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Stender v. Archstone-Smith Operating Trust

United States District Court, D. Colorado

September 27, 2018

STEVEN A. STENDER, and INFINITY CLARK STREET OPERATING, L.L.C., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
ARCHSTONE-SMITH OPERATING TRUST et al., Defendants.

          ORDER AFFIRMING TAXATION OF COSTS

          William J. Martinez United States District Judge.

         Plaintiffs Steven A. Stender and Infinity Clark Street Operating, L.L.C. (together, “Plaintiffs”), brought this lawsuit as a putative class action in November 2007. It finally reached a resolution in August 2017 when the Court granted summary judgment in favor of all Defendants on all claims. See Stender v. Archstone-Smith Operating Tr., 2017 WL 3676473 (D. Colo. Aug. 25, 2017) (ECF No. 614), appeal pending, No. 17-1332 (10th Cir.). The Court awarded Defendants their costs. After a contested hearing before the Court's Chief Legal Officer, to whom taxation of costs has been delegated, the Clerk of Court taxed $418, 023.21 in favor of the Archstone Defendants[1] (ECF No. 635) and $61, 643.01 in favor of the Tishman Defendants[2] (ECF No. 633).

         Currently before the Court is Plaintiffs' Motion for Review of Clerk's Taxation of Defendants' Costs. (ECF No. 636.) The Court will uphold the Clerk's various determinations in all respects. Without question, the amount of costs taxed is eye-popping, but it is also understandable given the ten-year history of the case, with all the complexity and multiplication of proceedings that a ten-year history naturally implies. Moreover, Plaintiffs do not object to any particular line item as unreasonable, but argue only that certain categories should be completely disallowed as a matter of law or under the circumstances of this case. For the reasons explained below, the Court is not persuaded and therefore affirms the Clerk's two awards.

         I. STANDARD OF REVIEW

         “On motion served within the next 7 days [after the clerk taxes costs], the court may review the clerk's action.” Fed.R.Civ.P. 54(d)(1). “The district court's review of a clerk's order is de novo.” Faragalla v. Douglas Cnty. Sch. Dist. RE 1, 411 Fed.Appx. 140, 161 (10th Cir. 2011).

         II. ANALYSIS

         A. Costs Awarded to Archstone Defendants

          1. Costs Explicitly Available Under 28 U.S.C. § 1920

         a. Deposition & Hearing Transcripts from the Arbitration

         As described in many previous filings, the parties arbitrated one of Plaintiffs' original causes of action. See, e.g., Stender v. Archstone-Smith Operating Tr., 2017 WL 3676473, at *8-9 (D. Colo. Aug. 25, 2017) (ECF 614). The Clerk awarded $42, 781.01 for arbitration hearing transcripts and $8, 200.22 for arbitration deposition transcripts. (ECF No. 636 at 7, 12; ECF No. 640 at 7.)[3]

         “Fees for printed or electronically recorded transcripts necessarily obtained for use in the case” may be awarded as costs. 28 U.S.C. § 1920(2). Plaintiffs argue that the Archstone Defendants obtained the arbitration transcripts for use in the arbitration, not for use in this case. (ECF No. 636 at 6-7, 11-12.)

         Plaintiffs' distinction is artificial. The claim resolved through arbitration was originally brought in this lawsuit, and the arbitration was a predicate to moving on with the other claims in this lawsuit. The depositions and testimony from the arbitration likely would have been elicited through discovery in this case but for the arbitration clause, and the transcripts were indeed used in this case to assist the parties in avoiding duplicative discovery on the remaining claims. (See ECF No. 250 at 1-3; ECF No. 260 at 10; ECF No. 340 at 33-34.)

         Plaintiffs further claim that “[o]f the more than 3000 pages of hearing transcript, the parties cited lines from only sixty pages in the summary judgment filings in this Court. And of that number, the Archstone Defendants referred to a mere five pages.” (ECF No. 636 at 7.) But this is improper hindsight bias. It is not a basis to deny recovery of these costs.

         This objection is overruled.

         b. Depo ...


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