Where the court previously granted summary judgment to Liberty University, described the former employee’s discrimination and Title VII claims as “f[l]ounder[ing],” and found that Liberty University’s defense to the employment claims was “not seriously in dispute,” the employee failed to show that the issues were sufficiently close and difficult such that he should not be liable for costs.
This matter is before the court on a report and recommendation, or R&R, that recommended this court (1) grant in part and deny in part defendant Liberty University’s motion for bill of costs and (2) not stay the award pending appeal of the summary judgment decision. Plaintiff timely filed two objections: First, the R&R wrongly found plaintiff had not shown an inability to pay such that the bill of costs would be unjust or inequitable. And second, the R&R wrongly found the issues in the matter were not so close and difficult as to justify denying costs.
Inability to pay
It is the losing party’s responsibility to provide adequate documentation of its modest means and inability to pay costs, and plaintiff failed to provide documentation related to his unemployment or student loans. He claimed that he “has a much higher cost of living than the average Hampton, Virginia resident,” due to his student loans from when a student at Liberty, but he failed to support the claim with documentation.
Other courts within the Fourth Circuit have, for example, relied on financial affidavits to determine a plaintiff is unable to pay costs due to his modest means. And this court has previously considered whether an unemployed plaintiff believes he “has any prospects for better employment in the future.”
But plaintiff has not provided documentation conveying current unemployment, much less lack of future employment. As he did not provide documentation regarding his student loans and unemployment, the court finds plaintiff has not shown inability to pay costs. The court thus overrules plaintiff’s first objection to the R&R.
Plaintiff also objects to the R&R by saying it “wrongfully found that the issues in the matter were not so close and difficult as to justify denying costs.” The Fourth Circuit has noted a case as “close and difficult” when it “was hotly contested at trial and in the previous appeal,” legal issues “were not as clear cut” and a legal conclusion “was reached with difficulty and only after a thorough and careful evaluation of  law.” “Courts that have denied awards of costs on th[e basis of a case being close and difficult] have generally done so following trial adjudications of novel issues.” And courts within the Fourth Circuit have recognized that “[a] case resolved via summary judgment generally does not involve close or difficult issues that justify not awarding costs.”
The court did not find awarding summary judgment in the instant case to be a close and difficult question. This court recognized, when granting defendant summary judgment, “[t]he facts relevant to the Faragher/Ellerth defense are not seriously in dispute.” The court presented plaintiff’s discrimination and Title VII claims as “f[l]ounder[ing].”
Plaintiff’s objections to report and recommendation overruled.
McLaurin v. Liberty University, Case No. 6:21-cv-38, Nov. 15, 2022. WDVA at Lynchburg (Moon). VLW 022-3-512. 10 pp.