United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants City of
Kirksville, Missouri, David Jacobs, Mike LaBeth, Mari
MacComber, Bob Russel, Brad Selby, and Clark Wilson's
(“Defendants”) Motion for Bill of Costs [ECF No.
118] and Defendants' Combined Motion for Attorneys'
Fees as the Prevailing Party [ECF No. 123].
Amir Hamidi (“Plaintiff”) initiated this lawsuit
against Defendants alleging Defendants discriminated against
him in determining his property could be rezoned from
residential to commercial with restrictions. The Court
granted summary judgment in favor of Defendants and dismissed
all of Plaintiff's claims on July 22, 2016. Defendants
now seek to recover costs and attorneys' fees from
Bill of Costs
as the prevailing party, requests the Court award it costs
pursuant to Federal Rule of Civil Procedure
(“FRCP”) 54(d)(1) for transcript and deposition
costs of $2, 209.21. Defendants assert Plaintiff's
deposition was reasonably necessary for trial. Plaintiff
argues federal statute 42 U.S.C. §1988 trumps Rule
54(d)(1) and does not allow deposition or copying costs.
According to Plaintiff, the Supreme Court, in Fox v.
Vice, 563 U.S. 826, 832-33 (2011), held an award of fees
is only available on a showing Plaintiff's claims were
frivolous. Finally, Plaintiff asserts, even if costs are
available, the Court should not award them because Defendants
did not need to reasonably take the deposition of Plaintiff.
In reply, Defendants claim the federal statute in question is
not contrary to Rule 54(d)(1), as the Supreme Court held in
Marx v. General Revenue Corporation, 133 S.Ct. 1166
FRCP 54, “[u]nless a federal statute, these rules, or a
court order provides otherwise, costs-other than
attorney's fees-should be allowed to the prevailing
party.” Fed.R.Civ.P. 54(d)(1). “A prevailing
party is presumptively entitled to recover all of its
costs.” In re Derailment Cases, 417 F.3d 840,
844 (8th Cir.2005). “The losing party bears the burden
of overcoming the presumption that the prevailing party is
entitled to costs . . .” 168th & Dodge, LP v.
Rave Reviews Cinemas, LLC, 501 F.3d 945, 958 (8th Cir.
2007). If the opposing party objects to the authorized costs,
the Court may exercise its discretion to grant or deny costs.
Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136,
140 (8th Cir. 1987). Pursuant to 28 U.S.C. § 1920, costs
may be taxed for:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of
special interpretation services ...