BOKF, N.A. v. BCP Land Company et al
ORDER DENYING re 360 Proposed Bill of Costs filed by Zepol Industries, LLC, Timothy Jury, Jack H. Redwine, BCP Land Company, Jury Industries, LLC, Philip Lopez. Each party shall bear its own costs of litigation. Signed on 10/11/16 by District Judge M. Douglas Harpool. (View, Pat)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
BCP LAND COMPANY, LLC, et al.,
Case No. 6:14-03025-CV-S-MDH
ORDER ON COSTS
Before the Court is Defendants’ Proposed Bill of Costs (Doc. 360). Defendants claim that
they are the prevailing party and are entitled to costs, pursuant to Federal Rule of Civil Procedure
54(d). Plaintiffs object, arguing that Defendants did not prevail and that, even if they did,
Defendant’s proposed bill of costs was untimely and should be denied. (Doc. 363). Defendants
respond that the issue of timeliness is within this Court’s discretion and that they did prevail
because the bulk of the judgment favored Defendants. (Doc. 367).
Before the Court may act, it must have jurisdiction over the issue. On September 21,
2016, Defendants filed a Notice of Appeal seeking review of the substantive determinations
made in the Court’s judgment. (Doc. 371). “Generally, an appeal to the circuit court divests the
district court of jurisdiction as to those issues involved in the appeal.” In re Grand Jury
Subpoenas Duces Tecum, 85 F.3d 372, 375 (8th Cir. 1996). However, “[i]t is well established
that a district court retains jurisdiction over collateral matters, such as attorneys' fees and costs
while an appeal is pending.” Exec. Air Taxi Corp. v. City of Bismarck, N.D., 2006 WL 3544386,
*1 (D. N.D. Nov. 7, 2006) (citing Peters v. Jax, 187 F.3d 829, 833 n.2 (8th Cir. 1999)). The
matter of costs was not within the scope of the notice of appeal. Thus, this Court retains
jurisdiction over the matter of costs.
Defendants’ claim they are the prevailing party, and their argument is founded on the
notion that they won more individual battles than Plaintiff and received more money from the
judgment than Plaintiff. (Doc. 367). Thus, they should be declared the prevailing party. (Doc.
367). It is true that if one were to tally the various issues put before the Court, Defendants would
have more points to their name. Additionally, Defendants received awards of damages and
retained more money in their coffers than Plaintiff. However, Plaintiff did not walk away from
the trial empty-handed. It succeeded in receiving a judgment declaring that it did not have to pay
certain funds, and that it would be entitled to replenishment of its funds, if necessary.
“Where each of the parties has prevailed on one or more of its claims, defense[s] or
counterclaims, the district court has broad discretion in taxing costs.” Johnson v. NordstromLarpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980) (citing Cornwell Quality Tools Co.
v. C.T.S. Co., 446 F.2d 825, 833 (9th Cir. 1971) (“The district court has broad discretion in
apportioning and taxing costs where, as here, neither party completely prevailed.”)).
In light of the fact that neither party completely prevailed on its claims, and each party
obtained some piece of the pie they sought, the Court concludes that neither party has prevailed
for purposes of awarding costs under Rule 54(d). Therefore, Defendant’s Proposed Bill of Costs
is denied (Doc. 360).
For the foregoing reasons, the Court DENIES Defendants’ Proposed Bill of Costs.
(Doc. 360). Each party shall bear its own costs of litigation.
IT IS SO ORDERED:
Date: October 11, 2016
/s/ Douglas Harpool_____________
UNITED STATES DISTRICT JUDGE
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