Valencia v. The Board of Regents, University of New Mexico et al

Filing 237

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack re: 233 MOTION for Bill of Costs Defendants' Motion for Review of Clerk's Order Settling Costs.. (bc)

Case 1:17-cv-00509-RB-SCY Document 237 Filed 12/15/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER VALENCIA,
Plaintiff,
v.

No. CIV 17-0509 RB/SCY

THE BOARD OF REGENTS, University of New
Mexico, ROBERT FRANK, in his individual capacity,
CHAOUKI ABDALLAH, in his individual capacity,
CAROL PARKER, in her individual capacity, MARK
PECENY, in his individual capacity, LES FIELD, in
his individual capacity, RONDA BRULOTTE, ERIN
DEBENPORT, LINDSAY SMITH, FRANCIE CORDOVA,
in her individual capacity, LAURA LYNN BUCHS, in
her individual capacity, HEATHER COWAN, in her
individual capacity, AARON JIM, in his individual capacity,
ALEXANDRA TACEA, KAYLA AHMED, DANIELLE
KABELLA, JOE SCEARCE, LAURA MORRIS, JULIA
FULGHUM, in her individual capacity, ALBERT SENA,
DENNIS OLGUIN, and SARAH LEISTER,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Review of Clerk’s Order Settling
Costs, filed on August 6, 2020. (Doc. 233.) Having considered the submissions of counsel and
relevant law, the Court GRANTS the motion.
I.

Background
On May 14, 2020, the Court granted in part two of Defendants’ motions for summary

judgment, dismissing with prejudice Mr. Valencia’s federal claims. (See Doc. 220 at 17–18.) The
Court declined to exercise supplemental jurisdiction over the remaining state law claims and thus
denied as moot the remainder of those two motions as well as a third motion for summary
judgment. (See id.) Denying the remaining pending motions as moot, the Court then dismissed the

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case. (See id. at 18.) Mr. Valencia has appealed the Court’s decision (along with an earlier decision
granting a motion to dismiss) to the Tenth Circuit. (Doc. 224.)
On June 1, 2020, Defendants filed a Request for Court Clerk to Tax Their Cost Bill
pursuant to Federal Rule of Civil Procedure 54(d), seeking taxation of expenses necessary to the
litigation as the prevailing party. (Doc. 222.) In accordance with Local Rule 54.1, Defendants
attached an itemized cost bill and an affidavit by Defendants’ counsel, Paula G. Maynes, declaring
that the itemized costs are allowable by law, correctly stated, and necessary to Defendants’
litigation of the lawsuit. (Id.; see also Doc. 223.)
Defendants requested $11,042.83 in deposition costs and $222.49 in miscellaneous costs,
for a total of $11,265.32 in total costs. (Doc. 222 at 2–3.) On July 30, 2020, the Clerk of the Court
reviewed Defendants’ itemized costs and entered an order setting the allowed costs at $5,849.65.
(Doc. 232.) The Clerk determined that of the 23 deponents listed, eight were “reasonably necessary
to the litigation” because they “were exhibits in support of or opposition to the parties’ summary
judgment pleadings . . . .” (Id. at 2.) As the remaining 15 depositions “were not cited by either
party in the filings in support of or opposition to the motions for summary judgment[,]” the Clerk
found that they were not reasonably necessary and disallowed those costs. (Id.) Defendants move
the Court to review the Clerk’s order. (Doc. 233.) Mr. Valencia opposes the motion. (Doc. 234.)
II.

Legal Standard
Under Federal Rule of Civil Procedure 54(d), “costs—other than attorney’s fees—should

be allowed to the prevailing party.” Categories of taxable costs are specified by statute. See 28
U.S.C. § 1920. To obtain a cost award, the prevailing party must provide notice to the Court and
the opposing party. See Fed. R. Civ. P. 54(d). After the opposing party has an opportunity to object,
the Clerk taxes costs. See id. The opposing party may move for the Court to review the Clerk’s

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order awarding costs. Id. The Court reviews the Clerk’s assessment of costs de novo. Furr v. AT&T
Techs., 824 F.2d 1537, 1550 n.11 (10th Cir. 1987).
“Rule 54 creates a presumption that the district court will award costs to the prevailing
party.” Cantrell v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 459 (10th Cir. 1995) (citations
omitted). If a court denies costs, “it must provide a valid reason . . . .” Id. (citations omitted). The
Tenth Circuit has held that courts may deny costs to a prevailing party where: (1) the party was
only partially successful; (2) the party was “obstructive and acted in bad faith during the course of
the litigation”; (3) damages were nominal; (4) the non-prevailing party was indigent; (5) the costs
were unreasonably high or unnecessary; (6) the recovery was insignificant; or (7) the issues were
particularly close or difficult. Id. (citations omitted).
The prevailing party bears the burden of showing that it is entitled to the claimed costs and
that they are reasonable. In re Williams Secs. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir.
2009). Once the prevailing party meets its burden, “the burden shifts to the ‘non-prevailing party
to overcome’ the presumption that [the] costs will be taxed.” Id. (quoting Rodriguez v. Whiting
Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004)).
III.

Discussion
Defendants contend that all 23 depositions—including the 15 for which the Clerk

disallowed costs—were reasonably necessary to the litigation. (See Doc. 233 at 3.)
A.

Named Defendants

First, Defendants note that 12 of the 15 deponents were named defendants. 1 (Id. at 3–4

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Defendants discuss Leister in the next section of their brief, regarding witnesses named in the Joint Status Report.
(Doc. 233 at 4–5.) However, they argue that Leister’s deposition costs should be allowable both because she was
named in the Joint Status Report and because she was a named defendant whom Mr. Valencia requested to depose.
(Id.)

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(discussing Morris, Smith, Ahmed, Kabella, Debenport, Tacea, Scearce, Jim, Cowan, Parker,
Fulgum, and Leister).) In Mashburn v. Albuquerque Police Dep’t, the court found that the
deposition of Raymond Schultz, a named defendant, was reasonably necessary, even though
neither party nor the court cited it at the summary judgment stage. No. CV 03-747 JH/RLP, 2005
WL 8163931, at *4 (D.N.M. Apr. 22, 2005). The court opined that “[h]aving sued Schultz as an
individual defendant in the case and having actually taken his deposition, Plaintiff cannot now
argue that his deposition was not reasonably necessary to the litigation.” Id. “It would be unfair to
deny the Defendants recovery of the cost of the deposition transcript of a party to the case, even if
that transcript was not utilized in the summary judgment briefing.” Id.
The same is true here. “It was Plaintiff’s own choice[,]” Defendants argue, “to name and
sue 20 individual defendants . . . .” (Doc. 233 at 3.) Moreover, Defendants contend that they
“persistently . . . tried to have the non-administrative individual defendants dismissed from the
lawsuit.” (Id.) Indeed, Defendants have filed six opposed motions to dismiss throughout the
pendency of this litigation. (Docs. 26; 57; 77; 112; 116; 118.) Mr. Valencia could have voluntarily
dismissed any of these named defendants in any of the four iterations of his complaint, but he did
not. (See Docs. 1; 55; 76; 83.)
In response, Mr. Valencia refers to only three of the named defendants—Tacea, Scearce,
and Leister. (Doc. 234 at 2.) He argues that these depositions were not necessary on summary
judgment, because these Defendants were dismissed in November 2019, three months prior to their
depositions. (Id. (citing Doc. 138 at 31).) Thus, they were not “Defendants at the time of being
deposed.” (Id.) This may be true, but it was Mr. Valencia who requested the depositions. (See Doc.
235 at 2.) See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1204 (10th Cir. 2000) (allowing
costs of depositions of named defendants that the non-prevailing party had requested and taken).

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The Court finds in favor of Defendants regarding the 12 named defendants and will allow costs
for these depositions.
B.

Deponents identified as witnesses in the Joint Status Report

Next, Defendants assert that the depositions for the remaining three 2 deponents should be
allowed because Mr. Valencia identified them as witnesses in the Joint Status Report. (Doc. 233
at 4 (citing Doc. 42 at 10–11, 13) (discussing Brause, Topash-Caldwell, Suazo).) Specifically, Mr.
Valencia stated that Brause and Topash-Caldwell have “knowledge regarding faculty withholding
of support, divulging of confidential information, pressuring students to remove Valencia from
committees and filing complaints against him[,]” and Sauzo has “knowledge regarding violation
of policies and procedures, differential treatment, EEO investigations, and divulging confidential
information.” (Doc. 42 at 10–11, 13.)
Mr. Valencia argues that the “mere identification of a witness in the Joint Status Report”
is insufficient to show that a deposition is reasonably necessary. (Doc. 234 at 2.) This is particularly
true here, Mr. Valencia asserts, where the parties listed 95 potential witnesses. (Id.; see also Doc.
90.) The Court agrees that a prevailing party must do more than show that a deponent was listed
as a potential witness, where so many potential witnesses were named.
Defendants note, however, that it was Mr. Valencia who took the deposition of Mr. Suazo,
who “was one of two investigators working on [Mr. Valencia’s] final OEO complaint . . . .” (Doc.
235 at 4.) See Mitchell, 218 F.3d at 1204. Defendants also explain that Brause and TopashCaldwell were Mr. Valencia’s “former graduate students who supported [his] appeal of the
Department wide OEO investigation and, ultimately supported his appeal of his termination.”

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Because the Court agrees that Leister’s deposition is allowable under Defendants’ first argument, it will omit any
reference to her in this section.

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(Doc. 235 at 4.) As “hostile witnesses with personal knowledge of [Mr. Valencia’s] interactions
with students[,]” Defendants assert that these two witnesses were “reasonably necessary.” (See id.)
The Court finds that the depositions of two witnesses sympathetic to Mr. Valencia were reasonably
necessary for use in this lawsuit.
IV.

Conclusion
Mr. Valencia argues that under Local Rule 54.2(b), costs are only “reasonably necessary”

if “(1) the deposition was admitted into evidence; (2) used at trial for impeachment; or (3) used by
the Court in ruling on a motion for summary judgment.” (Doc. 234 at 2–3 (citing Quest Corp. v.
City of Santa Fe, No. CV 10-0617 RB/KBM, 2014 WL 12731992, at *2 (D.N.M. Oct. 15, 2014)).)
This definition omits one key provision of the rule, which also provides that depositions are
reasonably necessary when “the Court so determines.” D.N.M. LR-Civ. 54.2(b)(2)(C). The Court
finds that the disputed depositions were reasonably necessary where Mr. Valencia requested them,
where they were named defendants, where one witness was an investigator with intimate
knowledge of the OEO complaint at issues, and where two witnesses were sympathetic to the nonprevailing party and had personal knowledge of relevant events.
The Court finds that Defendants have met their burden to demonstrate that the remaining
15 depositions were reasonably necessary, the costs are taxable, and the amounts are reasonable.
Mr. Valencia has failed to offer valid reasons to “overcom[e] the presumption in favor of awarding
costs.” See N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs.,
No. CV 12-526 MV/GBW, 2020 WL 1466330, at *2 (D.N.M. Mar. 26, 2020), R&R adopted, 2020
WL 1853048 (Apr. 13, 2020) (citation omitted). Accordingly, the Court will GRANT Defendants’
motion and allow $5,193.18 for the costs and depositions of Morris, Smith, Suazo, Ahmed,
Kabella, Debenport, Leister, Brause, Topash-Caldwell, Tacea, Scearce, Jim, Cowan, Parker, and

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Fulghum, and $112.49 3 in service fees and witness fees for the depositions of Brause and TopashCaldwell, for a total of $5,305.67.
THEREFORE,
IT IS ORDERED that Defendants’ Motion for Review of Clerk’s Order Settling Costs
(Doc. 233) is GRANTED and the previously disallowed costs in the amount of $5,305.67 are
taxed against Mr. Valencia and in favor of Defendants.

________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE

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This amount reflects the standard attendance fee of $40.00 per day pursuant to title 28 U.S.C. 1821(b). (See Doc.
232 at 3.)

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