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Jones v. Bnsf Railway Company

United States District Court, D. Kansas

July 19, 2017

BRIAN JONES AND NICK HODGES, Plaintiffs,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         Plaintiffs sued Defendant BNSF Railway Company (“BNSF”) under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. Defendant prevailed on summary judgment and submitted a bill of costs and the clerk taxed costs of $3151.32 against Plaintiffs (Doc. 57). This matter is before the Court on Plaintiffs' Motion for Review of Clerk's Taxation of Costs (Doc. 59) under Fed.R.Civ.P. 54(d). As explained below, Plaintiffs' motion is denied.

         I. Standard

         Under Fed.R.Civ.P. 54(d), “costs should be allowed to the prevailing party.” Such costs may include the expenses provided under 28 U.S.C. § 1920:

(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.

         The Court's award of costs is discretionary, and its “discretionary power ‘turns on whether or not the costs are for materials necessarily obtained for use in the case.'”[1] The prevailing party bears the burden of showing the amount of costs to which it is entitled, which must be reasonable.[2] “Once a prevailing party establishes its right to recover allowable costs, however, the burden shifts to the ‘non-prevailing party to overcome' the presumption that these costs will be taxed.”[3]

         Transcript and copy costs under § 1920(2) and (4) must be “necessarily obtained for use in the case.” Under this standard, the materials must be “reasonably necessary to the litigation of the case.”[4] These costs are not recoverable if they “merely ‘added to the convenience of counsel' or the district court.”[5] “Materials produced ‘solely for discovery' do not meet this threshold.”[6] However, the Tenth Circuit acknowledges that materials may still be taxable even if they are not “strictly essential” to the Court's “resolution of the case.”[7] If a transcript or copy was “offered into evidence, ” was “not frivolous, ” and was “within the bounds of advocacy, ” then costs may be appropriately taxed.[8] The Court evaluates the reasonableness of the expense at the time it was incurred.[9] Thus, “[i]f ‘materials or services are reasonably necessary for use in the case, ' even if they are ultimately not used to dispose of the matter, the district court ‘can find necessity and award the recovery of costs.'”[10]

         II. Discussion

         Plaintiffs object to the Clerk's award of costs on the following grounds: (1) the language of the FRSA is silent as to whether costs may be awarded to a prevailing defendant; (2) the costs were incurred before Plaintiffs utilized the provision in the FRSA allowing them to bring an action at law for de novo review in federal district court; and (3) the costs requested are not reasonable and lack appropriate documentation.

         A. ...


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