Nesbitt v. FCNH, INC et al

Filing 123

ORDER granting 120 Motion for Review of Relief From Taxation of Costs. Amended Final Judgment to issue. by Judge R. Brooke Jackson on 10-17-17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-00990-RBJ
RHONDA NESBITT, individually, and on behalf of all others similarly situated,
Plaintiff,
v.
FCNH, INC.,
VIRGINIA MASSAGE THERAPY, INC.,
MID-ATLANTIC MASSAGE THERAPY, INC.,
STEINER EDUCATION GROUP, INC.,
STEINER LEISURE LTD.,
SEG CORT LLC, d/b/a as the “Steiner Education Group”,
Defendants.

Order re Costs

On March 2, 2017 the Court entered its final judgment dismissing all claims asserted by
the plaintiffs in this case with prejudice. As the prevailing parties, defendants were awarded
their reasonable costs to be taxed by the Clerk pursuant to Fed. R. Civ. P. 54(d)(2) and
D.C.COLO.LCivR 54.1. ECF No. 107.
On March 16, 2017 defendants filed their Bill of Costs seeking an award of $5,982.04.
ECF No. 113. An amended Bill of Costs was filed on April 19, 2017 decreasing the amount
requested to $5,757.86. ECF No. 117. On April 26, 2017 the Clerk taxed costs in favor of the
defendants in the amount of $4,873.31. ECF No. 119. On May 1, 2017 plaintiff filed the
pending “Motion for Review of and Relief From Taxation of Costs.” ECF No. 120. It became
ripe for review upon the filing of plaintiff’s reply on June 1, 2017. ECF No. 122. Meanwhile
the case has been appealed and is pending in the Tenth Circuit.

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The Clerk disallowed every item in defendants’ amended bill of costs except costs
incident to the taking of depositions. See ECF No. 119 at 2. These were the reporter’s charges
for 14 transcripts, including the deposition of Ms. Nesbitt and at least five of the opt-in plaintiffs.
Id. Plaintiffs do not contend that the costs were not incurred, or that they were unreasonable in
amount. Rather, plaintiff argues that she is indigent and unable to afford the costs, and that the
issues addressed in the case were close and difficult. ECF No. 120 at 4-6.
“Rule 54 creases a presumption that the district court will award costs to the prevailing
party.” Cantrell v. International Brotherhood of Electrical Workers, AFL-CIO, Local 20121, 69
F.3d 456, 459 (10th Cir. 1995). This Court must provide a valid reason for not awarding costs to
a prevailing party. Id. However, indigency is a factor that the court can consider. Id. (citing
Burroughs v. Hills, 741 F.2d 1525, 1542 (7th Cir. 1984, cert. denied sub nom Burroughs v.
Pierce, 471 U.S. 1099 (1985)). Another factor is whether the issues are close and difficult. Id.
(citing White & White, Inc. v. American Hosp. Supply Co., 786 F.2d 728, 730 (6th Cir. 1986)).
Defendants do not dispute Ms. Nesbitt’s claim of indigency. I also find that the issues in
in the case are close and difficult. How do rules forged in cases involving interns or trainees in a
business translate to the educational environment? Where does one draw the line between
necessary clinical education and unpaid work that benefits the facility with no significant
additional benefit to the student? My decision in this case was by no means easy or obvious.
The issue posed by the pending motion is also close and difficult. Individuals who
launch a class action lawsuit should know that the suit will cause the defendants to incur
significant costs. Here, the amount of costs is not huge in the abstract, but it is huge to an
indigent person. Does such a person who agrees to serve as the named plaintiff in a commercial
class action actually appreciate the potential liability she faces? I suspect that it might be

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difficult to find a willing plaintiff if the potential for disaster were fully understood. And, if a
willing plaintiff could not be found in such circumstances, then a case like this one on behalf of a
group of newly-minted massage therapists would never get off the ground. In my view, the
issues raised in this case deserved to be heard. Moreover, while not a factor as such, the huge
disparity in economic circumstances between Ms. Nesbitt and the defendants assures me that
exercising discretion in favor of a waiver of costs in this specific case would not work an
economic hardship on the defendants.
Having reflected on these issues, my judgment in this particular case is that the costs
should be waived.
ORDER
Accordingly, plaintiff’s motion for review of and relief from taxation of costs is
GRANTED. The Clerk’s taxation of costs is vacated. An Amended Final Judgment will issue
reflecting that each party will bear her or its own costs.
DATED this 17th day of October, 2017.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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