Miller v. Kastelic et al

Filing 211

ORDER. It is hereby ORDERED that Plaintiff's Objections to Bill of Costs (Doc. # 202 ) are OVERRULED and his request for a stay of the award of costs is DENIED WITHOUT PREJUDICE. Plaintiff's request, in the Motion for Court Review of Bill of Costs (Doc. # 207 ), to vacate the award of costs is DENIED. By Judge Christine M. Arguello on 02/05/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-02677-CMA-MEH
LARRY C. MILLER,
Plaintiff,
v.
CAPTAIN KASTELIC,
DANIEL REIMER,
LT. RIDGWELL, and
INVESTIGATOR BROWNSTEIN,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTIONS (# 202) AND DENYING
REQUEST TO VACATE IN # 207
This matter is before the Court on Plaintiff’s Objections to Bill of Costs and
Motion for Waiver of Costs (Doc. # 202) and Motion for Court Review of Bill of Costs
(Doc. # 207). Because it was reasonable and necessary for Defendants to obtain a
copy of Plaintiff’s deposition transcript and make copies, Plaintiff’s Objections are
overruled; and the Motion is denied.
I.

BACKGROUND

On May 23, 2014, the Court entered an order adopting and affirming the April 3,
2014 Recommendation of United States Magistrate Judge Hegarty that summary
judgment be granted in favor of Defendants Kastelic and Ridgwell (“Defendants”). (Doc.

# 185.) After prevailing on summary judgment, Defendants filed a proposed Bill of
Costs seeking $1,187.07 in taxable costs on June 23, 2014. (Doc. # 199.) On July 3,
2014, Plaintiff filed his Objections to Bill of Costs. (Doc. # 202.) Plaintiff objected to the
costs associated with Defendants conducting his deposition ($517.50), telephone calls
($12.15), copies ($214.70), and the travel expenses incurred when Defendants traveled
to retrieve Plaintiff’s file at the Colorado Department of Corrections ($133.33). (Id.)
Following the filing of Plaintiff’s objections, on July 16, 2014, the parties attended
a telephonic hearing with the Clerk of the Court. During this hearing, the Clerk removed
the fees associated with the telephone calls, Pacer filing fees, and the travel expenses
incurred when Defendants traveled to retrieve Plaintiff’s file. The Clerk awarded
$946.15 as taxable costs. (Doc. # 205.) On July 23, 2014, Plaintiff filed his Motion for
Review of Bill of Costs, in which Plaintiff requested the award of costs for his deposition
transcript be vacated. (Doc. # 207.)
II.

ANALYSIS

Because the Clerk removed the fees associated with the telephone calls and the
expenses incurred when Defendants traveled to retrieve Plaintiff’s file, the Court need
not address Plaintiff’s objections concerning those costs. The Court will address
Plaintiff’s objections regarding the costs for Plaintiff’s deposition transcript and copies
made during the case.

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1.

DEPOSITION TRANSCRIPT
Plaintiff argues that the award of costs for his deposition should be vacated as it

was purely investigatory and not necessary to argue whether a motion for summary
judgment should be granted.1 (Doc. # 207.) Defendants assert that Plaintiff’s
deposition transcript “was a key, if not the key, piece of evidence” used to support
Defendants’ motion for summary judgment. (Doc. # 208.)
Pursuant to Fed.R.Civ.P. 54(d)(1), courts should award costs other than
attorney’s fees to a prevailing party. The Tenth Circuit has held that Rule 54 creates a
presumption in favor of awarding costs—even when the prevailing party is a defendant
in a civil rights case. Mitchell v. City of Moore, 218 F.3d 1190, 1204 (10th Cir. 2000).
Only costs that are “reasonably necessary” for litigation are taxable. See Furr v. AT & T
Techs., Inc., 824 F.2d 1537, 1550 (10th Cir. 1987). The Court has discretion to award
costs under the Rule. See Mitchell, 218 F.3d at 1205. When determining costs related
to summary judgment, one indication whether a cost is reasonably necessary is whether
the parties or the court actually used the item in deciding the motion for summary
judgment. See Merrick v. Norther Nat. Gas Co., 911 F2.d 426, 435 (10th Cir. 1990). “As
to the cost of Plaintiff[’]s deposition transcript, there are few, if any, situations in which a
defendant’s costs from taking a plaintiffs deposition in a private suit between individual
litigants would not be reasonably necessary for use in the case.” Dawson v. Johnson,

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Plaintiff’s citation to Rayburn v. Wady Indus., Inc., No. C07-1008, 2008 WL 4643947 (N.D. Iowa Oct. 17,
2008) is misplaced as Rayburn concerned the issue of whether court reporter fees associated with a
deposition were “necessarily obtained for user in the case.”

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No. 03-CV-0466ZLW, 2007 WL 1670355, at *1 (D. Colo. June 6, 2007) (internal
quotation marks omitted).
The Court finds that it was reasonable and necessary for Defendants to obtain a
copy of Plaintiff’s deposition transcript in this case. Both parties cited to Plaintiff’s
deposition in their summary judgment briefings and Defendants assert it “was a key, if
not the key, piece of evidence” used to support their motion for summary judgment.
Thus, the Court finds that the taxation of costs related to Plaintiff’s deposition is entirely
appropriate. 2
2.

COPIES
Plaintiff next objects to being charged for copies in the amount of $214.70

because he claims “there certainly were not over 2000 pages of copies provided[;] and
Defendants have not itemized how they came up with any of the figures requested.”
(Doc. # 202.) Defendants assert that the costs submitted in their Cost and Expense
History (Doc. # 204-1), which includes copying charges, “were necessarily incurred.”
(Doc. # 204.)
Section 1920 allows the Court to tax “[f]ees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the
case.” 28 U.S.C. § 1920(4). As with other costs, defendants bear the burden of
demonstrating that the requested copies were “reasonably necessary for use in the

2

Plaintiff confuses Defendants’ Reply in Support of their Bill of Costs for an Amended Bill of Costs.
Because there was no Amended Bill of Costs submitted by Defendants, the Court need not address
Plaintiff’s assertion that “by not serving him a proper and timely Amended Bill of Costs, that the action
was in fact untimely and should result in the entire award of costs being reversed.” (Doc. # 207.)

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case.” In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1149 (10th Cir. 2009)
(citation omitted).
In Defendants’ Bill of Costs, they claim that the $214.70 was the total amount for
“[a]ll relevant copies made throughout the duration of the case.” (Doc. # 199.) Although
Defendants do not specify all the documents that were copied, the Tenth Circuit does
not require justification for each copy that is made, and it does “not think that the burden
to justify copies is a high one.” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1259
(10th Cir. 1998). Moreover, Defendants seek reimbursement at the rate of only ten
cents per copy, which the Court finds to be reasonable.
Plaintiff further requests that any award of costs be stayed pending appeal as he
is indigent and will have sufficient difficulty paying the filing fees associated with his
appeal. (Doc. # 202, ¶ 4.) However, he has filed no supersedeas bond pursuant to
Fed.R.Civ.P. 62(d). Therefore, Plaintiff’s request is denied without prejudice. See
Dawson v. Johnson, No. 03-CV-0466ZLW, 2007 WL 1670355, at *1 (D. Colo. June 6,
2007).
Accordingly, it is hereby ORDERED that Plaintiff’s Objections to Bill of Costs
(Doc. # 202) are OVERRULED and his request for a stay of the award of costs is
DENIED WITHOUT PREJUDICE. It is
FURTHER ORDERED that Plaintiff’s request, in the Motion for Court Review of
Bill of Costs (Doc. # 207), to vacate the award of costs is DENIED.
DATED: February

05

, 2015
BY THE COURT:
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_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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