United States District Court, D. Colorado
Y. Wang United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Plaintiff’s Motion for Judicial Review of Certain Costs
Pursuant to Fed.R.Civ.P. 54(d)(1) (“Motion for
Review”) [#179, filed April 13, 2016], and pursuant to
28 U.S.C. § 636(c), the Order of Reference dated January
26, 2012 [#19], and the Order of Reassignment dated February
10, 2015 [#137]. Plaintiff Kathyrn Kipling
(“Plaintiff” or “Ms. Kipling”)
requests that the court review the Clerk of the Court’s
taxation of costs of $2, 606.25, associated with obtaining
the transcript from the three-day jury trial on damages
conducted in May 2013. [#179 at 1]. Defendant State Farm Mutual
Automobile Insurance Company (“Defendant” or
“State Farm”) opposes Ms. Kipling’s
request, arguing that the Clerk of the Court properly
included the fees because the transcript was
“necessarily obtained for the use in this case.”
[#180]. In Reply, Plaintiff argues that the transcript of the
damages jury trial was used for the purposes of the appeal,
and therefore, should not be taxed. [#181]. The court has
reviewed the Parties’ submissions, including the
instant Motion, Defendant’s Opposition, and
Plaintiff’s Reply, the applicable case law, and the
docket in this matter, and for the following reasons, GRANTS
IN PART and DENIES IN PART Plaintiff’s Motion for
case arises from a dispute between Ms. Kipling and State Farm
over underinsured motorist (“UIM”) coverage. On
July 27, 2009, Ms. Kipling was involved in a car collision
that resulted in the death of her husband and her own severe
personal injury. [#1]. State Farm paid Ms. Kipling the policy
limits of the two policies the Kipling household held. At the
time, Mr. Kipling worked as an Office Manager for Quicksilver
Express Courier of Colorado, Inc., (“Quicksilver -
Colorado”), which carried four additional policies
(“Minnesota Policies”) on vehicles registered in
the State of Minnesota and titled to Quicksilver Express
Courier, Inc. (“Quicksilver”). Ms. Kipling sought
benefits under these Minnesota Policies, and State Farm
denied her claim.
Kipling initiated this lawsuit on July 27, 2011, asserting a
single claim for breach of contract. [#1]. The Complaint,
however, was not served until October 24, 2011 [#9], and
State Farm timely answered on November 14, 2011. [#10]. From
the beginning, it appears that the operative inquiry was
whether Plaintiff qualified for coverage under the Minnesota
Policies. See, e.g., [#10 at ¶ 3]. On April 17,
2012, two months prior to the deadline set by the Scheduling
Order [#15 at 7], State Farm filed its Motion for Summary
Judgment arguing that Plaintiff was not entitled to UIM
benefits under the Minnesota Policies. [#26]. After multiple
extensions, Plaintiff filed a Response on September 11, 2012
[#44]. On November 6, 2012, the court denied State
Farm’s Motion for Summary Judgment. [#54]. The court
then denied State Farm’s Motion for Reconsideration of
its Order denying State Farm’s Motion for Summary
Judgment on April 3, 2013 [#81], and the Parties proceeded to
trial on the issue of damages from May 13-15, 2013.
[#92-#94]. Final judgment entered in favor of Ms. Kipling for
the sum of $4, 444, 750.75, plus costs on May 28, 2013.
[#99]. State Farm then filed, inter alia, a Motion
to Alter or Amend Judgment Pursuant to F.R.C.P. 59(e), again
arguing that as a legal matter Ms. Kipling could not recover
under the Minnesota Policies. [#103].
September 17, 2013, after denial of its post-trial motions,
State Farm appealed the final judgment to the United States
Court of Appeals for the Tenth Circuit. [#120]. The Notice of
Appeal focused on the court’s denial of State
Farm’s Motion for Summary Judgment and the denial of
the reconsideration of the Motion for Summary Judgment.
See [id.] While the Notice of Appeal
identified the Final Judgment, the Notice of Appeal did not
identify particular issue with the jury verdict or
evidentiary rulings made in the context of the damages trial.
[Id.]. Counsel for State Farm then requested the
transcript of the three-day jury trial on damages from the
court’s contracted court reporting services. [#123].
December 29, 2014, the Tenth Circuit issued its Opinion and
Judgment, reversing and remanding the case for further
consideration. [#131]. After the mandate issued, this court
proceeded to entertain cross-motions for summary judgment.
This court issued its Opinion and Order on February 3, 2016,
finding that Minnesota, rather than Colorado, contract law
applied to the interpretation of the Minnesota Policies,
[#164], and entered final judgment in favor of State Farm on
February 4, 2016. [#165]. The court awarded State Farm costs
pursuant to Fed.R.Civ.P. 54 as part of the Final Judgment.
Farm filed its proposed Bill of Costs on February 18, 2016.
[#166]. The proposed Bill of Costs included “[f]ees of
the court reporter for all or any part of the transcript
necessarily obtained for use in the case.” [#166].
State Farm also submitted a Statement Regarding Taxation of
Costs [#173], including an invoice reflecting those
transcripts. [#173-3]. The invoice reflects three sets of
transcripts, with one original and one certified copy: (1)
the transcript of the Trial Preparation Conference held on
May 2, 2013 [#90, #125]; (2) the transcript of the hearing on
the Motion for Summary Judgment held on November 2, 2012
[#53, #126]; and (3) the transcript of the three-day jury
trial on damages held between May 13 - 15, 2013.
[Id.]. On April 6, 2016, the Clerk of the Court
taxed $4, 599.57 in costs, including $2, 606.25 in
“fees of the court reporter for all or any part of the
transcript necessarily obtained for use in the case.”
diversity case, federal law controls the court’s
assessment of costs. Chaparral Res., Inc. v. Monsanto
Co., 849 F.2d 1286, 1291-92 (10th Cir. 1988). Rule 54(d)
provides, in pertinent part, “[u]nless a federal
statute, these rules, or a court order provides otherwise,
costs- other than attorney's fees-should be allowed to
the prevailing party.” Fed.R.Civ.P. 54(d)(1). Thus, a
court has the discretion to award costs to prevailing
parties, unless a federal statute provides otherwise.
Marx v. General Revenue Corp., ___ U.S. ___-, 133
S.Ct. 1166, 1172, 185 L.Ed.2d 242 (2013). While there is a
presumption that the prevailing party will be awarded costs,
the decision as to whether to award costs ultimately lies
within the sound discretion of the trial court. See
Marx, 133 S.Ct. at 1172 (observing that “the word
‘should’ makes clear that the decision whether to
award costs ultimately lies within the sound discretion of
the district court”); Allison v. Bank
One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002). The
party seeking costs carries the initial burden of persuasion
to establish the amount of compensable costs and expenses.
Allison, 289 F.3d at 1248-49 (citing Mares v.
Credit Bureau of Raton, 801 F.2d 1197, 1208 (10th Cir.
1986)). The non-prevailing party must then overcome the
presumption that compensable costs and expenses should be
awarded. See Rodriguez v. Whiting Farms, Inc., 360
F.3d 1180, 1191 (10th Cir. 2004). If a court exercises its
discretion not to award certain costs, it must provide a
valid reason for its determination. See Utah Animal
Rights Coalition v. Salt Lake County, 566 F.3d 1236,
1245 (10th Cir. 2009).
Obtained For Use in this Case.
considering whether a trial transcript was “necessarily
obtained for use in this case, ” have considered
whether the transcript was necessary to counsel’s
effective performance or the court’s handling of the
case. See Burton v. R.J. Reynolds Tobacco Co., 395
F.Supp.2d 1065, 1078-79 (D. Kan. 2005) (citing 10 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 2677, at 438- 40 (3d
ed.1998). In satisfying the “necessary” standard,
the moving party need not show the transcript was
“indispensable.” Id. at 1078. Necessity
is judged at the time of the transcription. U.S. Indus.,
Inc. v Touche Ross & Co., 854 F.2d 1223, 1248 (10th
Cir. 1988), overruling on other grounds recognized by
Evans v. Loveland Automotive Investments, Inc., 632 F.
App’x 496 (10th Cir. 2015). Courts consider the
following factors in determining the “necessity”
of a transcript: how it was used during a proceeding, see
United Int’l Holdings, Inc. v. Wharf (Holdings)
Ltd., 174 F.R.D. 479, 483-84 (D. Colo. 1997); whether
the transcript was superfluous, extraneous, or merely for the
convenience of counsel, see Squires ex rel. Squires v.
Breckenridge Outdoor Educ. Center, Civil Action No.
10-cv-00309-CBS-BNB, 2013 WL 1231557, at *11 (D. Colo. Mar.
23, 2013); and the overall length, complexity, or
contentiousness of the case, see Aerotech Resources, Inc.
v. Dodson Aviation, Inc., 237 F.R.D. 659, 655 (D. Kan.
Farm contends that Plaintiff “attempts to focus too
narrowly on the trial in hindsight while failing to consider
State Farm’s full defense of this lawsuit spanning five
years, for which the transcripts appeared and were
necessarily utilized as part of the appeal in which State
Farm was ultimately found to be the prevailing party.”
[#180 at 2]. Plaintiff rebuts that use of the transcript was
not necessary to the matter before this court because
Defendant did not raise, and the Tenth Circuit did not
consider, any issues related to damages. See e.g.
[#179 at 3].
initial matter, this court respectfully disagrees with the
conclusion that the trial transcript was not necessary merely
because no issue regarding damages was raised on appeal.
Whether or not the transcript is used on appeal is simply one
factor for the court to consider. However, in reviewing the
docket as whole, this court finds that the transcripts