Blueberry et al v. Comanche County Facilities Authority et al

Filing 231

ORDER granting 229 Motion to Review Taxation of Costs. The Taxation of Costs 228 is VACATED. Signed by Honorable David L. Russell on 9/21/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NATASHA BLUEBERRY, et al.,
Plaintiffs,
v.
COMANCHE COUNTY
FACILITIES AUTHORITY, et al.,
Defendants.

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Case No. CIV-13-278-R

ORDER
On July 7, 2016, the Clerk taxed costs in the amount of $14,498.58. Doc. No. 228.
Plaintiffs filed a timely motion for the Court to review that award on July 14. Doc. No.
229; see FED. R. CIV. P. 54(d)(1) (“The clerk may tax costs on 14 days’ notice. On
motion served within the next 7 days, the court may review the clerk’s action.”).
Plaintiffs challenge the costs award on a single ground, their indigent status. Plaintiffs
also request that no Plaintiff be held accountable for more than her pro rata portion, in
the event the Court denies the motion. Finally, Plaintiffs ask that the Court stay any
granting of awards until such time as their appeal has been resolved. Defendant objects to
modification of the award or staying any award, but does not object to pro rata
responsibility.
“Unless a federal statute, [the Federal Rules of Civil Procedure], 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). Whether to award costs to a prevailing party
rests within the sound discretion of the trial court. Zeran v. Diamond Broad., Inc., 203

F.3d 714, 722 (10th Cir. 2000). But that discretion is limited. Rule 54 creates a
presumption that costs will be awarded, and if a court denies costs, it must provide a valid
reason for doing so. Id. “The burden is on the non-prevailing party to overcome this
presumption.” Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004)
(citation omitted).
Plaintiffs argue they should not have to pay costs because they are indigent, most
having been released from incarceration in recent years. In Debord v. Mercy Health Sys.
of Kansas, Inc., 737 F.3d 642, 659-60 (10th Cir. 2013), the court stated that one
circumstance “in which a district court may properly deny costs to a prevailing party” is
when “the nonprevailing party is indigent.” In support of this conclusion the Circuit cited
an earlier 1995 opinion, which stated, “[c]ourts have also held that it was not an abuse of
discretion for district courts to deny costs when damages were only nominal, or the
nonprevailing party was indigent.” Id. at 660 (citing Cantrell v. Int’l Bhd. of Elec.
Workers, AFL-CIO, Local 2021, 69 F.3d 456, 459 (10th Cir. 1995)). As such, a
nonprevailing party’s indigent status is a proper basis on which to deny costs. The
Plaintiffs have sufficiently established their indigency and the Court exercises its
discretion in this case to deny costs due to Plaintiffs’ indigent status.1
The Taxation of Costs, Doc. No. 228, is VACATED.

1

Plaintiffs’ counsel indicates he was unable to contact Plaintiff Jessica Reece to determine the full extent of her
indigent status. The Court notes that a bench warrant was issued on July 7, 2016 on an application to revoke a
suspended sentence in a felony case in the District Court of Comanche County, it also requires Ms. Reece to pay
$100 per month in costs, none of which appear to have been paid since the Court entered its Order on October 1,
2015. Accordingly, the Court concludes that Ms. Reece is similarly situated to the other Plaintiffs.
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IT IS SO ORDERED this 21st day of September, 2016.

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