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Gregory P. Warger v. Randy D. Shauers

July 9, 2012

GREGORY P. WARGER,
PLAINTIFF,
v.
RANDY D. SHAUERS,
DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER DECLINING TO CONSIDER PLAINTIFF'S AND DEFENDANT'S OBJECTIONS TO THE CLERK OF COURT'S TAXATION OF COSTS

INTRODUCTION

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.

FACTS AND PROCEDURAL HISTORY

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).

DISCUSSION

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).*fn1 Rule 54(d)(1) governs the award of costs to the prevailing party in a civil action and gives the court authority to review the 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. ...


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