1 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 O RDER ” ). 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 30 th da y of November , two thousand twenty

. P resent : D EBRA A NN L IVINGSTON , Chief Judge A MA LY A L. K EARSE , R ICHARD C. W ESLEY , Circuit Judges

.

_____________________________________ F RANCESCO P ORTELOS , Plaintiff

- Appell ant ,

v. 19

- 1286
L INDA H ILL , P RINCIPAL OF I.S. 49, in her official and individual capacity , AND E RMINIA C LAUDIO , Defendant s - Appell ees ,

C ITY OF N EW Y ORK , C ITY OF N EW Y ORK D EPARTMENT OF E DUCATION , D ENNIS W ALCOTT , C HANCELLOR OF N EW Y ORK C ITY D EPARTMENT OF E DUCATION , Defendants

.

_____________________________________ For Plaintiff

- Appellant : F RANCESCO P ORTELOS , pro se , Staten Island, NY2 F or Defendants

- Appellees : S COTT S CHORR , L ORENZO D I S ILVIO , 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 ORD ERED, ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED

. Plaintiff

- Appellant pro se Franc e sco 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 D efendants’ request for costs of the action, and (2) denying his motion for reconsideration. Portelos

— a former public

- sch ool 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 tran scripts 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 allowe d 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 the3 normal rule . . . in civil litigation, not an e xception . . . , 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 sh ould 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 m atter of public importance and involved difficult issues

. Portelos further asserts that D efendants’ 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 exis tence 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 reconsider ation. “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. o f Unsecur ed 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 t he 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 thes e 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 Rule4 (quoting LoSacco , 71 F.3d a t 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 t hat 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

– 72.5 We have considered Plaintiff

- Appellant ’s remaining arguments and find them to be wit hout merit. Accordingly, we AFFIRM the orders of the district court

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk