevailing employer’s costs

Virginia Lawyers Weekly//September 8, 2022

Losing employee must pay prevailing employer’s costs

Virginia Lawyers Weekly//September 8, 2022

Where the employer who prevailed at summary judgment in an employment discrimination case sought over $9,000 in costs from the plaintiff, she was ordered to pay the costs. Although she argued that her “financial outlook is grim,” her current “annual earning capacity” is nearly $150,000.


After this court awarded summary judgment in favor of defendant Frito-Lay Inc., it filed a bill of costs seeking $9,293.95 from plaintiff. Plaintiff appealed the adverse judgment and filed objections to the bill of costs.


“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.” This rule is “straightforward,” codifying “a venerable presumption that prevailing parties are entitled to costs.”

The decision whether to award costs “ultimately lies within the sound discretion of the district court.” “Among the factors that justify denying an award of costs are: (1) misconduct by the prevailing party; (2) the unsuccessful party’s inability to pay the costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the prevailing party’s victory; or (5) the closeness and difficulty of the issues decided.”

Plaintiff has not contested that Frito-Lay was the prevailing party, argued that any part of the $9,293.95 sought for transcript fees are not properly considered as taxable costs or argued that the amount requested is excessive or otherwise not substantiated with proper documentation. Rather, plaintiff only cites two of those factors, “the unsuccessful party’s inability to pay the costs” and “the closeness and difficulty of the issues decided,” as weighing against the imposition of costs. Neither argument is persuasive.

Inability to pay

As to her inability to pay, significantly, plaintiff does not assert that she is unable to pay the costs. Nor does she assert that paying the $9,293.95 would impose financial hardship. Rather, plaintiff has asserted that “she has been unemployed for an extensive period of time since her termination in July of 2020,” that her termination has had “significant financial ripple effects,” that she “remains unemployed” and her “financial outlook is grim.” 

However, her own documentation to support that “grim” financial picture shows that her current “annual earning capacity” is nearly $150,000. The court does not and need not doubt that plaintiff’s financial circumstances have deteriorated to an extent since she lost her position at Frito-Lay. But these arguments fall well short of demonstrating that the court should decline to award presumptive costs because of her “inability to pay.”

Closeness of the issues

Plaintiff also argues that costs should not be awarded because of the “closeness and difficulty of the issues decided.” But plaintiff does not elaborate any further. And the court is not inclined to develop arguments for a party that they have not felt necessary or appropriate to develop themselves. In any event, this court concluded that an award of summary judgment was appropriate in this case, “indicating that the decision was not close or difficult” as would weigh against imposition of costs.

While plaintiff raised four claims in her complaint and the case was resolved on a summary judgment record, the court considers there was little difficulty presented in “sift[ing] through and organiz[ing] relevant evidence,” and little “difficulty of discerning the law of the case,” as could in other circumstances support denying costs. Plaintiff’s proffered reasons to deny costs do not hold up to scrutiny. Finally, the court notes that even if the case was close and difficult, that factor alone is not sufficient to deny costs.

Other factors

The court notes that Frito-Lay’s requested costs were not at all excessive given the discovery in the case; that Frito-Lay was conservative in its request that only sought one clearly covered category of costs (fees for transcripts necessarily obtained for use in the case) and that Frito-Lay supported its bill of costs with proper documentation that has not been contested by plaintiff.

Lastly, plaintiff requests that an award of costs should be stayed pending plaintiff’s appeal. The court has discretion to proceed with taxation of costs, or to defer ruling on assessment of costs after an appeal. But importantly, none of the factors potentially weighing against an imposition of costs is present here. And, on the other side of the coin, “there is good reason not to stay an award of costs in this case,” considering that, “[w]ith prompt taxation, any appeal from the award of costs could feasibly be consolidated with the pending appeal on the merits, thereby enhancing judicial efficiency.”
Defendant’s request for costs granted.

Crews-Sanchez v. Frito-Lay Inc., Case No. 6:21-cv-00030, Aug. 30, 2022. WDVA at Lynchburg (Moon). VLW 022-3-378. 4 pp.

VLW 022-3-378

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