Molina v. Perez et al

Filing 117

MEMORANDUM AND ORDER denying 115 plaintiff's Motion for Review. Signed by Chief Judge J. Thomas Marten on 8/5/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACOB MOLINA,
Plaintiff,
v.

Case No. 13-1025-JTM

AGENTS GREG PEREZ and
KARL TIMMONS, in their
individual capacities,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on plaintiff Jacob Molina’s Motion for Review of
costs taxed (Dkt. 115). Plaintiff brought the underlying Bivens action against
Immigration and Customs Enforcement Agents Greg Perez and Karl Timmons alleging
unreasonable seizure and excessive use of force. Defendants prevailed on all counts at a
jury trial. They submitted a bill of costs and the clerk taxed costs of $3,918.25 against
plaintiff. Plaintiff now seeks judicial review of those costs under FED. R. CIV. P. 54(d).
I. Legal Standard
Costs, other than attorney’s fees, “should be allowed to the prevailing party”
unless otherwise provided by federal statute, these rules, or a court order. FED. R. CIV. P.
54(d)(1). The nonprevailing party may seek judicial review of costs within 7 days of the
date the clerk taxes costs. D. KAN. R. 54.1(c); FED. R. CIV. P. 54(d).

II. Analysis
A. Defendants’ motion for costs was timely.
Plaintiff argues that defendants’ motion for costs was untimely because it was
filed 31 days after entry of judgment, and “[a] plain reading of [FED. R. CIV. P. 54(d)(1)]
provides that such motion should be filed within 7 days of the entry of judgment” (Dkt.
115, at 1). Plaintiff misunderstands Rule 54(d)(1). As explained below, defendants had
60 days, not 7 days, after the entry of judgment to file a bill of costs; 7 days is the time
allowed for a nonprevailing party, such as plaintiff, to object to the clerk’s taxation of
costs.
“The party entitled to recover costs must file a bill of costs on a form provided by
the clerk . . . within 30 days after: (A) the expiration of time allowed for appeal of a final
judgment or decree . . . .” D. KAN. R. 54.1(a)(1). A notice of appeal may be filed within 30
days after entry of the judgment. FED. R. APP. P. 4(a)(1)(A). The rules therefore allotted
defendant, as the prevailing party, 60 days after the entry of judgment to file a bill of
costs.
“The clerk may tax costs on 14 days’ notice” and the court may review the clerk’s
action on motion served within 7 days thereafter. FED. R. CIV. P. 54(d)(1). Thus, plaintiff
had 7 days after the clerk taxed costs to move for judicial review thereof.
Here, judgment was entered on February 3, 2015. (Dkt. 106). Defendants, as
prevailing parties, had until April 6, 2015, to file a bill of costs with the clerk. They filed
a bill of costs on March 6, 2015, well within the time allotted.

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B. Defendants may recover costs as assessed by the clerk.
Plaintiff argues that costs were unnecessary and excessive, that defendants were
only partially successful, and that he is indigent. The court disagrees.
A prevailing party is presumptively entitled to costs. Zeran v. Diamond Broad, Inc.,
203 F.3d 714, 721-22 (10th Cir. 2000). “[T]o deny a prevailing party its costs is in the
nature of a severe penalty, such that there must be some apparent reason to penalize the
prevailing party if costs are to be denied.” Debord v. Mercy Health Sys. of Kan., Inc., 737
F.3d 642, 659 (10th Cir. 2013) (quotations omitted). Circumstances in which the court
may deny taxation of costs include:
(1) the prevailing party is only partially successful, (2) the prevailing party
was obstructive and acted in bad faith during the course of the litigation,
(3) damages are only nominal, (4) the nonprevailing party is indigent, (5)
costs are unreasonably high or unnecessary, or (6) the issues are close and
difficult.
Id. (quotations omitted).
1. Costs taxed are not unreasonably high or unnecessary.
The clerk may tax fees for materials that were “reasonably necessary for use in
the case at the time the expenses were incurred.” In re Williams Secs. Litig.-WCG Subclass,
558 F.3d 1144, 1149 (10th Cir. 2009). “Whether materials are necessarily obtained for use
in the case is a question of fact to be determined by the district court.” Callicrate v.
Farmland Indus., Inc., 139 F.3d 1336,
a. Subpoenas
The clerk awarded $70.94 in costs for six subpoenas. Defendants did not seek
costs for four subpoenas served by the United States Marshal’s Office. The evidence
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indicates that defendants incurred and paid such costs. Plaintiff argues that certain
unspecified subpoenas were unnecessary because plaintiff informed defendants that the
witnesses would appear voluntarily. Plaintiff’s assurances do not guarantee witness
attendance. A subpoena secures such assurance with the force of the court and is
reasonably necessary to ensure preparation of the case. Nor does plaintiff’s assertion
that a witness will appear voluntarily dissolve defendants’ power to secure witness
testimony through the issuance of a subpoena. See FED. R. CIV. P. 45. Defendants
reasonably incurred the cost of six subpoenas in preparing their case, and such costs
were properly taxed.
b. Deposition Transcripts
Plaintiff argues that costs taxed for deposition transcripts is excessive because
defendants did not prevail on their summary judgment motions and because the
deposition materials were only briefly used at trial. Deposition materials need not
actually be used at summary judgment or even designated for trial to justify taxation of
their cost. In re Williams, 558 F.3d at 1149. The prevailing party is not limited to “costs
only for depositions received in evidence or used by the court in ruling upon a motion
for summary judgment . . . .” Id.
Defendants sought costs for five deposition transcripts in the amount of
$2,846.17. (Dkt. 111-3). All five transcripts were utilized either at summary judgment or
trial. Defendants’ failure to succeed at summary judgment does not render them only
partially successful, and thus subject to penalty, because they prevailed fully at trial. See
Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234-35 (10th Cir. 2001).
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Plaintiff also argues that he should only be taxed $1,891.10 for the transcripts
because that is the amount he paid for copies of the same transcripts. However,
defendants incurred and paid the costs for original transcription and copies of the
depositions; plaintiff paid only for copies and not for the original transcripts.
Defendants will not be penalized for taxing actual costs incurred for reasonably
necessary materials. Defendants will recover the $2,735.35 taxed by the clerk for
deposition transcripts.
c. Witness Fee
Plaintiff further argues that it was unnecessary to pay a $40 witness fee to Mrs.
Molina, presumably because she did not request such a fee. Witness fees are recoverable
under 28 U.S.C. § 1920(3). Plaintiff does not argue that it is unreasonable to pay witness
fees. Nor does he show that Mrs. Molina refused the $40 and thus rendered taxation of
the same unnecessary or excessive. Rather, Mrs. Molina signed and dated her own
witness fee voucher. (Dkt. 111-4). Defendants incurred and paid Mrs. Molina’s statutory
witness fee. Plaintiff fails to show that defendants should be penalized for requesting
reimbursement for Mrs. Molina’s witness fee.
d. Unused Exhibits
Defendants incurred and paid $197.00 in costs for preparing copies of two
photographs as exhibits that were not used at trial. Plaintiff argues that the costs are
unnecessary because the exhibits were not used. “[T]he burden of justifying copy costs
is not a high one.” In re Williams, 558 F.3d at 1149. The costs are justified if the copies
were reasonably necessary for use in the case. Id.
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The exhibits in question were photographs of the location of the incident at issue
in the trial. It is reasonable to expect that such an exhibit may be useful during the trial.
It is further reasonable that counsel may choose not to use the exhibit as the case
unfolds at trial. Preparation of the copies was reasonably necessary, regardless of
whether they were used at trial.
e. Interpreters
Defendants incurred and paid $875 in costs for interpreters used while deposing
Spanish-speaking witnesses. Plaintiff argues that he should not pay the costs because he
is indigent and that he “should not be punished simply because some who witnessed
the events needed an interpreter.” (Dkt. 115, at 4) (emphasis added). However, he
provides no evidence that he is indigent. Instead, plaintiff argues that he is “a hardworking American” who is paid hourly wages “on the line at Boeing.” (Dkt. 115, at 2,
4). Moreover, plaintiff acknowledges that the witnesses needed interpreters. Defendants
reasonably incurred the costs of interpreters and they will be taxed to plaintiff.
Plaintiff fails to demonstrate circumstances warranting the penalization of
defendants by denying or further reducing their recovery of costs.
IT IS ACCORDINGLY ORDERED this 5th day of August, 2015, that plaintiff’s
Motion (Dkt. 115) is DENIED.

s\ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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