Ernst v. Sunbelt Rentals Inc

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20510
Summary Calendar
GENNIE ERNST,
Plaintiff-Appellant,
versus
SUNBELT RENTALS, INC.
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-381
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges
PER CURIAM:*
Gennie Ernst appeals the district court’s order granting costs
to Defendant-Appellee Sunbelt Rentals after granting summary
judgment for Sunbelt on the merits of Ernst’s claim of
discrimination under the Texas Commission on Human Rights Act, TEX.
LAB. CODE ANN. § 21.00-21.128. Ernst appeals the district court’s
award of $1,125.65 in internal copying costs and cost of a video
taped deposition of one of the witnesses.
I.

-- 1 of 3 --

No. 04-30277
-2-
Ernst first improperly argues that this Court’s decision in
Rachid v. Jack in the Box, Inc., 2004 WL 1427046 (5th Cir. June 25,
2004), should alter the outcome of the appeal on the merits of her
discrimination claim, which this court has already heard. Because
this Court has affirmed the district court’s grant of summary
judgment for Sunbelt, however, 2004 WL 2008951 (5th Cir. Sept. 9,
2004), that issue is not before this court.
II.
We review a district court’s award of costs to the prevailing
party for abuse of discretion. Fogelman v. ARAMCO, 920 F.2d 278
(5th Cir. 1991). Ernst argues that the district court abused its
discretion when it awarded Sunbelt $1,125.65 in internal copying
costs after finding that Sunbelt’s internal copying costs
“necessarily resulted from the litigation” as required by 28 U.S.C.
§ 1920. We find that the district court did not abuse its
discretion when it made the factual finding based upon Sunbelt’s
affidavit, that Sunbelt’s internal copying costs “necessarily
resulted from the litigation.” Further, we hold that allowing
Sunbelt to recover $.20 per page was not an abuse of discretion,
particularly in light of 5TH CIR. R. 39.1, which permits recoverable
reproduction costs of up to $.25 per page.
Second, Ernst argues that the award of the cost of a videotape
copy of Beck’s deposition was an abuse of discretion because 28
U.S.C. § 1920 only allows the successful party to recover for
paper, but not video depositions. Mota v. University of Texas

-- 2 of 3 --

No. 04-30277
-3-
Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001).
However, Ernst did not present that argument before the district
court. Not only did Ernst not cite any legal authority, she also
did not mention the distinction between paper and video copies in
her objections to Sunbelt’s bill of costs. Because Ernst therefore
did not raise the argument before the district court “to such a
degree that the district court [had] an opportunity to rule on it,”
it is not properly before this court on appeal. F.D.I.C. v.
Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).
AFFIRMED.

-- 3 of 3 --