Myers v. Koopman

Filing 263

ORDER granting 248 Motion for Review of Taxation of Costs. By Judge Robert E. Blackburn on 9/3/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-02802-REB-MEH
JEREMY C. MYERS,
Plaintiffs,
v.
BRIAN KOOPMAN, Detective in the Loveland, Colorado Police department, in his
individual capacity,
Defendants.

ORDER GRANTING MOTION FOR REVIEW OF TAXATION OF COSTS

Blackburn, J.
The matter before me is the Defendant’s Motion for Review of Clerk’s
Taxation of Costs [#248]1 filed November 27, 2012. The plaintiff filed a response
[#250], and the defendant filed a reply [#254]. I grant the motion.
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 § 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
recoverable as costs. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
441-42 (1987); Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990). Moreover, even

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“[#248]” 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.

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 defendant is the prevailing party in this case. Addressing the defendant’s
Bill of Costs [#246] filed November 16, 2012, the clerk of the court disallowed costs
incurred for preparation of deposition transcripts obtained for use in the case
($2,711.40), appearance and mileage fees for deposition witnesses ($184.30), and the
cost of serving a deposition subpoena on a witness ($25.00). The clerk declined to
award these amounts as costs on the ground that they were not necessarily obtained
for use in the case because they were not utilized in connection with defendant’s
successful motion for judgment on the pleadings. Bill of Costs [#247] filed November
21, 2012.
Although the clerk’s standard may be “narrower than section 1920" requires, it is
not necessarily an abuse of discretion to employ such a measure of costs. Merrick v.
Northern Natural Gas Co., Division of Enron Corp., 911 F.2d 426, 434 (10th Cir.
1990); Hernandez v. George, 793 F.2d 264, 268-69 (10th Cir. 1986). Moreover, “[t]he
most direct evidence of ‘necessity’ is the actual use of materials obtained by counsel or
by the court.” U.S. Industries, Inc., 854 F.2d at 1246. On the other hand, actual use in
a motion presented to the court does not define the absolute outer limit of necessary
costs. See Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1205 (10th Cir. 2000)
(“[I]t would be inequitable to essentially penalize a party who happens to prevail on a

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dispositive motion by not awarding costs associated with that portion of discovery which
had no bearing on the dispositive motion, but which appeared otherwise necessary at
the time it was taken for proper preparation of the case.”) (quoting Callicrate v.
Farmland Industries, Inc., 139 F.3d 1336, 1341 (10th Cir. 1998)).
This case was resolved on a motion for judgment on the pleadings. While that
motion was pending, the defendant reasonably made efforts to depose the parties, the
expert witnesses designated by the plaintiff, and other witnesses tied to this case.
Ultimately, the information obtained in those depositions was not used in the motion that
led to the resolution of this case. Still, given the circumstances at the time the
defendant took the depositions in question, those depositions were reasonably
necessary for use in the case. Given these circumstances, I find and conclude that the
costs incurred by the defendant for preparation of deposition transcripts, for appearance
and mileage fees for deposition witnesses, and for service of a deposition subpoena on
a witness all are within the costs taxable under § 1920.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendant’s Motion for Review of Clerk’s Taxation of Costs
[#248] filed November 27, 2012, is GRANTED;
2. That in addition to the costs awarded by the clerk in the Bill of Costs [#247],
the defendant is AWARDED additional costs in the total amount of $2,920.70, which is
comprised of:
a. $2,711.40 for preparation of deposition transcripts obtained for use in
the case;

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b. $184.30 for appearance and mileage fees for deposition witnesses;
and
c. $25.00 for service of a deposition subpoena on a witness.
Dated September 3, 2013, at Denver, Colorado.
BY THE COURT:

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