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Hernandez v. Fitzgerald

United States District Court, D. New Mexico

August 27, 2019

ALFONSO HERNANDEZ, Plaintiff,
v.
ANDY FITZGERALD, Defendant.

          MEMORANDUM OPINION AND ORDER

         Following a full defense verdict at trial, Defendant Andy Fitzgerald moved to tax costs, pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.1, in the amount of $6, 504.91. (Doc. 292). Defendant appropriately submitted an itemized table of costs. (Id.) at 1-2. Plaintiff Alfonso Hernandez opposed that motion, and Defendant filed a reply. (Docs. 296 and 302). The Clerk of Court entered his Clerk's Order Settling Costs on August 15, 2019, found that all of Defendant's claimed costs were allowable, and taxed costs against Plaintiff in the amount of $6, 504.91. (Doc. 310).

         As allowed by Rule 54, Plaintiff filed his Motion for Review by the Court of Clerk's Order Settling Costs [Doc. 310] (Motion) on August 22, 2019, and asks the Court to deny costs because any award would constitute a financial hardship for Plaintiff. (Doc. 312). Plaintiff also challenges four specific costs. (Id.) Defendant filed his response in opposition on August 23, 2019. (Doc. 313). The Court previously ordered that it would not consider a reply. (Doc. 311). Having considered the briefing, the record, and the applicable law, the Court grants in part Plaintiff's Motion and settles costs as explained herein.

         Rule 54 creates a presumption that the court should award costs to the prevailing party. Allen v. Lang, 738 Fed.Appx. 934, 944 (10th Cir. 2018) (citing Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004)). “The burden is on the non-prevailing party to overcome this presumption.” Rodriguez, 360 F.3d at 1190. The losing party must show an inability to pay to support a denial of costs based on indigence. A.D. v. Deere and Co., 229 F.R.D. 189, 192 (D.N.M. 2004) (citing Corder v. Lucent Tech. Inc., 162 F.3d 924, 929 (7th Cir. 1998)). “A losing party's claimed indigency is not an absolute shield to the award of costs.” Clower v. GEICO Insurance, 2013 WL 12095665, at *1 (D.N.M. 2013) (citing Flint v. Haynes, 651 F.2d 970, 973-74 (4th Cir. 1981)). The losing party must substantiate its indigence through documentation of its finances. Id. (citing Chapman v. AI Transp., 229 F.3d 1012, 1038-39 (11th Cir. 2000)). Ultimately, whether to grant costs to a prevailing party is within the court's discretion. Rodriguez, 360 F.3d at 1190.

         The Court reviews de novo any challenge to the Clerk of Court's taxation of costs. See Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964).

         Section 1920 of United States Code title 28 addresses taxation of costs. Specifically:

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 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) . . .
(6) . . .

         28 U.S.C. § 1920. In addition to Section 1920, Local Rule 54.2 further defines taxable costs as:

(a) Transcripts. The cost of an original transcript of a court proceeding is taxable when requested by a party and authorized ...

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