Nixon v. Enterprise Car Sales Company et al

Filing 100

OPINION, MEMORANDUM AND ORDER re: 97 ORDERED that Defendant Enterprise's Motion for Bill of Costs is GRANTED, and costs shall be taxed against Plaintiff Nixon in the amount of THREE THOUSAND TWO HUNDRED TWENTY-NINE DOLLARS AND SIXTY-SIX CENTS ($3,229.66). Signed by Honorable Henry E. Autrey on 5/30/12. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SARAH B. NIXON,
Plaintiff,
v.
ENTERPRISE CAR SALES CO.,
Defendant.

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No. 4:09CV1896 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Enterprise Car Sales Co.’s
(“Enterprise”) Motion for Bill of Costs [ECF. No 97]. Plaintiff Sarah B. Nixon
(“Nixon”) filed a response in opposition to the Motion [ECF No. 98], and Enterprise
filed a reply to Nixon’s response [ECF No. 99]. For the reasons set forth below,
Enterprise’s Motion for Bill of Costs is granted.
Facts and Background
Nixon filed suit against Enterprise for violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq. (Count I) and Missouri Merchandising
Practices Act (“MPA”), § RSMO 407.010, et seq. (Count II).1 On October 13, 2011,
the Court ordered summary judgment in favor of Enterprise. On December 8, 2011,
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Enterprise had filed counterclaims alleging breach of contract and
negligent misrepresentations; however, those claims have since been dismissed
without prejudice. See ECF No. 95.

Enterprise filed its Bill of Costs motion that is now before the Court. Enterprise
requests that the Court tax its Bill of Costs in the amount of $3,220.66 against Nixon
and include such amount in the judgment. Enterprise contends that the sole costs it
seeks to recoup are the costs associated with (i) the video depositions of the parties
and the deposition of Nixon’s expert; and (ii) printing and duplication costs for
copies that were necessarily obtained for use in this case.
Discussion
Enterprise, as the prevailing party at trial, seeks reimbursement for the amount
of costs it incurred pursuant to Rule 54(d)(1) of the Federal Rules of Civil
Procedure, which provides “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs–other than attorney’s fees–should be allowed to the
prevailing party.” Additionally, Section 1920 of Title 28 provides in relevant part:
A judge or clerk of any court of the United States may tax as costs the
following:
(1) Fees of the clerk and marshal;
(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.
(Emphasis added)
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Plaintiff Nixon contends that under the FCRA, in order for a prevailing
party to be awarded costs, the Court must find that the opposing party’s claim
was filed in bad faith. Specifically, Plaintiffs argue that pursuant to the
FCRA, specifically § 1681n(c) and § 1681o(b), upon a court’s finding “that
an unsuccessful pleading, motion, or other paper filed in connection with an
action under this section was filed in bad faith or for purposes of harassment,
the court shall award to the prevailing party attorney’s fees reasonable in
relation to the work expended in responding to the pleading, motion, or other
paper.” In reliance of her position, Nixon cites to the Ninth Circuit’s decision
in Rouse v. Law Offices of Rory Clark, 603 F.3d 699 (9th Cir. 2010). In
Rouse, the court held that a “prevailing defendant cannot be awarded costs
under the FDCPA unless the plaintiff brought the action in bad faith and for
the purposes of harassment.” Id. at 701.
The Court is not persuaded by Plaintiffs’ argument. As Defendant
properly points out, this case contained FCRA and MPA claims. Just as the
Tenth Circuit held in Marx v. General Revenue Corp., 668 F.3d 1174 (10th
Cir.(Colo.) 2011), the Ninth Circuit’s Rouse opinion is unpersuasive and
inapplicable here. An award of costs under 54(d) is presumptive. Id. at 1182.

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“Parties are well aware of this and it is common for parties settling a case to
insert the phrase ‘each party to bear its own costs.’” Id. Without this common
agreement, however, to deny the prevailing party its costs is in the nature of a
punishment. Absent some specific statutory guidance, it does not seem
proper to hold that a party should be penalized for proving it committed no
violation of law. Id. As such, the Court finds that the FCRA is not a federal
statue discussed in Rule 54(d)(1) of the Federal Rules of Civil Procedure that
preempts its applicability.
Accordingly,
IT IS HEREBY ORDERED that Defendant Enterprise’s Motion for
Bill of Costs is GRANTED, and costs shall be taxed against Plaintiff Nixon
in the amount of THREE THOUSAND TWO HUNDRED TWENTY-NINE
DOLLARS AND SIXTY-SIX CENTS ($3,229.66).
Dated this 30th day of May, 2012.

____________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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