West v. New Mexico Taxation & Revenue Dep't
| Decision Date | 30 September 2011 |
| Docket Number | No. CIV 09-0631 JB/CG,CIV 09-0631 JB/CG |
| Parties | ULRIKE M. WEST, Plaintiff, v. NEW MEXICO TAXATION AND REVENUE DEPARTMENT and PHILLIP SALAZAR, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Plaintiff's Objections to Cost Bill, filed December 3, 2010 (Doc. 122). The Court held a hearing on August 17, 2011. The primary issues are: (i) whether Plaintiff Ulrike M. West's objections to the cost bill are untimely; and (ii) if so, whether the Court may, in its discretion, waive the untimeliness and address the merits of West's objections. The Court will overrule the Plaintiff's Objections to Cost Bill and award the Defendants $3,184.05 in taxable costs.
On April 2, 2009, West filed her Complaint for Civil Rights Violations in the Third Judicial District Court, Doña Ana County, State of New Mexico. She alleged various state and federal claims against her employer, Defendant New Mexico Taxation & Revenue Department (the "NMTRD"), and Philip Salazar, the Director of the Audit and Compliance Division within the NMTRD. The Defendants removed the case to federal court on June 26, 2009, on the basis of federal question jurisdiction under 28 U.S.C. § 1331. See Notice of Removal, filed June 26, 2009 (Doc. 1).
On October 31, 2010, the Court entered its Memorandum Opinion and Order ("MOO"), granting summary judgment for the Defendants. See Doc. 114. The Court: (i) dismissed West's claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12201-12213 for her failure to exhaust her administrative remedies; (ii) dismissed West's claim under 42 U.S.C. § 1983 alleging a violation of her First Amendment rights, because she was not speaking on matters of public concern; and (iii) granted qualified immunity to Salazar. The MOO dismissed all of West's federal claims and remanded the remaining state law claims to the Third Judicial District Court, Dona Ana County, State of New Mexico. See MOO at 95.
Following the Court's ruling on summary judgment, the Defendants filed a motion for costs and their Cost Bill on November 1, 2010, requesting that the clerk of the court tax their costs as the prevailing party. See Defendant State of New Mexico Taxation and Revenue Department and Phillip Salazar's Request for Court Clerk to Tax Their Cost Bill ("Cost Bill")(Doc. 119); Fed. R. Civ. P. 54(b). The Defendants sought a total of $3,184.05 in costs: the $350.00 court filing fee and deposition costs totaling $2,834,05. See Cost Bill at 1-2. Nearly three weeks later, the clerk of the court entered a minute order taxing West in the amount of $3,184.05. See Minute Order, filed November 19, 2010 (Doc. 121); Fed. R. Civ. P. 54(d)(1)( ); Fed. R. Civ. P. 6 (); D.N.M. LR-Civ 7.1(1)("[T]he failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes to grant the motion.")(emphasis added). West did not object to the Defendants' request that the clerk of the court to tax the cost bill for $3,184.05, file a written response to the Defendants' motion, or otherwise respond or object the Defendants' motion for costs until December 3, 2010.See Plaintiff's Objections to Cost Bill, filed December 3, 2010 (Doc. 122)("Objections").
In her Objections, West argues that, under New Mexico law, the Court should exercise its discretion and decline to assess costs against her because she is without financial resources. See Objections at 3. She asserts that she made good faith efforts to settle the case and that her claims were not frivolous. See Objections at 3-4. On December 7, 2010, the NMTRD and Salazar filed their Defendant's Response to Plaintiff's Objections to Cost Bill. See Doc. 123 ("Response"). The Defendants contend that West's objections were untimely and request the amounts awarded in the clerk of the court's November 19, 2010 costs bill. See Response at 1. Pursuant to D.N.M. LR-Civ. 54, The Defendants argue that West's failure to file her Objections within the time allowed waives any objections she may have had. For authority, they cite to D.N.M. LR-Civ. 7.1(1), which provides that "[t]he failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion."
The Defendants also cite to rule 6 of the Federal Rules of Civil Procedure, which governs the computation of time for pleadings. When the period given is stated in days, "exclude the day of the event that triggers the period; count every day, including intermediate Saturdays, Sundays, and legal holidays; and include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." Fed. R. Civ. P. 6 (a)(1)(A)-(C).1
In her reply, West raised two arguments. First, she argues that the Defendants did notcomply with D.N.M. LR.-Civ. 54.1, , which provides in pertinent part: "The motion must comply with the requirements of D.N.M. LR-Civ. 7 and must include: an itemized cost bill documenting costs and including receipts as required by rule or statute; and a party's affidavit that the costs are allowable by law, correctly stated and necessary to the litigation." Plaintiff's Reply Regarding Her Objections to Defendants' Bill of Costs at 2, filed December 9, 2010 (Doc. 124)("Reply"). West argues that, because the Defendants' Cost Bill contained neither receipts nor the required affidavits, the Cost Bill was defective. She also contends the $350.00 court filing fee was not listed in D.N.M. LR-Civ. 54.2 as a taxable cost. See Reply at 2. West further points out that three of the depositions listed were taken after the Defendants filed their motion for summary judgment and therefore were not necessary to the litigation. See Reply at 2. Salazar's deposition was taken on April 7, 2010, and April 22, 2010. See Reply at 2. The first Salazar deposition cost $381.82, and the second Salazar deposition cost $654.04. See Reply at 2. The third deposition was of Lynette Trujillo and was taken on April 23, 2010. See Reply at 2. The Trujillo deposition cost $925.19. See Reply at 2.
As for timeliness, West argues that, D.N.M. LR-Civ. 54.1 provides that "[t]he motion [for costs] must comply with the requirements of D.N.M. LR-Civ. 7." West states that Local Rule 7, which governs motion practice in the federal court, provides that responses to motions "must be served and filed within fourteen (14) calendar days after service of the motion." D.N.M. LR-Civ. 7.4(a). She believes that the clerk of the court could not tax costs for fourteen days after the cost bill was submitted, and that she had an additional twenty-one days thereafter to respond, using the calculations set forth in D.N.M. LR-Civ 7.4(a) and rule 54 of the Federal Rules of Civil Procedure. See Reply at 4.
The Court held a hearing on August 17, 2011 to consider the parties' arguments. At the August 17, 2011 hearing, the parties argued their respective positions concerning the Cost Bill andthe Objections thereto. During the hearing, West argued that the Court should analyze the bill for costs under New Mexico state law and consider West's financial ability to pay, that West may ultimately be successful on her state law claims, and whether a tax on West would serve the interests of justice. See Hearing Transcript at 5:1-9:21 (August 17, 2011)(Gayle-Smith, Court)("Tr.").2 The Defendants argued that the Objections were untimely and that there is no basis for looking at New Mexico law. See Tr. 11:1-25 (Maynes).
A prevailing party may move for costs at any time after the court enters judgment. See 10 J. Moore & F. Smith, Moore's Federal Practice ¶ 54.101[1][a], at 54-141 (3d ed. 2004). Local rules require the party recovering costs to file a motion to tax costs within thirty days of the entry of judgment. See D.N.M. LR-Civ 54.1. The presumption is that the court should award the prevailing party costs pursuant to rule 54 of the Federal Rules of Civil Procedure. See Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995). Only a showing that an award would be inequitable under the circumstances can overcome the presumption in favor of awarding costs to the prevailing party. See J. Moore & F. Smith, supra ¶ 54.101 [1][b], at 54-152.
Under rule 54(d)(1), Fed. R. Civ. P. 54(d)(1). "[T]he taxing of costs rests in the sound discretion of the trial court, and the exercise of such discretion will not be disturbed on appeal except in case[s] of abuse." Gabbo Farms & Orchards v. Pode Chem. Co., 81 F.3d 122, 124 (10th Cir. 1996)(quoting U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir. 1988)). "The presumption is that the court should award the prevailing partycosts." A.D. v. Deere & Co., 229 F.R.D. 189, 192 (D.N.M. 2004)(Browning, J.). Despite, the "presumption that a prevailing party is entitled to costs, there are circumstances in which it is considered inequitable to award costs to the prevailing party." A.D. v. Deere & Co., 229 F.R.D. at 192. For example, "[t]he court may deny an award of costs because the prevailing party was obstructive, acted in bad faith during litigation and incurred unnecessary or unreasonably high costs." A.D. v. Deere & Co., 229 F.R.D. at 192. The Court may also reduce or deny an award of costs based upon a losing...
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