Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Cummins Engine Company, Inc.

United States District Court, D. Colorado

November 19, 2015

CUMMINS ENGINE COMPANY, INC., a foreign corporation d/b/a CUMMINS, INC., Defendant.


William J. Martínez United States District Judge

This matter is before the Court on Plaintiffs Danny W. Thomas and Jack Thomas’s (jointly “Plaintiffs”) Motion for Review of Clerk’s Taxing of Costs. (ECF No. 78.) Defendant Cummins Engine Company (“Defendant”) sent Plaintiffs an Offer of Judgment (ECF No. 72-1) which Plaintiffs accepted on May 13, 2015 (ECF No. 72). Judgment was entered in favor of Plaintiffs on May 14, 2015. (ECF No. 73.) On June 9, 2015, costs were taxed against Defendant in the amount of $6, 386.51. (ECF No. 77.) Plaintiff’s Motion was filed on June 11, 2015. (ECF No. 78.) Defendant filed a Response on June 18, 2015 (ECF No. 79), and Plaintiffs filed a Reply on June 23, 2015 (ECF No. 80). For the reasons set forth below, the Motion is granted.


Plaintiffs purchased a motor coach from Newmar Corporation in the fall of 2007 (ECF No. 34 at 3.) Defendant manufactured the engine for the motor coach and provided Plaintiffs with a warranty on the engine. (Id.) On January 16, 2013, Plaintiffs brought a breach of warranty claim against Defendant in Adams County District Court. (ECF No. 1-1 at 1-3.) In September of 2013, Defendant removed the case to this Court on diversity grounds. (ECF No. 1.) Plaintiffs are citizens of Colorado while Defendant is an Indiana corporation with its principal place of business in Indiana. (Id. at 2.) On July 19, 2014, Defendant brought a Motion for Summary Judgment arguing that Plaintiffs’ claim was barred by the statute of limitations, or, in the alternative, that Plaintiffs’ consequential damages should be limited under the UCC. (ECF No. 34 at 2-3.) The Court granted Defendant’s Motion as far as it concerned Plaintiffs’ consequential damages but denied the Motion in all other respects. (ECF No. 70 at 9.)

After the Court’s summary judgment ruling, Defendant made an Offer of Judgment to Plaintiffs, pursuant to Rule 68 of the Federal Rules of Civil Procedure. (ECF No. 72-1.) Plaintiffs accepted the offer (ECF No. 72), and on May 14, 2015, the Court entered judgment in favor of Plaintiffs in the amount of $25, 000, exclusive of any and all costs, expenses, and attorneys’ fees (ECF No. 73). Plaintiffs submitted their Bill of Costs requesting $21, 219.43. (ECF No. 74.) The Clerk of the Court taxed $6, 386.51 in favor of Plaintiffs. (ECF No. 77 at 1.)

Plaintiffs filed their Motion for Review of Clerk’s Taxing of Costs (“Motion”) on June 11, 2015. (ECF No. 78.) Plaintiffs seek a review of the Clerk of the Court’s taxing of costs pursuant to Federal Rule of Civil procedure 54(d)(1) but only as to the denial of costs incident to the taking of depositions. (ECF No. 78 at 2.)


Plaintiffs’ Motion contends that the Clerk did not tax Plaintiffs’ costs incident to the taking of out-of-state depositions. (ECF No. 78 at 3.) Plaintiffs seek $4, 787.92-in addition to the $6, 386.51 awarded by the Clerk-for costs accrued over the course of two out-of-state ventures where Plaintiffs took the depositions of five individuals. (Id.) For these depositions, Plaintiffs’ attorneys traveled to Indianapolis, Indiana and Grand Rapids, Michigan. (Id.) Specifically, the requested costs are $2, 080.00 for round-trip plane tickets, $1, 718.32 for overnight accommodations, $270.58 for transportation in each city, $129.79 for airport parking, $134.49 for meals, and $454.74 for delivery charges to ship documents to the locations of the depositions. (Id. at 4.)

Rule (d)(1) states that prevailing parties in civil actions should be awarded costs-other than attorneys’ fees-unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise. Under federal law, 28 U.S.C. § 1920 defines the term “cost, ” as it is used in Rule 54. Crawford Fitting Co. v. J.T. Gibbons, 482 U.S. 437, 441 (1987). For a cost to be recoverable by the prevailing party under federal law, it must be listed under § 1920. See id. A federal court has discretionary authority to tax costs up to the limits of § 1920, but not beyond those limits. See id. at 441-442, 445. Costs incident to the taking of a deposition are not included in § 1920 as costs which may be taxed. 28 U.S.C. § 1920. Therefore, Plaintiffs’ costs incident to their out-of-state depositions are not recoverable under federal law.

On the other hand, Colorado state law defines costs more broadly. See, e.g., Colo. Rev. Stat. § 13-16-122; Cherry Creek Sch. Dist. No. 5 v. Voelker by Voelker, 859 P.2d 805, 812-13 (Colo. 1993). Before the Court decides whether Plaintiffs’ particular deposition costs may be taxed, the Court must determine whether it should apply Colorado state law to this case.

A. Should the Court Apply the Colorado State Definition of Costs?

1. The Law of the Tenth Circuit

The Tenth Circuit has held that, in a diversity case, federal law controls the assessment of costs. Chaparral Res. Inc. v. Monsanto Co., 849 F.2d 1286, 1291-92 (10th Cir. 1988). However, there is an exception to this rule. According to the Tenth Circuit, federal courts are bound by the limitations of § 1920 unless there is an “explicit statutory . . . authorization” to the contrary. Id. at 1292. In Chaparral, the Tenth Circuit examined a Colorado state statute regarding expert witness expenses. Id. The statute provided for compensation of expert witnesses but did not specify whether such compensation was to be awarded as costs. Id. Because that state statute did not “explicitly authorize the assessment of expert witness fees as costs, the court was bound by the limitations set out in the federal costs statute.” Id. at 1293.

Although the statute examined in Chaparral did not fit the exception outlined in that same case, the Tenth Circuit later decided that Colorado Revised Statutes § 13-17-202(1)(a)(I) fits the exception as an “express statutory mandate” Garcia v. Wal-Mart Stores, 209 F.3d 1170, 1178 (10th Cir. 2000). That section specifies that if a defendant refuses a plaintiff’s offer of settlement made more than ten days before trial, and at trial the plaintiff recovers an amount greater than the settlement offer, then “the plaintiff shall be awarded actual costs.” Colo. Rev. Stat. § ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.