Lester v. City of Lafayette, Coloardo

Filing 115

ORDER Overruling Plaintiff's 108 Objections to Costs Taxed by the Clerk. By Judge Christine M. Arguello on 08/06/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-01997-CMA-MJW
MARY LESTER,
Plaintiff,
v.
CITY OF LAFAYETTE, COLORADO,
Defendant.

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO COSTS TAXED BY THE
CLERK

This matter is before the Court on Plaintiff Mary Lester’s objections to the
$6,442.60 in costs taxed to her by the Clerk following this Court’s grant of Defendant
City of Lafayette’s motion for summary judgment. (Doc. # 108.) For the reasons that
following, Ms. Lester’s objections are overruled.
I. BACKGROUND
On February 27, 2015, this Court granted Lafayette’s motion for summary
judgment. (Doc. # 94.) After prevailing on summary judgment, Lafayette submitted a
proposed Bill of Costs on March 11, 2015, seeking $6,615.10 in taxable costs. (Doc. #
96.) On April 9, 2015, Ms. Lester filed her objections to Lafayette’s proposed Bill of
Costs challenging the attorney’s docket fees ($22.50), the charges for the rough drafts
of Ms. Lester and Troy Von Roenn’s depositions ($423.75 for the rough draft of Ms.

Lester’s deposition and $172.50 for the rough draft of Mr. Von Roenn’s deposition), and
the cost of Jeff Hansen’s deposition transcript ($242.70). (Doc. # 106.)
After reviewing Ms. Lester’s objections, the Clerk of the Court disallowed the cost
of the rough draft of Mr. Von Roenn’s deposition and taxed to Ms. Lester a total amount
of $6,442.60 in costs. (Doc. # 107.) On April 17, 2015, Ms. Lester filed her objections
to the costs taxed by the Clerk. (Doc. # 108.)
II. ANALYSIS
Ms. Lester presents to this Court the same arguments that she raised before the
Clerk (except, of course, for the argument regarding the charge for the rough draft of
Mr. Von Roenn’s deposition transcript, and Lafayette does not challenge the Clerk’s
decision to disallow this cost). Ms. Lester argues that (1) costs may not be awarded for
docket fees under 28 U.S.C. § 1923 for the filing of transcripts in connection with the
summary judgment process; (2) Lafayette is not entitled to an award of costs for the
rough draft of Ms. Lester’s deposition; and (3) the cost for defense expert Jeff Hansen’s
deposition transcript is not properly awarded as a cost.
This Court reviews de novo the decision of the Clerk regarding the taxation of
costs. See, e.g., In re Williams Sec. Litig. – WCG Subclass, 558 F.3d 1144, 1147 (10th
Cir. 2009). Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal
statute, these rules, or a court provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” However, 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), and the award of costs under Rule 54(d)(1) is limited to those costs

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specified in 28 U.S.C. § 1920, see, e.g., Sorbo v. United Parcel Service, 432 F.3d 1169,
1179 (10th Cir. 2005) (“Absent some other statutory authorization, costs available to a
prevailing party under Rule 54(d)(1) are limited to those specified in 28 U.S.C. § 1920
. . . .”). The Court has discretion to award costs under Rule 54(d), Mitchell v. City of
Moore, 218 F.3d 1190, 1204 (10th Cir. 2000), however, “[i]tems proposed by prevailing
parties as costs should always be given careful scrutiny,” In re Williams Sec. Litig., 558
F.3d at 1147 (quotation marks and citation omitted). With this in mind, the Court now
addresses each of Ms. Lester’s arguments.
1.

Costs for Docket Fees

The Clerk taxed $22.50 in costs to Ms. Lester for docket fees pursuant to 28
U.S.C. § 1923(a), which provides that an “[a]ttorney’s . . . docket fees . . . may be taxed
as costs as follows: . . . $2.50 for each deposition admitted in evidence.” The clerk
calculated the total amount to be taxed for attorney’s docket fees by multiplying $2.50
by the number of deposition transcripts filed in connection with Lafayette’s motion for
summary judgment. In making her objection to this cost, Ms. Lester focuses on the
phrase “admitted in evidence” and argues that because “said depositions were not
‘introduced into evidence,’ Defendant is not entitled to an order of costs for said fees
under 28 U.S.C. § 1923.” (Doc. # 108 at 2.) Ms. Lester also asserts that Lafayette “did
not pay anything to file its motion for summary judgment and therefore it is not entitled
to reimbursement for said ‘Docket Fees.’” (Doc. # 108 at 2.)
In response, Lafayette asserts that “[t]he District Court Clerk specifically
acknowledged during conferrals as to the City’s pending bill of costs that depositions

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cited to in a dispositive motion as an exhibit, as well as certain other documents, such
as affidavits, are considered ‘admitted’ evidence.” (Doc. # 109 at 2.) For purposes of
calculating attorney’s docket fees pursuant to 28 U.S.C. § 1923(a), this Court considers
a deposition transcript to be “admitted in evidence” if it was submitted in connection with
a successful summary judgment motion. In addition, this Court interprets 28 U.S.C. §
1923(a) to not require that the party requesting the taxation of costs actually incur any
out-of-pocket costs. Thus, this Court agrees with the Clerk that, under 28 U.S.C. §
1923(a), Lafayette is entitled to costs in the amount of $22.50 for the nine depositions
that were submitted in connection with its motion for summary judgment.
2.

Cost of Rough Draft of Ms. Lester’s Deposition Transcript

Included in the total amount of costs taxed to Ms. Lester is $2,090.00 for the
transcript of her own deposition. The invoice from Mile High Court Reporting indicates
that this amount includes $423.75 for a “rough draft” of the transcript. Ms. Lester
argues that the charge for a rough draft of the transcript should not be included in the
taxed costs because the rough draft was “not reasonably necessary for the litigation of
the claims.” (Doc. # 108 at 3 (citing Mitchell, 218 F.3d at 1204).) Ms. Lester alleges
that “[t]here was no compelling reason for Defendant to order a rough draft of Ms.
Lester’s deposition.” (Doc. # 108 at 4.)
In response, Lafayette asserts that a rough draft of Ms. Lester’s deposition
transcript was necessary because that deposition occurred “immediately preceding the
deposition of her husband, Kevin Lester, and her daughter, Kaylin Fournier.” (Doc. #
109 at 3.) Lafayette also states that “[t]he scheduling of these depositions in close

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proximity to one another was done, in large part, to accommodate Plaintiff traveling from
out of state and so that she could attend each of the depositions during one trip to
Denver.” (Doc. # 109 at 3.) Ms. Lester’s deposition was taken on December 4, 2013,
and the depositions of her husband and daughter were taken on December 6, 2013.
Lafayette asserts that “[b]ecause the depositions of Plaintiff, Ms. Fournier and Mr.
Lester were only a day apart, it was imperative for defense counsel to obtain a rough
copy of the Plaintiff’s deposition transcript and to question Ms. Fournier and Mr. Lester
regarding statements and assertions made by Plaintiff at that deposition.” (Doc. # 109
at 3-4.)
28 U.S.C. § 1920 authorizes a judge or clerk to tax as costs “fees for printed or
electronically recorded transcripts necessarily obtained for use in the case.” This Court
finds that, due to the proximity of Ms. Lester’s deposition to those of her daughter and
husband, a rough draft of her deposition was “necessarily obtained.” Thus, the $423.75
cost for the rough draft is properly taxed to Ms. Lester.
3.

Cost of Jeff Hansen’s Deposition Transcript

The Clerk also taxed $242.70 to Ms. Lester for the cost of the deposition
transcript of Jeff Hansen, Lafayette’s expert witness in government ethics. Ms. Lester
argues that Mr. Hansen’s deposition was “not reasonably necessary for the purposes of
the litigation” because “[i]t is inconceivable that a Defendant in an employment
discrimination case would need an expert to testify about why it terminated one of its
own employees.” (Doc. # 108 at 5 (emphasis in original).) Ms. Lester asserts that an
expert was not reasonably necessary in this case because: (1) Mr. Kalphake, “the

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person at Defendant purported to have been responsible for the decision to terminate
Ms. Lester’s employment, holds a master’s degree in organizations management . . .
and holds himself out as an expert in government ethics”; and (2) government ethics is
a “matter of common sense.” (Doc. # 108 at 5 (emphasis in original).)
In response, Lafayette points to the fact that Ms. Lester deposed Mr. Hansen as
proof that his testimony “was considered pertinent and/or important to the case.” (Doc.
# 109 at 5.) Lafayette also notes that “Mr. Hansen’s deposition transcript was
specifically cited to and portions [were] attached as an exhibit to the City’s summary
judgment briefing.” (Doc. # 109 at 5.)
This Court believes that a transcript of Mr. Hansen’s deposition testimony was
“necessarily obtained for use in the case.” Lafayette relied on Mr. Hansen’s testimony
to support its motion for summary, which was ultimately successful. Thus, this Court
finds that the cost of Mr. Hansen’s deposition transcript—$242.70—is properly taxed to
Ms. Lester.
III. Conclusion
Following a de novo review, this Court finds that Ms. Lester is properly taxed in
the total amount of $6,442.60 for costs incurred by Lafayette in connection with its
successful motion for summary judgment.
Accordingly, it is hereby ORDERED that Ms. Lester’s Objections to Costs Taxed
(Doc. # 108) are OVERRULED.

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DATED: August 6, 2015

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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