Debord v. Mercy Health System of Kansas, Inc. et al, No. 5:2010cv04055 - Document 197 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER granting 194 Motion for review. Defendant's motion for review 195 is denied. Clerk of Court is directed to re-tax costs according to this order. Signed by District Judge Sam A. Crow on 4/29/14. (mb)
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Debord v. Mercy Health System of Kansas, Inc. et al Doc. 197 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS SARA C. DEBORD, Plaint iff, v. Case No. 10- 4055- SAC MERCY HEALTH SYSTEM OF KANSAS, I NC., and LEONARD WEAVER, Defendant s. MEMORANDUM AND ORDER This case com es before t he court on Plaint iff’s m ot ion t o ret ax t he cost s t o t he Defendant 1 ( Dk. 194) . The Court const rues t his as a m ot ion for review of cost s t axed by t he Clerk pursuant t o D.Kan.Rule 54.1( c) . Defendant has responded and has m oved for addit ional cost s ( Dk. 195) , t o which Plaint iff obj ect s ( Dk. 196) . Bu r de n of Pr oof/ St a n da r d of Re vie w A t rial court reviews de novo t he clerk's assessm ent of cost s t o ensure t hat it is reasonable. See Farm er v. Arabian Am . Oil Co., 379 U.S. 227, 232– 33, 85 S.Ct . 411, 13 L.Ed.2d 248 ( 1964) . The part y seeking an award of cost s bears t he burden of showing t he necessit y of t he cost s incurred. Allison v. Bank One—Denver, 289 F.3d 1223, 1248 ( 10t h Cir. 2002) . I f t he prevailing part y carries t hat burden, a presum pt ion arises in favor of t axing 1 The Court refers t o “ Defendant ” for purposes of convenience, as do t he part ies. Dockets.Justia.com t hose cost s. U.S. I ndus., I nc. v. Touche Ross & Co., 854 F.2d 1223, 1245 ( 10t h Cir. 1988) , overruled on ot her grounds as recognized by Anixt er v. Hom e–St ake Prod. Co., 77 F.3d 1215, 1231 ( 10t h Cir. 1996) . A “ dist rict court has broad discret ion t o award cost s,” Cant rell v. I nt ernat ional Brot herhood of Elect rical Workers, AFL–CI O, Local 2021, 69 F.3d 456, 458 ( 10t h Cir. 1995) , but m ust provide a valid reason for not awarding cost s t o a prevailing part y, Furr v. AT & T Technologies, I nc., 824 F.2d 1537, 1550–51 ( 10t h Cir. 1987) . The st at ut ory basis for t he award of cost s is 28 U.S.C. § 1920, which provides for t he following it em s of cost t o be t axed: ( 1) Fees of t he clerk and m arshal; ( 2) Fees for print ed or elect ronically recorded t ranscript s necessarily obt ained for use in t he case; ( 3) Fees and disbursem ent s for print ing and wit nesses; ( 4) Fees for exem plificat ion and t he cost s of m aking copies of any m at erials where t he copies are necessarily obt ained for use in t he case; ( 5) Docket fees under sect ion 1923 of t his t it le; ( 6) Com pensat ion of court appoint ed expert s, com pensat ion of int erpret ers, and salaries, fees, expenses, and cost s of special int erpret at ion services under sect ion 1828 of t his t it le. Defendant Leonard Weaver was represent ed t hroughout t he proceedings by t he sam e counsel t hat represent ed Defendant Mercy Healt h Syst em of Kansas, I nc. Aft er j udgm ent was ent ered, only one Bill of Cost s was filed - by Defendant Mercy Healt h Syst em of Kansas, I nc. But it is 2 apparent t hat t his Bill of Cost s also includes am ount s incurred in prosecut ing Defendant Leonard Weaver’s count erclaim for defam at ion, as well as am ount s incurred in defending against Plaint iff’s claim s of Tit le VI I violat ions and of assault and bat t ery. Pa r t ia l Su cce ss Plaint iff’s sole cont ent ion is t hat t he Court should reduce Defendant ’s award of cost s because Defendant did not prevail on it s Count erclaim for Weaver. Plaint iff cont ends t hat Defendant ’s award of cost s as a prevailing part y under Fed.R.Civ. Pro 54( d) should be reduced by 30% because Weaver should not receive cost s for prosecut ing it s m erit less count erclaim , even t hough som e of t he fact s involved in t hat prosecut ing t hat count erclaim overlapped wit h Mercy’s successful defense of Plaint iff’s Tit le VI I claim s. As t he Tent h Circuit not ed in t his case, “ … overlapping fact s m ay j ust ify deduct ing som e cost s during t he t axing process, but it is not a basis for alt oget her denying a prevailing part y cost s.” Debord v. Mercy Healt h Sys. of Kansas, I nc., 737 F.3d 642, 660 ( 10t h Cir. 2013) . Reducing t he size of t he prevailing part y’s award t o reflect it s part ial success is a com m on pract ice in t he Tent h Circuit . See e.g., Barber v. William son, 254 F.3d 1223, 1234 ( 10t h Cir. 2001) ; AeroTech, I nc. v. Est es, 110 F.3d 1523, 1526 ( 10t h Cir. 1997) ( finding “ a denial of cost s does not const it ut e an abuse of discret ion when t he prevailing part y is only part ially successful.” ) ; Howell Pet roleum Corp. v. Sam son Res. Co., 903 F.2d 778, 783 ( 10t h Cir. 1990) . Cf, BP Pipelines ( N. 3 Am .) I nc. v. C.D. Brown Const ., I nc., 473 F. App'x 818, 836 ( 10t h Cir. 2012) ( holding t hat overlapping fact s j ust ified 40% reduct ion of at t orneys’ fees represent ed by block billing) . Defendant has not present ed any evidence as t o what port ion of t he cost s assessed by t he clerk represent expenses at t ribut able t o it s successful sum m ary j udgm ent m ot ion, as opposed t o it s unsuccessful count erclaim . I t s Bill of Cost s does not dist inguish bet ween cost s incurred in prosecut ing t he groundless count erclaim , including deposit ions, copies, subpoenas or exhibit s used in connect ion wit h Weaver’s m ot ion for sum m ary j udgm ent on t hat claim . Defendant assert s t hat it would have incurred t he sam e cost s even absent t he count erclaim , but m akes no at t em pt t o verify t hat conclusory st at em ent . The record reflect s inst ead t hat t he deposit ions of at least t he following persons included subst ant ial t est im ony relat ive t o t he failed count erclaim : Plaint iff, Kari Dunham , Tena Walsh, Heat her Boss, Melissa St ewart , Terri Wilson, Dr. Herrin, and Leonard Weaver. Sum m ary j udgm ent m ot ions included ext ensive briefing of t he issue of defam at ion and t he count erclaim was decided at sum m ary j udgm ent based on t he elem ent of harm t o Weaver’s reput at ion – an issue not relevant t o Plaint iff’s Tit le VI I claim . Absent t he count erclaim , num erous deposit ion t ranscript s would have been significant ly short er and fewer exhibit s would have been reproduced, and it is possible t hat t he deposit ions of som e wit nesses ( such as Dr. Herrin) 4 would have been unnecessary. Given t hese circum st ances, t he Court finds a reduct ion of cost s t o be warrant ed t o account for t he Defendant ’s overall degree of success and failure in t he lawsuit . See Barber, 254 F.3d at 1234 ( finding t he Court m ay reduce an award of t axable cost s t o reflect only part ial success) . Because t he nat ure of t he case precludes precise ret roact ive at t ribut ion of part icular cost s t o one claim or anot her, t he Court finds it appropriat e t o m ake an across- t he- board reduct ion t o t he t ot al cost s. This is a com m on pract ice in t his and ot her j urisdict ions. See e.g., Bell v. Board of Count y Com 'rs of Jefferson Count y, 2007 WL 1411613, 3 ( D.Kan. 2007) ( reducing defendant ’s award of cost s by 10% t o fairly com pensat e each part y's part ial success) ; Pierce v. Count y of Orange, 905 F.Supp.2d 1017, 1049 ( C.D.Cal. 2012) ( finding a 30% reduct ion of one- half of Plaint iffs' cost s necessary t o reasonably approxim at e t he degree of Plaint iffs' success on t heir const it ut ional claim s) ; Navarro v. General Nut rit ion Corp., 2004 WL 2648373, 17 ( N.D.Cal. 2004) ( recom m ending a 35 % reduct ion in t he cost s t o com pensat e for t he lim it ed degree of success) ; Noble v. Herringt on, 732 F.Supp. 114, 118 ( D.D.C. 1989) ( reducing cost s by 80% t o account for t he lim it ed nat ure of plaint iff’s success) ; E.E.O.C. v. Colgat e- Palm olive Co., 617 F.Supp. 843, 844 ( D.C.N.Y. 1985) ( perm it t ing EEOC t o recover one- t hird of it s cost s and Colgat e t o recover t wo- t hirds of it s cost s t o reflect t he part ies’ respect ive degrees of success on various claim s) ; Vaughns v. Board of Educ. 5 of Prince George's Count y, 627 F.Supp. 837 ( D.Md. 1985) ( reducing request ed expenses as a whole by 24% t o reflect t im e spent on nonprevailing issues and ot her not sufficient ly necessary expenses) ; Quaker Act ion Group v. Andrus, 559 F.2d 716, 719 ( D.C.Cir. 1977) ( reducing cost s incurred on appeal by 25% where ot her part y prevailed in som e respect s; direct ing t he dist rict court t o use t he sam e approach for cost s below) . Defendant cont ends t hat t he 30% cost reduct ion request ed by t he Plaint iff is speculat ive and could j ust as easily be any ot her percent age. Alt hough t his percent age is reasonable based on t he aut horit ies cit ed above, t he Court finds t hat a 20% reduct ion t o account for Defendant Weaver’s count erclaim m ore accurat ely reflect s t he part ies’ relat ive degrees of success and failure on all t he claim s m ade in t his case. Accordingly, t he Clerk shall reduce t he t ot al cost s awarded t o Defendant by 20% . Vide ot a pe d D e posit ion Defendant includes in it s response a “ m ot ion” for t his Court t o add $1,137.50 for Defendant ’s cost of videot aping one day of Plaint iff’s deposit ion. Dk. 195. This am ount was init ially sought by Defendant but was disallowed by t he Clerk based on it s det erm inat ion t hat Defendant had not m et it s burden t o est ablish t he necessit y of t hat videot ape. Dk. 192. Un t im e lin e ss of M ot ion The Clerk t axed cost s in t his case on March 17, 2014, disallowing t he $1,137.50 Defendant now seeks. Defendant filed t his m ot ion on April 1, 6 0214, m ore t han seven days aft er t hat t axat ion of cost s. D.Kan. Rule 54.1( c) provides t hat “ t he court m ay review t he clerk’s act ion when a part y files and serves a m ot ion for review wit hin 7 days of t he dat e t he clerk t axes cost s.” The governing federal rule of civil procedure est ablishes t he sam e t im e lim it . See Fed.R.Civ.Pro. 54( d) ( 1) ( “ On m ot ion served wit hin t he next 7 days, t he court m ay review t he clerk’s act ion.” ) . By negat ive inference, t he Rule precludes lat er- filed m ot ions for review. See Johnson v. Sim ont on Bldg. Product s, I nc., 2011 WL 3666616 ( D.Kan. 2011) ; Scofield v. Telecable of Overland Park, I nc., 1993 WL 545284 ( D.Kan. 1993) ; Anderson v. Telecable of Overland Park, I nc., 1993 WL 545280, 1 ( D.Kan. 1993) ; Fleet I nv. Co., I nc. v. Rogers, 87 F.R.D. 537, 540 ( W.D.Okla. 1978) , aff'd, 620 F.2d 792 ( 10t h Cir. 1980) . See also, Woods Const ruct ion Co. v. At las Chem ical I ndust ries, I nc., 337 F.2d 888 ( Tent h Cir. 1964) . This m ot ion shall t herefore be denied as unt im ely. N e ce ssit y of Vide ot a pe d D e posit ion Alt ernat ively, t he Court reaches t he m erit s of Defendant ’s m ot ion. To j ust ify it s request for cost s of videot aping one day of Plaint iff’s deposit ion, Defendant cont ends solely t hat such videot aping was part of it s “ vigorous advocacy.” Doc. No. 186, p. 8. I f an allegat ion of “ vigorous advocacy” is alone sufficient t o m eet t he st andard, cost s would never be denied. Defendant adm it s t hat it chose not t o videot ape t he second day of Plaint iff’s deposit ion, yet offers no 7 explanat ion for why it believed it was reasonably necessary t o videot ape t he first day of Plaint iff’s deposit ion. Nor does Defendant offer any reason ( such as t he Plaint iff’s host ilit y or poor healt h) for having believed t hat it was reasonably necessary t o videot ape Plaint iff on any day. Defendant did not use t he videot aped deposit ion in defending Plaint iff’s Tit le VI I claim s on sum m ary j udgm ent or in prosecut ing it s count erclaim . Alt hough act ual use is not required, Defendant bears t he burden t o show t hat t he fact s it knew when t he deposit ion was t aken m ade it appear reasonably necessary t o record t he deposit ion on videot ape. Defendant cont ends t hat it is t he Plaint iff who bears t he burden t o show t hat Defendant ’s videot aping was not t axable, but t he case cit ed by Defendant does not support t hat proposit ion, st at ing: I f t he prevailing part y m akes a prelim inary showing t hat it s request ed cost s fall wit hin t he cat egories of recoverable cost s enum erat ed in § 1920, a presum pt ion arises in favor of t axing t hose cost s, and “ [ t ] he burden is on t he nonprevailing part y t o overcom e t he presum pt ion in favor of t he prevailing part y.” Cant rell v. I BEW Local 2021, 69 F.3d 456, 458- 59 ( 10t h Cir.1995) ( cit at ion om it t ed) . Pehr v. Rubberm aid, I nc., 196 F.R.D. 404, 407 ( D.Kan. 2000) ( em phasis added) . To m ake t he required “ prelim inary showing” in t his case, Defendant bears t he burden t o show t hat t he videot ape was “ necessarily obt ained for use in t he case.” 28 U.S.C. § 1920 ( 2) . For t he reasons st at ed above, t he Clerk correct ly found t hat Defendant failed t o m eet t his burden. 8 I T I S THEREFORE ORDERED t hat Plaint iff’s m ot ion for review ( Dk. 194) is grant ed and t hat Defendant ’s m ot ion for review ( Dk. 195) is denied. The Clerk of t he Court is direct ed t o re- t ax cost s according t o t his Order. Dat ed t his 29t h day of April, 2014, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 9
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