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United States v. Regents of New Mexico State University

United States District Court, D. New Mexico

December 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
REGENTS OF NEW MEXICO STATE UNIVERSITY, Defendant.

          MEMORANDUM OPINION AND ORDER

         The United States of America (Plaintiff) filed suit against Defendant Regents of New Mexico State University (Defendant) to enforce the provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.[1] Plaintiff's discrimination claim was tried by a jury beginning on October 15, 2018 and ending with a verdict for Defendant on October 22, 2018. Based on the jury's verdict, the Court entered a Judgment on October 26, 2018, in favor of Defendant. See JUDGMENT (Doc. 422). On November 26, 2018, Defendant filed DEFENDANT'S MOTION FOR TAXING OF COSTS, ITEMIZED COST BILL AND AFFIDAVIT (Doc. 423) (Motion), which is fully briefed.[2] The Court will grant the Motion in part and deny it in part.

         “Unless 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). “[C]osts against the United States . . . may be imposed only to the extent allowed by law.” Id. In a Title VII action, “the United States shall be liable for costs the same as a private person.” 42 U.S.C. § 2000e-5(k).

         “‘[28 U.S.C.] § 1920 defines the term “costs” as used in Rule 54(d).'” Taniguchi v. Kan.Pacific Saipan, Ltd., 566 U.S. 560, 565 (2012) (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). The Court may award as costs:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are 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.

§ 1920. Certain per diem fees and travel allowances are further defined in 28 U.S.C. § 1821.

         Defendant has requested reimbursement of $42, 345.06 in costs and $9, 764.03 in expenses, for a total of $52, 109.09. Defendant itemizes its costs and attributes $19, 804.36 to deposition transcription, $200.59 to copying and printing of trial documents, $18, 446.37 to expert witness fees, $480.00 to lay witness fees, and $3413.74 to lay witness travel expenses, including $1863.82 for mileage, $67.50 for parking, $1017.77 for lodging, and $464.65 for meals. Defendant's requested expenses include $771.77 for Federal Express delivery of documents to the United States and $8992.26 for the travel expenses of defense counsel.

         Of these requested amounts, Plaintiff raises objections in four categories: (1) the $771.77 in Federal Express expenses; (2) the $8992.26 in defense counsel's travel expenses; (3) the $18, 446.37 in expert witness fees; and (4) the $101.01 in car rental fees for Dr. McKinley Boston included as part of the $1863.82 in lay witness mileage costs.[3] Plaintiff contends that the expenses of Federal Express delivery, defense counsel travel, expert witness fees, and the car rental are not reimbursable costs under § 1920. Defendant argues that an award of costs is within the discretion of the Court, and it asks the Court to exercise its discretion to award costs and to include the disputed amounts.

         Delivery charges, attorney travel expenses, and fees for expert witnesses not appointed by the Court might be recoverable as part of an award of attorneys' fees if they are reasonable and necessary expenses that would normally be charged to the client. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005) (approving the inclusion of “incidental and necessary expenses” such as Federal Express delivery charges and professional fees in an award of attorneys' fees when they would normally be billed to the client in addition to the attorney's hourly rate); Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir. 2000) (reasonable travel expenses may be included in an award of attorneys' fees).

         However, “[a] Title VII defendant is not entitled to an award of fees unless the court finds that the plaintiff's ‘claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.'” Simons v. Sw. Petro-Chem, Inc., 28 F.3d 1029, 1033 (10th Cir. 1994) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). Plaintiff's claim survived summary judgment, went to trial, and overcame an initial motion for judgment as a matter of law and a renewed motion made at the close of ...


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