United States District Court, D. Colorado
STEVEN A. STENDER, and INFINITY CLARK STREET OPERATING, L.L.C., on behalf of themselves and all others similarly situated, Plaintiffs,
ARCHSTONE-SMITH OPERATING TRUST et al., Defendants.
ORDER AFFIRMING TAXATION OF COSTS
William J. Martinez United States District Judge.
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 (ECF No. 635) and $61,
643.01 in favor of the Tishman Defendants (ECF No. 633).
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.
STANDARD OF REVIEW
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).
Costs Awarded to Archstone Defendants
Costs Explicitly Available Under 28 U.S.C. §
Deposition & Hearing Transcripts from the
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
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.)
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.)
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
objection is overruled.