United States District Court, D. Kansas
SARA C. DEBORD, Plaintiff,
MERCY HEALTH SYSTEM OF KANSAS, INC., and LEONARD WEAVER, Defendants.
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This case comes before the court on Plaintiff's motion to retax the costs to the Defendant (Dk. 194). The Court construes this as a motion for review of costs taxed by the Clerk pursuant to D.Kan.Rule 54.1(c). Defendant has responded and has moved for additional costs (Dk. 195), to which Plaintiff objects (Dk. 196).
Burden of Proof/Standard of Review
A trial court reviews de novo the clerk's assessment of costs to ensure that it is reasonable. See Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 232-33, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964). The party seeking an award of costs bears the burden of showing the necessity of the costs incurred. Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002). If the prevailing party carries that burden, a presumption arises in favor of taxing those costs. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir. 1988), overruled on other grounds as recognized by Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996). A "district court has broad discretion to award costs, " Cantrell v. International Brotherhood of Electrical Workers, AFL-CIO, Local 2021, 69 F.3d 456, 458 (10th Cir. 1995), but must provide a valid reason for not awarding costs to a prevailing party, Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1550-51 (10th Cir. 1987).
The statutory basis for the award of costs is 28 U.S.C. § 1920, which provides for the following items of cost to be taxed:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Defendant Leonard Weaver was represented throughout the proceedings by the same counsel that represented Defendant Mercy Health System of Kansas, Inc. After judgment was entered, only one Bill of Costs was filed - by Defendant Mercy Health System of Kansas, Inc. But it is apparent that this Bill of Costs also includes amounts incurred in prosecuting Defendant Leonard Weaver's counterclaim for defamation, as well as amounts incurred in defending against Plaintiff's claims of Title VII violations and of assault and battery.
Plaintiff's sole contention is that the Court should reduce Defendant's award of costs because Defendant did not prevail on its Counterclaim for Weaver. Plaintiff contends that Defendant's award of costs as a prevailing party under Fed.R.Civ. Pro 54(d) should be reduced by 30% because Weaver should not receive costs for prosecuting its meritless counterclaim, even though some of the facts involved in that ...