The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
____________________
KYLE BLAKE JOHNSON,
Plaintiff,
v. Case No. 6:20-cv-00244-WPJ1
BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF WAGONER, a political
subdivision and municipal corporation, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR REVIEW OF ORDER TAXING COSTS
THIS MATTER comes before the Court upon Plaintiff’s Motion for Review of Order
Taxing Costs (Doc. 79). Plaintiff argues that an award of costs to Defendants is inappropriate
because, since the case has been remanded to state court for further litigation, Defendants are not
the “prevailing party” under Federal Rule of Civil Procedure 54(d)(1). Doc. 76 at 1. Defendants
disagree, citing authority for the proposition that when a defendant prevails on all federal claims
and the remaining claims are remanded to state court, an award of costs is appropriate. Doc. 77 at
3-4. Having reviewed the parties’ submissions and the applicable law, the Court finds that
Plaintiff’s motion is not well-taken and therefore DENIES it.
BACKGROUND
1 Chief United States District Judge William P. Johnson of the District of New Mexico was
assigned this case as a result of the Tenth Circuit Order designating Judge Johnson to hear and
preside over cases in the Eastern District of Oklahoma.
Plaintiff, a former Wagoner County Sheriff’s Office police lieutenant, leaked a work email
to the news and was subsequently terminated. Doc. 68 at 2-4. Plaintiff sued for alleged violations
of his First Amendment rights under 42 U.S.C. § 1983, as well as state law violations under the
Oklahoma constitution, malicious interference with a contractual relationship, and tortious
interference with a prospective economic advantage. Doc. 2-2 at 2, 8, 13-15. The case proceeded
until it reached summary judgment, when the Court dismissed Plaintiff’s Section 1983 claims—
the only federal matters in the case—and remanded the remaining claims to state court. Docs. 68
at 11, 71 at 3. Defendants now seek an award of costs as the prevailing party at the federal level,
which Plaintiff argues is not warranted because the litigation of his remaining claims will continue
in state court. Docs. 75, 76.
LEGAL STANDARD
Rule 54(d)(1) states that “costs—other than attorney’s fees—should be allowed to the
prevailing party.” The “touchstone of the prevailing party inquiry must be the material alteration
of the legal relationship of the parties.” CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 422
(2016). A presumption exists favoring the award of costs to the prevailing party, but the decision
is ultimately left to the district court’s discretion. Debord v. Mercy Health Sys. of Kan., Inc., 737
F.3d 642, 659 (10th Cir. 2013). Still, denial of costs to the prevailing constitutes a “severe penalty,”
and a court must provide valid reasons for a decision to withhold costs. AeroTech, Inc. v. Estes,
110 F.3d 1523, 1626 (10th Cir. 1997).
DISCUSSION
Plaintiff argues that 1) Defendants have not prevailed in the current lawsuit because it is
not yet fully resolved, and 2) even if Defendants have prevailed, the Court has discretion to
withhold costs and should do so here to allow the state court to make a determination of costs
instead. The Court analyzes each argument and finds both insufficient to overcome the
presumption in favor of awarding costs, particularly in light of the case law Defendants cite.
I. Prevailing Party
Plaintiff argues that Defendants are not the prevailing party because “the action that was
removed by Defendants still remains.” Doc. 76 at 3. Defendant cites Allen v. Lang, No. Civ-16-
296, 2017 WL 8778674 (E.D. Okla. Nov. 27, 2017) and Blan v. Correct Care Sols., Case No: 17-
CV-182, 2018 WL 1561576 (D.N.M. Mar. 5, 2018) for the proposition that when a court disposes
of all federal claims in the defendant’s favor and declines supplemental jurisdiction over related
state law claims, the defendant is the “prevailing party” and an award of costs is proper. Doc. 77
at 6-7.
Defendant’s two cases, although unpublished, provide a persuasive and well-reasoned
approach that the Court will follow here. In both cases, the parties removed a case to federal court,
and the federal court granted summary judgment to the defendants on the federal claims and
declined jurisdiction over the state law claims. See Allen, 2017 WL 8778614 at *1 (dismissing
state law claims without prejudice); Blan, 2018 WL 1561576 at *1 (remanding state law claims to
state court); see also Allen v. Lang, 738 F. App’x 934, 944-45 (10th Cir. 2018) (cases finding a
prevailing party “when a district court enters judgment on federal claims and declines to exercise
supplemental jurisdiction over state claims, dismissing them without prejudice” are “persuasive”).
Both courts reasoned that entering judgment in the defendants’ favor on the federal claims was
sufficient because in doing so, the court brought the federal litigation to a close. See Allen, 2017
WL 8778614 at *1 (“The fact that other state law claims may eventually be adjudicated in another
forum does not eviscerate [Defendant] Lang’s prevailing party status.”); Blan, 2018 WL 1561576
at *2 (“Even though the Court declined to exercise supplemental jurisdiction over Blan’s
remaining state law claims, the County was the prevailing party as the Court granted the County’s
motion for summary judgment on Blan’s constitutional claims.”).
Accordingly, the Court follows this sound reasoning here and determines that Defendants
are the prevailing party because they prevailed on their federal claims and the state claims were
remanded to state court.
Il. Discretion to Withhold
Plaintiff also argues that even if Defendants are the prevailing party, the Court should
exercise its discretion and withhold an award of costs. Doc. 76 at 4. He reasons that the majority
of the action remains, facts are still in dispute, and it is possible that costs will overlap if the state
court also seeks to award costs once the litigation there is complete. /d.
Allen counsels against this approach. There, the court rejected the argument that a
calculation of costs should take place after resolution of the state claims given the possibility of
overlap. 2017 WL 8778614 at *2. The court held that it was not the defendant’s obligation to
determine that the costs were “solely attributable” to the federal claims; it was the plaintiff's
obligation to overcome the presumption in favor of costs to the prevailing party. /d. The fact that
the case 1s not resolved in its entirety is not enough to overcome that presumption on its own.
For these reasons, the Court DENIES Plaintiff's motion to review the order taxing costs
(Doc. 79).
IT ISSO ORDERED.
WILLIAM P. JOHNSON .
UNITED STATES DISTRICT JUDGE