United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Defendant's Motion
for Review of Clerk's Taxation of Costs
“Motion”). Plaintiff filed a Response [#92] in
opposition to the Motion [#89], and Defendant filed a Reply
[#96]. The Court has reviewed the Motion, the Response, the
Reply, the entire docket, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#89] is GRANTED in part and
DENIED in part.
initially asserted seven claims against Defendant, his former
employer, requesting $3.5 million in damages. See
generally Compl. [#1]. In essence, the claims centered
on discrimination, hostile work environment, and retaliatory
termination from his employment. See generally Id.
at 1. The Court dismissed one of Plaintiff's claims on
summary judgment, see [#46], and the jury found for
Defendant on four other claims, See Minute Entry
[#46]; Verdict Form [#73]. Ultimately, Plaintiff
succeeded at trial with respect to two hostile work
environment claims and was awarded $50, 000 in emotional
damages. See Verdict Form [#73]. After the trial,
the Clerk of Court awarded Plaintiff $11, 273.68 in costs.
Costs Taxed [#85]. In the present Motion [#89],
Defendant argues that the costs awarded to Plaintiff by the
Clerk of Court are excessive and requests that the Court
Civ. P. 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.” “As is apparent from the
language of Rule 54(d)(1), ‘the determination of who
qualifies as a prevailing party is central to deciding
whether costs are available.'” Barber v. T.D.
Williamson, Inc., 254 F.3d 1223, 1233-34 (10th Cir.
2001) (quoting Wright & Miller, Federal Practice
& Procedure § 2667). Generally,
“‘the litigant in whose favor judgment is
rendered is the prevailing party for purposes of Rule
54(d)(1).'” Id. at 1234 (quoting Wright
& Miller, Federal Practice & Procedure,
§ 2667) (brackets omitted).
award of costs falls within the broad discretion of the
district court, which is bounded by two principles: the
prevailing party is presumptively entitled to costs and, if
costs are denied, the district court must set forth a
‘valid reason' for the denial.” Christos
v. Halker Consulting, LLC, No. 16-cv-01838-PAB-NYW, 2019
WL 3778278, at *10 (D. Colo. Aug. 12, 2019) (citing
Cantrell v. Int'l Bhd. of Elec. Workers, AFL-CIO,
Local 2021, 69 F.3d 456, 458-59 (10th Cir. 1995) (en
banc)). However, despite the presumption that a prevailing
party is entitled to costs, the “prevailing party bears
the burden of establishing the amount of costs to
which [he] is entitled.” In re Williams Sec.
Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir.
2009) (emphasis added) (citing Allison v. Bank
One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002)).
“The amount a prevailing party requests ‘must be
reasonable.'” Id. (citing Callicrate
v. Farmland Indus., 139 F.3d 1336, 1339 (10th Cir.
1998)). “Once a prevailing party establishes [his]
right to recover allowable costs, however, the burden shifts
to the ‘non-prevailing party to overcome' the
presumption that these costs will be taxed.”
Id. (quoting Rodriguez v. Whiting Farms,
Inc., 360 F.3d 1180, 1190 (10th Cir. 2004)).
“neither side entirely prevailed, or when both sides
prevailed, or when the litigation was thought to be the
result of fault on the part of both parties, some courts have
denied costs to both sides.” Hach Co. v. In-Situ,
Inc., No. 13-cv-02201-CBS, 2016 WL 9725765, at *17 (D.
Colo. Nov. 22, 2016) (quoting Barber, 254 F.3d at
1234-35); see also Howell Petroleum Corp. v. Samson Res.
Co., 903 F.2d 778, 783 (10th Cir. 1990) (“The
court was within its discretion to refuse to award costs to a
party which was only partially successful.”);
Rogers v. United States, No. 97-2666-JWL, 2000 WL
382015, at *2 (D. Kan. Mar. 17, 2000) (denying costs to both
sides because both were partially successful). If the Court
exercises its discretion to not award costs, the Court must
state a valid reason. Zeran v. Diamond Broad., Inc.,
203 F.3d 714, 722 (10th Cir. 2000).
presents two primary arguments: (1) Plaintiff's limited
success at trial means that Plaintiff's costs should be
denied or offset, and (2) Plaintiff has not sufficiently
justified the number of copies he made or his copy rate of
$0.25 per page. Motion [#89]; Reply [#96].
The Court addresses each argument in turn.
contends that Plaintiff's costs are unreasonable because
of Plaintiff's limited success on his claims.
Motion [#89] at 4-5. Plaintiff responds that,
because he prevailed on two of the seven claims, he is the
prevailing party and therefore is entitled to costs.
Response [#92] at 4. Plaintiff asserts that forcing
him to pay for costs “would have a chilling effect on
civil rights attorneys' willingness to . . . expend
resources fighting against discrimination.”
Response [#92] at 4.
noted, the Court may reduce costs when a party is only
partially successful. Christos, 2019 WL 3778278, at
*10. Nevertheless, partial success does not automatically
overcome the presumption that the prevailing party is
entitled to costs; rather, it merely opens the door for the
non-prevailing party to “overcome [that]
presumption.” See Rodriguez, 360 F.3d at 1190
(citing Cantrell, 69 F.3d at 459).
has met his initial burden by showing he succeeded at trial
on some of his claims and by subsequently providing his Bill
of Costs [#78] and supporting documentation [#78-1] to the
Court. See Response [#92] at 5; Costs Taxed
[#85] at 1-4. The burden therefore shifts to Defendant to