Kuhler v. PHI Health, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ___________________________ DANIEL KUHLER, Plaintiff, v. No. 23-cv-624-WJ-GBW PHI HEALTH, LLC, D/B/A PHI AIR MEDICAL, Defendant. MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR BILL OF COSTS THIS MATTER comes before the Court upon Defendant’s Motion for Bill of Costs (Doc. 44). Having reviewed the filings,1 considered counsels’ arguments, and consulted the applicable law, the Court finds the Motion is well-taken and GRANTS the request. LEGAL STANDARD Federal Rule of Civil Procedure 54(d)(1) provides that “costs—other than attorney’s fees— should be allowed to the prevailing party.” And 28 U.S.C. § 1920 lists what fees can be claimed in a bill of costs. Local Rule 54 supplements this Federal Rule. See generally D.N.M. LR-Civ. 54.1. In a nutshell, the prevailing party must file a motion within 30 days including an itemized cost bill and an affidavit declaring the costs are allowable by law. See id. And much like 28 U.S.C. § 1920 , Local Rule 54.2 outlines the permissible costs as: (1) transcripts, (2) depositions, (3) witness costs, 1 Plaintiff Kuhler filed two Responses (Docs. 45 & 46). The filing itself is the same; but the second Exhibit (Docs. 45-2 & 46-2) are different. The former Exhibit is four pages long and shows Plaintiff’s credit balance whereas the latter is a one-page snapshot of his credit report. Defendant filed its Reply (Doc. 47) to Plaintiff’s Response in Doc. 44, so that is the filing the Court cites to as well. (4) interpreter or translator fees, (5) copies of papers, and (6) maps, charts, photographs, and summaries. D.N.M. LR-Civ. 54.2(a)–(f); see also 28 U.S.C. § 1920 (1)–(6). DISCUSSION Here, Defendant provides an itemized costs bill (Doc. 44 at 1–2). These costs include three depositions and filing fees. Id. The total amount requested is $2,204.18. Id. at 2 . The Motion was timely filed, by Local Rule. And the costs are supported by affidavit, as required (Doc. 44-5). The costs for depositions are clearly allowable under D.N.M. LR-Civ. 54.2(b) and 28 U.S.C. § 1920 (2). See Callicrate v. Farmland Indus., Inc., 139 F.3d 1336 , 1339 (10th Cir. 1998). And the latter is allowable under 28 U.S.C. § 1920 (5) and 28 U.S.C. § 1923 . There is no doubt that the taxed materials were “necessarily obtained for use in the case.” In re Williams Sec. Litig., 558 F.3d 1144, 1149 (10th Cir. 2009). The request for the costs of three depositions and filing fees satisfy the prevailing party’s low burden, at this stage. See Cohlmia v. St. John Med. Ctr., 693 F.3d 1269, 1288 (10th Cir. 2012) (noting the burden of justifying costs is “not a high one”). Nevertheless, Plaintiff Kuhler asks the Court to deny, or reduce, costs based on “inability to pay.” Doc. 45 at 1. Although indigency is a consideration, it is not an abuse of discretion to award costs where the non-prevailing party is indigent. See Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180 , 1190–91 (10th Cir. 2004); see also Sandle v. Principi, 201 F. App’x 579, 583 (10th Cir. 2006) (unpublished). Here, the Court has reviewed the financial records disclosed—and they demonstrate Plaintiff Kuhler is able to pay. See Sweger v. Texaco, Inc., 930 F.2d 35 [published in full-text format at 1991 U.S. App. LEXIS 8572 , at *22–23] (10th Cir. Feb. 22, 1991) (unpublished table opinion); Higgins v. Potter, No. 08-cv-2646, 2011 U.S. Dist. LEXIS 93811 , at *4–5 (D. Kan. Aug. 22, 2011). The fact Plaintiff Kuhler’s savings account contains an amount more than the $2,204.18 requested weighs against denying or reducing costs (Doc. 47 at 3). Especially so, given that Rule 54(d) creates a presumption for recovery. Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995). Plaintiff Kuhler has not provided some “reason” to “penalize” Defendant for the denial of costs. Rodriguez, 360 F.3d at 1190 . Nor does it appear that Plaintiff is unable to pay, as alleged (Doc. 45). CONCLUSION Defendant’s Motion to Tax Costs (Doc. 44) is GRANTED. In so doing, the Court OVERRULES Plaintiff’s objections to the taxation of costs (Docs. 45 & 46) and DENIES the request to reduce/deny costs based on an alleged inability to pay. The Court awards Defendant $2,204.18 in costs, as requested. IT IS SO ORDERED. /s/ WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE