Green Construction Co. v. Kansas Power & Light Co.

153 F.R.D. 670, 1994 U.S. Dist. LEXIS 2999, 1994 WL 76612
CourtDistrict Court, D. Kansas
DecidedMarch 4, 1994
DocketCiv. A. No. 87-2070-DES
StatusPublished
Cited by25 cases

This text of 153 F.R.D. 670 (Green Construction Co. v. Kansas Power & Light Co.) 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
Green Construction Co. v. Kansas Power & Light Co., 153 F.R.D. 670, 1994 U.S. Dist. LEXIS 2999, 1994 WL 76612 (D. Kan. 1994).

Opinion

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the. court on the motion of defendant-counterclaimant The Kansas Power & Light Company (“KPL”) for review of costs taxed against it by the clerk pursuant to Fed.R.Civ.P. 54(d) (Doc. 671). Plaintiff Green Construction Company (“Green”) filed a bill of costs seeking a total award of $1,073,651.26. The clerk taxed costs against KPL in the full amount requested by Green. At the request of KPL, the court held a hearing on the motion on October 26, 1993. The court has considered the arguments of the parties and is now prepared to rule.

KPL initially contended that Green’s bill of costs was filed out of time. At oral argument, however, KPL conceded that the bill of costs was timely filed on September 16,1993. Having carefully reviewed the record, the court is in agreement that the bill of costs was timely filed within 30 days after receipt by the clerk of the order terminating the case on appeal. See D.Kan.Rule 219(a).

KPL timely submitted its motion to review costs on September 24,1993, within five days after the clerk’s order taxing costs. See Fed.R.Civ.P. 54(d). Green did not file a response, however, until October 22, 1993, well beyond the ten days permitted a party [674]*674opposing a motion. See D.Kan.R. 206(b). The failure to file a response within the time specified in Rule 206 constitutes a waiver of the right to file such a response, except upon a showing of excusable neglect. D.Kan.R. 206(g). No such showing has been made to this court. The motion for review of costs filed by KPL will therefore be considered and decided as an uncontested motion. See D.Kan.R. 206(g).

Pursuant to Fed.R.Civ.P. 54(d), costs are generally allowed as a matter of course to the prevailing party unless the court otherwise directs. See Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir.1981) (when trial court refuses to award costs to prevailing party, it must state its reasons to enable appellate court to judge whether trial court acted within its discretion), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982); True Temper Corp. v. CF & I Steel Corp., 601 F.2d 495, 509-10 (10th Cir.1979) (rule establishes presumption that prevailing party shall recover costs, unless some reason appears for penalizing the prevailing party); Meredith v. Schreiner Transport, Inc., 814 F.Supp. 1004, 1005 (D.Kan.1993) (court must allow prevailing party to recover all costs authorized by statute unless some reason appears for penalizing that party) (citing Ortega v. City of Kansas City, Kansas, 659 F.Supp. 1201, 1218 (D.Kan.1987)).

In this case, the court’s judgment following the jury verdict ordered that Green recover its costs from KPL. Despite the arguments of KPL to the contrary, Green was the prevailing party in this lawsuit. The jury specifically determined that KPL breached its contract with Green, and awarded damages to Green in the amount of $222,-312.56. The jury also determined that Green had not breached its contract with KPL. A prevailing party, for purposes of Rule 54(d), is a party in whose favor judgment is rendered. d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 896 (9th Cir.1977); Sperry Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132, 135 (E.D.Va.1973); 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil 2d § 2667, at 178 (1983) [hereinafter cited as Wright & Miller], Traditionally, this means the party who won at trial, whether or not that party prevailed on all issues, and regardless of the amount of damages awarded. See, e.g., American Ins. Co. v. El Paso Pipe & Supply Co., 978 F.2d 1185, 1192-93 (10th Cir.1992); Laura B. Bartell, Taxation of Costs and Awards of Expenses in Federal Court, 101 F.R.D. 553, 564 (1984) [hereinafter Bartell]; 10 Wright & Miller § 2667, at 180-87. The court concludes that Green is the prevailing party in this litigation and is therefore presumptively entitled to an award of authorized costs.1 See Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980) (prevailing party presumptively entitled to costs; it is incumbent on the losing party to overcome such presumption).

KPL argues that if costs are to be awarded, the court should carefully review the costs assessed by the clerk. In conducting such a review, the court makes a de novo determination in the exercise of its sound discretion. E.g., Farmer v. Arabian American Oil Co., 379 U.S. 227, 232-33, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964), disapproved in part on other grounds, Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 2497-98, 96 L.Ed.2d 385 (1987); Frigiquip Corp. v. Parker-Hannifin Corp., 75 F.R.D. 605, 613 (W.D.Okla.1976). The taxing of costs, except as otherwise provided by statute, rests largely in the sound discretion of the trial court.2 Euler v. Wal[675]*675ler, 295 F.2d 765, 766 (10th Cir.1961). The Supreme Court has specifically held, however, that the court’s discretion in taxing costs is limited by 28 U.S.C. § 1920,3 which specifies the categories of costs that may be awarded. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. at 441-12, 107 S.Ct. at 2497-98 (§ 1920, by enumerating costs that may be taxed by a federal court under the discretionary authority found in Rule 54(d), does not grant discretion to award costs beyond the limits of the items listed in § 1920). The discretion of the court in determining and awarding costs is contingent on the court’s determination that the expenses requested are allowable cost items under the statute and that the amounts requested are reasonable and necessary. See Northbrook Excess and Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 642 (7th CJr.1991). A finding that a requested cost is statutorily authorized creates a presumption favoring their award. U.S. Indus. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir.1988). Nevertheless, the fact that § 1920 requires the filing of a bill of costs necessarily implies that the burden is on the prevailing party to establish to the court’s satisfaction that the particular costs for which reimbursement is claimed are authorized by statute.4 Cf. Farmer v. Arabian American Oil Co., 379 U.S. at 235, 85 S.Ct.

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Bluebook (online)
153 F.R.D. 670, 1994 U.S. Dist. LEXIS 2999, 1994 WL 76612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-construction-co-v-kansas-power-light-co-ksd-1994.