Opinion
Case No. 2:01CV825DAK
December 11, 2003
ORDER
This matter is before the court on Plaintiffs Bill of Costs, Plaintiffs Application for Attorney Fees and Costs, and Defendants' Application for Award of Costs and Entry of Final Judgment. The court has carefully reviewed the memoranda, affidavits, and exhibits filed by the parties. Now being fully advised in these matters, the court enters the following Order.
Defendants seek an award of costs in the amount of $4728.60 under Rule 68 of the Federal Rules of Civil Procedure. Rule 68 provides that after an offer of judgment is rejected, "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." In this case, Defendants served Plaintiff with an offer of judgment on March 11, 2002 in the amount of $3200, plus reasonable attorney fees and costs incurred to that date. The court awarded Plaintiff $3140,76 and dismissed her remaining claims. Because Plaintiff was awarded an amount less than the offer of judgment, Plaintiff must pay Defendants' post-offer costs. Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1405 (10th Cir. 1993).
The court declined to exercise jurisdiction over Plaintiffs remaining state law claim for defamation. Therefore, the court made no ruling as to the merits of that claim.
In determining what costs are awardable, the Supreme Court has said that the term "costs" in Rule 68 "was intended to refer to all costs properly awardable under the relevant substantive statute or other authority." Marek v. Chesny, 473 U.S. 1, 9 (1985). This case involved a violation of the Fair Labor Standards Act ("FLSA"). "Under the FLSA, costs include reasonable out-of-pocket expenses, [and] [t]hey can include costs beyond those normally allowed under Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920." Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 969 (10th Cir. 2002) (citation omitted).
Following the rejection of their offer of judgment, Defendants incurred out-of-pocket expenses for deposition copies and transcripts, copy costs, messenger service, postage, telecopies, federal express, subpoena services, and Westlaw research. The court finds each of these costs reasonable with the exception of Defendant's Westlaw research. Therefore, the court awards Defendants costs, pursuant to Rule 68, in the amount of $3282.53.
Plaintiff seeks $240 under her Bill of Costs and $51,866.26 in attorney fees. Plaintiff is entitled to attorney fees because she prevailed on her overtime claim under the FLSA. However, Plaintiff did not prevail on several other related claims. In addition, Defendants conceded liability on the overtime claim in their motion for partial summary judgment. Defendants only contested the amount of damages. Although Plaintiff claims that she has already excluded her attorney's time for other claims, the court finds the hours submitted to be excessive for the work performed and the lack of complexity of this case. The court also finds the hourly rate of Plaintiffs attorney to be excessive for the type of work and the legal market. The court concludes that the hourly rate should be reduced to $190, the rate charged by Defendants' attorney. With respect to the number of hours reasonably expended on the overtime claim, the court concludes that it should award Plaintiff one-fifth of the fees requested in her original application. Therefore, Plaintiff is awarded $7106 in attorney fees. Defendants do not challenge Plaintiffs bill of costs. Therefore, she is also awarded $240 in costs.
Plaintiff seeks $1725 in fees because she deems Defendants' bill of costs to be without merit. However, Defendants' request for costs under Rule 68 has merit and the court finds that an award of fees incurred in responding to Defendants' request for costs is unwarranted.
The court will enter the form of judgment proposed by Defendants. The court finds Defendants' form of judgment more appropriate because it disposes of each of the claims ruled on by the court and does not include extraneous items not included in the court's previous rulings. Judgment will be entered on the same date as this Order and will reflect the award of costs and fees made in this Order,