United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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).
1920 of United States Code title 28 addresses taxation of
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) . . .
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