Quarrie v. Wells et al

Filing 463

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 455 MOTION for Bill of Costs by Magistrate Judge Gregory B. Wormuth. Objections to PFRD due 9/13/2021. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (EMM)

Case 2:17-cv-00350-MV-GBW Document 463 Filed 08/30/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDSAY O’BRIEN QUARRIE,
Plaintiff,
v.

Civ. No. 17-350 MV/GBW

STEPHEN WELLS, et al.,
Defendants.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before me on Defendants’ Motion to Tax Costs (doc. 455)
pursuant to the Court’s Order of Reference (doc. 85). Having reviewed the Motion and
the attendant briefing (docs. 460, 461), I recommend that the Court award Defendants
costs in the amount of $5,032.81.

I.

PROCEDURAL POSTURE
On July 7, 2021, the Court granted Defendants’ Motion for Summary Judgment

and dismissed all of Plaintiff’s claims with prejudice. Doc. 453. On July 22, 2021,
Defendants filed their Motion to Tax Costs pursuant to Federal Rule of Civil Procedure
54(d), seeking taxation of expenses necessary to the litigation as the prevailing party.
Doc. 455. In accordance with Local Rule 54.1, Defendants attached an itemized cost bill
and an affidavit by Defendants’ counsel declaring that the itemized costs are allowable
by law, correctly stated, and necessary to the litigation. Docs. 455-1, 455-2. Defendants

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request taxation of $5,602.34 in deposition costs. Doc. 455 at 4. On August 5, 2021,
Plaintiff filed a response in opposition. Doc. 460. Defendants filed a reply on August
19, 2021. Doc. 461.
Meanwhile, on August 3, 2021, Plaintiff filed a notice of appeal. Doc. 456. This
Court retains jurisdiction over the present Motion as a collateral matter. Lancaster v.
Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998).

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 54(d)(1) provides that “costs—other than

attorney’s fees—should be allowed to the prevailing party.” The decision to award
costs rests within the district court’s discretion; however, its discretion to deny costs is
limited in two respects. In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1147 (10th
Cir. 2009). First, Rule 54 creates a presumption in favor of awarding costs. Cantrell v.
Int’l Brotherhood of Elec. Workers, 69 F.3d 456, 458–59 (10th Cir. 1995). Second, a denial is
“in the nature of a severe penalty,” such that a court denying costs must state its
reasons. Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 659 (10th Cir. 2013)
(quoting Marx v. Gen. Revenue Corp., 668 F.3d 1174, 1182 (10th Cir. 2011)). Permissible
reasons to deny costs include: (1) the prevailing party is only partially successful, (2) the
prevailing party was obstructive or acted in bad faith in the course of litigation, (3)
damages are only nominal, (4) the non-prevailing party is indigent, (5) the costs are
unreasonably high, or (6) the issues were close and difficult. Id. at 659–60.
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The prevailing party has the burden of proving that the itemized costs are
taxable and that the amounts are reasonable. In re Williams Sec. Litig., 558 F.3d at 1148.
When that burden is met, the non-prevailing party has the burden of overcoming the
presumption in favor of awarding costs. Id.

III.

ANALYSIS
Plaintiff argues that the Court should deny Defendants’ motion pursuant to

Local Rule 7.1 or, in the alternative, reduce their taxable costs pursuant to Local Rule
54.2. Doc. 460 at 7.
A. Local Rule 7.1
As Plaintiff points out, Defendants’ motion does not state that Defendants
attempted to confer with Plaintiff to determine whether the motion is opposed. See
generally doc. 455. In their reply, Defendants contend that they were not required to
confer with Plaintiff because a cost bill “is not a typical Motion seeking relief from the
Court” and thus “cannot [be] ‘oppose[d].’” Doc. 461 at 1–2. Defendants’ position is
unsupported and erroneous. Local Rule 54.1 is clear that the submission of a cost bill
must be in the form of a motion, which must comply with the requirements of Local
Rule 7. D.N.M.LR-Civ. 54.1.
I do not recommend denying Defendants’ motion on this basis. Local Rule 7.1
provides that a motion “may be summarily denied” if it does not include a “recitation of
a good-faith request for concurrence.” D.N.M.LR-Civ. 7.1(a) (emphasis added). The
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permissive “may” signals that the decision to deny a motion on this basis is within the
Court’s discretion. See Long v. United States, 2007 WL 9698264, at *5 (D.N.M. Aug. 31,
2007) (unpublished). In light of the contentious history of this case, I do not find any
prejudice to Plaintiff or disruption to the Court in Defendants’ failure to confirm that
the motion for costs was opposed.
B. Local Rule 54.2
Under Local Rule 54.2, the prevailing party may tax the cost of a deposition
transcript when it is “reasonably necessary to the litigation.” D.N.M.LR-Civ. 54.2(b)(1).
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;
(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(b)(2). Plaintiff argues that, under this standard, the Court should
deny costs for depositions that (1) were neither cited by the parties nor used by the
Court in deciding the motion for summary judgment, and (2) were cited by the parties
and/or used by the Court but not in substantial portions. Doc. 460 at 3–8.
The following depositions were not cited by the parties or used by the Court in
resolving Defendants’ motion for summary judgment: Plaintiff; Sara Grijalva (as an
individual); Defendant Stephen Wells (as an individual); Lorie Liebrock (as an
individual); Kenneth Minschwaner (as an individual); David Hostutler; and Daniel

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Lopez. Doc. 455 at 3; doc. 460 at 3–6. With the exception of Plaintiff and Dr. Hostutler,
these depositions were taken by Plaintiff. Doc. 455 at 3. Defendants argue that these
deposition costs should be allowed because “[e]ach of these witnesses had a substantial
connection to this case and their testimony was necessary to defend the litigation.” Id.
at 4. Defendant cites to an out-of-circuit district court case for the “substantial
connection” standard. Id. at 3 (citing Soler v. McHenry, 771 F. Supp. 252, 255–56 (N.D.
Ill. 1991)). I find no support for applying such a standard in the Tenth Circuit.
While “actual use” of a deposition by counsel or the Court is the “most direct
evidence of ‘necessity,’” the Court “is nonetheless empowered to find necessity” even if
the deposition is not ultimately used. Callicrate v. Farmland Indus., Inc., 139 F.3d 1336,
1340 (10th Cir. 1998). The Tenth Circuit has explained that “caution and proper
advocacy may make it incumbent on counsel to prepare for all contingencies which
may arise during the course of litigation which include the possibility of trial.” Id.
Therefore, the Court must not “employ the benefit of hindsight” but rather consider the
“particular facts and circumstances at the time the expense was incurred.” Id. Where a
deposition “appeared to be reasonably necessary at the time it was taken,” the
associated costs should be allowed. Allison v. Bank One-Denver, 289 F.3d 1223, 1249
(10th Cir. 2002). On the other hand, costs are not recoverable if they “merely added to
the convenience of counsel.” In re Williams Sec. Litig., 558 F.3d at 1147 (citation and
internal quotation marks omitted).

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In Callicrate, the Tenth Circuit found that depositions taken by the non-prevailing
party were taxable, especially those taken of the prevailing party’s employees and
representatives. 139 F.3d at 1341. Because it would have appeared reasonably
necessary to Defendants to review depositions taken by Plaintiff to prepare for
litigation, I recommend allowing costs for the following depositions taken by Plaintiff:
Ms. Grijalva (as an individual); Defendant Wells (as an individual); Dr. Liebrock (as an
individual); Dr. Minschwaner; and Dr. Lopez.
As to the deposition of Plaintiff, Plaintiff objects that “the only purpose for this
deposition was discovery.” Doc. 460 at 6 n.3. There is some authority in this circuit for
denying costs for depositions taken “solely for discovery.” Furr v. AT&T Techs., Inc.,
824 F.2d 1537, 1550 (10th Cir. 1987). However, I do not recommend applying this rule
to Plaintiff’s deposition. The deposition of a party is unmistakably necessary to the
litigation. Perry v. Taser Int’l Corp., 2008 WL 4829850, at *1 (D. Colo. Nov. 4, 2008)
(unpublished) (“[I]t would strain credulity to conclude that a deposition of the plaintiff
is not necessary in this case, or, indeed, most cases.”); Mitchell v. City of Moore, 218 F.3d
1190, 1204 (10th Cir. 2000) (“If the depositions of the three named individual defendants
in the case are not necessary to the litigation, we fail to see how any deposition would
qualify as a recoverable cost.”). The cost of Plaintiff’s deposition is taxable.
Plaintiff also objects to the cost of his deposition. Doc. 460 at 6 n.3. The cost of
Plaintiff’s deposition is quite high in comparison to all other depositions in this case.

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Doc. 455-1 at 1 (itemized cost bill showing $1,383.66 for Plaintiff’s deposition and
amounts below $600 for all other depositions). However, this discrepancy may be
explained by the fact that Plaintiff’s deposition was longer and involved more exhibits
than the others. Compare, e.g., doc. 455-1 at 4 (invoice for Dr. Hostutler’s deposition
consisting of 109 pages and 36 exhibits) with id. at 11 (invoice for Plaintiff’s deposition
consisting of 275 pages and 108 exhibits). While the Tenth Circuit has noted that the
amount of the costs awarded must be reasonable, the burden falls on the non-prevailing
party to establish the unreasonableness of any amount. U.S. Indus., Inc. v. Touche Ross &
Co., 854 F.2d 1223, 1245 (10th Cir. 1988), overruled on other grounds as recognized by Anixter
v. Home–Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996). Plaintiff does not provide
any evidence that the amount charged by the court reporter was so unreasonable as to
justify overcoming the presumption in favor of awarding costs.1
As to Dr. Hostutler’s deposition, Defendants’ argument for taxing the cost is that
“at the time when Plaintiff was a PhD candidate, Dr. Hostutler, Dr. Minschwaner, Dr.
Bhaskar, and Dr. Teare served on Plaintiff’s advisory committee.” Doc. 455 at 3–4.
While it is reasonable that Defendants found it necessary to prepare to litigate Plaintiff’s
history as a PhD candidate, the mere fact of Dr. Hostutler’s presence on Plaintiff’s
advisory committee fails to establish the reasonable necessity of his deposition in

Plaintiff speculates that the high cost of his deposition may have been due to the fact that it was
videotaped. Doc. 460 at 6 n.3. Defendants confirm that they are not seeking to tax the costs associated
with videotaping the deposition. Doc. 461 at 2–3 n.1.
1

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particular. As the three other members of Plaintiff’s advisory committee were also
deposed (and one member twice), Dr. Hostutler’s deposition would seem to be
redundant. Because Defendants have not carried their burden of establishing the
reasonable necessity of Dr. Hostutler’s deposition, I recommend that the cost of this
deposition be excluded from the final cost bill.
The following depositions were cited by the parties in their briefing of the
motion for summary judgment: Defendant Wells (as corporate representative); Dr.
Liebrock (as corporate representative); Scott Teare; Bhaskar Majumdar (as corporate
representative); Dr. Majumdar (as an individual); and Ms. Grijalva (as corporate
representative). Doc. 455 at 2–3. Plaintiff argues that these costs are not recoverable
because the portions used were “not substantial.” Doc. 460 at 3–6. With this argument,
Plaintiff conflates two different standards under Local Rule 54.2. While depositions
admitted into evidence or used at trial must be of “a substantial portion,” no such
qualification applies to depositions used on a motion for summary judgment.
D.N.M.LR-Civ. 54.2(b)(2)(A)–(B). Because these depositions were cited in the parties’
summary judgment briefing, they are fully taxable under Local Rule 54.2(b)(2)(B).

IV.

CONCLUSION
For the foregoing reasons, I RECOMMEND granting in part Defendants’ Motion

to Tax Costs (doc. 455) and reducing the total taxable cost by the cost of Dr. Hostutler’s

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deposition ($569.53). I therefore RECOMMEND awarding Defendants costs in the
amount of $5,032.81.

_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be
allowed.

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