United States District Court, D. Minnesota
Dingwall, Esq and Eight & Sand, counsel for plaintiff.
A. McNee, Esq and Littler Mendelson, PC, counsel for
S. Doty, Judge
matter is before the court upon the motion for review of
taxation of costs by plaintiff Todd Smith-Bunge. Based on a
review of the file, record, and proceedings herein, and for
the following reasons, the court grants the motion in part.
August 31, 2017, the court granted defendant Wisconsin
Central, Ltd.'s motion for summary judgment on
Smith-Bunge's Federal Railroad Safety Act (FRSA) claim.
On January 1, 2018, the parties agreed to dismiss the
remaining Federal Employers Liability Act claim (FELA). On
April 18, 2018, the clerk of court taxed $11, 265.32 in favor
of Wisconsin Central. Smith-Bunge now moves for review of the
cost judgment, raising several objections.
first argues that the court should not consider Wisconsin
Central the prevailing party because it only prevailed on the
FRSA claim. This argument is wholly without merit.
who prevails as to a substantial part of the litigation is
considered the “prevailing party” under
Fed.R.Civ.P. 54(d), “even if it has not succeeded on
all of its claims.” SuperTurf, Inc. v. Monsanto
Co., 660 F.2d 1275, 1287-88 (8th Cir. 1981); see
also Testa v. Village of Mundelein, Ill., 89 F.3d 443,
447 (8th Cir. 1996)(“[T]he prevailing part is the party
who prevails as to the substantial part of the
litigation.”). Here, Wisconsin Central prevailed on the
FRSA claim, and the parties agreed to dismiss the FELA claim.
Accordingly, the court finds that Wisconsin Central is the
prevailing party. See Walton v. Autorol Corp., No.
3:95-CV-0926-R, 1998 WL 531881, at *1 (N.D. Tex. Aug. 18,
1998)(holding that plaintiff was prevailing party where court
granted partial summary judgment in favor of plaintiff and
remaining claims were dismissed by stipulation).
court has “substantial discretion” in awarding
costs to a prevailing party under 28 U.S.C. § 1920 and
Federal Rule of Civil Procedure 54(d). Zotos v. Lindbergh
Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997). Unless a
federal statute, rules, or court order provides otherwise,
“costs - other than attorney's fees - should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). Smith-Bunge has the burden to show that the cost
judgment “is inequitable under the
circumstances.” Concord Boat Corp. v. Brunswick
Corp., 309 F.3d 494, 498 (8th Cir. 2002)(citation and
internal quotation marks omitted).
Deposition of Todd Smith-Bunge
objects to the taxation of costs incurred by defendants in
deposing him. He argues, without citation to legal authority,
that Wisconsin Central failed to apportion the costs of the
deposition between testimony that was relevant to the