Wientjes v. Kanyuh

Filing 99

ORDER Denying 98 Bill of Costs filed by Wayne Kanyuh. Signed by U.S. District Judge Charles B. Kornmann on 7/1/19. (DJP)

UNITED STATES DISTRICT COURT

JUL'0 1 2019

DISTRICT OF SOUTH DAKOTA

NORTHERN DIVISION

CODY R. WIENTJES,

1:17-CV-01005-CBK

Plaintiff,
ORDER

vs.

WAYNE-KANYUH,
Defendant.

The jury returned a verdict finding that the defendant was negligent and that defendant's

negligence was one ofthe legal causes ofinjury to the plaintiff, as alleged in plaintiffs
complaint. The jury also found that the plaintiff was negligent and that such negligence was

more than slight, as alleged in defendant's answer. Plaintiff was thus precluded from an award
of damages. I entered judgment for the defendant without the taxation of costs. Defendant has
nonetheless filed a bill of costs.

Pursuant to Fed. R. Civ. P. 54(d), costs may be allowed to the prevailing party unless the
Court orders otherwise. The award of costs under Rule 54(d)is discretionary. Taniguchi v. Kan

Pacific Sainan. Ltd.. 566 U.S. 560, 565, 132 S. Ct. 1997, 2001, 182 L. Ed. 2d 903(2012).
Although the award of costs is permissive, in the Eighth Circuit a "prevailing party is
presumptively entitled to recover all of its costs." Thompson v. Wal-Mart Stores. Inc.. 472 F.3d

-515, 517(8th Cir. 2006). "To rebut the presumption that the prevailing party is entitled to
recover all of its costs, the district court must provide a rationale for denying the prevailing
party's claim for costs." Id. "A general statement [that the denial of costs is fair to both parties]
is insufficient, without more, to rebut the Rule 54(d)(1) presumption for an award of costs to the
prevailing party." Id.

Plaintifffiled this automobile negligence action in the^ Fifth Judicial Circuit, Campbell
County. Defendant removed the matter to federal court and filed an answer and counterclaim.

Defendant contended in his answer that the plaintiff assumed the risk ofinjury, failed to mitigate
damages, and was contributorily negligent. Defendant contended in his counterclaim that

plaintiff was negligent in causing the accident at issue, resulting in injury and damages to
defendant.

Defendant advised 20 days before trial that the counterclaim had settled. The stipulation
for dismissal of the counterclaim was not filed until after trial.

Judgment was entered in favor of the defendant because plaintiff did not "prevail" on his
claim for damages.. However, plaintiff vindicated important personal rights by submitting his
negligence claims to a jury and receiving a verdict finding that the defendant was negligent and

was a proximate cause of plaintiffs damages. Plaintiff did not recover damages because the jury
found that plaintiff was also negligent, and that plaintiffs negligence was "more than slight."
Defendant forfeited submission to the jury of his claims that plaintiff was a cause of defendant's
claimed injuries.
Defendant expended sums which ordinarily could be recovered as costs. However,

virtually all ofthose costs were incurred jointly in connection with defendant's counterclaim,

upon which defendant is not a prevailing party. There was no information submitted as to when
the witnesses were subpoenaed so the Court cannot conclude whether any of the witness fees
were incurred solely for defense of plaintiffs claim.
Based upon the foregoing,
IT IS ORDERED that the defendant's bill of costs is denied.

DATED this )
^^day of July, 2019.
BY THE COURT:

CHARLES B. KORNM

• United States District Judge