United States District Court, D. Colorado
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 ...