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Pompeo v. Board of Regents of University of New Mexico

United States District Court, D. New Mexico

July 17, 2017

MONICA POMPEO, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO; CAROLINE HINKLEY, in her individual capacity; and SUSAN DEVER, in her individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge.

         THIS MATTER is before the Court on Defendants' Motion for Costs submitted by Defendants Board of Regents of the University of New Mexico, Caroline Hinkley, and Susan Dever. [Doc. 59] The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS Defendants' Motion.

         I. Background

         Plaintiff Monica Pompeo filed a complaint in July 2013 alleging violations of her First Amendment rights and seeking damages and declaratory relief. [Doc. 1] After Defendants removed the matter to this Court, she filed an amended complaint in November, 2013. [Doc. 11] This Court denied the Defendants' Motion to Dismiss [Doc. 27], but granted the Defendants' Motion for Summary Judgment on the grounds that 1) the law was not clearly established at the time and, therefore, Hinkley and Dever were entitled to qualified immunity, 2) the University of New Mexico was immune from suit under the Eleventh Amendment, and 3) “[a] declaratory judgment is not available simply to proclaim liability for a past act.” [Doc. 57 (internal quotation marks and citation omitted)] Plaintiff appealed to our Tenth Circuit, which affirmed in a published opinion issued on March 28, 2017. Pompeo v. Bd. of Regents of the Univ. of New Mexico, 852 F.3d 973 (10th Cir. 2017).

         Defendants, as the prevailing party, now move the Court to order Plaintiff to pay their costs in the amount of $1, 196.03. [Doc. 59] These costs were incurred for 1) the United States District Court filing fee and 2) transcripts for depositions of Hinkley and Dever. [Doc. 59]

         II. Discussion

         Rule 54 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). While the decision to award or deny costs remains within the district court's discretion, Rule 54 creates a presumption that costs will be awarded, and “[t]hus the established rule is that costs are generally awarded to the prevailing party.” Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004). Given this presumption, denial of costs to the prevailing party is a “severe penalty” which must be justified by “some apparent reason to penalize the party.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1526-27 (10th Cir. 1997).

         The Tenth Circuit has explained that “a civil rights litigant should look to the general federal statutory entitlement for court costs under [28 U.S.C.] § 1920.” English v. Colorado Dept. of Corrs., 248 F.3d 1002, 1012 (10th Cir. 2001). That statutory section allows for “[a] judge or clerk of any court of the United States [to] tax as costs . . . fees for exemplification and copies of papers necessarily obtained for use in the case . . . .” 28 U.S.C. § 1920(4) (listing fees for “printed or electronically recorded transcripts necessarily obtained for use in the case” and “[f]ees of the clerk” as allowable costs).

         Local Rule 54 works in conjunction with Fed.R.Civ.P. 54, as well as § 1920, and reads as follows:

A motion to tax costs must be filed and served on each party within thirty (30) days of entry of judgment. Failure to file and serve within this time period constitutes waiver of a claim to costs. The motion must comply with the requirements of D.N.M.LR-Civ. 7 and must include:
• an itemized cost bill documenting costs and including receipts as required by rule or statute; and
• a party's affidavit that the costs are allowable by law, correctly stated and necessary to the litigation.

D.N.M.LR-Civ. 54.1. These requirements have been met by Defendants. [Doc. 59-1 to 59-2]

         In Callicrate v. Farmland Indus., Inc., the Tenth Circuit considered when an item is ‚Äúnecessarily ...


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