Opinion
CIVIL ACTION NO. 01-475, SECTION "J"(2).
June 3, 2003.
ORDER AND REASONS
Before the Court is Defendant Northlake Christian School's Motion to Review Taxation of Costs (Rec. Doc. 55) which was set for a hearing on the briefs on May 14, 2003. Plaintiff Pamela L. Prescott has filed a memorandum in opposition (Rec. Doc. 56). In addition to opposing Defendant's motion, Plaintiff's opposition memorandum also requests that the Court reinstate certain alleged costs to be taxed to Defendant that she included in her application for Bill of Costs that were rejected by the Clerk of this Court. Defendant has also filed a reply memorandum (Rec. Doc. 59).
Upon consideration of the memoranda submitted by counsel, the record, and the applicable law, Defendant's motion should be GRANTED IN PART and DENIED IN PART. Furthermore, Plaintiff's request for reinstatement of certain costs to be taxed to Defendant contained in her opposition memorandum should be DENIED.
Background
On November 14, 2002, the Court entered a final judgment in this matter, taxing "[a]ll costs of these proceedings" against Defendant. Rec. Doc. 35. Plaintiff subsequently submitted her application for Bill of Costs (Rec. Doc. 40) totaling $38,853.00. The alleged costs were itemized as follows:• Fees of the Clerk $150.00 • Fees for service of summons and subpoena $103.30 • Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case $10,556.60 • Fees for exemplification and copies of papers necessarily obtained for use in the case $1,092.01 • Arbitration costs of Institute for Christian Coalition $26,879.07 • Airborne Express costs $33.02 • Certified copy of final judgment $8.00 • Recording fee for judgment $31.00
After receiving Plaintiff's itemization and documentation, Defendant's memoranda in opposition to Plaintiff's application (Rec. Docs. 45 and 53), and conducting a hearing on January 14, 2003, the Clerk of this Court taxed to Defendant costs in the amount of $7,358.66. See Rec. Doc. 54. The costs taxed to Defendant are as follows:
• Fees of the Clerk $150.00 • Fees for service of summons and subpoena $103.30 • Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case $6,165.75 • Fees for exemplification and copies of papers necessarily obtained for use in the case $939.61
Plaintiff provided documentation for only $6,165.75 of the requested court reporter fees. It is unclear why the Clerk arrived at the $939.61 figure for copy fees. The Clerk appears to have disallowed the $26,879.07 in requested arbitration costs on the grounds that the arbitration did not constitute "these proceedings" as used in the Court's final judgment. Furthermore, the Clerk appears to have disallowed the $72.02 in miscellaneous costs as not recoverable under 28 U.S.C. § 1920.
Defendant subsequently filed the instant motion contesting the Clerk's taxation of costs. Specifically, Defendant contests the $6,165.75 in court reporter fees, as well as the $939.61 in copy fees. Thus, only $253.30 of the $7,358.66 taxed costs are not in dispute. Plaintiff opposes Defendant's motion, arguing that the Court should affirm the amount of costs taxed to Defendant by the Clerk. Additionally, Plaintiff contends that the Clerk erred in failing to also tax the $26,879.07 in arbitration costs to Defendant.
Discussion
I. The Clerk erred in taxing $7,358.66 in costs to Defendant
As to the $6,165.75 in court reporter fees, $3,823.30 are for recording sworn testimony at the arbitration hearing and $1,840.75 are for depositions of witnesses who testified live at the arbitration hearing. See Rec. Doc. 55, exhibit 3. Thus, this entire portion of the taxed costs related to the arbitration proceedings conducted by the Institute for Christian Conciliation ("ICC"). As has been discussed by the Court on several prior occasions, the parties' arbitration agreement included a choice of law provision requiring the agreement and related arbitration proceedings to be interpreted under Montana law.
The arbitration process was governed by the Rules of Procedure for Christian Conciliation ("the ICC Rules") which are published by the ICC. Rule 35 mandates that the party wishing to record an arbitration hearing is responsible for paying the cost of such record. Under. Rule 40(C), "[t]he arbitrators may . . . grant to any party any reasonable fees, costs, and expenses related to the resolution of a dispute." Rule 41 grants a party the right to submit a request for reconsideration with the ICC within twenty calendar days after the arbitration decision is received by the parties.
Under the Montana Uniform Arbitration Act (MUAA), MONT. CODE § 27-5-111 et seq., a party has ninety days after delivery of a copy of the arbitration award to move a district court to vacate, modify, or correct the award. §§ 27-5-312(3) 313(1). Absent such an application, the district court is required to confirm the arbitration award. § 27-5-311. Furthermore, under the MUAA, "[c]osts of the application to confirm an arbitration award and of the proceedings subsequent thereto" may be awarded by the district court. § 27-5-314.
At the conclusion of the arbitration hearing, the arbitrator awarded Plaintiff $157,856.52 in damages. He did not award Plaintiff any costs associated with the arbitration hearing. Plaintiff did not submit a Rule 41 request for reconsideration with the ICC, nor did she file an application with this Court to vacate, modify, or correct the arbitration award. In fact, Plaintiff filed a motion to confirm the award. This Court proceeded to confirm the arbitrator's award in its entirety. Under the MUAA, this Court may only award the costs incurred by Plaintiff associated with her application to confirm the arbitration award and the proceedings associated with that application. This does not include costs associated with the arbitration hearing. Therefore, at this stage of the instant case, Plaintiff is procedurally barred from recovering costs associated with the arbitration hearing.
The same rationale applies to most of Plaintiff's copy fees. In her opposition memorandum, Plaintiff admits that "[t]he bulk of the copy costs was to copy the exhibit books that were used in the arbitration." See Rec. Doc. 56, at 3. As Defendant admits in the instant motion, $106.80 of the alleged copy costs are documented as associated with the proceeding before the Court. Plaintiff has failed to document that any of the other requested copy costs are related to proceedings before the Court, and not the arbitration hearing.
Of the $7,105.36 in taxed costs that are in dispute, $6,998.56 are associated with the arbitration hearing, and thus are not taxable to Defendant at this stage of the case. The remaining $106.80 are taxable to Defendant.
II. The Clerk did not err in failing to tax the arbitration costs to Defendant
The Clerk refused to tax the $26,879.01 in arbitration costs to Defendant. The Clerk's refusal is supported by the rationale laid out above. Plaintiff is barred from seeking recovery of these costs because she did not raise the issue at the arbitration level, nor did she move to vacate, modify, or correct the arbitration award on these grounds. Furthermore, ICC Rule 9(E) required that the parties share equally all fees and costs associated with the arbitration and incurred by the ICC "unless agreed otherwise in a fee agreement or determined otherwise by the [arbitrator] ." Neither exception to Rule 9(E) is applicable in the instant case.
Finally, Plaintiff had five days after the Clerk entered her taxation of costs to file a motion seeking district court review of such taxation. FED. R. Civ. P. 54(d)(1). The Clerk issued her taxation of costs on April 11, 2003. Defendant's motion was filed within the five day deadline, however Plaintiff did not file her opposition memorandum, which included her request for district court review of the Clerk's failure to tax the arbitration costs, until May 6, 2003, well after the deadline expired. Therefore, Plaintiff is barred from raising this issue at this time.
Accordingly;
It is HEREBY ORDERED that Defendant's Motion to Review Taxation of Costs (Rec. Doc. 55) is GRANTED IN PART and DENIED IN PART.
It is FURTHER ORDERED that Plaintiff's request to have the Court tax the $26,879.01 in arbitration costs to Defendant is DENIED.
It is FURTHER ORDERED that the Clerk's taxation of costs is hereby amended to reflect that only the following requested costs are to be taxed to Defendant:
• Fees of the Clerk $150.00 • Fees for service of summons and subpoena $103.30 • Fees for exemplification and copies of papers necessarily obtained for use in the case $106.80
TOTAL $360.10