United States District Court, D. Colorado
M.T., by and through his parent and next friend, LISA W., Plaintiffs,
DENVER PUBLIC SCHOOL DISTRICT, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's Motion for
Entry of Final Judgment [Docket No. 18]. The Court has
jurisdiction over this lawsuit pursuant to 28 U.S.C. §
filed this lawsuit on February 12, 2018 seeking a preliminary
mandatory injunction requiring defendant to provide plaintiff
M.T. with two Cued Language Transliterators
(“CLTs”) for a school trip to Japan on March 6,
2018. Docket No. 1 at 1-2. Plaintiffs argued that the failure
to provide two CLTs would violate plaintiff M.T.'s rights
under Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131-12134, and
section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
See generally Docket No. 6. After an evidentiary
hearing on February 26, 2018, the Court denied
plaintiffs' request for a preliminary injunction, finding
that plaintiffs had failed to establish a substantial
likelihood of success on the merits of their claims. Docket
No. 16; Docket No. 17 at 162:25-163:3. On April 16, 2018,
defendant moved for entry of final judgment on the ground
that “the effect of the Court's [preliminary
injunction] order was to deny all relief Plaintiff was
seeking in this civil action.” Docket No. 18 at 2,
¶ 3. Plaintiffs filed a response to defendant's
motion on April 30, 2018. Docket No. 19. Plaintiffs do not
object to the entry of final judgment, but argue that
“[a]n award of costs is not appropriate” because
a “defendant is only entitled to costs under the ADA if
the plaintiff's actions were meritless, groundless, or
without foundation.” Docket No. 19 at 2, 3,
¶¶ 4, 6, 9.
state, Docket No. 19 at 2, ¶ 6, that the allocation of
costs in this case is governed by § 12205 of the ADA,
which provides that “the court or agency, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee, including
litigation expenses, and costs.” 42 U.S.C. §
12205. The Tenth Circuit has held that fee-shifting in ADA
cases is governed by the same standards applicable to fee
awards under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-5(k). Roe v. Cheyenne Mountain Conference
Resort, Inc., 124 F.3d 1221, 1232 (10th Cir. 1997)
(perceiving no “basis for any argument” that a
“plaintiff proceeding under the ADA should be treated
any differently from a plaintiff claiming a fee award under
Title VII or section 1988”). In Christiansburg
Garment Co. v. Equal Employment Opportunity Commission,
434 U.S. 412 (1978), the Supreme Court held that a district
court may only “award attorney's fees to a
prevailing defendant in a Title VII case upon a finding that
the plaintiff's action was frivolous, unreasonable, or
without foundation.” Id. at 421. While the
Tenth Circuit has determined that this standard
“applies as well to the recovery of attorney's fees
by prevailing defendants in ADA actions, ” Twilley
v. Integris Baptist Med. Ctr., Inc., 16 Fed.Appx. 923,
926 (10th Cir. 2001) (unpublished), plaintiffs seek to extend
Christiansburg to apply to an award of costs in an
ADA action. The Court finds such an extension unwarranted.
does not expressly address the issue of costs. See
434 U.S. at 421. 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 attorney's fees - should be allowed to the
prevailing party.” The Tenth Circuit has stated that
Rule 54 “makes the award of costs presumptive”
and has rejected the argument that the “presumption in
favor of costs should be relaxed when the prevailing party is
the defendant in a civil rights case.” Mitchell v.
City of Moore, Okla., 218 F.3d 1190, 1204 (10th Cir.
2000); see also Johnson v. Oklahoma ex rel. Univ. of
Okla. Bd. of Regents, 229 F.3d 1163, 2000 WL 1114194, at
*3 (10th Cir. Aug. 7, 2000) (unpublished table decision)
(upholding presumption in favor of awarding costs to
prevailing defendants in ADA retaliation case). Although the
Tenth Circuit has not specifically addressed whether
Christiansburg creates a heightened standard for the
award of costs in Title VII or ADA lawsuits, courts in other
circuits have generally declined to extend the Supreme
Court's holding in that manner. See, e.g.,
Cosgrove v. Sears, Roebuck & Co., 191 F.3d 98,
101-02 (2d Cir. 1999) (declining to apply
Christiansburg's heightened standard to the
assessment of costs); Lewis v. N.L.R.B., 750 F.2d
1266, 1279 (5th Cir. 1985) (rejecting argument that
Christiansburg's holding that
“attorney's fees should be awarded a
prevailing defendant only where the suit is frivolous”
also applies to the award of costs); Alvarez v. Sch. Bd.
of Broward Cty., Fla., 2016 WL 10518749, at *2 (S.D.
Fla. Nov. 21, 2016) (concluding that “taxation of costs
in ADA cases is governed by Rule 54(d), not by § 12205
or the Christiansburg standard”), report
& recommendation adopted, 2016 WL 10519180 (S.D.
Fla. Dec. 12, 2016); King v. Mansfield Univ. of Pa.,
2015 WL 871693, at *5-6 (M.D. Pa. Feb. 27, 2015) (holding
that “the taxation of costs in a civil action involving
Title VII, the ADA, or the Rehabilitation Act need not be
restricted to cases where the Plaintiff's claims are
frivolous, unreasonable, or without foundation”).
least one court has reached the opposite conclusion with
respect to fee-shifting under the ADA. In Brown v. Lucky
Stores, Inc., 246 F.3d 1182 (9th Cir. 2001), the Ninth
Circuit held that, “[b]ecause § 12205 makes fees
and costs parallel, . . . the Christiansburg test
also applies to an award of costs to a prevailing defendant
under the ADA.” Id. at 1190. After the Ninth
Circuit's decision, however, the Supreme Court held that
a federal statute displaces Fed.R.Civ.P. 54(d)(1)'s
standards for awarding costs only if the statute is
“contrary” to the Rule. Marx v. General
Revenue Corp., 568 U.S. 371, 377 (2013). The Supreme
Court explained that “[a] statute providing that
‘the court may award costs to the prevailing
party,' . . . is not contrary to the Rule” because
it does not limit the court's discretion to award costs.
Id. at 378.
undermines the Ninth Circuit's holding in Brown
because, like the statute at issue in Marx, the
ADA's fee-shifting provision contains permissive language
that does not limit a court's discretion to award costs.
See 42 U.S.C. § 12205 (providing that courts
“may allow the prevailing party . . . a reasonable
attorney's fee, including litigation expenses, and
costs”); Marx, 568 U.S. at 380 (holding that
statute was not “contrary” to Fed.R.Civ.P. 54
where it provided that “the court may award to the
defendant attorney's fees reasonable in relation to the
work expended and costs”). Thus, Rule 54(d)(1), not
§ 12205 or Christiansburg, governs the award of
costs in this case. See Jacobson v. City of West Palm
Beach, 2017 WL 6366791, at *2 (S.D. Fla. Aug. 1, 2017)
(declining to follow Brown in light of the fact that
“the provision for costs in § 12205 is
substantially similar to the provision that Marx
held does not displace Rule 54(d)”); Webster v. Bd.
of Supervisors, 2016 WL 4467750, at *3 (E.D. La. Aug.
24, 2016) (“Because Section 12205 is not contrary, it
does not ‘provide otherwise,' and Rule 54(d)(1)
governs the allocation of costs in this case.”).
Rule 54(d)(1) makes the award of costs presumptive, and
plaintiffs make no other argument as to why an award of costs
would be inappropriate, the Court finds that defendant is
entitled to recover its costs by filing a Bill of Costs with
the Clerk of the Court. Wherefore, it is
that Defendant's Motion for Entry of Final Judgment
[Docket No. 18] is GRANTED. It is further
that the complaint [Docket No. 5] is dismissed. It is further
that, within 14 days of the entry of this Order, defendant
may have its costs by filing a Bill of Costs with the Clerk
of the Court. It is further
that this case is closed.