* 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this opinion should not be published and is not precedent except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

FILED

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.
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
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.