Schudel et al v. Miller et al

Filing 152

ORDER overruling 146 Plaintiff's Objection to Taxation of Costs in Favor of Defendants Miller and Erazo. By Judge Robert E. Blackburn on 3/16/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01864-REB-KLM
JEFFREY SCHUDEL,
Plaintiff,
v.
LASALLE POLICE OFFICER DAVID MILLER, in his individual capacity,
LASALLE POLICE OFFICER VICTOR ERAZO, in his individual capacity, and
DALE PARRISH, ESQ.,
Defendants.

ORDER OVERRULING OBJECTION TO TAXATION OF COSTS
Blackburn, J.
This matter is before me on the Plaintiff’s Objection to Taxation of Costs in
Favor of Defendants Miller and Erazo [#146]1 filed April 24, 2014. The defendants
filed a response [#150]. I overrule the objections.
The plaintiff, Jeffrey Schudel, brought claims under 42 U.S.C. 1983 against
defendants David Miller, Victor Erazo, and Dale Parrish. Ultimately, the claims against
all defendants were dismissed voluntarily by Mr. Schudel. Motions to dismiss [#125 &
#126]. The claims were dismissed with prejudice, but the issue of an award of costs
and attorney fees was left open for later determination. Order [#127]. After a telephonic
hearing concerning costs, the clerk of the court awarded [#144] to defendants David

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“[#146]” 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.

Miller and Victor Erazo 3,948.53 dollars in costs, payable by the plaintiff.
The plaintiff objects to the award of costs because, the plaintiff contends,
defendants David Miller and Victor Erazo are not prevailing parties, as that term is used
in Rule 54 of the Federal Rules of Civil Procedure. Rule 54 provides that “[C]osts other
than attorneys’ fees shall be awarded as of course to the prevailing party unless the
court otherwise directs.” FED. R. CIV. P. 54(d)(1). Allowable costs are delineated by 28
U.S.C. § 1920. Addressing an award of costs after a voluntary dismissal by a plaintiff,
the United States Court of Appeals for the Tenth Circuit, sitting en banc, held “that a
defendant is a prevailing party under Rule 54 when, in circumstances not involving
settlement, the plaintiff dismisses its case against the defendant, whether the dismissal
is with or without prejudice.” Cantrell v. Int'l Bhd. of Elec. Workers, AFL-CIO, Local
2021, 69 F.3d 456 (10th Cir. 1995). The dismissal in this case did not involve a
settlement. Given the holding in Cantrell, I conclude that defendants David Miller and
Victor Erazo are prevailing parties for the purposes of an award of costs under Rule
54(d).
Addressing the issue of the motion of the defendants for an award of attorney
fees, I concluded previously that defendants David Miller and Victor Erazo are prevailing
parties in this case.
Mr. Schudel contends the defendants are not prevailing parties
and, therefore, cannot seek attorney fees under § 1988. I disagree. “The
touchstone of the prevailing party inquiry must be the material alteration of
the legal relationship of the parties in a manner which Congress sought to
promote in the fee statute.” Texas State Teachers Ass'n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). “Defeating a plaintiff on
the merits is one way to obtain [an assurance that the defendant need not
pay damages or alter its behavior], but hardly the only way. A declaration
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that the plaintiff and others like it are not even entitled to sue
accomplishes the same end, and more.” Citizens for a Better Env't v.
Steel Co., 230 F.3d 923, 929 (7th Cir. 2000) (applying 42 U.S.C. § 11046
while using standards applicable under § 1988). In this case, the
voluntary dismissal of all claims by Mr. Schudel, when approved by the
court, accomplished a material alteration in the legal relationship of the
parties after 18 months of litigation. In the context of this case, the
defendants are prevailing parties.
Order Denying Motion for Attorney Fees [#151], pp. 2 - 3. The prevailing party issue is
the only basis for the objection of the plaintiff.
THEREFORE, IT IS ORDERED that the objections stated in Plaintiff’s
Objection to Taxation of Costs in Favor of Defendants Miller and Erazo [#146] filed
April 24, 2014, are overruled.
Dated March 16, 2015, at Denver, Colorado.
BY THE COURT:

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