Equal Employment Opportunity Commission v. RadioShack Corporation

Filing 133

ORDER denying 121 Plaintiff's Motion for Review of Clerk's Bill of Costs Determination, by Judge Lewis T. Babcock on 1/29/2014. (eseam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 10-cv-02365-LTB
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
RADIOSHACK CORPORATION
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Plaintiff’s Motion for Review of Taxation of Clerk’s Bill of
Costs Determination (Doc. # 121). After consideration of the motion, all related pleadings, and
the case file, I deny Plaintiff’s motion as set forth below.
I. Background
As the prevailing party in this case, Plaintiff sought an award of $12,241.99 in costs.
[Doc. # 112]. The Clerk taxed costs against Defendant in the amount of $8,834.34. [Doc. #
120]. Plaintiff now asks the Court to tax an additional $1,402.44 in costs against Defendant
based upon Plaintiff’s alleged costs of flying four witnesses to Denver to testify at trial. [See
Doc. # 121].

II. Legal Standard
Under federal law, 28 U.S.C. § 1920 allows the prevailing party to recover as costs:
(1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily obtained for use in the case; (3) Fees
and disbursements for printing and witnesses; (4) Fees for exemplification and
copies of papers 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.
28 U.S.C. § 1920. The Tenth Circuit has instructed that the assessment of costs rests in the
sound judicial discretion of the trial court. Allison v. Bank One-Denver, 289 F.3d 1223, 1248
(10th Cir. 2002). The court has no discretion to award items as costs that are not set out in §
1920. See Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990). The party seeking an award of
costs bears the burden of showing the necessity of the costs incurred. Allison, 289 F.3d at 1248.
Necessary expenses for witnesses who appear at deposition and/or trial, including fees
and travel expenses, are recoverable as taxable costs subject to the provisions of 28 U.S.C. §
1821. See Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 126 S.Ct. 2455,
2460, 165 L.Ed.2d 526 (2006) (“This list of otherwise recoverable costs is obviously the list set
out in 28 U.S.C. § 1920, the general statute governing the taxation of costs in federal court, and
the recovery of witness fees under § 1920 is strictly limited by § 1821, which authorizes travel
reimbursement and a $40 per diem.”); Crawford Fitting Co. v. J. T. Gibbons, Inc., 107 S.Ct.
2494, 2499 (1987) (“We hold that absent explicit statutory or contractual authorization for the
taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the
limitations set out in 28 U.S.C. § 1821 and § 1920.”). Section 1821( c )(1) provides that:

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A witness who travels by common carrier shall be paid for the actual expenses of
travel on the basis of the means of transportation reasonably utilized and the
distance necessarily traveled to and from such witness’s residence by the shortest
practical route in going to and returning from the place of attendance. Such a
witness shall utilize a common carrier at the most economical rate reasonably
available. A receipt or other evidence of actual cost shall be furnished.
28 U.S.C. § 1821(c)(1).
III. Discussion
Plaintiff seeks to recover $1,402.44 in airline transportation costs for four out-of-state
trial witnesses. Plaintiff argues that the court has the discretion to award travel expenses in
excess of 100 miles, and under that discretion the travel expenses should be awarded. [See Doc.
# 121, p.3].
Here, the Clerk awarded Plaintiff mileage fees of $0.565 per mile for 100 miles each way
for each witness. This totaled $452, or $113 per witness. Although travel costs beyond a 100
mile radius may be awarded to a prevailing party, such an award is left to my discretion. Fleet
Inv. Co., Inc. v. Rogers, 620 F.2d792, 794 (10th Cir.1980). I do not find that Plaintiff’s
arguments warrant an additional award. Instead, I choose to exercise discretion and decline to
tax Defendant an additional $1,402.44 for the travel expenses of Plaintiff’s four out-of-state trial
witnesses. The Clerk’s award of flight costs of $113 per witness based upon travel beyond a 100
mile radius each way was proper. See Moe v. Avions Marcel Dassault-Breguet Aviation, 727
F.2d 917, 936 (10th Cir. 1984) (reaffirming the court’s 100 mile rule for transportation costs of
witnesses).

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IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Review of Clerk’s Bill of Costs Determination [Doc # 121] is DENIED.

Dated: January

29 , 2014.
BY THE COURT:

s/Lewis T. Babcock
Lewis T. Babcock, Judge

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