Murphy-Sims v. Owners Insurance Co.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR JUDICIAL REVIEW OF CLERK'S TAXATION OF COSTS

          CHRISTINE M. ARGI ELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Luzetta Murphy-Sims' Motion for Judicial Review of Clerk's Taxation of Costs (Doc. # 148). The briefing is complete. (Doc. ## 152, 154.) Having reviewed the Motion, pertinent record, and applicable law, for the following reasons, the Court GRANTS IN PART Plaintiff's Motion.

         I. BACKGROUND

         A thorough recitation of the factual background giving rise to this dispute is set forth in the Court's Order on Motions for Partial Summary Judgment (Doc. # 43). The Court will only repeat the facts as necessary to resolve the instant Motion.

         On September 5, 2018, this case was tried to a jury in which the jury returned a defense verdict. (Doc. # 133.) Pursuant to Rule 54(d), the Court awarded Defendant with its reasonable costs. (Doc. # 135); Fed.R.Civ.P. 54(d). On September 19, 2018, Defendant filed its Bill of Costs requesting $34, 406.35. (Doc. # 137.) After the Clerk of the Court held a costs hearing on October 9, 2018, the Clerk taxed the costs as follows:

Entry	Cost	Amount
1	Fees of the Clerk	$400.00
2	Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case	$4, 408.55
3	Fees and disbursements for printing	$1, 995.65
4	Fees for witnesses	$1, 893.18
5	Fees for exemplification and copies of papers necessarily obtained for use in the case	$4, 181.49
6	Costs incident to taking of depositions	$3, 234.96
7	Other costs	$3, 776.87
Total		$ 19, 890.80

         On October 16, 2018, Plaintiff filed the instant Motion seeking review of the Clerk's taxed costs, and therein, challenged the validity of entries 3, 5, 6, and 7, which amount to $9, 347.69. (Doc. # 148 at 2.) Plaintiff contends that the Court should award only $10, 543.11^[1] from the total amount of $19, 890.80. (Id. at 2.) As discussed in more detail below, Plaintiff asserts two arguments. First, Plaintiff avers that some costs were not necessarily incurred for use in the case, and therefore, are not recoverable under federal law. (Id. at 3-6.) Second, she argues that in diversity cases, federal law controls the taxation of costs, and as such, it was improper for the Clerk to award certain costs under Colorado law. (Id. at 3, 6-8.)

         Defendant filed its Response to the Motion on November 5, 2018. (Doc. # 152.) As a preliminary matter, Defendant does not dispute the reduction of the award of costs in the amount of $63.72 and $444.42 for a duplicative invoice among the copy costs. (Id. at 2, 11; Doc. # 148 at 1.) Defendant, thus, seeks an award of costs totaling $19, 382.66. (Doc. # 152 at 16.) Defendant asserts that the instant case was a complex one warranting the taxed costs because an underlying arbitration award and the relevance thereof to this litigation required review of discovery from the arbitration and present litigation. (Id. at 4-5.) Further, Defendant contends that printing and copying costs were “necessarily obtained for use in the case.” (Id. at 4-11.) Moreover, Defendant argues that, in diversity cases, federal courts can apply state costs statutes as long as federal law does not preempt such state statutes. (Id. at 2.) As such, pursuant to Colo. Rev. Stat. § 13-16-105, Defendant avers that the Clerk properly awarded deposition costs and attorney trial attendance expenses. (Id. at 11-16.)

         On November 19, 2019, Plaintiff filed her Reply to the Response. (Doc. # 154.) Therein, Plaintiff argues that the United States Court of Appeals for the Tenth Circuit's Chapparal Resources, Inc. v. Monsanto Co. decision is dispositive of the cost issues before the Court and, because Defendant failed to “address the holding of Chapparal [sic] Resources at all, ” the Court should decline to award certain costs recoverable under Colorado's costs statute. (Id. at 1.) For the following reasons, the Court adjusts the amount of costs that were taxed by the Clerk of the Court.

         II. LEGAL STANDARDS

         A. FEDERAL LAW REGARDING COSTS

         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.” Further, 28 U.S.C. § 1920 provides:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

         With respect to witness attendance fees, 28 U.S.C. § 1821 demarcates the terms and conditions upon which those fees can be awarded. “[A]ll [Section] 1920 requires is that the generation of taxable materials be reasonably necessary for use in the case at the time the expenses were incurred.” In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1149 (10th Cir. 2009) (holding that Section 1920 does not require a party to prove that depositions were used in deciding a summary judgment motion or designated for use at trial) (quotation marks omitted).

         B. COLORADO LAW REGARDING COSTS

         Colo. Rev. Stat. § 13-16-105 (“Section 13-16-105”) provides that “[i]f any person sues in any court of record in this state in any action wherein the plaintiff or demandant might have costs in case judgment is given for him and . . . a verdict is passed against him, then the defendant shall have judgment to recover his costs against the plaintiff . . . to be taxed.” (Emphasis added.) Pertinent to the present Motion, § 13-16-122 sets forth what items are includable as costs, such as “[a]ny costs of taking depositions for the perpetuation of testimony, including reporters' fees, witness fees, expert witness fees, mileage for witnesses, and sheriff fees for service of subpoenas.” Colo. Rev. Stat. § 13-16-122(1)(g). Section 13-16-122 should be construed broadly as those statutory items were intended to be “illustrative rather than exclusive[.]” Cherry Creek Sch. Dist. No. 5 v. Voelker by Voelker, 859 P.2d 805, 813 (Colo. 1993).

         C. APPLYING FEDERAL AND STATE COST STATUTES ...