Polk v. Southern Haulers, Inc.

MEMORANDUM OPINION

PROPST, District Judge.

This cause comes on to be heard on plaintiff’s Motion to Tax Costs. The parties agreed to a consent judgment which has been entered by the Clerk of this court. The judgment was silent as to court costs. The parties each acknowledge that costs were not discussed nor agreed upon. It is further apparently undisputed that the plaintiff’s counsel reviewed the proposed judgment and approved it as to form and substance.

This court has discretion in awarding costs. Although this discretion is not unrestrained and should not be exercised arbitrarily, this court is satisfied that when there is a stipulated judgment which makes no reference to costs, each party should bear his (its) own costs. The “prevailing party” is in a position to insist upon a cost provision. The court notes that such cost provisions are normally included in stipulated judgments. When a case is settled, there should be a complete settlement. There are several possibilities with regard to the award of costs in the case of a consent judgment. One possibility is for it to be understood that each party is to bear its (his) own costs. Another possibility is for either party to bear all costs. Another possibility is for the non-prevailing party to bear costs not to exceed a certain limit. There are other possible variations.

When the parties are silent on the question of costs, they merely invite controversy as to the amount and type of costs and as to the party to pay them. Although both parties may have had a reason for not surfacing the point, the better practice is to require the subject to be surfaced or to leave the parties where the court finds them. The court concludes that, when the parties are silent, there is a presumption that each party is to bear his (its) own costs. Unless the party seeking the costs offers evidence of a cogent reason to rebut this presumption, the court will not award costs. Plaintiffs motion will be DENIED.