McCammond v. Schwan's Home Service, Inc.

Filing 114

MINUTE ORDER denying 111 Plaintiffs Motion for Court to Review Clerks Action on Defendants Bill of Costs by Magistrate Judge Michael J. Watanabe on 2/6/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02895-WJM-MJW
MICHAEL L. McCAMMOND,
Plaintiff,
v.
SCHWAN’S HOME SERVICE INC.,
Defendant.

ORDER REGARDING
PLAINTIFF’S MOTION FOR COURT TO REVIEW CLERK’S ACTION ON
DEFENDANT’S BILL OF COSTS (DOCKET NO. 111)
This matter is before the court on Plaintiff’s Motion for Court to Review Clerk’s
Action on Defendant’s Bill of Costs (docket no. 111). The court has reviewed the subject
motion (docket no. 111), and the response (docket no. 112) thereto. In addition, the
court has taken judicial notice of the court file and has considered applicable Federal
Rules of Civil Procedure and case law. The court now being fully informed makes the
following findings of fact, conclusions of law and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court finds:
1.

That I have jurisdiction over the subject matter and over the parties to
this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to be
heard;

4.

That Fed. R. Civ. P. 54(d)(1) states:
Costs Other Than Attorney’s Fees. Unless a federal
statute, these rules, or a court order provides
otherwise, costs – other than attorney’s fees- should

be allowed to the prevailing party. But costs against the
United States, its officers, and its agencies may be
imposed only to the extent allowed by law. The clerk
may tax costs on 14 days’ notice. On motion served
within the next 7 days, the court may review the clerk’s
action.
5.

That Defendant was the prevailing party on the merits and
therefore Defendant is entitled to its costs pursuant to Fed. R.
Civ. P. 54(d)(1) and Rodriguez v. Whiting Farms, Inc., 203
F.3d 1180,1190 (10th Cir. 2004). Also see Final Judgment
(docket no. 106);

6.

That the clerk considered thoroughly the Defendant’s written
itemized Bill of Costs (docket no. 107) and awarded
Defendant costs in the amount of $2,943.85. Defendant had
requested costs in the amount of $4,648.55 and the clerk
appropriately addressed Plaintiff’s argument when he
reduced the requested amount of costs sought by Defendant.
See docket no. 110. In entering the $2,943.85 in costs, the
clerk also took into consideration 28 U.S.C. §§ 1920 and
1924, Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1;

7.

That Plaintiff has failed to demonstrate that he should not be
required to pay costs and he has failed to overcome the
presumption of costs to the prevailing party under Fed. R. Civ.
P. 54(d)(1) and Mundell v. Bd. Of County Com’rs of Saguache
County, 2007 WL 1061510, *1 (D. Colo. April 5, 2007).
ORDER

WHEREFORE, based upon these findings of fact and conclusions of
law, the court ORDERS that Plaintiff’s Motion for Court to
Review Clerk’s Action on Defendant’s Bill of Costs (docket no.
111) is DENIED.

Done this 6th day of February, 2012.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE