Rowe v. DPI Specialty Foods et al

Filing 254

MEMORANDUM DECISION AND ORDER denying 237 Motion to Review Clerks Taxation of Costs; granting 238 Motion to Review Clerks Taxation of Costs. An additional $3,246.87 is awarded to plaintiff and the total amount awarded for costs in this matter is $16,447.37. Signed by Judge David Nuffer on 4/20/16 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THOMAS ROWE,
Plaintiff,
v.
DPI SPECIALTY FOODS, INC., and JAMI
FLOYD,

MEMORANDUM DECISION AND
ORDER DENYING [237] DEFENDANTS’
MOTION FOR REVIEW OF CLERK’S
ORDER REGARDING TAXATION OF
COSTS AND GRANTING [238] MOTION
TO REVIEW CLERK’S TAXATION OF
COSTS
Case No. 2:13-cv-708-DN
District Judge David Nuffer

Defendants.

BACKGROUND
On October 13, 2015, after judgment was “entered in favor of the plaintiff and against the
defendants,” 1 Plaintiff Thomas Rowe (“Mr. Rowe”) filed a Memorandum of Costs 2 and a Bill of
Costs 3 seeking recovery of $16,890.30. Defendants DPI Specialty Foods, Inc. and Jami Floyd
(collectively, “Defendants”) objected to the request. 4 Mr. Rowe filed a Reply in Support of his
Memorandum of Costs on November 5, 2015. 5
On December 7, 2015, the Clerk filed a Taxation of Costs awarding Mr. Rowe
$13,200.50 (“Clerk’s Taxation of Costs”). 6 The Clerk disallowed certain costs to Mr. Rowe,

1

Judgment in a Civil Case, docket no. 214, filed Sep. 28, 2015.

2

Memorandum of Costs, docket no. 215, filed Oct. 13, 2015.

3

Bill of Costs, docket no. 216, filed Oct. 13, 2015.

4

See Defendants’ Opposition to Plaintiff’s Bill of Costs and Memorandum of Costs, docket no. 219, filed Oct. 27,
2015.
5

Reply in Support of Memorandum of Costs, docket no. 220, filed Nov. 5, 2015.

6

Taxation of Costs, docket no. 234, filed Dec. 7, 2015.

including “[p]ostage and pdf charges, attendance fees, and charges for Web Ex and videos
supplementing stenographic transcripts . . . .” 7
On December 11, 2015, Defendants filed a Motion for Review of Clerk’s Order
Regarding Taxation of Costs (“Defendants’ Motion to Review”), 8 arguing that “[t]he Court
should not award Mr. Rowe 100% of the $13,200.50 in costs” because “Mr. Rowe [was] 43% at
fault for his alleged injuries.” 9 Plaintiff Thomas Rowe (“Mr. Rowe”) filed an Opposition to
Defendants’ Motion to Review. 10
On December 14, 2015, Mr. Rowe filed a Motion to Review Clerk’s Taxation of Costs
(“Mr. Rowe’s Motion to Review”). 11 Mr. Rowe’s Motion to Review requested reconsideration of
the Clerk’s denial of costs, including witness and deposition recording fees, and requested costs
in the amount of $16,447.37. 12 Defendants did not oppose Mr. Rowe’s Motion to Review.
For the reasons set forth below, Defendants’ Motion to Review is DENIED and Mr.
Rowe’s Motion to Review is GRANTED.
DISCUSSION
Rule 54(d) contains the process for disputing costs. 13 It provides that “[t]he clerk may tax
costs on 14 days’ notice” and that “[o]n motion served within the next 7 days, the court may
review the clerk’s action. 14 District courts have discretion to consider a motion to review. 15

7

Id. at 2.

8

Defendants’ Motion for Review of Clerk’s Order Regarding Taxation of Costs (“Defendants’ Motion to Review”),
docket no. 237, filed Dec. 11, 2015.

9

Id. at 1.

10

Opposition to Defendants’ Motion for Review of Clerk’s Order Regarding Taxation of Costs (“Opposition to
Defendants’ Motion to Review”), docket no. 243, filed Dec. 18, 2015.
11

Motion to Review Clerk’s Taxation of Costs (“Mr. Rowe’s Motion to Review”), docket no. 238, filed Dec. 14,
2015.
12

Id. at 2-3.

13

Fed. R. Civ. P. 54(d).

2

Each of the motions to review was timely filed and will be considered. Defendants’
Motion to Review will be discussed first.
Defendants’ Motion to Review
Defendants request review of the Clerk’s Taxation of Costs on several grounds.
Defendants assert that Rule 54(d) grants courts “broad discretion” to reduce costs. 16 Defendants
recognize that “Rule 54(d) creates a presumption that ‘a prevailing party will normally recover
costs.’” 17 However, Defendants argue that because Rule 54(d) “does not define ‘prevailing
party’” and “also does not mandate that costs be awarded,” the court should not award costs to
Mr. Rowe because he was “only partially successful.” 18 Defendants are incorrect.
Mr. Rowe is the prevailing party under Rule 54(d) and is entitled to statutory costs.
In Barber v. T.D. Williamson, Inc., 19 the Tenth Circuit Court of Appeals considered the
issue of “prevailing party” under Rule 54(d). In Barber, Mr. Barber, an employee of T.D.
Williamson, sued T.D. Williamson for discrimination. 20 “The jury found for Mr. Barber on [one
claim], but concluded that he failed to prove [two additional claims].” 21 Mr. Barber was awarded
attorney’s fees, but costs were awarded to both parties. 22 Mr. Barber appealed, arguing that

14

Fed. R. Civ. P. 54(d)(1).

15

See Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642, 659-660 (10th Cir. 2013).

16

Defendants’ Motion to Review at 3.

17

Id.

18

Id.

19

Barber v. T.D. Williamson, Inc., 254 F.3d 1223 (10th Cir. 2001).

20

Id. at 1225.

21

Id.

22

Id.

3

Williamson should not have been awarded costs because he (Mr. Barber) was the prevailing
party. 23
The Tenth Circuit agreed with Mr. Barber and remanded the case to district court. The
Tenth Circuit held that the district court abused its discretion by finding “both Mr. Barber and
Williamson to be prevailing parties under Rule 54(d)(1).” 24 Instead, the Tenth Circuit held, “Mr.
Barber, and not Williamson, was the prevailing party for purposes of costs.” 25
Citing other courts 26 and federal practice guides, 27 the Tenth Circuit noted that “[i]n
general, the litigant who is the prevailing party for purposes of attorney’s fees is also the
prevailing party for purposes of costs.” 28 The Tenth Circuit also noted that “usually the litigant in
whose favor judgment is rendered is the prevailing party for purposes of Rule 54(d)(1).” 29 Using
these two factors, the Tenth Circuit concluded that Mr. Barber was the prevailing party because
he was awarded nominal damages and because the district court entered judgment in his favor. 30
The Tenth Circuit held that “[t]o the extent that the magistrate judge 31 found both Mr. Barber
and Williamson to be prevailing parties under Rule 54(d)(1), he clearly erred. . . . Mr. Barber,
and not Williamson, was the prevailing party for purposes of costs.” 32

23

Id. at 1233.

24

Id. at 1234.

25

Id.

26

Id. at 1223-1234.

27

Id.

28

Id. at 1234.

29

Id. (alterations incorporated).

30

Id.

31

The case was referred to a magistrate judge for final disposition by consent of the parties. Id. at 1225.

32

Id. at 1234.

4

“[W]hile costs presumptively are awarded to the prevailing party, a trial court still has the
discretion to act under Rule 54(d)(1).” 33 “For example, in cases in which the prevailing party has
been only partially successful, some courts have chosen to apportion costs among the parties or
to reduce the size of the prevailing party’s award to reflect the partial success.” 34 “Or, in cases in
which neither side entirely prevailed, or when both sides prevailed, or when the litigation was
thought to be the result of fault on the part of both parties, some courts have denied costs to both
sides.” 35 But because Mr. Barber “was the prevailing party, having been awarded nominal
damages” and “because the district court entered judgment in his favor[,]” only Mr. Barber could
be considered a “prevailing party for purposes of costs.” 36
Following Barber, Mr. Rowe is the prevailing party in this matter. Mr. Rowe prevailed
on both of his claims against the Defendants in a jury verdict. 37 Further, judgment was entered
“in [Mr. Rowe’s] favor . . . and against the defendants . . . .” 38 Accordingly, Mr. Rowe is the
prevailing party for purposes of costs recovery under Rule 54(d). The next question is whether
the court should exercise its discretion “to apportion costs among the parties or reduce the size of
Mr. Rowe’s award to reflect the partial success.” 39

33

Id.

34

Id.

35

Id. at 1234-35.

36

Id. at 1234.

37

See Verdict, docket no. 208, filed September 1, 2015.

38

Judgment in a Civil Case, docket no. 214, filed Sep. 28, 2015 (entering judgment “in favor of the plaintiff and
against the defendants”).
39

Barber, 254 F.3d at 1234.

5

Awarding full costs to Mr. Rowe is appropriate because he cannot be considered “partially
successful” or “partially prevailing”
Defendants next argue that while Rule 54(d) carries a presumption to award costs to the
prevailing party, 40 departure in this case is permissible. In particular, Defendants contend that
because the jury determined that Mr. Rowe was 43 percent at fault, awarding Mr. Rowe full
costs is dismissive of his actions. 41 In addition, Defendants assert that the jury determination of
fault provides a clear line on which to apportion costs, thereby limiting Defendants’ costs to no
more than 57 percent, or $7,524.29. 42
The plain language of Rule 54(d)(1) states that “[u]nless 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.” The rule does not state “partial costs . . .
should be allowed to the prevailing party.” Rather, it states that “costs” should be allowed.
Moreover, while a court retains discretion to award costs, this discretion is “not unlimited.” 43
“[T]o deny a prevailing party its costs is . . . a severe penalty, such that there must be some
apparent reason to penalize the prevailing party if costs are to be denied.” 44 A court “must
provide a valid reason for not awarding costs to a prevailing party.” 45 “[A] party need not prevail
on every issue to be considered a Rule 54(d) prevailing party.” 46

40

Id. (citing Cantrell v. International Broth. of Elec. Workers, AFL-CI, Local 2021, 69 F.3d 456, 457 (10th Cir.
1995) (en banc)).
41

Defendants’ Motion to Review at 3-4.

42

Id. at 1-2.

43

Debord, 737 F.3d at 659 (quoting Cantrell, 69 F.3d at 458).

44

Debord, 737 F.3d at 659 (internal quotation marks and citations omitted).

45

Cantrell, 69 F.3d at 457.

46

Id. at 458.

6

Valid reasons to deny or divide costs include: if a party was partially successful (i.e., did
not “prevail” 47), if the prevailing party acted obstructively or with bad faith during the course of
litigation, where damages are only nominal, where the non-prevailing party is indigent, if the
costs are unreasonably high or unnecessary, if the prevailing party’s costs are insignificant, or if
the issues are close and difficult. 48
Defendants have not established that any of these reasons apply. Mr. Rowe succeeded on
both claims at trial. 49 Defendants have not cited a case that is sufficiently analogous to this one,
where the plaintiff prevailed on both claims and yet, as the prevailing party, had his award of
costs reduced because the jury found the plaintiff partially at fault. Consequently, Mr. Rowe
cannot be considered to be only “partially successful” as suggested by Defendants.
Finally, Mr. Rowe cannot be considered “partially prevailing” or “partially successful”
because the jury determined that he was 43 percent at fault. At least one court in the Tenth
Circuit has declined to depart “from the general rule that the prevailing party should be allowed
costs,” even where the prevailing party was 45 percent at fault. 50
Mr. Rowe is the prevailing party and is entitled to costs. Defendants’ request to depart
from the presumption granting costs to the prevailing party is rejected.
Mr. Rowe’s Motion to Review
Because Mr. Rowe is the prevailing party in this matter, he is entitled to recover costs. 51
The proper amount of those costs is addressed in Mr. Rowe’s Motion to Review. Mr. Rowe

47

Id. at 459 (citing Howell Petroleum Corp. v. Samson Resources Co., 903 F.2d 778 (1990) (holding that a court has
discretion to refuse costs to party who did not “prevail”)).
48

Cantrell, 69 F.3d at 459.

49

See Verdict, docket no. 208, filed Sep. 1, 2015.

50

Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 199-200 (D. Kan. Dec. 9, 1993).

51

Fed. R. Civ. P. 54(d).

7

argues that he is entitled to an additional $350.32 for witness fees and an additional $2,896.55
for deposition recording fees. 52 Defendants did not oppose Mr. Rowe’s Motion to Review.
Where fees are disputed, “[t]he burden is on the non-prevailing party to overcome [a]
presumption [of costs.]” 53 Here, Defendants are the non-prevailing parties and therefore have the
burden to overcome the presumption that Mr. Rowe is entitled to costs. Defendants fail to carry
this burden because they did not oppose Mr. Rowe’s Motion to Review. Even if they had filed an
opposition, it is unlikely they would be able to overcome the presumption.
First, Mr. Rowe asserts that he should have been awarded $350.32 for witness fees. 54 A
prevailing party is entitled to collect witness fees 55 if they are “relevant and material to an issue
in the case and reasonably necessary to its disposition.” 56 Defendants do not attempt to explain
how the witness fees identified by Mr. Rowe fail to satisfy this test. Mr. Rowe is therefore
awarded costs for witness fees in the amount of $350.32.
Second, Mr. Rowe argues that he should have been awarded $2,896.55 for video and web
recording of depositions to supplement the stenographic transcription of depositions. 57 A
prevailing party is entitled to collect “[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case[.]” 58 “The majority of districts” have interpreted this to
mean that “depositions can be recorded by both stenographic and non-stenographic means rather

52

Mr. Rowe’s Motion to Review at 2-3.

53

Higgins v. Potter, 2011 WL 3667097, *1 (D. Kan. Aug. 22, 2011).

54

Memorandum of Costs at 4.

55

28 U.S.C. § 1920(3) (allowing “[f]ees and disbursements for . . . witnesses”).

56

Morrisey v. County Tower Corp., 568 F.Supp. 980, 982 (E.D. Mo. 1983) (internal quotations omitted).

57

Id.

58

28 U.S.C. § 1920(2) (allowing “[f]ees for . . . electronically recorded transcripts necessarily obtained for use in the
case.”).

8

than a limitation on the scope of taxable costs.” 59 As such, recovery of costs for both video and
web recording of depositions is permitted in most cases if an independent, legitimate use exists.60
Defendants do not attempt to explain whether the deposition transcript costs identified by Mr.
Rowe 61 were obtained for an “independent, legitimate use.” Thus, Defendants appear to have
conceded that they were obtained for a proper use and have failed to overcome the presumption
that Mr. Rowe is entitled to $2,896.55 for deposition recording fees.
CONCLUSION
Mr. Rowe is the prevailing party and is entitled to costs. Specifically, in addition to the
$13,200.50 previously awarded, Mr. Rowe is entitled to recover an additional $350.32 for
witness fees and $2,896.55 for deposition recording fees. Thus, an additional $3,246.87 is
awarded to Mr. Rowe and the total amount awarded for costs in this matter is $16,447.37.
ORDER
IT IS HEREBY ORDERED that Defendants’ Motion to Review 62 is DENIED and Mr.
Rowe’s Motion to Review 63 is GRANTED.

Dated April 20, 2016.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

59

See Higgins, 2011 WL 3667097, at *2 (emphasis added).

60

Tilton v. Capital Cites ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997).

61

Memorandum of Costs at 3, ¶ 3, docket no. 215, filed Oct. 13, 2015 (identifying Mark Miale and Tim Smith).

62

Defendants’ Motion for Review of Clerk’s Order Regarding Taxation of Costs (“Defendants’ Motion to
Review”), docket no. 237, filed Dec. 11, 2015.
63

Motion to Review Clerk’s Taxation of Costs (“Mr. Rowe’s Motion to Review”), docket no. 238, filed Dec. 14,
2015.

9