Cartel Asset Mgmt v. Ocwen Financial Corp, et al

Filing 882

ORDER. The Plaintiffs Motion for Judicial Review of Clerks Taxation ofCosts 863 filed 7/11/2011, is GRANTED in part. The plaintiff is AWARDED 1,853 dollars for the costs of deposition transcripts, in addition to the costs previously awarded in the Bill of Costs 856 ; otherwise, the Plaintiffs Motion for Judicial Review of Clerks Taxation of Costs 863 filed 7/11/2011, is DENIED. By Judge Robert E. Blackburn on 3/19/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 01-cv-01644-REB-CBS
CARTEL ASSET MANAGEMENT, a Colorado corporation,
Plaintiff,
v.
OCWEN FINANCIAL CORPORATION, a Florida corporation;
OCWEN FEDERAL BANK FSB, a subsidiary of OCWEN FINANCIAL CORPORATION,
and
OCWEN LOAN SERVICING, LLC, in its capacity as successor-in-interest to OCWEN
FEDERAL BANK, FSB,
Defendants.

ORDER CONCERNING MOTION FOR REVIEW
OF CLERK’S TAXATION OF COSTS
Blackburn, J.
This matter is before me on the Plaintiff’s Motion for Judicial Review of
Clerk’s Taxation of Costs [#863]1 filed July 11, 2011. The defendant filed a response
[#875], and the plaintiff filed a reply [#876]. I grant the motion in part and deny it in part.
Allowable costs are delineated by 28 U.S.C. § 1920. The burden is on the
prevailing party to establish that the expenses it seeks to have taxed as costs are
authorized by section 1920. English v. Colorado Department of Corrections, 248
F.3d 1002, 1013 (10th Cir. 2001); Griffith v. Mt. Carmel Medical Center, 157 F.R.D.
499, 502 (D. Kan. 1994). Expenses not specifically authorized by the statute are not

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“[#863]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

recoverable as costs. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
441-42, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385 (1987); Bee v. Greaves, 910 F.2d 686,
690 (10th Cir. 1990). Moreover, even where costs are allowed by statute, the prevailing
party still must demonstrate that the amount requested is reasonable. See U.S.
Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir. 1988),
overruled on other grounds as recognized by Anixter v. Home-Stake Products
Co., 77 F.3d 1215, 1231 (10th Cir. 1996).
The plaintiff, Cartel Asset Management (Cartel), asks that the court award costs
in addition to those awarded to Cartel by the Clerk of the Court in the Bill of Costs
[#856]. First, Cartel seeks an award of the cost of the deposition transcript of James
TenBrook, who was an expert witness. The invoice reflecting this cost was attached to
Cartel’s reply [#855] in support of its bill of costs, which was filed before the Clerk of the
Court evaluated Cartel’s bill of costs. The award of this transcript cost, 1,094 dollars, is
appropriate. In addition, I conclude that an award of costs for the transcripts of other
witness depositions, described in Cartel’s motion at pages 4 to 5, is appropriate also.
These transcripts were reasonably necessary to the prosecution of this case. Thus, an
award of an additional 1,853 dollars for the costs of these transcripts is appropriate.
Cartel argues also for an award of additional costs under §13-16-122, C.R.S., the
general cost shifting statute of the State of Colorado. This case is a diversity case in
which Cartel successfully litigated, under Colorado law, a theft of trade secrets claim
against the defendants. Section 13-16-122 gives a court discretion to award a variety of
costs to a successful litigant. An award of costs under this statute lies within the
discretion of the trial court. Valentine v. Mountain States Mut. Cas. Co., 252 P.3d
1182, 1188 (Colo. App. 2011).
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In Chaparral Resources, Inc. v. Monsanto Co., the United States Court of
Appeals for the Tenth Circuit held that a Colorado statute, which permitted a
discretionary award of costs, cannot properly be used as a basis for an award of costs
in a diversity case in federal court. 849 F.2d 1286, 1292-1293 (10th Cir 1988). Cartel
argues that the Tenth Circuit’s opinion in Garcia v. WalMart Stores, Inc., 209 F.3d
1170 (10th Cir. 2000), permits an award of costs under Colorado law in a case such as
the above-captioned matter. The Garcia court noted the holding in Chaparral and
compared the statutes at issue in the two cases. Garcia, 849 F.2d at 1178. The state
statute at issue in Garcia mandated an award of costs, while the state statute at issue
in Chaparral committed an award of costs to the discretion of the court. Because the
statute in Garcia was mandatory, the Tenth Circuit held that an award of costs under
the state statute was proper. Id. Contrastingly, the Garcia court noted that the state
statue at issue in Chaparral led to a different result because that statute was
discretionary rather than mandatory. Garcia, 209 F.3d at 1178.
In this case, Cartel seeks an award of additional costs under §13-16-122, C.R.S.
That statute permits a discretionary award of costs. Under Chaparral such an award is
not proper in this diversity case.
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion for Judicial Review of Clerk’s Taxation of
Costs [#863] filed July 11, 2011, is GRANTED in part;
2. That the plaintiff is AWARDED 1,853 dollars for the costs of deposition
transcripts, in addition to the costs previously awarded in the Bill of Costs [#856];

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3. That otherwise, the Plaintiff’s Motion for Judicial Review of Clerk’s
Taxation of Costs [#863] filed July 11, 2011, is DENIED.
Dated March 19, 2012, at Denver, Colorado.
BY THE COURT:

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