Kirksey v. National Multiple Sclerosis Society

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Trenton Kirksey,
Plaintiff,
v.
National Multiple Sclerosis Society,
Defendant.
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Civil Action No. 4:24-cv-00871
MEMORANDUM AND RECOMMENDATION
On April 2, 2026, Plaintiff Trenton Kirksey filed a motion under Fed. R.
Civ. P. 59(e) (Dkt. 107) to alter or amend this Court’s final judgment (Dkt. 104)
dismissing his claims with prejudice, to which Defendant National Multiple
Sclerosis Society (the “Society”) responded, Dkt. 109, and Kirksey replied,
Dkt. 110. 	Kirksey also filed a motion asking the Court to stay execution of
costs until his Rule 59(e) motion is resolved, and requests that the Society’s
costs be denied. 	Dkt. 108. 	The Society filed a response to that motion,
Dkt. 111, and Kirksey replied, Dkt. 112. 	As explained below, both motions
should be denied.
First, as the Society aptly notes, Dkt. 109, Kirksey’s motion for relief
under Rule 59(e) merely reprises the same arguments and contentions that
this 	Court 	considered 	and 	rejected 	when 	adopting 	the 	undersigned’s
United States District Court
Southern District of Texas
ENTERED
May 18, 2026
Nathan Ochsner, Clerk
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recommendation to grant the Society’s motion for summary judgment and
dismiss Kirksey’s employment discrimination and retaliation claims. 	But
relief under Rule 59(e) is an “extraordinary remedy that should be used
sparingly.” 	Rollins v. Home Depot USA, 8 F.4th 393, 396 (5th Cir. 2021)
(quoting Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)). 	The
Rule 59(e) standard “favor[s] denial of motions to alter or amend a judgment.”
S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993).
To obtain relief, the movant “must clearly establish either a manifest
error of law or fact or must present newly discovered evidence.” 	Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (quotations omitted).
“[S]uch a motion is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry
of judgment.” Templet, 367 F.3d at 479.
Kirksey’s Rule 59(e) motion fails to satisfy the strict standard for relief.
This Court already rejected Kirksey’s contention that he should be allowed to
withdraw his deemed admissions, despite never seeking such relief before the
undersigned had already issued an opinion recommending that summary
judgment be granted. 	Compare Dkt. 107 at 1-2 (Kirksey rehashing this
contention), with Dkt. 103 at 2 (adopting January 15, 2026 Memorandum and
Recommendation, Dkt. 97); Dkt. 99 (Kirksey’s January 29, 2026 motion for
leave to file motion to withdraw deemed admissions); Dkt. 100 (order denying
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Kirksey’s January 29, 2026 request to withdraw deemed admissions, Dkt. 99,
including because his tardy request would prejudice the Society). That ruling
was not erroneous, much less manifestly so. There is no basis for relief under
Rule 59(e).
Second, Kirksey’s motion requesting that the Society be barred from
recovering any of its costs is meritless. Contrary to his assertion, see Dkt. 108
at 1; Dkt. 112 at 2, there is no valid basis to believe that final judgment should
be vacated. 	The Society therefore is the prevailing party that “should be
allowed” to recover its costs. See Fed. R. Civ. P. 54(d)(1).
Kirksey does not challenge any specific item of costs. 	Those costs were
ballooned by Kirksey’s own misconduct, which necessitated multiple repeat
deposition 	settings—and 	attendant 	court 	reporter, 	videographer, 	and
transcript costs totaling $8,565.88. 	See Dkt. 101 at 3, 10-11. 	All of those
transcripts 	and 	recordings 	were 	used 	for 	either 	the 	summary 	judgment
briefing, or to prepare for a potential trial, see Dkt. 106-1 at 3 (counsel’s
supporting declaration), making them 	necessary 	and taxable under Rule
54(d)(1). 	See Clouse v. S. Methodist Univ., 170 F.4th 367, 375 (5th Cir. 2026)
(affirming taxation of necessary deposition transcripts and video recordings
under 28 U.S.C. § 1920(2)). 	The remaining $324.00 is attributed to costs of
retrieving Plaintiff’s tax returns and Social Security records. 	See Dkt. 106-1
at 15. 	The costs of procuring those records from third parties are equally
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recoverable because they were relevant to Plaintiff’s asserted damages and
necessary to the potential trial. See Dkt. 106-1 at 3. Kirksey does not dispute
any of those conclusions.
Instead, apart from reprising his flawed merits arguments, Kirksey
insists that no costs should be awarded because he brought the action in “good
faith” and imposing costs would cause him financial hardship. See Dkt. 108 at
1-2. But Rule 54(d)(1) carries a strong presumption that a prevailing party is
entitled to recover its costs. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 377
(2013); Cheatham v. Allstate Ins. Co., 465 F.3d 578, 586 (5th Cir. 2006) (per
curiam). And the Society is correct that Kirksey’s arguments fail to overcome
the presumption favoring its recovery of costs. See Dkt. 111 at 2-8.
The Fifth Circuit has made clear that “the losing party’s good faith is
alone insufficient to justify the denial of costs to the prevailing party.” Pacheco
v. Mineta, 448 F.3d 783, 795 (5th Cir. 2006) (reversing order that denied costs).
And the Fifth Circuit has concluded that “[f]inancial hardship, without more,
is not a sufficient reason to deny costs.” 	Hawkins v. City of Lexington, 2022
WL 671452, at *1 (5th Cir. Mar. 7, 2022) (per curiam) (citing Smith v. Chrysler
Grp., LLC, 909 F.3d 744, 753 (5th Cir. 2018)).
Although Kirksey asserts that imposing costs would “chill” or discourage
litigants from bringing future claims, that position does little more than
highlight the Society’s greater resources compared to his own. 	Yet the Fifth
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Circuit admonishes that “reducing or eliminating a prevailing party’s cost
award based on its wealth—either relative or absolute—is impermissible as a
matter of law.” 	Moore v. CITGO Refin. & Chems. Co., 735 F.3d 309, 320 (5th
Cir. 2013). 	Neither does Plaintiff’s pro se status exempt him from paying the
Society’s costs. See, e.g., Ben-David v. City of Pasadena, 2024 WL 5679065, at
*1 (S.D. Tex. Mar. 1, 2024) (shifting costs to a losing pro se plaintiff who
proceeded 	IFP 	despite 	the 	plaintiff’s 	asserted 	good 	faith 	and 	financial
hardship). And, as noted, the costs are higher precisely because Kirksey failed
to show up for one deposition and behaved improperly during another. 	See
Dkt. 101 at 3, 10-11 (detailing Kirksey’s misconduct). 	He cannot escape the
consequences of that conduct.
In short, none of Kirksey’s contentions is sufficient to overcome the
presumption entitling the Society to recover its costs. This Court should order
Kirksey to pay $8,889.88 in taxable costs to the Society.
Recommendation
For the foregoing reasons, it is RECOMMENDED that Plaintiff Trenton
Kirksey’s Rule 59(e) motion to alter or amend the judgment (Dkt. 107) be
DENIED.
It is further RECOMMENDED that Kirksey’s motion to review or retax
costs (Dkt. 108) be DENIED, and that the Clerk of Court be ordered to tax
costs against Kirksey in the amount of $8,889.88.
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The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on May 18, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
Texas.
_____________________________________
Yvvvooon	nne Y. Hoo
United States Magistrate Judge
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