Custard v. Allred et al

Filing 426

ORDER Granting 374 Motion for Review of Taxation of Costs. In addition to the costs awarded by the clerk in the Bill of Costs [# 373 ], which totaled 570.25 dollars, the defendants are awarded additional costs in the total amount of 454.25 dollars. The total award of costs to the defendants is 1,024.50 dollars. By Judge Robert E. Blackburn on 09/12/2017. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02296-REB-CBS
BOB CUSTARD,
Plaintiff,
v.
DAVID ALLRED,
YVETTE BROUILLET-FETTERHOFF,
BUREAU OF PRISONS,
CHAVEZ,
CORDOVA,
ENCARANANZE,
FIEF,
ANDREW FENLON,
B. KASDON,
KOCH-COULTER,
PATRICIA RANGEL,
PAUL ZOHN, and
ZONNO,
Defendants.

ORDER GRANTING MOTION FOR REVIEW OF TAXATION OF COSTS

Blackburn, J.
The matter before me is the Motion to Review Clerk’s Award of Fees Under
Fed. R. Civ. P. 54(d)(1) (Doc. 373) [#374]1 filed October 25, 2016. The plaintiff filed a
response [#378], and the defendant filed a reply [#379]. I grant the motion.
Allowable costs are delineated by 28 U.S.C. § 1920. The burden is on the
prevailing party to establish that the expenses it seeks to have taxed as costs are

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“[#374]” 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.

authorized by § 1920. English v. Colorado Department of Corrections, 248 F.3d
1002, 1013 (10th Cir. 2001); Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499,
502 (D. Kan. 1994). Expenses not specifically authorized by the statute are not
recoverable as costs. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
441-42 (1987); Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990). Moreover, even
when costs are allowed by statute, the prevailing party still must demonstrate that the
amount requested is reasonable. See U.S. Industries, Inc. v. Touche Ross & Co.,
854 F.2d 1223, 1245 (10th Cir. 1988), overruled on other grounds as recognized by
Anixter v. Home-Stake Products Co., 77 F.3d 1215, 1231 (10th Cir. 1996).
The defendants are the prevailing parties in this case. Addressing the Bill of
Costs [#373] of the defendants, the clerk of the court awarded copying costs for 2,281
pages of discovery provided to the plaintiff by the defendants, at the rate of 25 cents per
page. However, the clerk did not award costs for copying papers served on the plaintiff
by the defendants. Under Fed. R. Civ. P. 5, all filings made by the defendants in this
case must be served on the plaintiff. Electronic service on the plaintiff is not possible
because the plaintiff is incarcerated. Thus, the defendants served the plaintiff with
copies of the filings of the defendants by mailing paper copies of these filings to the
plaintiff, as permitted by Fed. R. Civ. P. 5(b)(2)(C). In addition, the clerk did not award
costs for copying of papers undertaken by the defendants in order to comply with an
order of the court. On March 14, 2016, the court ordered counsel for the defendant to
provide the court with a copy of the documents shown at [#257-3 & #257-4]. Minutes
[#309], p. 2.

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28 U.S.C. § 1920(4) provides that costs may be awarded for “the costs of making
copies of any materials where the copies are necessarily obtained for use in the case.”
“The most direct evidence of ‘necessity’ is the actual use of materials obtained by
counsel or by the court.” U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223,
1246 (10th Cir. 1988), overruled on other grounds as recognized by Anixter v.
Home-Stake Products Co., 77 F.3d 1215, 1231 (10th Cir. 1996). In this case, it was
necessary for the defendants to make copies of all papers for service on the plaintiff.
Given the circumstances, making copies and serving the plaintiff by mail was the most
efficient way to serve the plaintiff. Further, when the court ordered the defendants to
provide additional copies to the court, it was undoubtedly necessary for the defendants
to comply with this order and make copies for the court. Given these necessities, the
defendants are entitled to an award of costs for these copies. A copying charge of 25
cents per page, as suggested by the defendants, is reasonable.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion to Review Clerk’s Award of Fees Under Fed. R. Civ. P.
54(d)(1) (Doc. 373) [#374] is granted;
2. That in addition to the costs awarded by the clerk in the Bill of Costs [#373],
which totaled 570.25 dollars, the defendants are awarded additional costs in the total
amount of 454.25 dollars, which is comprised of
a. 387.50 dollars for copies prepared to permit service on the plaintiff by
mail of filings made by the defendants; and

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b. 66.75 dollars for copies provided to the court, as required by court
order; and
3. That the total award of costs to the defendants is 1,024.50 dollars.
Dated September 12, 2017, at Denver, Colorado.
BY THE COURT:

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