Van Stelton et al v. Van Stelton et al

Filing 294

ORDER re 288 Plaintiffs' Bill of Costs filed by Carol Van Stelton, Virgil Van Stelton, Alvin Van Stelton. I find that Sheriff Weber's deposition was necessarily obtained for use in this case and award the Van Steltons' $896.00 in deposition costs. Signed by Judge Mark W Bennett on 2/9/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
VIRGIL VAN STELTON, CAROL VAN
STELTON,
AND
ALVIN
VAN
STELTON,
No. C11-4045-MWB
Plaintiffs,
vs.
JERRY VAN STELTON, DONNA VAN
STELTON, EUGENE VAN STELTON,
GARY CHRISTIANS, DOUG WEBER,
SCOTT GRIES, NATE KRIKKE,
ROBERT E. HANSEN, DANIEL
DEKOTER,
OSCEOLA
COUNTY,
IOWA, AND DEKOTER, THOLE AND
DAWSON, P.C.

ORDER REGARDING PLAINTIFFS’
BILL OF COSTS

Defendants.
___________________________
This case is before me on plaintiffs Virgil Van Stelton, Carol Van Stelton, and
Alvin Van Stelton’s (collectively, “the Van Steltons”) Bill of Costs. Defendants Doug
Weber, Scott Gries, Nate Krikke, Robert E. Hansen, and Osceola County (collectively,
“the County defendants”) filed a resistance to the Van Steltons’ Bill of Costs. The Van
Steltons have not filed a reply.
I.

PROCEDURAL BACKGROUND

On May 11, 2011, Virgil Van Stelton and Alvin Van Stelton filed their initial pro
se Complaint. The Complaint contained: (1) claims for civil rights violations under 42
U.S.C. § 1983 by all plaintiffs; (2) claims by Virgil Van Stelton for false arrest, malicious
prosecution, and loss of consortium; and (3) claims by Virgil Van Stelton and Alvin Van

Stelton for intentional infliction of emotional distress, slander, and “interference with
Right to Petition for Redress of Grievances.” Subsequently, Virgil and Alvin amended
their Complaint to add Carol Van Stelton, Virgil’s wife, as a named plaintiff and her
claims for intentional infliction of emotional distress, loss of consortium, and slander.
After the Van Steltons retained counsel, they sought and were granted leave to file both
a Second Amended Complaint and a Third Amended Complaint. The Third Amended
Complaint added a law firm as a named defendant and contained claims for: (1) civil
rights violations under 42 U.S.C. § 1983; (2) violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq.; and (3) false arrest,
malicious prosecution, slander and libel, tortious interference with prospective business
advantage, ongoing criminal conduct, and declaratory judgment and injunctive relief.
The gist of the Van Steltons’ claims were that the defendant law firm controls
and manipulates a wide array of legal matters in Osceola County, Iowa. The law firm
allegedly maintains such control through symbiotic relationships it enjoys with the
Osceola County Attorney, defendant Robert E. Hansen, and the Osceola County Sheriff,
defendant Doug Weber. The Van Steltons also alleged a conflict between them and their
two brothers over their interests in a family trust. As part of that dispute, the Van Steltons
alleged that Sheriff Weber illegally arrested Virgil. Defendants Weber, Hansen, Scott
Gries, Nate Krikke, and Osceola County filed a motion to dismiss portions of the Third
Amended Complaint. I granted that motion in part and denied it in part. After which,
the County defendants filed their answer to the Third Amended Complaint, as well as a
counterclaim for abuse of process. The Van Steltons filed a motion to dismiss that
counterclaim, which I denied because the counterclaim adequately stated a viable abuse
of process claim under Iowa law. The County defendants then sought summary judgment
on the remaining claims asserted against them. I granted the County defendants’ motion

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for summary judgment and dismissed the remaining claims against them. The County
defendants subsequently voluntarily dismissed their counterclaim.
II.

LEGAL ANALYSIS

The Van Steltons seek to recover $896.00 as costs as the prevailing party on the
County defendants’ counterclaim. Specifically, the Van Steltons request $896.00 in
deposition expenses related to their deposition of Sheriff Weber. The Van Steltons assert
that over 50 percent of their deposition of Sheriff Weber pertained to discovery of his
factual basis for the counterclaim against them. The County defendants counter that little
of Sheriff Weber’s deposition involved questioning him about the counterclaim. Instead,
the County defendants claim that most of the questions related to the Van Steltons’ claims
and, in particular, the alleged conspiracy among the defendants. As a result, the County
defendants contend that the costs of Sheriff Weber’s deposition are not attributable to the
Van Steltons’ defense of the counterclaim and should be disallowed.
Federal Rule of Civil Procedure 54(d)(1) provides:
Unless a federal statute, these rules, or a court order provides
otherwise, costs--other than attorney's fees--should be
allowed to the prevailing party. But costs against the United
States, its officers, and its agencies may be imposed only to
the extent allowed by law. The clerk may tax costs on 14 days'
notice. On motion served within the next 7 days, the court
may review the clerk's action.
FED. R. CIV. P. 54(d)(1).
Recoverable costs are set out in 28 U.S.C. § 1920, which states:
A judge or clerk of any court of the United States may tax as
costs the following:
(1) Fees of the clerk and marshal;

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(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in
the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services
under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance,
included in the judgment or decree.
28 U.S.C. § 1920.
The Eighth Circuit Court of Appeals has explained that Rule 54(d) “represents a
codification of the ‘presumption that the prevailing party is entitled to costs.’” Greaser
v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir. 1998) (quoting Bathke v.
Casey's General Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995)); see also 168th and
Dodge, LP v. Rave Reviews Cinemas, L.L.C., 501 F.3d 945, 957 (8th Cir. 2007) (“A
prevailing party is presumptively entitled to recover all of its costs.”) (quoting In re
Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005)); Poe v. John Deere Co., 695 F.2d
1103, 1108 (8th Cir. 1982) (“Costs, unlike attorney's fees, are awarded to a prevailing
party as a matter of course, unless the district court directs otherwise; unusual
circumstances need not be present.”) (citing NOW v. Bank of California, 680 F.2d 1291,
1294 (9th Cir. 1982); Croker v. Boeing Co., 662 F.2d 975, 998–99 (3d Cir. 1981);
Johnson v. Nordstrom–Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980);
Jones v. City of San Antonio, 568 F.2d 1224, 1226 (5th Cir. 1978)). “Despite this
presumption, however, the district court has substantial discretion in awarding costs to a
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prevailing party.” Greaser, 145 F.3d at 985 (citing Zotos v. Lindbergh Sch. Dist., 121
F.3d 356, 363 (8th Cir.1997)); see also Pershern v. Fiatallis N. Am., Inc., 834 F.2d
136, 140 (8th Cir. 1987) (“[W]ithin the statutory framework of costs eligible to be taxed,
the district court has discretion in determining and awarding costs in a given case.”);
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006) (“Rule 54(d)
presumes an award of costs to the prevailing party; however, the district court has
substantial discretion in awarding costs.”) (citing Computrol, Inc. v. Newtrend, L.P.,
203 F.3d 1064, 1072 (8th Cir .2000)); Cross v. General Motors Corp., 721 F.2d 1152,
1157 (8th Cir.1983) ( “Under Rule 54(d), allocation of costs is within the sound discretion
of the trial court.”).
“Rule 54(d) is phrased in permissive terms and generally grants a federal court the
discretion to refuse to tax costs in favor of the prevailing party.” Marmo, 457 F.3d at
762; see also Cross, 721 F.2d at 1157 (The court cited the plaintiff's “limited financial
resources” as a reason to award only a partial award of costs to the defendant.). “The
‘losing party bears the burden of making the showing that an award is inequitable under
the circumstances.’” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th
Cir. 2002) (quoting In re Paoli, 221 F.3d 449, 462–63 (3d Cir. 2000)). When a district
court denies costs, it must provide a rationale for doing so. See Thompson v. Wal–Mart
Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). “A general statement of fairness is
insufficient, without more, to rebut the Rule 54(d)(1) presumption for an award of costs
to the prevailing party.” Id. For example, the Eighth Circuit Court of Appeals has
recognized that a losing plaintiff's “limited financial resources” are a reason to award
only part of the costs to the defendant, Cross, 721 F.2d at 1157, and that a district court

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may deny an award of costs in their entirety if “a plaintiff is poor or for other good
reason.” Poe, 695 F.2d at 1108.1
The County defendants concede that the voluntary dismissal of their counterclaim
without prejudice makes the Van Steltons eligible for costs under Rule 54. See Sequa
Corp. v. Cooper, 245 F.3d 1036, 1037-38 (8th Cir. 2001) (observing that “[w]e do not
read Rule 54(d)(1) as impairing the inherent authority of a trial court to award costs
incurred in defending an action prior to its voluntary dismissal by the plaintiff, even
though a voluntary dismissal without prejudice means that neither party can be said to
have prevailed.”); see also Carter v. Incorporated Village of Ocean Beach, 759 F.3d
159. 166 (2nd Cir. 2014) (“A voluntary dismissal of an action with prejudice works such
alteration, because it constitutes ‘an adjudication on the merits for purposes of res
judicata,’”) (quoting Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345
(2d Cir. 1995)); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d
1007, 1015 (7th Cir. 1985) (noting that a voluntary dismissal without prejudice renders
the opposing party a “prevailing party” within the meaning of Rule 54); Cantrell v.
International Broth. Of Elec. Workers, AFL-CIO, 69 F.3d 456, 458 (10th Cir. 1995)
(holding that “in cases not involving a settlement, when a party dismisses an action with
or without prejudice, the district court has discretion to award costs to the prevailing
party under Rule 54(d).”).
Deposition costs are unrecoverable if taken solely for discovery or investigative
purposes, rather than for use in the case. See Marmo, 457 F.3d at 762; Smith v. Tenet

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If appealed, the Eighth Circuit Court of Appeals will “review the district court's
denial of costs for abuse of discretion.” Greaser, 145 F.3d at 985 (citing Milton v. City
of Des Moines, Iowa, 47 F.3d 944, 947 (8th Cir. 1995)). However, “[a] court of appeals
lacks jurisdiction to hear an appeal where the sole issue is that the district court abused
its discretion as to the amount of costs awarded.” Poe, 695 F.2d at 1109.
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Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006); Koppinger v. Cullen-Schiltz
& Assocs., 513 F.2d 901, 911 (8th Cir. 1975); Cowden v. BNSF Ry. Co., 991 F. Supp.2d
1084, (E.D. Mo. 2014); Ryther v. KARE 11, 864 F. Supp. 1525, 1534 (D. Minn. 1994);
Chester v. Northwest Iowa Youth Emergency Ctr., 158 F.R.D. 626 (N.D. Iowa 1994);
see also Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th Cir. 1998);
Alexander Mfg., Inc. Employee Stock Ownership and Trust v. Illinois, 688 F. Supp. 1170.
1177 (D. Or. 2010); Karsian v. Inter–Fin. Group, Inc., 13 F. Supp.2d 1085, 1088 (D.
Colo. 1998); Hall v. Ohio Educ. Assoc., 984 F. Supp. 1144, 1146 (S.D. Ohio 1997).
Here, however, I conclude that Sheriff Weber’s deposition was not merely investigative
and the County defendants have not met their “burden of overcoming the presumption
that the prevailing party is entitled to costs.” Rave Reviews Cinemas, L.L.C., 501 F.3d
at 958. The Van Steltons’ counsel exhaustively examined Sheriff Weber about his
counterclaim. Thus, Sheriff Weber’s deposition clearly was “necessarily obtained for
use in the case” and the costs are recoverable pursuant to § 1920(2). Therefore, I find
that Sheriff Weber’s deposition was necessarily obtained for use in this case and award
the Van Steltons’ $896.00 in deposition costs.
IT IS SO ORDERED.
DATED this 9th day of February, 2015.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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