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19-1286

Portelos v. Hill

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

30th day of November, two thousand twenty.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge

AMALYA L. KEARSE,

RICHARD C. WESLEY,

Circuit Judges.

_____________________________________

FRANCESCO PORTELOS,

Plaintiff-Appellant,

v. 19-1286

LINDA HILL, PRINCIPAL OF I.S. 49, in her official and 

individual capacity, AND ERMINIA CLAUDIO,

Defendants-Appellees,

CITY OF NEW YORK, CITY OF NEW YORK DEPARTMENT OF 

EDUCATION, DENNIS WALCOTT, CHANCELLOR OF NEW YORK 

CITY DEPARTMENT OF EDUCATION,

Defendants.

_____________________________________

For Plaintiff-Appellant: FRANCESCO PORTELOS, pro se, Staten Island, NY
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For Defendants-Appellees: SCOTT SCHORR, LORENZO DI SILVIO, for James E. 

Johnson, Corporation Counsel of the City of New York, 

New York, NY

Appeal from two orders of the United States District Court for the Eastern District of New 

York (DeArcy Hall, J., Scanlon, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the orders of the district court are AFFIRMED.

Plaintiff-Appellant pro se Francesco Portelos, who was represented by counsel in the 

district court through the entry of judgment dismissing his action, appeals from two post-judgment 

orders of the district court, (1) rejecting his opposition to Defendants’ request for costs of the 

action, and (2) denying his motion for reconsideration. Portelos—a former public-school 

teacher—sued the City of New York, its Department of Education, and three school officials, 

alleging that they retaliated against him for expressing concerns about alleged misconduct and 

budgetary irregularities by school officials. The district court dismissed Portelos’s claims against 

all but two officials, Principal Linda Hill and District Superintendent Erminia Claudio

(“Defendants”). A jury returned a verdict for Defendants, and we affirmed on appeal. Portelos 

v. Hill, 719 F. App’x 37 (2d Cir. 2017). Defendants thereafter moved under Federal Rule of Civil 

Procedure 54(d)(1) and Local Rule 54.1(c)(2) to impose costs against Portelos; the district court 

awarded Defendants $6,656.40—$5,435.04 for non-expedited trial transcripts and $1,221.36 for 

costs related to Portelos’s deposition. We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal.

Under Rule 54, “costs—other than attorney’s fees—should be allowed to the prevailing 

party” absent “a federal statute, [Rule of Civil Procedure], or a court order [that] provides 

otherwise.” Fed. R. Civ. P. 54(d)(1). Because “such an award against the losing party is the 
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normal rule . . . in civil litigation, not an exception . . . , the losing party has the burden to show 

that costs should not be imposed.” Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001), 

abrogated on other grounds by Bruce v. Samuels, 577 U.S. 82 (2016). The losing party may 

show that costs should not be imposed by, for example, demonstrating “misconduct by the 

prevailing party, the public importance of the case, the difficulty of the issues, or the losing party’s 

limited financial resources.” Id.

Portelos asserts that his case represented a matter of public importance and involved 

difficult issues. Portelos further asserts that Defendants’ counsel engaged in misconduct by (1) 

violating the time limit for depositions, (2) “knowingly testif[ying]” for a deposition witness, and 

(3) falsely denying the existence of emails that were later disclosed. Portelos only raised the first 

two arguments—that his case was a matter of public importance and involved difficult issues—in 

his motion for reconsideration. “Generally, we will not consider an argument on appeal that was 

raised for the first time below in a motion for reconsideration,” Sompo Japan Ins. Co. of Am. v. 

Norfolk S. Ry. Co., 762 F.3d 165, 188 (2d Cir. 2014) (quoting Official Comm. of Unsecured 

Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir. 2003)), and 

we see no persuasive reason to deviate from the general rule in this case. 1 Thus, the only

remaining issue is whether the district court erred in awarding costs because of alleged misconduct. 

We review for abuse of discretion both the district court’s decision to award costs and its 

denial of reconsideration.

2 See Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006) 

1 We also note that Portelos initially opposed Defendants’ application for costs in part because the 

imposition of costs would cause him “tremendous hardship” and he brought his case in “good faith.” 

App’x at 48, 52. Portelos, however, does not raise these arguments on appeal, and so we do not consider 

them. LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (“[Plaintiff] did not raise this 

issue in his appellate brief. Consequently, he has abandoned it.”).

2 The Court affords “considerable deference” to the district court’s interpretation of Local Civil Rule
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(quoting LoSacco, 71 F.3d at 92); Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 

52 (2d Cir. 2012). A district court abuses its discretion if “its decision rests on an error of 

law . . . or a clearly erroneous factual finding” or if “its decision . . . cannot be located within the 

range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).

A court may deny costs if a non-prevailing party demonstrates that the entitled party has 

committed “misconduct” at a level that justifies denial. See, e.g., McFarland v. Gregory, 425 

F.2d 443, 449 (2d Cir. 1970) (denying costs where prevailing party engaged in an “obstructive 

course of conduct,” “total warfare,” and “trial by battle”). The district court determined that 

Portelos’s allegations of misconduct did not justify denying costs, because he failed to specify any 

resulting prejudice. First, Portelos alleged that his deposition ran past the time limit, but he 

“fail[ed] to specify the length of his deposition.” App’x at 76. Second, Portelos claimed that 

Defendants’ counsel testified for a witness, but his attorney did not “object to [that] statement” 

during the deposition. Id. And finally, Portelos objected to Defendants’ failure to produce 

1,400 pages of emails during discovery, but “Defendants ultimately did produce those documents.” 

Id. The district court noted that “none of these discovery concerns was even sufficiently serious 

to motivate Plaintiff to file a motion for sanctions.” Id.

We agree that Portelos’s allegations of misconduct—for which his attorney did not move 

for discovery sanctions—“do[] not rise to the level of misconduct warranting the denial of costs.” 

Javier v. Deringer-Ney Inc., 501 F. App’x 44, 46 (2d Cir. 2012). The district court, therefore, 

did not abuse its discretion in imposing costs, nor in denying Portelos’s motion to reconsider. 

* * *

54.1. LoSacco, 71 F.3d at 92; Whitfield, 241 F.3d at 270–72. 
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We have considered Plaintiff-Appellant’sremaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the orders of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk