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Apsley v. The Boeing Co.

United States District Court, Tenth Circuit

August 26, 2013

PERRY APSLEY, et al., Plaintiffs,
THE BOEING COMPANY, et al., Defendants.



Baseball great and American icon Yogi Berra famously asserted that “it ain’t over ‘til it’s over.” Plaintiffs assert that this case certainly is not over, and the ongoing filings both here and in the plethora of cases sired by this seminal case give merit to their assertion. Defendants, however, contend that the claims and parties addressed by this Court’s earlier grant of summary judgment, and by the Tenth Circuit’s affirmance of that order, clearly establish a finality that shows, as to those claims and parties, that it’s over. Whether anything is “over” in this case is the foundational matter the Court must address, before moving on to the more prosaic questions surrounding Defendant’s Bill of Costs.

I. Factual and Procedural Background

This complex and multi-faceted case began when The Boeing Company sold its assets and operations in Wichita, Kansas and related locations to the newly formed Spirit AeroSystems, and Spirit hired some but not all of the employees who had worked at Boeing. The excluded, or non-hired, Boeing employees filed numerous claims against Boeing and Spirit. After an initial order granting judgment on the pleadings as to some claims, Plaintiffs had claims remaining under § 510 of the Employment Retirement Income Security Act (“ERISA”); under § 301 of the Labor Management Relations Act (“LMRA”); under the Age Discrimination in Employment Act (“ADEA”); under Title VII of the Civil Rights of 1964 (“Title VII”); and under the Americans with Disabilities Act (“ADA”). In 2007, the Court granted Defendants’ motion for summary judgment on the retaliation claims under Title VII and the ADA, as well as on the ADEA claims occurring prior to January 1, 2005.[1] In 2010, the Court granted Defendants’ motion for summary judgment on the ERISA claim, on Plaintiffs’ pattern or practice of intentional age discrimination collective action disparate treatment claim, on Plaintiffs’ disparate impact claims under the ADEA, and on one of Plaintiffs’ claims under LMRA, involving the Collective Bargaining Agreement.[2] As a result of these orders, one claim remains – individual claims of disparate treatment based on age in violation of ADEA.

After denying Plaintiffs’[3] motion for reconsideration, [4] the Court granted the separate motions filed by Plaintiffs and Defendants, both seeking certification under Fed.R.Civ.P. 54(b) directing entry of final judgment on fewer than all of the claims or parties.[5] The Court found that its above orders were final, and disposed of claims that were separate and distinct from any remaining claims in that they turned on different factual questions, involved different legal issues, and allowed for separate recovery. The Court further found that no just reason for delay existed. Accordingly, an appeal was docketed. The Tenth Circuit affirmed.

Shortly after the mandate was docketed, Defendants filed their Bill of Costs.[6] Defendants claimed costs of $53, 552.06 for transcripts and $773.96 for printing; for total costs of $54, 326.02. Defendants’ Memorandum in Support of their Bill of Costs[7] asserted that they were the prevailing party, and that Fed.R.Civ.P. 54 creates a presumption that costs will be awarded to the prevailing party, a presumption that fully applies to class actions. While acknowledging that some of the deposition testimony for which costs were claimed might also become relevant to the remaining individual claims, Defendants asserted that the depositions were nevertheless “reasonably necessary” for the claims which had been decided in their favor, and thus were appropriately taxable.

“Not so fast, ” Plaintiffs responded. Their Objections to Defendants’ Bill of Costs[8] raised four objections. First, they objected that Defendants failed to follow the Court’s local rule[9] that the memorandum in support of costs must state that reasonable efforts have been made in conference to resolve disputes with the opposing party regarding costs. Plaintiffs asserted that Defendants’ memorandum contained no such statement, because Defendants made no such effort, and failure to do so requires that their costs be denied. This objection may be quickly disposed of; not only do Plaintiffs’ cited authorities not stand for the proposition cited (they involved situations where a bill of costs had not yet been filed, or where pending motions precluded a determination that judgment was final; not cases denying costs for failure to consult), but Defendants have demonstrated that they reached out to Plaintiffs for this very purpose, and that no consultation occurred because Plaintiffs did not respond to their inquiries.

Secondly, Plaintiffs assert that the prerequisites of this local rule have not been met, and the request for costs is thus premature, because the action on appeal has not been terminated. Indeed, Plaintiffs’ assert, “the case is very well alive.”[10] This second objection is closely related to their third objection, that Defendants are not the prevailing party, as claims are still pending and it is too early for the Court to determine who the prevailing party is. Plaintiffs may ultimately succeed on their remaining claims, which are based on the same factual predicate as the claims which have been adjudicated, they assert. This argument is difficult to reconcile with the Rule 54(b) certification, however. In requesting the same, Plaintiffs argued to this Court that:

Furthermore, the Order at issue provided a decision on real and cognizable claims for relief and is an ultimate disposition of individual claims entered in the course of a multiple claims action. Indeed, the court’s summary judgment findings, and the Order denying Plaintiffs’ Motion for Reconsideration, clearly show that the ADEA and ERISA pattern and practice claims have been ultimately disposed of as well as the ERISA and LMRA claims presented to the court. There are no other steps plaintiffs can take to revive the claims. Therefore, it is clear the court has provided an ultimate disposition on individual claims in a multiple claim case. It is equally clear that the disposed claims are separable and suitable for Rule 54(b) certification.[11]

In granting Plaintiffs’ (and Defendants’) motion for Rule 54(b) certification, the Court found that these orders were final, and that “each of the claims disposed of are separate and distinct from any remaining claims, as they turn on different factual questions, involve different legal issues, and allow for separate recovery.[12] By hearing and deciding the appeal, the Tenth Circuit implicitly affirmed that this Rule 54(b) certification was appropriate. Plaintiffs’ assertions, therefore, that Defendants have not prevailed on “wholly separate claims”[13] is incorrect.

Plaintiffs’ fourth objection to Defendants’ bill of costs is more of a plea to the Court to deny costs for equitable reasons than it is an objection to the costs per se. Citing Rodriguez v. Whitting Farms, Inc., [14] Plaintiffs’ argue that the costs may be denied to a prevailing party when issues in the case are difficult and close. That case actually held, however, that even though the plaintiff was indigent, and that it presented close and difficult questions, there was no reason that the defendant should be penalized by reducing the award of costs.[15] Plaintiffs also assert that it may be appropriate to deny costs where a case presents issues of great public importance. The Court need not decide whether that is correct, however, since despite Plaintiffs’ best efforts to show otherwise, the Court is by no means persuaded that this case presented issues which were important to the public. The Court is not persuaded that this case is an appropriate one in which to exercise its discretion to penalize the prevailing party by declining to award costs.

Accordingly, the Court overrules Plaintiffs’ objections to the propriety of awarding costs in this case.

Plaintiffs Olivia Housley and Debra Smith filed separate objections to Defendants’ Bill of Costs. In separate but identical pleadings, [16] they move to join in the objections of the Plaintiffs, which are discussed above. That motion is granted. They further aver that they were never advised they could potentially be found liable for court costs if their claims were unsuccessful. They claim that they do not have the means to pay an award of costs, offering to provide the Court with a financial statement if necessary. Similar to the other Plaintiffs, they also argue that Defendants are not prevailing parties. They ask the Court to exercise its discretion to deny costs. They note that the Tenth Circuit has permitted district courts discretion to deny otherwise recoverable costs if the prevailing party was only partially successful, damages only nominal, costs unreasonably or unnecessarily high, recovery insignificant, or issues difficult.[17] It is unreasonable, they assert, to award judgment against them for the total costs. Lastly, they complain that prior counsel has denied them access to the depositions and exhibits for which costs are being claimed, denying them a meaningful opportunity to object to the same, and move for production of supporting documents for items to be taxed, and for 30 days after such production to file any further objections to Defendants’ Bill of Costs.

The Court has already addressed arguments that Defendants are not prevailing parties because there is not yet a final judgment in this case. Regarding Housley and Smith’s complaints of surprise, that they might be exposed to payment of unanticipated costs, the Court cannot find that such complaints permit relief from joint and several liability for costs. The presumption is that prevailing parties are entitled to their costs, even in class actions.[18] While not unsympathetic to their pleas of indigence, and while noting that indigent status is a circumstance upon which a district court may rely to exercise its discretion to deny costs to a prevailing party, [19] that status standing alone is probably insufficient for such an order. The presumption under Rule 54[20] is that costs will be awarded to the prevailing party, and the burden is on the non-prevailing party to overcome the presumption.[21] If a district court determines that the presumption has been overcome and denies costs to the prevailing party, “it must provide a valid reason for the denial.”[22] Moreover, Housley and Smith have not demonstrated to the Court that they actually are indigent, other ...

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