Pompeo v. Board of Regents of the University of New Mexico et al
MEMORANDUM OPINION AND ORDER granting 59 Opposed MOTION for Bill of Costs by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 1:13-CV-00833 MCA/CG
BOARD OF REGENTS OF THE UNIVERSITY
OF NEW MEXICO; CAROLINE HINKLEY,
in her individual capacity; and SUSAN DEVER,
in her individual capacity,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Motion for Costs submitted
by Defendants Board of Regents of the University of New Mexico, Caroline Hinkley, and
Susan Dever. [Doc. 59] The Court has considered the parties’ submissions and the
relevant law, and is otherwise fully informed. For the following reasons, the Court
GRANTS Defendants’ Motion.
Plaintiff Monica Pompeo filed a complaint in July 2013 alleging violations of her
First Amendment rights and seeking damages and declaratory relief. [Doc. 1] After
Defendants removed the matter to this Court, she filed an amended complaint in
November, 2013. [Doc. 11] This Court denied the Defendants’ Motion to Dismiss [Doc.
27], but granted the Defendants’ Motion for Summary Judgment on the grounds that 1)
the law was not clearly established at the time and, therefore, Hinkley and Dever were
entitled to qualified immunity, 2) the University of New Mexico was immune from suit
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under the Eleventh Amendment, and 3) “[a] declaratory judgment is not available simply
to proclaim liability for a past act.” [Doc. 57 (internal quotation marks and citation
omitted)] Plaintiff appealed to our Tenth Circuit, which affirmed in a published opinion
issued on March 28, 2017. Pompeo v. Bd. of Regents of the Univ. of New Mexico, 852
F.3d 973 (10th Cir. 2017).
Defendants, as the prevailing party, now move the Court to order Plaintiff to pay
their costs in the amount of $1,196.03. [Doc. 59] These costs were incurred for 1) the
United States District Court filing fee and 2) transcripts for depositions of Hinkley and
Dever. [Doc. 59]
Rule 54 of the Federal Rules of Civil Procedure provides, in pertinent part, that
“[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.” Fed.R.Civ.P. 54(d)(1).
While the decision to award or deny costs remains within the district court’s discretion,
Rule 54 creates a presumption that costs will be awarded, and “[t]hus the established rule
is that costs are generally awarded to the prevailing party.” Rodriguez v. Whiting Farms,
Inc., 360 F.3d 1180, 1190 (10th Cir. 2004). Given this presumption, denial of costs to the
prevailing party is a “severe penalty” which must be justified by “some apparent reason
to penalize the party.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1526-27 (10th Cir. 1997).
The Tenth Circuit has explained that “a civil rights litigant should look to the
general federal statutory entitlement for court costs under [28 U.S.C.] § 1920.” English
v. Colorado Dept. of Corrs., 248 F.3d 1002, 1012 (10th Cir. 2001). That statutory
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section allows for “[a] judge or clerk of any court of the United States [to] tax as costs . . .
fees for exemplification and copies of papers necessarily obtained for use in the case
. . . .” 28 U.S.C. § 1920(4) (listing fees for “printed or electronically recorded transcripts
necessarily obtained for use in the case” and “[f]ees of the clerk” as allowable costs).
Local Rule 54 works in conjunction with Fed.R.Civ.P. 54, as well as § 1920, and
reads as follows:
A motion to tax costs must be filed and served on each party within thirty
(30) days of entry of judgment. Failure to file and serve within this time
period constitutes waiver of a claim to costs. The motion must comply with
the requirements of D.N.M.LR-Civ. 7 and must include:
an itemized cost bill documenting costs and including receipts as
required by rule or statute; and
a party’s affidavit that the costs are allowable by law, correctly
stated and necessary to the litigation.
D.N.M.LR-Civ. 54.1. These requirements have been met by Defendants. [Doc. 59-1 to
In Callicrate v. Farmland Indus., Inc., the Tenth Circuit considered when an item
is “necessarily obtained for use in the case[:]”
“Necessarily obtained” does not mean that the materials obtained added to
the convenience of the parties or made the task of the trial judge easier, and
the “most direct evidence of ‘necessity’ is the actual use of materials
obtained by counsel or by the court.” However, if materials are reasonably
necessary for use in the case although not used at trial, the court is
nonetheless empowered to find necessity and award costs.
139 F.3d 1336, 1340 (10th Cir. 1998) (internal citations omitted). Additionally, “it is
ordinarily best to judge reasonable necessity under § 1920 in light of the facts known to
the parties at the time the expenses were incurred . . . .” Id.
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It is the non-prevailing party’s burden to demonstrate that the presumption in favor
of costs should be overcome. Rodriguez, 360 F.3d at 1190. The award or denial of costs
is within this Court’s discretion. Id.
Although she acknowledges that Rule 54 creates a presumption in favor of
awarding costs to the prevailing party, Plaintiff argues that costs should not be taxed
because “Plaintiff’s claims were of public importance and the issues in the case were
close and complex.” [Doc. 62, pg. 1] She points to Tenth Circuit case law stating that
costs should be denied “when the prevailing party was only partially successful, when
damages were only nominal, when costs were unreasonably high or unnecessary, when
recovery was insignificant, or when the issues were close or difficult.”
Sagamore Ins. Co., 618 F. App’x 423, 425 (10th Cir. 2015) (internal quotation marks and
citation omitted). [Doc. 62, pg. 2] In this case, she contends, the fact that this Court
relied on case law published during the pendency of the case demonstrates that the issues
were “close and difficult.” [Doc. 62, pg. 2] Indeed, the “intervening law change” here
caused the Court to “reexamine its ruling on qualified immunity.” [Doc. 62, pg. 2; Doc.
57, pg. 15]
While the Court agrees that this matter involves issues of importance, it finds that,
on balance, such considerations do not outweigh the presumption that Defendants are
entitled to costs. Nor is there any reason to penalize Defendants by denying their request.
In addition, while the First Amendment and its protections are of public importance, this
Court’s summary judgment ruling, and the subsequent holding by the Tenth Circuit,
turned on the issue of whether the law was settled in that area. Thus, the issue at the
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heart of the rulings is substantially narrower than Plaintiff suggests. Moreover, “a civil
rights plaintiff is not entitled to heightened protection from taxation of costs pursuant to §
1920.” English, 248 F.3d at 1013. Moreover, the amount requested is unlikely to have a
“chilling effect” on future plaintiffs seeking to vindicate First Amendment rights. See
U.S. ex rel. Pickens v. GLR Constructors, Inc., 196 F.R.D. 69, 77 (S.D. Ohio 2000)
(denying a motion for costs, in part because “there would be a significant ‘chilling effect’
on future relators if this [r]elator is assessed the more than $34,000 in costs . . . because
they may be persuaded from bringing complex and expensive [False Claims Act]
actions”). Finally, the amount at issue is relatively small ($1,193.03) and Plaintiff does
not argue that she will suffer significant hardship if it is assessed. See Ass’n of MexicanAm. Educators v. State of California, 231 F.3d 572, 593 (9th Cir. 2000) (affirming the
denial of costs because, inter alia, the plaintiffs’ “resources [we]re limited” and “costs in
this case [we]re extraordinarily high”); Bryant, 618 F. App’x at 426 (stating that “a court
may consider indigent circumstances”).
For the foregoing reasons, the Court GRANTS Defendants’ Motion for Costs
SO ORDERED this 17th day of July, 2017.
M. CHRISTINA ARMIJO
Chief United States District Judge
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