BRUCE D. BLACK, United States District Judge.
THIS MATTER is before the Court on Plaintiffs petition that the Court review and reverse the Clerks allowance of costs [doc. #490], and Defendants related motion to strike affidavits [doc. #620]. The Court having reviewed the cost bill and all the briefs of the parties, finds that pursuant to the local rule and the Courts discretion, costs should be DENIED.
Discussion Procedural Background
Plaintiffs are, or were, sixteen mentally or developmentally disabled children in the custody of the State of New Mexico, who sought declaratory and injunctive relief for all children who are now or in [the] future will be (a) in or at risk of State custody and (b) determined by defendants and/or their agents to have any form of mental and/or developmental disability for which they require some kind of therapeutic services or supports. Pls. 2d Am. Compl. at 10. Defendants are executive officers of the State of New Mexico in their official capacities, specifically, Secretary of the Department of Health J. Alex Valdez, Secretary of the Human Services Department Dorothy Danfelser, Secretary of the Children, Youth and Families Department Heather Wilson, Superintendent of Public Instruction Alan Morgan, and the members of the State Board of Education.
In their second amended complaint, Plaintiffs alleged that Defendants violated provisions of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), the Medicaid Act, the Alcohol, Drug Abuse and Mental Health Reorganization Act (ADAMHRA), the Individuals with Disabilities Education Act (IDEA), and the Fourteenth Amendment to the United States Constitution. On October 6, 1995, the Court dismissed Plaintiffs claims under the ADAMHRA, as well as certain claims under the Rehabilitation Act, the ADA, the IDEA, and substantive due process. The Court also dismissed certain claims against Defendants Danfelser, Valdez, Morgan, and the members of the State Board of Education. Subsequently, this Court denied class certification, and based on Younger v. Harris, 401 U.S. 37 (1971), abstained from hearing the merits. On appeal, the Tenth Circuit affirmed. J. B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999).
Defendants then proceeded to have the Clerk of the Court tax costs against Plaintiffs in the amount of $7,225.66. Plaintiffs challenge this assessment on the grounds that (a) they are the prevailing parties, (b) such costs were not justified, and (c) they are indigent and the assessment of such costs would chill those who would seek legal redress in similar actions in the future.
(a) Prevailing Parties Plaintiffs claim they, rather than Defendants, are the prevailing parties. The logic underlying the Supreme Courts decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 121 S.Ct. 1835 ( 2001 ), which is the basis for this Courts denial of Plaintiffs request for attorneys fees, also supports the rejection of Plaintiffs prevailing party argument here. The prevailing party inquiry turns on whether the lawsuit resulted in direct judicial action, which altered the legal status of the parties. Buckhannon, supra; Farrar v. Hobby, 506 U.S. 103, 111 (1992). This Court issued no order which would allow Plaintiffs to claim prevailing party status and Buckhannon rejected the catalyst theory.
(b) Justified Costs The Clerk of the Court taxed $7,225.66 in allowable deposition costs. D. N.M. LR-Civ 54.2(b)(2) provides:
(1) Reporters Transcript Fees.
The reporters charge for the original or a copy of a deposition transcript is taxable when the deposition is reasonably necessary to the litigation.
(2) Reasonably Necessary to the Litigation.
A deposition if reasonably necessary to the litigation when:
(A) a substantial portion of the deposition is admitted into evidence or used at trial for impeachment purposes;
(B) the deposition is used by the Court in ruling on a motion for summary judgment; or
(C) the Court so determines.
This Rule is consistent with Tenth Circuit precedent. See Furr v. AT T Technologies, Inc., 824 F.2d 1537, 1550 (10th Cir. 1987).
None of the twelve depositions were admitted into evidence or used at trial for impeachment purposes. D. N.M. LR-Civ 54(2)(b)(2)(A). Nor were any of them used by the Court in ruling on a motion for summary judgment. D. N.M. LR-Civ 54(2)(b)(2)(B). Nor could this Court find the depositions to be reasonably necessary.
Judges in this District have rather consistently denied deposition costs in similar circumstances. See, e.g., Candelaria v. Board of Regents of the University of New Mexico, CV 93-1537 SC/DJS, slip op. at 4 (D.N.M. July 20, 1995) (deposition costs denied where the depositions were not used at trial or on the motion for summary judgment); Levy v. Swift Transp. Co., Inc., CV 97-777 SC/JHG (D.N.M. Jan. 14, 1999) (deposition costs denied as unnecessary); Pereles v. St. Vincent Hosp., CV 98-245 MV/DJS (D.N.M. Oct. 18, 1999) (deposition costs denied where moving party made no showing how they were used); Lauger v. Hennessy Indus., Inc., CV 90-1184 JC/LFG (D.N.M. Jan 14, 1994) (depositions taken only for discovery or convenience of counsel disallowed).
(c) Indigency Federal Rule of Civil Procedure 54(d)(1) provides that statutory costs shall be allowed as of course to the prevailing party unless the court otherwise directs. This language creates a rebuttable presumption that the prevailing party is entitled to costs unless the district court so directs in the exercise of its sound discretion. 8 WRIGHT, MILLER MARCUS, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2688 at 288 (2d ed. 1994). This discretion can be exercised to deny a prevailing party costs if the non-prevailing party is indigent. Cantrell v. IBEW AFL-CIO, Local 2021, 69 F.3d 456, 459 (10th Cir. 1995) (citing Burroughs v. Hills, 741 F.2d 1525, 1542 (7th Cir. 1984), cert. denied, 471 U.S. 1099 (1985)). See also Stanley v. University of S. Cal., 178 F.3d 1069, 1079 (9th Cir.), cert. denied, 528 U.S. 1022 (1999); Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 944-45 (7th Cir. 1997). However, the burden is on the losing party to show a cost award would be inequitable and a substantial financial hardship. Serna v. Manzano, 616 F.2d 1165, 1167-68 (10th Cir. 1980). While the Court would be favorably disposed to consider Plaintiffs indigency argument, then, a ruling would be premature based on the present record. Therefore, Plaintiffs will be given forty days from entry of this Order to make such a showing, if desired.
ORDER
The Clerks allowance of costs is REVERSED, and Plaintiffs are given forty (40) days to demonstrate indigency. Defendants motion to strike is MOOT. DATED at Albuquerque this 27th day of September, 2001 .
MEMORANDUM OPINION IN SUPPORT OF ORDER DENYING ATTORNEYS FEES
THIS MATTER is before the Court on Plaintiffs motion for attorneys fees [doc. #592]. This pleading is premised on the theory that since their lawsuit was the catalyst leading the Defendants undertaking remedial relief, they were entitled to attorneys fees.
The Court has reviewed all the briefs submitted as well as the recent Supreme Court opinion in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 121 S.Ct. 1835 ( 2001 ), and finds Plaintiffs motion must be DENIED.
Discussion
Plaintiffs brought this action in 1993 seeking declaratory and injunctive relief from on-going violations by Defendants of Title II, Subtitle A of the Americans with Disabilities Act, 42 U.S.C. § 12131-34 (ADA); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Rehabilitation Act); title XIX of the Social Security Act, 42 U.S.C. § 1396-1396p (Medicaid Act); the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA); and the First, Fourth, Sixth, and Fourteenth Amendments to the United States Constitution. Plaintiffs had been determined to be abused and neglected children placed in state custody and suffering serious mental or developmental disabilities.
Plaintiffs alleged that Defendants, all agents or employees of the State of New Mexico, had denied them those services mandated by federal law. Plaintiffs also sought a class action certification. This Court denied class certification. Plaintiffs appealed and the Tenth Circuit Court of Appeals affirmed. J. B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999).
Plaintiffs now seek attorneys fees and costs on the ground, defendants changed some of the legally deficient systems that had previously caused them to violate the federal rights of the named plaintiffs. . . . In singling out the plaintiffs for specialized treatment, defendants provided to each of the plaintiffs most of the relief to which plaintiffs alleged they were entitled. (Memo. in Supp. Pls. Mot. for Attys Fees Exp. at 10). Relying on this interpretation of the facts, Plaintiffs counsel argues:
The plaintiffs have partially prevailed in this action because their suit served as a catalyst, which induced the defendants to both undertake systemic reforms which resulted in the plaintiffs receiving services that are required by law which they were not receiving before the suit was filed and because the defendants took many extraordinary actions
on behalf of the individual plaintiffs, remedying several violations of federal law. Pls. Pre-Hearing Br. at 1.
A divided United States Supreme Court recently rejected the catalyst theory as a basis for attorneys fees in Buckhannon. The Court there held that the term prevailing party. Also termed successful party. applied only when a court order or consent decree changed the legal relationship between the parties. Speaking for the Court, Chief Justice Rehnquist summarized the holding as follows:
121 S.Ct. at 1839 quoting BLACKS LAW DICTIONARY 1145 (7th ed. 1999).
Numerous federal statutes allow courts to award attorneys fees and costs to the prevailing party. The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendants conduct. We hold that it does not.
121 S.Ct. at 1838.
The fact that the basis for Plaintiffs attorneys fees request was destroyed by Buckhannon is highlighted by the legal authority cited by the parties in briefing the issue. Plaintiffs repeatedly cited and relied on Beard v. Teska, 31 F.3d 942 (10th Cir. 1994).
See, e.g. Memo. in Supp. Pls. Mot. for Attys Fees Exp. at 9, 10, and 12; Pls. Reply at 2.
Defendants relied on S-1 and S-2 v. State Board of Education of North Carolina, 21 F.3d 49 (4th Cir. 1994).
Defs. Resp. to Pls. Pre-Hearing Br. at 3-4.
Plaintiffs in turn noted that in S-1 the Fourth Circuit was at odds with nine other circuits and again cited Beard.
Pls. Reply at 2.
In Buckhannon, the Supreme Court also recognized S-1 was at odds with most Courts of Appeals citing inter alia Beard v. Teska. The Supreme Court, however, chose the Fourth Circuit approach and thereby implicitly overruled contrary authority from other circuits.
ORDER
Based on the language and holding of Buckhannon, this Court cannot award Plaintiffs counsel attorneys fees for any actions that were voluntarily undertaken by Defendants without a judicial mandate. The motion for attorneys fees is DENIED.