Aerotech Resources, Inc. v. Dodson Aviation, Inc.

237 F.R.D. 659, 2005 U.S. Dist. LEXIS 34517, 2005 WL 4692661
CourtDistrict Court, D. Kansas
DecidedDecember 19, 2005
DocketCivil Action No. 00-2099-CM
StatusPublished
Cited by3 cases

This text of 237 F.R.D. 659 (Aerotech Resources, Inc. v. Dodson Aviation, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aerotech Resources, Inc. v. Dodson Aviation, Inc., 237 F.R.D. 659, 2005 U.S. Dist. LEXIS 34517, 2005 WL 4692661 (D. Kan. 2005).

Opinion

MEMORANDUM AND ORDER

MURGUIA, District Judge.

On February 6, 2004, the clerk of the court entered a bill of costs for plaintiff Aerotech Resources, Inc. in the amount of $20,368.55. On March 30, 2004, the clerk of the court entered a bill of costs for defendants Dodson Aviation, Inc., Dodson International Parts, Inc. and Robert L. (“J.R.”) Dodson, Jr. in the amount of $10,190.38. Pending before the court are Objections of Dodson Aviation, Inc., Dodson International Parts, Inc., and Robert L. Dodson, Jr., to Proposed Bill of Costs Submitted by Aerotech Resources, Inc. (Doc. [661]*661177) and Plaintiffs Objection to Defendants’ Bill of Costs (Doc. 182).

I. Facts

On February 25, 2000, plaintiff brought suit against defendants for tortious interference with a business relationship, fraudulent promise of a future event, fraud by silence, and breach of a fiduciary duty owed to plaintiff. On June 4, 2001, a jury returned a verdict in favor of plaintiff on its fraud by silence claim, but finding in favor of defendants on all other claims. The jury awarded damages to plaintiff based on this verdict in the amount of $211,500. On January 30, 2004, the Tenth Circuit affirmed the decision of the district court.

I. Standard

Federal Rule of Civil Procedure 54(d)(1) states: “Expect 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.” The decision to grant or deny costs to the prevailing party pursuant to Rule 54(d)(1) is within the sole discretion of the district court. Zeran v. Diamond Broad., 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)).

The taxation of costs is governed by 28 U.S.C. § 1920, which states:

A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the ease;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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.

28 U.S.C. § 1920. The party claiming allowance of costs bears the burden of proving the amount of compensable costs. Allison v. Bank One-Denver, 289 F.3d 1223, 1248-49 (10th Cir.2002). The party opposing the award of costs bears the burden of demonstrating that the award would be improper. Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190-91 (10th Cir.2004).

III. Analysis
A. Who is the Prevailing Party?

Plaintiff objects to defendants’ Bill of Costs generally, arguing that Federal Rule of Civil Procedure 54(d) grants costs to the prevailing party, and because judgment was entered in favor of plaintiff, defendants are not the prevailing party and are not entitled to recover costs under Rule 54(d). Defendants argue that of four claims, plaintiff prevailed on only one. Thus, defendants argue, defendants prevailed on the majority of claims submitted to the jury. Plaintiff contends that, because each of the four counts was an alternative theory of recovery, defendants’ “win” on three of four counts has no practical effect; damages would have been the same whether plaintiff prevailed on one or all four counts.

The first issue before the court, therefore, is determining which party is the prevailing party. Typically, “the litigant in whose favor judgment is rendered is the prevailing party for purposes of Rule 54(d)[l].” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234 (10th Cir.2001) (quoting Wright & Miller, Federal Practice & Procedure, § 2667). Rule 54 “limits a district court’s discretion to award costs in two ways. First, Rule 54 creates a presumption that the district court will award costs to the prevailing party. Second, a district court must provide a valid reason for not awarding costs to a prevailing party.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1526 (10th Cir.1997) (citations omitted).

Notably, case law and Rule 54(d) suggest that only one party may be classified as the prevailing party. Rule 54(d) states that [662]*662“costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs” (emphasis added). Moreover, in a case involving similar facts as the instant case where both parties “prevailed” on at least one claim, the Tenth Circuit held that “both the plaintiff and the defendant” were not “literally ‘the prevailing party’ for purposes of Rule 54(d)(1).” T.D. Williamson, Inc., 254 F.3d at 1235 n. 7.

Although only one party may be classified as the prevailing party, the Tenth Circuit has identified several alternatives in which district courts may apportion costs when neither party fully prevails on all claims. For example, in Barber v. T.D. Williamson, Inc., the Tenth Circuit held that the plaintiff, who was awarded nominal damages for one of three total claims, was the prevailing party. 254 F.3d at 1234. The court elaborated, however, by noting that the district court has broad discretion to apportion costs among two partially successful parties, or deny costs to either side.

[I]n cases in which the prevailing party has been only partially successful, some courts have chosen to apportion costs among the parties or to reduce the size of the prevailing party’s award to reflect the partial success. Or, in cases in which “neither side entirely prevailed, or when both sides prevailed, or when the litigation was thought to be the result of fault on the part of both parties,” some courts have denied costs to both sides. “[W]here the court exercises its discretion[,] the identification of the prevailing party may [in the end] become so unimportant as to be almost immaterial.”

Id. at 1234-35 (citations omitted).

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Bluebook (online)
237 F.R.D. 659, 2005 U.S. Dist. LEXIS 34517, 2005 WL 4692661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aerotech-resources-inc-v-dodson-aviation-inc-ksd-2005.