Pogil v. KPMG L.L.P.

Background

On September 24, 2024, the court granted KPMG’s motion for summary judgment, directed entry of judgment dismissing Boris Pogil’s complaint in its entirety, and closed the case. KPMG later filed a notice of taxation of costs seeking $6,129.22 for deposition transcripts submitted with its summary-judgment motion.

The requested costs covered depositions of Pogil and ten other people. KPMG stated that it sought the costs under Federal Rule of Civil Procedure 54(d)(1), which generally allows costs other than attorney’s fees to the prevailing party.

Pogil’s Objections

Pogil argued that claim preclusion, also called res judicata, barred KPMG’s request because the New York Appellate Division had affirmed dismissal of the state-court case “without costs.” The court rejected that argument. It explained that KPMG’s request arose under a federal rule that was not available in the New York state proceeding, and that the state appellate court’s statement concerned costs in that appeal, not costs from the federal case. The court also found no risk of double recovery and noted that KPMG did not appear to have sought or received costs in the state litigation.

Pogil also argued that KPMG could not recover the costs of depositions Pogil had noticed because New York law generally requires the party taking a deposition to pay for it. The court rejected this objection because the record did not show that Pogil paid the deposition costs. Instead, the court found that KPMG had paid them.

Ruling

Judge Laura Taylor Swain granted KPMG’s request for taxation of costs in full. The court directed the Clerk of Court to enter a bill of costs in KPMG’s favor for $6,129.22 and to resolve the related docket entry.