United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Sims sued State Farm Mutual Automobile Insurance Company for
breaching its contractual obligation to pay pursuant to the
underinsured motorist coverage provided to Sims. The case was
set for trial, but before trial, State Farm served Sims with
an offer of judgment pursuant to Federal Rule of Civil
Procedure 68. Document #174-1. Sims did not accept the offer.
Trial commenced on January 9, 2017, and on January 12, after
a trial by jury and jury verdict, this Court entered judgment
in favor of State Farm on all claims brought by Sims. As the
prevailing party, State Farm now moves for costs under Rule
54(d)(1). State Farm also moves for costs under Rule 68(d).
For the following reasons, State Farm's motion is denied.
54(d)(1) allows prevailing parties to recover costs
“[u]nless a federal statute, these rules, or a court
order provides otherwise.” Under this rule, prevailing
parties are presumptively entitled to costs. Leonard v.
Sw. Bell Corp. Disability Income Plan, 408 F.3d 528, 533
(8th Cir. 2005). Nevertheless, the prevailing party, as the
movant, bears the burden of demonstrating the amount of
compensable costs to which it is entitled. See Allison v.
Bank One-Denver, 289 F.3d 1223, 1248-49 (10th Cir.
2002), as amended on denial of reh'g (June 19,
2002); see also Day v. Celadon Trucking Servs.,
Inc., 827 F.3d 817, 832 (8th Cir. 2016)
(“Generally, the proponent of a motion bears the
initial burden of showing that the motion should be
granted.” (footnote omitted)). To demonstrate, or
“verify, ” costs incurred, the United States Code
provides prevailing parties with a statutory formula: file a
“bill of costs” and attach an affidavit.
See 28 U.S.C. § 1920 (“A bill of costs
shall be filed in the case and, upon allowance, included in
the judgment or degree.”); 28 U.S.C. § 1924
(“Before any bill of costs is taxed, the party claiming
any item of cost or disbursement shall attach thereto an
affidavit, made by himself or by his duly authorized attorney
or agent having knowledge of the facts, that such item is
correct and has been necessarily incurred in the case and
that the services for which fees have been charged were
actually and necessarily performed.”); see also
United States v. Hiland, 909 F.2d 1114, 1142 (8th Cir.
1990) (holding it “mandatory” to file a bill of
costs and verify costs with a section 1924 affidavit).
State Farm filed an affidavit by a “billing
clerk” with an attached list of expenses incurred by
the defense and supporting documentation. The affidavit,
however, does not conform to the statutory requirements.
Rather, it merely states that the costs “have been
incurred for the activity set out in the
‘Description' column on behalf of State Farm's
defense in the lawsuit filed by Alexandra Sims.”
Document #174-2. Nowhere does State Farm or its “duly
authorized attorney or agent” swear that the bill of
costs “is correct and has been necessarily incurred in
the case and that the services for which fees have been
charged were actually and necessarily performed.” 28
U.S.C. § 1924. Incantations are not required, but
compliance with the statute is required. See Hiland,
909 F.2d at 1142 (reversing district court's award of
costs where prevailing party did not file a verified bill of
costs, making it impossible for the district court to have
determined whether the costs were compensable). State
Farm's conclusory claim of entitlement to the costs
reflected in its bill of costs does not meet the statutory
court has discretion to award Rule 54 costs, it is required
to award costs when Rule 68 applies. See Delta Air Lines,
Inc. v. August, 450 U.S. 346, 353, 101 S.Ct. 1146, 1151,
67 L.Ed.2d 287 (1981); Perkins v. U.S. W.
Commc'ns, 138 F.3d 336, 338 (8th Cir. 1998). In this
case, Rule 68 does not apply. According to the plain language
of the Rule, the cost-shifting mandate is triggered when
“the judgment that the offeree finally obtains is not
more favorable than the unaccepted offer.” Fed.R.Civ.P.
68(d). In Delta Air Lines, the Supreme Court held
that Rule 68 does not apply to judgments in favor of the
defendant. 450 U.S. at 352, 101 S.Ct. at 1150 (explaining
that Rule 68 “applies only to offers made by the
defendant and only to judgments obtained by the plaintiff and
not to cases where “it was the defendant that obtained
the judgment”); see also Marx v. Gen. Revenue
Corp., 668 F.3d 1174, 1182 (10th Cir. 2011) (“Rule
68 applies only where the district court enters judgment in
favor of a plaintiff for an amount less than the
defendant's settlement offer.” (citation omitted)).
On January 12, 2017, this Court entered judgment in favor of
State Farm. Rule 68 costs, therefore, are not applicable in
foregoing reasons, State Farm's motion is ...