Warger v. Shauers
| Decision Date | 09 July 2012 |
| Docket Number | CIV. 08-5092-JLV |
| Parties | GREGORY P. WARGER, Plaintiff, v. RANDY D. SHAUERS, Defendant. |
| Court | U.S. District Court — District of South Dakota |
CONSIDER PLAINTIFF'S
AND DEFENDANT'S
OBJECTIONS TO THE
CLERK OF COURT'S
TAXATION OF COSTS
On December 20, 2010, the Clerk of Court entered its taxation of costs in the above-captioned case. (Docket 183). Both parties filed objections to the taxation of costs. (Dockets 184 & 188). For the reasons set forth below, the court declines to consider the parties' untimely objections.
The court limits its recitation to those facts necessary to provide context to the parties' objections. On August 4, 2006, plaintiff Gregory P. Warger and defendant Randy D. Shauers were involved in a motor vehicle collision on U.S. Highway 385 in Pennington County, South Dakota. (Docket 1 at ¶¶ 5-7). The collision resulted in serious injury to Mr. Warger, including, but not limited to the loss of his lower left leg. Id. at ¶ 9. On December 12, 2008, Mr. Warger filed suit against Mr. Shauers, alleging one count of negligence and seeking to recover damages. Id. at pp. 2-3.
On January 9, 2009, Mr. Shauers filed his answer, denying the allegations in the complaint and asserting various affirmative defenses. (Docket 6). On January 23, 2009, Mr. Shauers filed an amended complaint, asserting a counterclaim against Mr. Warger for property damage. (Docket 8).
Both parties asserted their right to a jury trial. (Docket 1 at p. 4 & Docket 8 at p. 5). On July 16, 2010, during the pretrial conference, Mr. Shauers moved to dismiss his counterclaim against Mr. Warger. (Docket 98 at p. 2). The court granted Mr. Shauers' motion. Id. A jury trial commenced on July 20, 2010. On July 22, 2010, the court declared a mistrial as a result of a violation of the court's in limine order by counsel for Mr. Shauers. (Docket 104). Following the mistrial, the court awarded Mr. Warger his costs and fees associated with the first trial. (Dockets 143 & 166). A second trial commenced on September 20, 2010. On September 29, 2010, the jury returned a verdict in favor of Mr. Shauers. (Docket 159).
On October 27, 2010, Mr. Shauers filed a bill of costs in accordance with Fed. R. Civ. P. 54(d)(1), seeking reimbursement in the amount of $18,290.37. (Docket 174). In support of his bill of costs, Mr. Shauers filed an affidavit from his counsel and invoices and receipts documenting his expenditures. (Docket 175).
On October 27, 2010, Mr. Warger also filed a bill of costs in accordance with Fed. R. Civ. P. 54(d)(1), seeking reimbursement in the amount of $3,216.82. (Docket 176). Similarly, Mr. Warger filed a supporting affidavit from his counsel and invoices documenting his expenditures. (Docket 177).Mr. Warger argued he is the prevailing party with respect to Mr. Shauers's counterclaim as Mr. Shauers voluntarily dismissed the counterclaim on the eve of trial. Id. at p. 1. Mr. Warger claims he incurred $3,216.82 in court reporter and deposition transcript fees necessarily obtained for use in defending against the counterclaim.
Both parties filed objections to each other's bill of costs. (Docket 178 & 179). On December 20, 2010, the Clerk of Court taxed costs in the amount of $7,809.65 in favor of Mr. Shauers and against Mr. Warger. (Docket 183). The Clerk declined to award costs to Mr. Warger on the ground he was not "the prevailing party for the purpose of determining which party is entitled to receive an award of costs[,]" although he prevailed "in a portion of [the] case[.]" Id. at p. 1. On December 28, 2010, Mr. Warger filed objections to the Clerk's taxation of costs. (Docket 184). On December 30, 2010, Mr. Shauers filed objections to the Clerk's taxation of costs. (Docket 185). On January 4, 2011, Mr. Shauers amended his objections. (Docket 188). Both parties filed objections to each other's objections. (Dockets 185-189).
The court must first determine whether Mr. Warger and Mr. Shauers filed objections to the Clerk's taxation of costs within the time period prescribed by Fed. R. Civ. P. 54(d)(1).1 Rule 54(d)(1) governs the award of costs to the prevailing party in a civil action and gives the court authority to reviewthe Clerk's taxation of costs upon timely motion of the objecting party. This Rule states as follows:
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. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.
This district's local civil rules provide guidance to practitioners as to the proper procedure for obtaining an award of costs. Local Rule 54.1(A) states as follows:
The Clerk of Court filed the taxation of costs on December 20, 2010.3 (Docket 183). The Clerk filed the document in this district's electronic filing system known as CM/ECF. When a document is filed in CM/ECF in a particular case, counsel in that case receive electronic notice of the filing.4 On December 20, 2010, counsel for both Mr. Warger and Mr. Shauers received electronic notice of the filing of the Clerk's taxation of costs. This electronic notice contained a hyperlink to the document, so there is little doubt counsel had the ability to access the document on December 20, 2010.
Courts differ as to the event that triggers the running of the seven-day period for filing objections to the clerk's taxation of costs. Burchette v. Abercrombie & Fitch Stores, Inc., No. 08 Civ.8786 RMB THK, 2010 WL 3720834 at *2 (S.D. N.Y. Sept. 22, 2010). Some courts, in accordance with the plain language of Rule 54(d)(1), view the triggering event as the date the clerk taxes costs while other courts look to the date of entry of the taxation of costs or the date on which the parties were served with or received notice of the taxation of costs. Id. at **2-3 (collecting cases). This debate has no bearing on this case because all potential triggering dates are the same-December 20, 2010. Fed. R. Civ. P. 6 governs the computation of any time period specified in the federal and local rules, court orders, or any statute that does not specify its own method for computing time. As Rule 54(d)(1) does not specify a method for computing time and states a time period in days, Rule 6 applies.
In accord with Fed. R. Civ. P. 6(a)(1)(A), the seven-day period began to run on December 21, 2010, one day after the Clerk taxed costs, entered the taxation of costs, and served counsel with notice of the entry. In such circumstances, if the pertinent time period is stated in days or a longer unit of time, parties should "exclude the day of the event that triggers the period" when calculating due dates. Fed. R. Civ. P. 6(a)(1)(A). The seven-day period concluded on December 27, 2010. To provide a day-by-day analysis, the first day of the seven day period was December 21, 2010, the second day was December 22, 2010, the third day was December 23, 2010, the fourth day was December 24, 2010, the fifth day was December 25, 2010, the sixth day was December 26, 2010, and the seventh day (the due date) was December 27, 2010.
In conducting this analysis, the court took into account the various provisions governing the computation of time. The court counted every day, including the intermediate Saturday, Sunday, and legal holiday.5 See Fed. R. Civ. P. 6(a)(1)B) ("When the period is stated in days or a longer unit of time: . . . count every day, including intermediate Saturdays, Sundays, and legalholidays."). The last day fell on a Monday, which was not a legal holiday, so the court included the last day. See Fed. R. Civ. 6(a)(1)(C) (). Finally, the last day did not fall on a day the clerk's office was inaccessible, so the court did not extend the due date. See Fed. R. Civ. P. 6(a)(3) ().
In sum, objections to the clerk's taxation of costs were due on or before December 27, 2010. Mr. Warger and Mr. Shauers did not file their objections until December 28, 2010, and December 30, 2010, respectively. (Dockets 184 & 185). Mr. Shauers amended his objections on January 4, 2011. (Docket 188). Mr. Shauers explained his late filing was due to the fact his "filing was made as soon as practicable after the filing made by Plaintiff." Id. at p. 1.
Mr. Warger asserts his objections were timely because Fed. R. Civ. P. 6(d) extends the due date by three days. (Docket 186 at pp. 1-2). Mr. Warger is mistaken. As explained below, the additional three days allowed by Rule 6(d) does not apply in this situation.
Rule 6(d) states, "[w]hen a party may or must act within a...
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