Be Wary of Rule 54(d)'s Costs Provision

Subsequent cases have shown that the Christiansburg standard is an exceedingly difficult one for a defendant to meet. For example, in Hill v. Board of Education, CV 87-3008 (ILG) (E.D.N.Y. 1993), the court at trial granted the defendants' motion to dismiss after the conclusion of plaintiff's case, noting that the plaintiff's Title VII claim had no merit whatsoever and that no evidence had been produced in support of his claim. Nonetheless, the court later denied defendants' motion for attorneys' fees, finding that the Christiansburg test had not been satisfied.

The near-immunity of unsuccessful discrimination plaintiffs to motions by prevailing employers for attorney's fees, however, should not obscure that fact that Fed. R. Civ. P. 54 (d) also provides for the award of costs to a prevailing party. For several reasons, many plaintiffs' employment lawyers overlook or misunderstand the fact that the standard for awarding costs to a prevailing party is quite different than the one for attorneys' fees. In Cosgrove v. Sears, Roebuck & Co., 191 F.3d 98 (2d Cir. 1999), an unsuccessful plaintiff in a Title VII case appealed the district court's award of costs against her, arguing that the defendant had not satisfied Christiansburg's “useless, baseless or frivolous” test. The Second Circuit disagreed, stating that Rule 54(d) “grants costs to a prevailing party as a matter of course in the absence of a countervailing statute or rule.” Id. at 101 [emphasis added]. In addressing the argument that the Christiansburg test should also apply to applications by prevailing employers for costs, the court stated that “[w]e see no reason … to apply the same type of heightened standard to the assessment of costs.” Id.