Opinion
CIVIL ACTION No. 99-2487-CM.
January 3, 2001.
MEMORANDUM AND ORDER
This case involved a claim by plaintiff that defendant defamed him by making false statements to two customers and a police officer in connection with a purported store theft. A trial was held on October 3, 2000. The jury returned a verdict in favor of defendant. Specifically, the jury found that defendant had made defamatory statements but that defendant did not act with actual malice, which was required in this case because defendant's statements were subject to qualified privilege. After the trial concluded, defendant submitted a bill of costs pursuant to Federal Rule of Civil Procedure 54(d). This matter is before the court on plaintiff's opposition to defendant's bill of costs (Doc. 61).
Rule 54 provides that a prevailing party will normally recover costs. "Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). The allowance or disallownace of costs to a prevailing party in within the sound discretion of the court. However, the district court's discretion is limited in two ways. First, Rule 54 creates a presumption that the district court will award costs to the prevailing party. Cantrell v. Int'l Bhd. of Elec. Workers, 69 F.3d 456, 459 (10th Cir. 1995). The second restraint on a district court's discretion is that it must provide a valid reason for not awarding costs to a prevailing party. Serna v. Manzano, 616 F.2d 1165, 1167-68 (10th Cir. 1980).
The Tenth Circuit has found 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. Cantrell, 69 F.3d at 459. In this case, plaintiff urges the court to deny costs based on the fact that, although no monetary recovery was awarded, there was in fact a finding of defamation. Plaintiff argues that, given the bad conduct of defendant in this case, costs assessed against plaintiff should not be awarded.
The court is guided by the Tenth Circuit's holding set forth in Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (10th Cir. 2000). In Zeran, the district court granted summary judgment to defendant on plaintiff's claim for defamation. The district court, however, denied costs, reasoning that, while the court was compelled under the applicable law to find in defendant's favor, it did not condone the behavior of the defendant. The Tenth Circuit reversed the district court's denial of costs, holding that "the district court's own view of extra-judicial conduct, which the law does not recognize as legally actionable, should play no part in the district court's decision whether to override the presumption that the prevailing party receive costs." Id. at 722.
Plaintiff would like this court to deny costs based on defendant's non-actionable conduct which gave rise to the litigation. Under Zeran, the court may not deny costs to defendant on that basis. Accordingly, the court holds that defendant is entitled to costs in the amount of $2,321.48 as set forth in the bill of costs submitted by defendant.
IT IS THEREFORE ORDERED that plaintiff's opposition to defendant's bill of costs (Doc. 61) is denied. The court directs the clerk to tax the costs of defendant against plaintiff in the amount of $2,321.48.
Dated this 3rd day of January, 2001 at Kansas City, Kansas.