Alfonso v. SSC Pueblo Belmont Operating Company LLC

Filing 95

ORDER denying 94 Plaintiff's Motion for Review of Taxation of Costs. By Judge Philip A. Brimmer on 4/18/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01186-PAB-KLM
ROSANNE ALFONSO, an individual,
Plaintiff,
v.
SCC PUEBLO BELMONT OPERATING COMPANY, LLC, a Delaware limited liability
company d/b/a Belmont Lodge Health Care Center,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Motion for Review of Taxation of
Costs [Docket No. 94] filed by plaintiff Rosanne Alfonso on February 11, 2013.
Defendant SCC Pueblo Belmont Operating Company, LLC (“Belmont”) prevailed at trial
and judgment was entered in Belmont’s favor on January 11, 2013. Docket No. 90. As
the prevailing party, Belmont filed a proposed bill of costs [Docket No. 91] on January
24, 2013. On February 5, 2013, the Clerk of Court allowed certain costs [Docket No.
93] in favor of defendant in the amount of $3,366.59. On February 11, 2013, Ms.
Alfonso filed the instant motion, challenging the taxation of $800 for pre-trial preparation
services performed by the company Visual Advantage. Docket No. 94 at 1, ¶¶ 3-4.
Belmont has not filed a response.
Section 1920 of Title 28 provides that the clerk of court may tax the following
items as costs awarded pursuant to Federal Rule of Civil Procedure 54(d)(1):

(1)
(2)
(3)
(4)

(5)
(6)

Fees of the clerk and marshal;
Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
Docket fees under section 1923 of this title;
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. Taxing costs is within the discretion of the district court, which
discretion is bounded by the principle that only costs “reasonably necessary to the
litigation of the case” should be taxed. In re Williams Sec. Litig-WCG Subclass, 558
F.3d 1144, 1148 (10th Cir. 2009) (quoting Mitchell v. City of Moore, 218 F.3d 1190,
1204 (10th Cir. 2000)). The burden falls on the party seeking costs to “establish the
amount of compensable costs and expenses to which it is entitled.” Allison v. Bank
One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002). Reasonableness must be
assessed based on the “particular facts and circumstances at the time the expense was
incurred” and not with the benefit of hindsight. In re Williams, 558 F.3d at 1148.
“Courts have permitted the taxation of costs for the production of demonstrative
exhibits and visual aids as ‘exemplification and copies of papers’ under 28 U.S.C.
§ 1920(4).” Crandall v. City & Cnty. of Denver, Colo., 594 F. Supp. 2d 1245, 1251 (D.
Colo. 2009); see also Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476 (10th Cir.
1997) (“we reject a bright-line rule and instead examine whether the circumstances in a
particular case justify an award of costs for trial exhibits”). In determining whether costs
for demonstrative exhibits are reasonable, “the Court should consider whether the

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manner in which the evidence was presented was vital to its effectiveness, or whether it
was simply a convenience or extravagance.” Crandall, 594 F. Supp. 2d at 1251.
Accordingly, “information that is presented in a form that is redundant, does little to aid
in the Court’s understanding of the evidence, or could have been effectively presented
through less expensive means are not properly taxed.” Id.
Belmont’s proposed bill of costs lists $8,306.25 for “the use of visual aids at trial.”
Docket No. 91-1 at 1. Belmont submitted an invoice from Visual Advantage that
included, among other costs, $800 for pre-trial preparation, as summarized in the
following table. Docket No. 91-1 at 16.
Hrs

Date

Description

Total

1.75

1/2/2013

Pre-trial preparation - database
development - load exhibits into database
and begin quality check

$280.00

2.50

1/3/2013

Pre-trial preparation - database
development - continue to quality check
and [de-skew] exhibits, load
demonstratives into database

$400.00

0.75

1/4/2013

Pre-trial preparation - database
development - load additional and
replacement exhibits, finalize quality
check of database and new exhibits

$120.00

Total Pre-Trial Preparation Due

$800.00

Instead of the $8,306.25 requested by Belmont for visual aids, the Clerk permitted only
the recovery of the $800.00 billed by Visual Advantage for trial preparation. Docket No.
93 at 2.
Ms. Alfonso argues that Belmont did not carry its burden of demonstrating that
the $800.00 paid to Visual Advantage to prepare a database of demonstrative exhibits
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was reasonably necessary to the litigation. See In re Williams, 558 F.3d at 1148. Ms.
Alfonso stresses that no special effects were required that could not have been
rendered by the Court’s ELMO system. Docket No. 94 at 3-4. In addition, she argues
that the Visual Advantage bill does not fall within the list of taxable items in 28 U.S.C.
§ 1920. Id. at 3.
The cost for preparing demonstrative exhibits falls within 28 U.S.C. § 1920(4).
See Crandall, 594 F. Supp. 2d at 1251. The information that defendants presented
using the Visual Advantage system was not redundant and aided the Court and the jury
in understanding the nature of Ms. Alfonso’s responsibilities as an employee, Belmont’s
responsibilities in caring for residents, and the details of Belmont’s investigation. See
Crandall, 594 F. Supp. 2d at 1251. It was not unreasonable for Belmont to assume that
the jury may expect a visual presentation of the evidence and for Belmont to provide
that in an easily accessible mode. The Court finds that the use of Visual Advantage
was reasonably necessary at the time the expense was incurred. See In re Williams,
558 F.3d at 1148. In addition, the sum taxed, one tenth of the total amount requested
for visual aids, is reasonable in light of the service provided. Accordingly, it is
ORDERED that Plaintiff’s Motion for Review of Taxation of Costs [Docket No. 94]
is DENIED.

DATED April 18, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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