United States District Court, D. Colorado
ORDER DENYING DEFENDANT CHP'S MOTION FOR
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE.
the Court is Defendant Correctional Health Partners,
Inc.'s (“CHP”) Motion for Award of Costs (the
“Motion”) seeking costs as the prevailing party
under Federal Rule of Civil Procedure 54(d). (ECF No. 216.)
Plaintiff John Michael Broadus (“Plaintiff”)
opposes the Motion on the grounds that it is procedurally
improper and deficient, and because costs are not warranted.
(ECF No. 217.) For the reasons discussed below, the Court
denies the Motion.
a prisoner in the custody of the Colorado Department of
Corrections (“CDOC”), alleged various violations
of his constitutional rights by CHP as well as various CDOC
employees and officials (“CDOC Defendants”). CDOC
contracts with CHP to “review and provide prior
authorization for medical care to be provided to CDOC inmates
outside the internal CDOC medical system.” (ECF No. 114
at 2, ¶ 1.)
2017, CHP moved for summary judgment in its favor. (ECF No.
114.) After briefing was complete, the Court ordered
Plaintiff to submit a surreply to address a document which
CHP disclosed for the first time as an attachment to its
reply brief. (ECF No. 156 at 1-2.) The Court subsequently
granted CHP's Motion for Summary Judgment in February
2018. (ECF No. 162.)
3, 2018, following the resolution of Plaintiff's
remaining claims against the CDOC Defendants, the Court
issued an order directing final judgment in favor of CHP.
(ECF No. 211.) While the order granting summary judgment as
to CHP was silent on costs, the July 3, 2018 order directed
Plaintiff and CHP to bear their own costs. (ECF Nos. 162
54(d)(1) and D.C.COLO.LCiv R 54.1 govern the taxation of
costs other than attorney's fees. “Rule 54 creates
a presumption that the district court will award costs to the
prevailing party.” Cantrell v. Int'l Bhd. of
Elec. Workers, AFL-CIO, Local 2021, 69 F.3d 456, 459
(10th Cir. 1995). The burden is on the non-prevailing party
to offer reasons to overcome the presumption in favor of the
prevailing party. Id.; Rodriguez v. Whiting
Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004).
preliminary matter, the Court notes the parties'
disagreement about the proper procedure for challenging the
Court's prior order directing the parties to bear their
own costs. (See ECF No. 211.) Plaintiff contends
that CHP was obligated to file both a motion for
reconsideration instead of a motion for costs and, within
fourteen days of entry of the judgment, a bill of costs
pursuant to D.C.Colo.LCiv.R. 54.1. (ECF No. 218 at 2-3.)
Indeed, litigants before the undersigned previously followed
that procedure when contesting a denial of costs. Chimney
Rock Pub. Power Dist. v. Tri-State Generation &
Transmission Ass'n, Inc., 2014 WL 2619532, at *2,
2014 U.S. Dist. LEXIS 80021, at *4-5 (D. Colo. June 12,
2014). CHP argues that Rule 54, not a motion for
reconsideration under Rule 59 or otherwise, is the
appropriate vehicle for seeking costs in this circumstance.
(ECF No. 220 at 1-2.) It also contends that, where the
availability of costs is disputed, it is proper to file a
motion for costs prior to submitting a bill of costs.
(Id. at 2.) See Grady v. Garcia, 2012 U.S.
Dist. LEXIS 74383, at *1 (D. Colo. May 30, 2012);
Holderbaum v. United States, 589 F.Supp. 107, 113
(D. Colo. 1984).
Court need not resolve these procedural disputes. Even under
the standard most favorable to CHP and least advantageous to
Plaintiff-Rule 54's standard that a non-prevailing party
must offer reasons rebutting the presumption in favor of
awarding costs to the prevailing party-the Court agrees with
Plaintiff that costs should not be awarded in this case
because the litigation presented “close and
difficult” issues and Plaintiff has limited financial
means. See Rodriguez, 360 F.3d at 1190;
Cantrell, 69 F.3d at 459.
Award of Costs
district court exercises its discretion not to award costs to
a prevailing party, it must provide a valid reason.
Cantrell, 69 F.3d at 459. A court may deny costs to
a prevailing party when the party was only partially
successful; the prevailing party was obstructive or acted in
bad faith during the course of the litigation; damages are
only nominal; the issues are “close and
difficult”; or the costs sought are unreasonably high
or unnecessary. Id.
other factors may also play a role in a decision to deny
costs. The indigence of a non-prevailing party may be a
factor in denying costs, but is not necessarily dispositive.
Jorgensen v. Montgomery, 2009 WL 1537958, at *1 (D.
Colo. May 31, 2009); Basanti v. Metcalf, 2016 WL
879616, at *2 (D. Colo. Mar. 8, 2016) (finding that the court
was within its discretion to deny an award of costs where
plaintiff established her indigence); see also
Rodriguez, 360 F.3d at 1190 (“Other circuits have
recognized that the indigent status of the non-prevailing
party and the presentation of issues that are close and
difficult are both circumstances in which a district court
may properly exercise its discretion under Rule 54(d) to deny
costs to a prevailing party.” (internal quotation marks
omitted)). In addition, one decision from this District has
stated that “whether the court has specifically