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Shabazz v. Pinnacle Credit Services LLC

United States District Court, D. Colorado

November 23, 2016

PINNACLE CREDIT SERVICES LLC, a Minnesota limited liability company, Defendant.


          William J. Martínez United States District Judge

         Plaintiff initiated this action on March 5, 2015, arising out of Defendant's alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), specifically 15 U.S.C. § 1692e(2)(A), e(8), and e(10). (ECF No. 1.) Defendant sent Plaintiff an Offer of Judgement, which Plaintiff accepted on March 18, 2016. (ECF Nos. 55, 55-1.) Judgment was entered in favor of Plaintiff on March 22, 2016. (ECF No. 57.) On April 26, 2016, costs were taxed against Defendant in the amount of $3, 362.94. (ECF No. 62.) Before the Court is Plaintiff Leona Shabazz's Motion for Attorneys' Fees, and Defendant Pinnacle Credit Services, LLC's Motion for Review of Clerk's Taxing of Costs. (ECF Nos. 59, 58.)


         A. Legal Standard

         Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorneys' fees-should be allowed to the prevailing party. Rule 54 “makes the award of costs presumptive.” Mitchell v. City of Moore, 218 F.3d 1190, 1204 (10th Cir. 2000). The final award of costs rests within the discretion of the court. Tilton v. Capital Cities ABC, Inc., 115 F.3d 1471, 1476 (10th Cir. 1997). Additionally, “[t]he party seeking an award of costs bears the burden of showing the necessity of the costs incurred.” Crandall v. City and Cnty. of Denver, 594 F.Supp.2d 1245, 1247 (D. Colo. 2009). In determining whether costs are reasonably necessary to the litigation of the case, a court must not employ hindsight but instead look at the circumstances at the time the costs were incurred. In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009).

         B. Analysis

         1. Defendant's Motion is Timely

         Plaintiff asserts that Defendant's motion is untimely and should be denied for that reason. (ECF No. 70 at 1.) Under Local Rule 5.1(d) “[t]he time to respond or reply shall be calculated from the date of electronic service, regardless of whether other means of service are used. The Notice of Electronic Filing (NEF) generated by CM/ECF constitutes a certificate of service.” D.C.COLO.CivR 5.1(d). Here, the Court's records state that the NEF was generated on 4/27/2016 at 8:50 AM MDT; thus, the date of electronic service is April 27, 2016. (ECF No. 62.) Under Rule 54(d)(1), Defendant has seven days to file a motion with the Court to review the Clerk's action. Fed.R.Civ.P. 54(d)(1). Defendant filed the instant motion on May 4, 2016, precisely seven days from the date of electronic service. (ECF No. 68.) Thus, Defendant's motion is timely.

         2. Meet and Confer Efforts Were Sufficient

         Plaintiff asserts that Defendant failed to confer with Plaintiff prior to filing its motion and should be denied for that reason. (ECF No. 10 at 2.) Under Local Rule 54.1, “[a]fter filing a bill of costs and prior to appearing before the clerk, counsel and any unrepresented party seeking costs shall file a written statement that they have conferred as to disputes regarding costs.” D.C.COLO.CivR 54.1. The Court finds that Defendant's efforts to meet and confer were previously directed at the issue now before the Court. While the Court is generally concerned with whether the efforts made were sufficiently robust and transparent, the Court finds for the purposes of the instant motion that they were adequate.

         3. Deposition Transcripts Were a Required Expenditure

         The Clerk taxed Plaintiff's deposition costs associated with the various deponents: Plaintiff Leona Shabazz, Valerie Bartosh, Jacqueline Betzold, Tonya Larkin, Gregory Gruett, and Robert Castle. (ECF No. 58). The costs at issue here involve expenses covering the transcribing of five of those depositions. (ECF No. 68 at 3.) Defendant argues that Plaintiff has made no showing that the deposition transcripts were necessarily obtained for use in the case at the time that they were ordered. (ECF No. 68 at 3-4.) The total amount objected to is $2, 612.25. (ECF No. 68 at 2.)

         Whether materials are necessarily obtained for use in the case is a question of fact. Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th Cir. 1998). When a “deposition was reasonably necessary to the litigation, the resulting costs are generally allowable.” Karsian v. Inter-Regional Fin. Grp., Inc., 13 F.Supp.2d 1085, 1088 (D. Colo. 1998). However, if the deposition was taken “simply for discovery purposes, then costs are not recoverable.” Id. In Callicrate, the court noted:

[C]aution and proper advocacy may make it incumbent on counsel to prepare for all contingencies which may arise during the course of litigation which include the possibility of trial . . . . We will not, therefore, attempt to employ the benefit of hindsight in determining whether an otherwise taxable item was necessarily obtained for use in the case. Rather, we hold that such a determination must be made based on the particular facts and circumstances at the time the expense was incurred.

139 F.3d at 1340.

         Here, Plaintiff ordered the transcripts at the time that the depositions were taken. (ECF No. 58-2.) The depositions were taken roughly two months prior to the dispositive motion deadline. (ECF No. 48). Plaintiff contends that he took the five depositions of Defendant's witnesses because “they were either disclosed by Defendant as having knowledge regarding the facts in this case and Plaintiff's FDCPA claim and/or Defendant's defenses or they were identified in response to discovery requests as having knowledge regarding the facts in this case.” (ECF No. 70 at 8.) Given that Plaintiff took these depositions just prior to the dispositive motion deadline, and that all deponents were Defendant's fact witnesses, the Court finds that the deposition transcripts for which costs were requested appear reasonably necessary for the preparation of, and use in, litigation at the time they were taken.[1]

         4. Pr ...

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