Summary
holding that the district court has discretion to allow untimely objections to a Bill of Costs
Summary of this case from Caddell v. CitiBANKOpinion
Case No. 00-2354-JAR
November 21, 2002.
MEMORANDUM AND ORDER DENYING RECOVERY OF COSTS
This matter is before the Court regarding the appropriateness of awarding costs to the defendant City of Overland Park, Kansas ("Overland Park") in this litigation. Overland Park has submitted a Bill of Costs (Doc. 297) and plaintiffs have objected (Doc. 298). Overland Park responded with a motion to strike, or in the alternative, response to plaintiffs' objection (Doc. 299). For the reasons set forth below, the Court exercises its discretion and awards no costs in this case.
Background
This case arises out of the death of Aubrey Lynne Phalp, a 17-year-old girl who was killed on or about August 2, 1998. Defendant Todd Deal was convicted of murdering Aubrey. The instant civil rights action was brought by Aubrey's mother, Arona Ash, in her individual capacity, and Aubrey's father, Randell Phalp, in his individual capacity, in his capacity as the Next Friend of Scott Phalp, Aubrey's 16-year-old brother, and in his capacity as the Personal Representative of the Estate of Aubrey Phalp. Plaintiffs pursued four causes of action against Overland Park: 1) a state law claim for wrongful death under K.S.A. 60-1901 et seq. and K.S.A. 75-6101 et seq.; 2) state law tort claims premised on negligent training and supervision by Overland Park under K.S.A. 60-1801 et seq. and K.S.A. 75-6101 et seq.; 3) 42 U.S.C. § 1983 deprivation of substantive due process; and 4) discrimination against a person with a disability and persons associated with a disabled person under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. Plaintiffs also asserted claims against four individual defendants, Deal, Shaun Garrett, J.R. Waters and Ron Hunke for conspiracy to commit wrongful death.
Garret also filed a Motion for Summary Judgment which the Court denied; plaintiffs' state law claims against the individual defendants were also dismissed without prejudice to refile in state court.
Overland Park filed a motion for summary judgment on all of plaintiffs' claims (Doc. 214). After serious contemplation and deliberation, the Court granted Overland Park summary judgment as to plaintiffs' federal claims and the state law claims were dismissed without prejudice to refile in state court. (Doc. 295).
Overland Park has submitted a Bill of Costs seeking $16,339.98 from plaintiffs. Plaintiffs object on four grounds: 1) many of the expenses are not proper under 28 U.S.C. § 1920; 2) Overland Park was only a partially prevailing party; 3) the issues on which Overland Park prevailed were close and difficult; and 4) the devastating effect of this case on plaintiffs. Overland Park moves to strike plaintiffs' objection as untimely.
Analysis
1. Motion to strike
Overland Park asks the Court to strike and disregard plaintiffs' objection to Bill of Costs as untimely, citing D. Kan. Rule 6.1(e)(1), which allows for a party filing a response to a nondispositive motion within eleven (11) days after service of the motion. Under the rule, plaintiffs' objection was due on October 18, 2002, but was not filed until October 24, 2002. The Court does not view a Bill of Costs as a typical, nondispositive motion, however, and will not impose the time constraints under Rule 6.1. Plaintiffs' objections were filed within twenty days of the Bill of Costs, and the Court declines to strike the pleading as untimely. Further, as discussed below, regardless of whether plaintiffs filed an objection, it is within the Court's discretion to award requested costs.
Under Fed.R.Civ.P. 54(d)(1), costs are routinely taxed by the clerk, with review by the court on motion within 5 days thereafter. In this case, the Court exercises its discretion to review costs in the first instance.
2. Costs
Rule 54(d)(1) provides, in relevant part, "costs other than attorneys' fees shall be awarded as of course to the prevailing party unless the court otherwise directs." "The allowance or disallowance of costs to a prevailing party is within the sound discretion of the district court." The Tenth Circuit has clarified, however, that this discretion is limited in two ways. "First, it is well established that Rule 54 creates a presumption that the district court will award costs to the prevailing party." Second, if the district court declines to award costs, it must state a valid reason for its denial.
Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714, 722 (10th Cir. 2000) (citing Homestake Mining Co. v. Mid-Continent Exploration Co., 282 F.2d 787, 804 (10th Cir. 1960).
Cantrell v. IBEW Local 2021, 69 F.3d 456, 458-59 (10th Cir. 1995).
Id. at 459.
The Tenth Circuit has discussed various circumstances in which a district court may properly exercise its discretion to deny costs, including when the prevailing party was only partially successful, when damages were only nominal, when costs were unreasonably high or unnecessary, when recovery was insignificant, or when the issues were close or difficult. The court should not consider the ability of the prevailing party to pay its own costs, nor should it deny costs because it does not condone the prevailing party's extra-judicial conduct.
Zeran, 203 F.3d at 722 (citing Cantrell, 69 F.3d at 459).
Tinkler v. U.S. by FAA, 1989 WL 35998 (D.Kan. 1989) (citing White White, Inc. v. American Hospital Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986) (quotation omitted)).
Zeran, 203 F.3d at 722.
In this case, Overland Park was only partially successful. This Court granted partial summary judgment on Overland Park's federal claims, but did not exercise supplemental jurisdiction to decide plaintiffs' state law claims, which were dismissed without prejudice to refile in state court. The Court recognizes that the federal claims were difficult to resolve and ultimately came down to close and difficult questions of constitutional law. While these factors alone justify the Court's exercise of discretion to deny recovery of costs, the Court notes that there is no indication that plaintiffs failed to exercise good faith in bringing and litigating this case. Accordingly, under the Tenth Circuit standards, the Court will exercise its discretion pursuant to Rule 54(d) and deny the recovery of costs by defendant Overland Park. Each party will be responsible for its own costs in litigating this matter.
IT IS THEREFORE ORDERED that plaintiffs' Objection to Bill of Costs (Doc. 298) is SUSTAINED and the Court, in its discretion, DENIES defendant Overland Park the recovery of costs (Doc. 297).
IT IS FURTHER ORDERED that Overland Park's motion to strike (Doc. 299) is DENIED.
IT IS SO ORDERED.