Jones et al v. BNSF Railway Company
MEMORANDUM AND ORDER denying 59 Motion for Review of Clerk's Taxation of Costs. Signed by Chief District Judge Julie A Robinson on 7/19/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN JONES AND NICK HODGES,
Case No. 14-2616-JAR-KGG
BNSF RAILWAY COMPANY,
MEMORANDUM AND ORDER
Plaintiffs sued Defendant BNSF Railway Company (“BNSF”) under the Federal Railroad
Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. Defendant prevailed on summary judgment
and submitted a bill of costs and the clerk taxed costs of $3151.32 against Plaintiffs (Doc. 57).
This matter is before the Court on Plaintiffs’ Motion for Review of Clerk’s Taxation of Costs
(Doc. 59) under Fed. R. Civ. P. 54(d). As explained below, Plaintiffs’ motion is denied.
Under Fed. R. Civ. P. 54(d), “costs should be allowed to the prevailing party.” Such
costs may include the expenses provided under 28 U.S.C. § 1920:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are 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.
The Court’s award of costs is discretionary, and its “discretionary power ‘turns on
whether or not the costs are for materials necessarily obtained for use in the case.’”1 The
prevailing party bears the burden of showing the amount of costs to which it is entitled, which
must be reasonable.2 “Once a prevailing party establishes its right to recover allowable costs,
however, the burden shifts to the ‘non-prevailing party to overcome’ the presumption that these
costs will be taxed.”3
Transcript and copy costs under § 1920(2) and (4) must be “necessarily obtained for use
in the case.” Under this standard, the materials must be “reasonably necessary to the litigation of
the case.”4 These costs are not recoverable if they “merely ‘added to the convenience of
counsel’ or the district court.”5 “Materials produced ‘solely for discovery’ do not meet this
threshold.”6 However, the Tenth Circuit acknowledges that materials may still be taxable even if
they are not “strictly essential” to the Court’s “resolution of the case.”7 If a transcript or copy
was “offered into evidence,” was “not frivolous,” and was “within the bounds of advocacy,” then
costs may be appropriately taxed.8 The Court evaluates the reasonableness of the expense at the
time it was incurred.9 Thus, “[i]f ‘materials or services are reasonably necessary for use in the
Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002).
In re Williams Sec. Litig.-WCG Subclass, 588 F.3d 1144, 1148 (10th Cir. 2009).
Id. (citation omitted).
Id. (quoting Mitchell v. City of Moore, 218 F.3d 1190, 1204 (10th Cir. 2000)).
Id. at 1147 (quoting U.S. Indus., Inc. v. Touche Ross & Co, 854 F.2d 1223, 1245 (10th Cir. 1988)).
Id. at 1148 (quoting Furr v. AT&T Techs., Inc., 824 F.2d 1537, 1550 (10th Cir. 1987)).
Id. (quoting Furr, 824 F.2d at 1550).
Id. (quoting Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th Cir. 1998)).
case,’ even if they are ultimately not used to dispose of the matter, the district court ‘can find
necessity and award the recovery of costs.’”10
Plaintiffs object to the Clerk’s award of costs on the following grounds: (1) the language
of the FRSA is silent as to whether costs may be awarded to a prevailing defendant; (2) the costs
were incurred before Plaintiffs utilized the provision in the FRSA allowing them to bring an
action at law for de novo review in federal district court; and (3) the costs requested are not
reasonable and lack appropriate documentation.
Plaintiffs first object to BNSF’s costs because the language of the FRSA is silent as to
whether costs may be awarded to a prevailing defendant. The FRSA states that “an employee
prevailing in [an enforcement action] shall be entitled to all relief necessary to make the
employee whole.”11 Such relief includes “litigation costs, expert witness fees, and reasonable
attorney fees.”12 Although the FRSA is silent as to the award of costs to prevailing defendants,
the Supreme Court has held that statutory silence “does not displace the background rule that a
court has discretion to award costs.”13 In Marx v. General Revenue Corp., the Court addressed
the question of whether fees could be awarded to a prevailing defendant pursuant to Rule
54(d)(1) when § 1692k(a)(3) of the Fair Debt Collection Practices Act (“FDCPA”) expanded the
costs awarded to prevailing plaintiffs, but was otherwise silent as to the award of costs to a
prevailing defendant.14 The Court explained that “[a] number of statutes state simply that the
Id. (quoting Callicrate, 139 F.3d at 1339).
49 U.S.C. § 20109(e)(1).
Id. § 20109(e)(2)(c).
Marx v. Gen. Revenue Corp., 568 U.S. 371, 380 (2013).
Id. at 373–80.
court may award costs in its discretion,” but that “[s]uch a provision is not contrary to rule
54(d)(1) and does not displace the court’s discretion under the Rule.”15 The Court concluded that
a statute “provides otherwise” for purposes of Rule 54(d) only if it is literally contrary to the rule,
in the sense that it constricts the discretion that the rule recognizes.16 The Marx rule has been
applied to similar language in other statutes.17
The Court agrees with BNSF that the Supreme Court’s reasoning in Marx applies here.
Like the FDCPA, the FRSA awards fees to prevailing employers only if a case “is frivolous or
has been brought in bad faith.”18 This confirms “the background rule,”19 and the statute’s silence
regarding costs in non-frivolous cases is not “contrary” to Rule 54(d)(1)’s presumption, nor does
it limit the court’s discretion in that area.20 Plaintiffs’ objection on this ground is overruled.
B. Administrative Proceedings
28 U.S.C. § 1920 states that a prevailing party may recover “[f]ees for printed or
electronically recorded transcripts necessarily obtained for use in the case.” The Tenth Circuit
has explained the prevailing party may recover only those transcript costs that are “‘reasonably
necessary to the litigation of the case.’”21
Plaintiffs object on the grounds that BNSF’s costs are not recoverable as they were all
incurred in a preceding administrative proceeding before the Secretary of Labor. BNSF does not
Id. at 378 (quoting 10 J. Moore, Moore’s Fed. Practice § 54.101[c], at 54–159 (3d ed. 2012)).
See Lochridge v. Lindsey Mgmt. Co., 824 F.3d 780, 782 (8th Cir. 2016) (FLSA); Leimkuehler v. Am.
United Life Ins. Co., 713 F.3d 905, 915 (7th Cir. 2013) (ERISA).
49 U.S.C. § 42121(b)(3)(C).
Marx, 568 U.S. at 378.
Id. at 1173–74. See Armstrong v. BNSF Ry. Co., No. 12-cv-7962, 2016 WL 7240751, at *3 (N.D. Ill.
Dec. 15, 2016) (applying Marx rule to prevailing defendant in FRSA action).
In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009) (quoting Mitchell v. City
of Moore, 218 F.3d 1190, 1204 (10th Cir. 2000)).
dispute that the costs were incurred before Plaintiffs utilized the relevant provisions of the
FRSA. Specifically, § 20109(d)(3) gives a plaintiff the option to bring the same FRSA claim
that he filed with the Secretary of Labor in an original action at law or equity for de novo review
in the appropriate district court of the United States, if the Secretary of Labor has not issued a
final decision within 210 days after the filing of the complaint.22 On December 8, 2014,
Plaintiffs utilized their option to file their FRSA claims in the United States District Court for the
District of Kansas. In other words, Plaintiffs could not have utilized this option without first
pursuing their claims administratively. Plaintiffs cite no authority for their claims that BNSF is
not entitled to the costs it incurred while defending the administrative proceedings that were a
necessary precursor to the claims before this Court. Moreover, the deposition transcripts at issue
were cited and attached as exhibits to BNSF’s memoranda in support of its motions for summary
judgment on Plaintiffs’ claims as well as its reply to Plaintiffs’ response in the briefing before
this Court.23 There is nothing in the record to suggest that the transcripts were used for a dual
purpose between the administrative and district court proceedings. This Court’s order granting
BNSF summary judgment cites the deposition testimony of every witness for which BNSF now
requests costs.24 Accordingly, the Court finds that the deposition transcripts were reasonably
necessary for the litigation of this case.25
49 U.S.C. § 20109(d)(3).
Docs. 17, 20, 29.
See Copar Pumice Co., Inc. v. Morris, No. 07-0079 JB/ACT, 2012 WL 2383667, at *29 (D.N.M. June 13,
2012) (allowing costs for transcripts from administrative hearing related to 1983 action). The Court notes that
Defendant supplemented its Motion for Costs with documentation verifying certain depositions in its reply brief.
Doc. 51, Ex. A. While Plaintiffs are correct that this documentation should have been included with the initial
memorandum in support of costs pursuant to D. Kan. R. 54.1(a)(2)(C), Plaintiffs do not make any substantive
objections to the content and do not cite authority justifying denial of the requested costs on this basis.
C. McKinley Subpoena
Finally, Plaintiffs object to the cost for the subpoena of Ted McKinley because he was an
employee of BNSF and therefore under the control of Defendant. As Plaintiffs’ Exhibit 6 shows,
however, McKinley was the local chairman of the machinist union, and testified that his duties
were to uphold the union contract between BNSF and his union. BNSF contends that as part of
their collective bargaining agreement, union employees must be served with a subpoena from
their employer. As such, the subpoena for McKinley was a necessary cost. Plaintiffs do not
dispute McKinely’s status or provide legal authority for their objection, which is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Review
of Clerk’s Taxation of Costs (Doc. 59) is DENIED.
IT IS SO ORDERED.
Dated: July 19, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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