Rodriguez Ziems v. LTD Driving School, Inc. et al

Filing 119

MEMORANDUM OPINION AND ORDER granting in part and denying in part 110 MOTION for Attorney Fees and 117 MOTION to Review the Clerk's Order Settling Costs [Doc. #116] by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALMALINDA RODRIGUEZ
MCCOY,
Plaintiff,
v.

No. 15-CV-00639 MCA/LAM

LTD DRIVING SCHOOL, INC.,
and DAVID FRESQUEZ,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the following: Plaintiff’s Counsel’s
Response to Order to Show Cause [Doc. 111]; Defendants’ Motion for Attorneys’ Fees
and Costs Awarded Pursuant to this Court’s August 5, 2016 Order [Doc. 110]; and
Defendants’ Motion for Review of the Clerk’s Order Settling Costs [Doc. 117]. The
Court has considered the submissions, the relevant case law, and has been fully informed
in the premises.
BACKGROUND
The parties are familiar with the facts of this case, which were set forth in the
Court’s August 5, 2016 Memorandum Opinion and Order. [Doc. 106] Briefly, Plaintiff
filed a four-count action in state court, which Defendants removed to this Court.
Ultimately, Plaintiff sought to voluntarily dismiss three of her four claims with prejudice,
and this Court dismissed those claims. [Doc. 106, pp. 8-11] The Court also granted
summary judgment for Defendants on the remaining claim. [Doc. 106, p. 19] The
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Court’s Memorandum Opinion and Order recounted instances of unprofessional behavior
and unnecessary filings by both Plaintiff’s and Defense Counsel.1 [Doc. 106, pp. 4-6, 811] The Court further ordered Plaintiff’s Counsel to show cause why he should not be
personally responsible for paying for the excess costs, expenses, and attorneys’ fees
incurred by Defendants in responding to Plaintiff’s Motion to Strike Answer or,
Alternatively, to Deem Allegations Admitted and Supporting Memorandum pursuant to 28
U.S.C. § 1927. [Doc. 106, pp. 4-6, 19]
In Plaintiff’s Motion to Strike Answer, Plaintiff requested the Court to apply its
inherent authority, rather than Federal Rule of Civil Procedure 12(f) (allowing motions to
strike “redundant, immaterial, impertinent, or scandalous” from pleadings), to strike the
entire answer or the particular paragraphs to which Plaintiff objected.2 [Doc. 25, p. 3] In
its Memorandum Opinion and Order, the Court denied Plaintiff’s Motion to Strike and
further determined that:
Mr. Carrillo’s actions in requesting the Court to strike the entire answer in
this case violated 28 U.S.C. § 1927, given the combination of the following
factors: 1) the motion was untimely; 2) Mr. Carrillo unreasonably cut off

1

While Defendants’ Counsel filed unnecessary motions and replies, in doing so,
Defendants’ Counsel caused unnecessary costs only to Defendants, thus not implicating
28 U.S.C. § 1927.
2
Defendants answered certain allegations by stating “Defendants are without sufficient
information to determine the accuracy or veracity of the facts contained in [¶¶ 30, 31, 32,
33, 37] and therefore denies same.” [Doc. 4] Plaintiff took issue with Defendants’
“attempt to disclaim information sufficient to establish a belief as to the veracity of
allegations while incongruently purporting to deny them.” [Doc. 25, pp. 1-2, 8-9] In
addition, Plaintiff argued that it was improper for Defendants to refuse to answer
allegations which Defendants contended were legal conclusions [Doc. 25, pp. 4-5] and
Defendants stating that documents issued by the EEOC speak for themselves. [Doc. 25,
pp. 5-8]
2

good faith discussions to resolve the issue before filing the motion; and 3)
the cases Plaintiff cite[s] do not even arguably support Plaintiff’s argument.
[Doc. 106, pp. 4-5] The Court ordered Plaintiff’s Counsel to show cause why he should
not be personally liable for Defendants’ fees and costs incurred by responding to the
Motion to Strike. [Doc. 106, pp. 6, 19]
Plaintiff’s Counsel has now responded to the Court’s order to show cause.
[Doc. 111]

In addition, Defendants filed a Motion for Attorneys’ Fees and Costs

pertaining to the Motion to Strike. [Doc. 110] Defendants also moved for costs as the
prevailing party [Doc. 109], which the Clerk addressed in the Clerk’s Order Settling
Costs. [Doc. 116] Defendants filed a Motion for Review of the Clerk’s Order Settling
Costs. [Doc. 117]
ANALYSIS
Attorney Liability for Costs and Fees under 28 U.S.C. § 1927
Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees reasonably
incurred because of such conduct.
28 U.S.C. § 1927. Section 1927 sanctions do not require a finding of subjective bad
faith. Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc). Rather,
conduct that, viewed objectively, manifests either intentional or reckless
disregard of the attorney's duties to the court, warrants the imposition of
excess costs, expenses, or attorney's fees personally against the attorney
responsible for unreasonably multiplying the proceedings. After all, to
excuse objectively unreasonable conduct by an attorney would be to state
that one who acts with an empty head and a pure heart is not responsible for
the consequences.
3

Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (internal quotation
marks, citations and brackets omitted). Thus, Section 1927 provides an “incentive for
attorneys to regularly re-evaluate the merits of their claims and to avoid prolonging
meritless claims.” Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1224 (10th Cir. 2006).
In response to the Court’s order to show cause, Plaintiff’s Counsel submits, first,
that the Motion to Strike was not untimely because it was not filed pursuant to Federal
Rule of Civil Procedure 12(f). Second, Plaintiff’s Counsel submits that he “engaged in
good faith communication regarding resolving issues surrounding the motion.” [Doc.
111, p. 4]

Third, Plaintiff’s Counsel submits that “this Court should not find that

Plaintiff’s counsel’s citation to case law which the Court finds to be unpersuasive vitiates
in favor of finding that Plaintiff’s counsel acted unreasonably and vexatiously for the
purpose of multiplying the litigation so as to justify an award of sanctions.” [Doc. 111,
p. 10] The Court addresses the first and third arguments together, as they are related, and
then addresses Plaintiff’s Counsel’s second argument.
Federal Rule of Civil Procedure 12(f) states:

“The court may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” A party must bring a Rule 12(f) motion to strike “within 21 days after being
served with the pleading.” Fed. R. Civ. P. 12(f)(2). Plaintiff’s Motion to Strike was filed
112 days after Plaintiff was served with the Answer. [Doc. 4; Doc. 25; Doc. 106]
Accordingly, under Rule 12(f)(2) the Motion to Strike was not timely. Though Plaintiff
attempts to circumvent this time limit by invoking an alternative standard, outside of Rule
12(f), Plaintiff offered no persuasive reason to apply such a standard. Any extra-rule
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ground for striking an entire pleading, or portions thereof, must be more onerous than that
set forth by Rule 12(f). See Nwachukwu v. Karl, 216 F.R.D. 176, 180 (D.D.C. 2003)
(unpublished decision) (stating “[t]he court has authority to [strike an entire answer] only
if the plaintiff can demonstrate misconduct on the part of the defendant”). Plaintiff’s
Motion to Strike lacked citation to any case applying this alternative standard, causing the
Court to conclude in its Memorandum Opinion and Order that the cases Plaintiff cites
“do not even arguably support Plaintiff’s argument.” [Doc. 106, pp. 4-5] Specifically,3
the Court concludes that the following cases, on which Plaintiff relied, do not to support
Plaintiff’s request for this Court to apply a standard other than that set forth by Fed. R.
Civ. P. 12(f), or to allow what is otherwise a late Rule 12(f) motion to strike: Agstar Fin.
Servs., PCA v. Union Go-Dairy, LLC, 2011 WL 772754 (S.D. Ind. 2011) (a four
paragraph, unpublished district court, case cited by only one other case, discussing the
Court’s inherent authority to strike an answer but denying the plaintiff’s request to invoke
that power); Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962) (recognizing and
discussing the district court’s inherent authority to dismiss a case for lack of prosecution
by the plaintiff); Nwachukwu, 216 F.R.D. at 178-80 (denying the plaintiff’s request to
strike an answer and portions thereof under Fed. R. Civ. P. 12(f) and rejecting a request
to strike an answer based on “misconduct on the part of the defendant”); Vakharia v.
Little Co. of Mary Hosp. & Health Care Ctrs., 2 F. Supp. 2d 1028, 1033-34 (N.D. Ill.
1998) (rejecting the defendants’ request to strike portions of complaint; applying only

3

Plaintiff’s Counsel expresses uncertainty as to which argument the Court found to be
unsupported. [Doc. 11, pp. 9-10]
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Fed. R. Civ. P. 12(f)); Bisharat v. Vill. of Niles, 2010 WL 3019962 (N.D. Ill. 2010)
(applying Fed. R. Civ. P. 12(f)(1) to sua sponte strike an answer due to pervasive errors,
including the failure to disclaim enough information to form a belief as to the truth of an
allegation; granting leave to file an amended answer); SMS Assocs. v. Clay, 868 F. Supp.
337 (D.D.C. 1994) (not addressing any legal issues presented by this case); Lane v. Page,
272 F.R.D. 581, 584, 602 (D.N.M. 2011) (applying Fed. R. Civ. P. 12(f) in considering a
motion to strike); Donnelly v. Frank Shirley Cadillac, Inc., 2005 WL 2445902, * 2 (N.D.
Ill. 2005) (considering a motion to strike but not stating whether it was applying Fed. R.
Civ. P. or its inherent authority).

Thus, only two cases cited by Plaintiff, Agstar

Financial Services and Nwachukwu, considered the court’s inherent authority to strike an
answer, and in both cases the court declined to use it power to strike the answer. In sum,
the cases cited by Plaintiff do not even arguably support the application of any rule but
Fed. R. Civ. P. 12(f), and, accordingly, Plaintiff’s Motion to Strike, filed three months
beyond Rule 12(f)(2)’s deadline, was untimely.
Plaintiff’s Counsel argues that the Court should not conclude that he “acted
unreasonably and vexatiously for the purpose of multiplying the litigation” simply
because the Court found the case law upon which he relied “unpersuasive.” [Doc. 111,
p. 10] Here, however, Plaintiff’s Counsel’s request that this Court apply a rule outside
of the Rules of Procedure was more than simply “unpersuasive,” it lacked an arguable
basis in the law. The patent lack of merit or a plausible basis for Plaintiff’s Counsel’s
argument is a crucial factor in considering whether an attorney’s conduct was
unreasonable under 28 U.S.C. § 1927. See Miera, 143 F.3d at 1342 (“A lawyer's reckless
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indifference to the law may impose substantial costs on the adverse party. Section 1927
permits a court to insist that the attorney bear the costs of his own lack of care. . . .
Sanctions are appropriate, then, when an attorney is cavalier or . . . intentionally acts
without a plausible basis [or] when the entire course of the proceedings was
unwarranted.” (Internal quotation marks and citations omitted.)). The Court concludes
that Plaintiff’s Counsel’s argument was made with “reckless indifference to the law.”
Miera, 143 F.3d at 1342. Specifically, it demonstrated reckless indifference to the
applicability of Rule 12(f) and its deadline, as well as the necessity for a substantial
justification (clearly lacking here) for the Court to apply its inherent authority to strike an
entire pleading. Further, Plaintiff’s Counsel actions “impose[d] substantial costs on the
adverse party.” Id.
Moreover, Plaintiff’s Counsel’s cavalier reliance on a baseless argument alone
was not the only factor contributing to the Court’s conclusion that Plaintiff’s Counsel
unreasonably and vexatiously multiplied the proceedings in violation of 29 U.S.C.
§ 1927. Rather, it was the meritless argument combined with Plaintiff’s Counsel’s abrupt
termination of efforts to resolve the motion, and his representation to the Court that the
Motion was opposed [Doc. 25, p. 2] which merits application of 29 U.S.C. § 1927 in this
case.
The Court has reviewed, for a second time, the correspondence between Plaintiff’s
and Defendants’ Counsel. [Doc. 106, pp. 3-4; Doc. 111-1, p. 1 to Doc. 111-2, p. 3] In
short, it began with Plaintiff’s Counsel sending the draft Motion to Strike to Defendants’
Counsel [Doc. 111-1, p. 1], who responded by asking “whether your client will not
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oppose the filing of an amended answer[?]” [Doc. 111-2, p. 3] Plaintiff’s Counsel
responded by asking for “a draft unopposed motion to file an amended answer.” [Doc.
111-2, p. 2] Defendants’ Counsel then asked “Does your client agree to the filing of an
amended answer? If not, there is no reason for the motion.” [Doc. 111-2, p. 1] Mr.
Carillo, one of Plaintiff’s attorneys, then responded:
We had to call this issue to your attention after a deficient pleading. We
take it that you oppose the motion, and the relief requested. We will file the
motion promptly. However, we understand that the Court may allow you to
amend. We simply cannot consent to the proposed amendment until we see
it – how do we know that it won’t be deficient even after a rewrite? When
you are going to amend a pleading, you have to attach a copy, that is why
your idea of an order doesn’t work.
In order to resolve this, we commit as follows: If you will show us the
amendment, and it complies with the law, we will consider a stipulated
motion to amend, and withdraw our motion to strike. Please show us your
proposed amended answer as soon as possible so that we may properly
advise the Court and avoid “further” motion practice.
[Doc. 111-2, p. 1]
This chain of correspondence demonstrates that: 1) Defendants never expressly
opposed the motion or refused to file a motion to amend; 2) Plaintiff’s Counsel deemed
Defendants’ Counsel to oppose the motion (“We take it that you oppose the motion”); 3)
Plaintiff’s Counsel did not allow an opportunity for Defendants’ Counsel to send him a
draft proposed amended answer prior to filing the Motion to Strike; and, most
importantly, 4) Plaintiff’s Counsel operated under a file first, resolve later modus, which
unnecessarily invoked the Court’s resources and which contravenes the purpose of Local
Rule 7.1(a). See Hooten v. Ikard Servi Gas, 525 Fed. Appx. 663, 667 (10th Cir. 2013)
(“[T]he purpose of Local Rule 7.1(a) is to promote judicial efficiency and economy by
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precluding the unnecessary filing of motions, responses, and orders.” (Internal quotation
marks and citation omitted)).
Given Plaintiff’s Counsel’s filing of the Motion to Strike without allowing
Defendants’ Counsel to either submit a proposed amended answer or to state a refusal to
do so, coupled with the lack of a legal basis for the motion, the Court concludes that
Plaintiff’s Counsel unreasonably and vexatiously multiplied the proceedings and should
be responsible for Defendants’ excess costs in responding to the motion. 28 U.S.C. §
1927; Miera, 143 F.3d at 1342.
Attorneys’ Fees and Costs Pertaining to Plaintiff’s Motion to Strike Answer
Defendants submitted Defendants’ Motion for Attorneys’ Fees and Costs Awarded
Pursuant to this Court’s August 5, 2016 Order [Doc. 110] in response to the Court
granting Defendants’ request for attorneys’ fees and costs in responding to the Motion to
Strike. [Doc. 106, p. 19] Defendants’ attorneys request $1,099.37 in fees and costs,
including New Mexico gross receipts tax. [Doc. 110] Plaintiff responds to the Motion
by: 1) submitting that attorneys’ fees and costs are not appropriate for the reasons set
forth in Plaintiff’s Counsel’s Response to Order to Show Cause;4 and 2) requesting the
Court to disallow 0.8 hours billed by Mr. Hibner on November 30, 2015 for “drafting,
editing, finalizing, and filing Opposition to Motion to Strike” [Doc. 110, p. 8] because,
Plaintiff argues, filing the document is administrative work. [Doc. 112, pp. 1-2]
Defendants provided to the Court itemized billing records that permit the Court to
engage in the calculation of a lodestar amount, which is “the number of hours reasonably
4

The Court rejected these arguments above and does not revisit them here.
9

expended on the litigation multiplied by a reasonable hourly rate.”

Anchondo v.

Anderson, Crenshaw & Assoc., 616 F.3d 1098, 1102 (10th Cir. 2010) (internal quotation
marks and citation omitted).

The Court must determine a reasonable hourly rate,

measured by “prevailing market rates,” i.e., rates “in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience,
and reputation.”

Blum v. Stenson, 465 U.S. 886, 895 & n.11 (1984).

The party

requesting attorney fees bears the burden of proving the amount of hours spent on the
case and the appropriate hourly rates. See id. at 897.
Only if the district court does not have before it adequate evidence of
prevailing market rates may the court, in its discretion, use other relevant
factors, including its own knowledge, to establish the rate. See Lucero v.
City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (“Absent other
evidence of prevailing market rates the district court must rely on all
relevant factors known to the court in establishing the reasonable rate to be
applied . . . to derive the ‘lodestar’ figure.”).
Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir. 1998).
Counsel must make a “good faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee submission.”

Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983).
Plaintiff does not challenge the reasonableness of the rate of attorneys’ fees
requested by Defendants, and the Court concludes that the rates for Mr. Furth ($250.00

10

per hour) and Mr. Hibner ($150.00 per hour) are reasonable.5 See Schueller v. Experian
Information Solutions, Inc., No 1:11-CV-955 MCA/LFG (D.N.M. March 27, 2013), Doc.
82, pp. 14-17 (determining reasonable prevailing rates in New Mexico), aff’d, Schueller
v. Wells Fargo & Co., 559 Fed. Appx. 733 (10th Cir. 2014) (unpublished decision), cert.
denied, 135 S.Ct. 275 (2014). Plaintiff challenges the November 30, 2015, 0.8 hours
charge by Mr. Hibner only on the ground that it includes the administrative task of filing
the Response, to which Defendants respond that amount of time spent filing was a “few
minutes” and “negligible.”6 [Doc. 115, p. 2] The Court will disallow Mr. Hibner’s
November 30, 2015 charge for a different reason. Given Mr. Furth’s November 23, 2015
and November 30, 2015 charges for “drafting and editing response to Motion to Strike
0.8” and “finalizing response to Motion to Strike 0.4,” [Doc. 110, pp. 7-8] Mr. Hibner’s
November 30, 2015 charge is redundant and unnecessary. See Hensley, 461 U.S. at 434.
The Court concludes that Defendants’ Counsels’ remaining charges are reasonable and
not excessive, redundant, or unnecessary.
Thus, the Court hereby grants attorneys’ fees in favor of Defendants against
Plaintiff, payable by Plaintiff’s Counsel, as set forth above, in the amount of $969.40.
Motion to Review Clerk’s Bill of Costs
The Court reviews the Clerk’s taxation of costs de novo. Farmer v. Arabian Am.
Oil Co., 379 U.S. 227, 233 (1964), disapproved of on other grounds by Crawford Fitting
5

Defense Counsel submitted that Mr. Furth graduated from law school in 1999 and Mr.
Hibner graduated from law school in 2015. Mr. Furth’s hourly rate has been approved by
state and federal courts. [Doc. 110, pp. 4, 5]
6
Defendants also complain that Plaintiff’s Counsel failed to meet and confer to resolve
this dispute. The Court nonetheless decides the issue on its merits.
11

Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442-43 (1987). In reviewing the Clerk’s taxation
of costs pursuant to Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920, the
Court exercises its “sound judicial discretion.” Allison v. Bank One-Denver, 289 F.3d
1223, 1248 (10th Cir. 2002). “Unless 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). “[T]he burden is on the party seeking costs . . . to
establish the amount of compensable costs and expenses to which it is entitled and [the
party] assumes the risk of failing to meet that burden.” Allison, 289 F.3d at 1248-49.
[T]he district court's discretion in taxing costs is limited in two ways. See
Cantrell v. Int'l Bhd. of Elec. Workers, 69 F.3d 456, 458–59 (10th Cir.1995)
(en banc). First, “Rule 54 creates a presumption that the district court will
award costs to the prevailing party.” Id. at 459. Second, the district court
“must provide a valid reason” for denying such costs. Id.; see also Klein v.
Grynberg, 44 F.3d 1497, 1507 (10th Cir.1995) (stating that denying costs to
a prevailing party is a “severe penalty” and explaining that “there must be
some apparent reason to penalize the prevailing party if costs are to be
denied”).
In re Williams Secs. Litig.-WCG Subclass, 558 F.3d 1144, 1147 (10th Cir. 2009). By
statute, costs are allowed for “transcripts and copies ‘necessarily obtained for use in the
case.’” Id. (quoting 28 U.S.C. § 1920(2) & (4)).7

7

In addition, our Local Rule 54.2(b), addressing “Deposition Costs,” states:
(1) Reporter's Transcript Fees. The reporter's charge for the original or a
copy of a deposition transcript is taxable when the deposition is reasonably
necessary to the litigation.
(2) Reasonably Necessary to the Litigation. A deposition is reasonably
necessary to the litigation when:
(A) a substantial portion of the deposition is admitted into evidence or used
at trial for impeachment purposes;
12

Whether materials are necessarily obtained for use in the case is question of
fact to be determined by the district court. U.S. Industries, 854 F.2d at
1245. However, “items proposed by winning parties as costs should always
be given careful scrutiny.” Id. (quoting Farmer v. Arabian American Oil
Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964)).
“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.” U.S. Industries at 1245–46. 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. Id.
Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th Cir. 1998). The Court
does “not employ the benefit of hindsight in determining whether materials for which a
prevailing party requests costs are reasonably necessary to the litigation of the case,” but
rather, considers solely whether the cost was reasonable “on the particular facts and
circumstances at the time the expense was incurred.” In re Williams Sec. Litig.-WCG
Subclass, 558 F.3d at 1148 (internal quotation marks and citations omitted).
Further, when “necessarily obtained for use in the case,” 28 U.S.C. § 1920(2), “the
costs associated with videotaping a deposition are taxable.” Tilton v. Capital Cities/ABC,
Inc., 115 F.3d 1471, 1477-78 (10th Cir. 1997). Tilton applied the reasoning of Meredith
v. Schreiner Transp., 814 F.Supp. 1004 (D. Kan. 1993) in concluding that a videotape
transcript, as well as a “stenographic transcript of a videotaped deposition,” are allowable
when they meet the requirement of Section 1920(2) that they are “necessarily obtained
(B) the deposition is used by the Court in ruling on a motion for summary
judgment; or
(C) the Court so determines.
D.N.M.LR-Civ. 54.2.
13

for use in the case.” Tilton, 115 F.3d at 1478. In Meredith, the video depositions of
absent physicians were shown at trial, and the court recognized a preference to use a
videotape deposition rather than solely a paper transcript as a “means of presenting an
absent witness's testimony because they allow the trier-of-fact to better judge the
credibility of the witness and, in many cases, save time.” Meredith, 814 F. Supp. at
1005-06. In both Meredith and Tilton, the court concluded that the costs of video
deposition requested therein were recoverable. See id. at 1006; Tilton, 115 F.3d at 147778.
In this case, the Clerk allowed costs for, inter alia, the transcription of the
depositions of Plaintiff and Defendant Fresquez. [Doc. 116] The Clerk disallowed costs
for the deposition transcription cost for Plaintiff’s husband because it was not cited in the
filings on the motions for summary judgment.

The Clerk disallowed costs for the

deposition witness fee for Plaintiff’s husband on the same grounds. The Clerk further
disallowed costs for the video depositions of Plaintiff and her husband, stating the video
deposition fees were “doubled” and not used during any proceeding. [Doc. 116, p. 2]
Defendants request the Court to review the above denied costs. [Doc. 117] Plaintiff did
not challenge the taxed costs or submit a response to Defendants’ Motion for Review of
the Clerk’s Order Settling Costs.
The Court concludes that the witness fee [Doc. 109, pp. 12-13] and written
transcript costs [Doc. 109, p. 22] for Plaintiff’s husband were reasonably necessary to the
litigation. Even though not used at trial (because there was no trial) nor in the Court’s
ruling on the motions for summary judgment, the deposition of Plaintiff’s husband was
14

reasonably necessary at the time it was taken because Plaintiff listed her husband (then
fiancé), repeatedly, as a person “likely to have discoverable information related to
Plaintiff’s emotional distress damages,” [Doc. 12, p. 3; Doc. 114-1, p. 2; Doc. 114-1, p.
4; Doc. 114-1, p. 6] and Plaintiff sought emotional distress damages [Doc. 1-1, p. 12].
See In re Williams Securities Litigation-WCG Subclass, 558 F.3d 1144 at 1149 (rejecting
the argument that “a district court may only award costs for depositions the district court
actually used in deciding summary judgment, or for depositions that were, at the very
least, designated for trial”); Merrick v. N. Natural Gas Co., Div. of Enron Corp., 911 F.2d
426, 434 (10th Cir. 1990) (“[T]he best practice is to determine which depositions were
reasonably necessary in the light of facts known to counsel at the time they were taken,
rather than at trial.” (citation omitted)). Accordingly, it was reasonable for Defendants to
depose Plaintiff’s husband to determine what his testimony would be concerning
Plaintiff’s emotional distress damages.
The Court concludes that the videography costs Defendants incurred were not
“necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Defendants argue that
these costs are reasonable, and not duplicative of the written deposition transcripts,
because, generally, video recordings record different information from a written
transcript, including long silences, facial expressions, body language, and more. [Doc.
117, pp. 2-3] Defendants further argue that the video depositions were “reasonably
necessary here as a way of controlling overly aggressive Plaintiff’s counsel[,]” given that
Plaintiff’s counsel noticed the deposition of Defendant Fresquez’s senior parents and
asked “harass[ing]” questions of Mr. Fresquez during his deposition. [Doc. 117, p. 3]
15

Defendants fail to draw the connection between video-recording the depositions of
Plaintiff and her husband and “controlling” Plaintiff’s “overly aggressive” counsel.
[Doc. 117, p. 3] Moreover, such tactics are not a basis for establishing that costs are
necessary. As to Defendants’ remaining argument, Defendants fail to offer any reason
why the video recordings were necessary in this case. See Tilton, 115 F.3d at 1478
(allowing the reasonable costs of a video deposition if “necessarily obtained for use in the
case” (internal quotation marks and citation omitted)). There is no indication Plaintiff or
her husband would not testify at trial. In sum, without some explanation as to why it was
necessary to take Plaintiff and her husband’s depositions by video, the Court concludes
that Defendants failed to meet their burden of establishing that video recordings of the
depositions were necessarily obtained in this case. See Allison, 289 F.3d at 1248-49
(“[T]he burden is on the party seeking costs . . . to establish the amount of compensable
costs and expenses to which it is entitled and assumes the risk of failing to meet that
burden.”). Thus, the Court disallows these costs.
The Court taxes costs to Plaintiff of $176.86 for the deposition transcription of
Chris McCoy and $50.00 for the witness fee for Chris McCoy [Doc. 109, pp. 8, 12-13,
22], for a total of $226.86, in addition to the $3,418.32 already taxed by the Clerk.
CONCLUSION
WHEREFORE, IT IS HEREBY ORDERED:
1) Defendants’ Motion for Attorneys’ Fees and Costs Awarded Pursuant to this
Court’s August 5, 2016 Order [Doc. 110] is GRANTED-IN-PART in the amount
of $969.40 and DENIED-IN-PART as to the remaining amount requested;
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2) Plaintiff’s Counsel Raul Carrillo is HEREBY ORDERED to personally satisfy
Defendants’ costs and fees in the amount of $969.40; and
3) Defendants’ Motion for Review of the Clerk’s Order Settling Costs [Doc. 117] is
GRANTED-IN-PART and DENIED-IN-PART; and costs are taxed against
Plaintiff in favor of the Defendants in the amount of $226.86, in addition to those
already taxed by the Clerk.
SO ORDERED this 21st day of February, 2017 in Albuquerque, New Mexico.

_________________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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