# United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 14-3799

___________________________ Chad Lochridge, et al.

Plaintiffs – Appellees

v.
Lindsey Management Co., Inc.

Defendant – Appellant

____________ Appeal from United States District Court for the Western District of Arkansas

____________ Submitted: April 12, 2016 Filed: June 2, 2016

____________ Before COLLOTON, SHEPHERD, Circuit Judges, and BOUGH, 1 District Judge.

_____________

BOUGH, District Judge.

Chad Lochridge and six other named plaintiffs brought this suit under the Fair Labor Standards Act (“FLSA ”), 29 U.S.C. §§ 201-219, alleging misclassification as exempt employees. On September 26, 2014, a jury returned a

1 The Honorable Stephen R. Bough, Un ited States District Judge for the
Western District of Miss ouri, sitting by designation.- 2 - verdict in favor of Lindsey Management Co., Inc., finding the employees had been properly classified. Following the jury tria l, the district court denied Lindsey Management’s Bill of Costs in its entiret y. Lindsey Management now appeals the
district court’s denial. We conclude that the district court abused its discretion in denying Lindsey Management’s Bill of Costs in part because the FLSA is silent as to whether prevailing defendants should rec over costs, and we therefore vacate the
district court’s decision.

I.

Four original plaintiffs filed a coll ective action against Lindsey Management alleging violations of the FLSA. The di strict court conditionally certified two
classes – Salaried Class a nd Hourly Class. On Decembe r 10, 2013, the Salaried Class was decertified by the district cour t. The Hourly Class settled all claims against Lindsey Management, and the cla ss members of the decertified Salaried Class continued to pursue their claims.

On September 26, 2014, Chad Loch ridge, Everette Lochridge, Twyla Lochridge, Patricia Leach, Carlis Smith, Lydia Smith and Rebecca Smith (“employees”) presented their claims agai nst Lindsey Management to a jury, and a
verdict was returned in favor of Lind sey Management. On October 10, 2014, Lindsey Management filed its Bill of Cost s pursuant to Federal Rule of Civil Procedure 54(d), seeking reimbursement of costs totaling $22,687.51. The employees objected to the Bill of Costs and requested the district court exercise its discretion to deny Lindsey Management’s request. The district court denied Lindsey Management’s Bill of Costs, indicating that the FLSA statute was
remedial in nature and did not indicat e defendants should recover costs. The district court held, “Given the remedial nature of the statute and its failure to
indicate that defendants should recover costs, it conclude s that defendant’s Bill of
Costs should be denied.”- 3 - II.

Lindsey Management challenges the dist rict court’s order denying its Bill of Costs under Rule 54(d), and the FLSA , 29 U.S.C. § 216(b). Lindsey Management
asserts that the district court abused its discretion by denying its Bill of Costs while failing to articulate appropria te grounds sufficient to overcome the presumption in favor of awarding costs to the prevailing party. “We review the district court’s decision [whether] to award costs for abuse of discretion.” Martin v. DaimlerChrysler Corp., 251 F.3d 691, 695 (8 th Cir. 2001) (citing Greaser v. Mo. Dep’t of Corr., 145 F.3d 979, 985 (8th Cir. ), cert. denied, 525 U.S. 1056, 119 S. Ct. 620, 142 L.Ed.2d 559 (1998)). “As this cas e presents an issue of statutory interpretation, our review is de novo.” In re Raynor, 617 F.3d 1065, 1069 (8th Cir. 2010) (citing U.S. v. Templeton, 378 F.3d 845, 849 (8th Cir. 2004)).

The taxing of costs is governed by Rule 54(d)(1), which provides in relevant part: “Unless a federal statute, these rule s, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Even if a federal statute does not specifi cally authorize recovery of costs in a particular case, “Rule 54(d)(1) independently authorizes district courts to award costs to prevailing parties” unless a stat ute or rule precludes it. Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1174 n.5, 185 L. Ed. 2d 242 ( 2013). The language of § 216(b) of the FLSA provides, “The c ourt in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a r easonable attorney’s fee to be paid by the defendant , and costs of the action.” S ection 216(b) is silent as
to awards of costs to prevailing defendants.

The Supreme Court addressed the issue of statutory silence in Marx v. Gen. Revenue Corp. In Marx, the Court wa s faced with the question whether § 1692k(a)(3) of the Fair Debt Collecti on Practices Act (“FDCPA”) “provided otherwise” than Rule 54(d)(1). 133 S. Ct. at 1170-71. The Court reasoned that “[b]ecause the Rule [54(d)(1 )] grants district courts discretion to award costs, a statute is contrary to the Rule if it lim its that discretion.” Id. at 1173. The FDCPA- 4 - “is silent where bad faith a nd purpose[ful] harassment ar e absent,” but the Supreme Court reasoned, “silence does not displace the background rule that a court has discretion to award costs.” Id. at 1174; also citing 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane , Federal Practice and Pro cedure § 2670 (3d ed. 1998) (explaining that “permissive” statutes do not remove discretion under Rule 54). “A number of statutes state simply that the court may award costs in its discretion.” Id. at 1173 (quoting 10 J. Moore, Moore’s Fe deral Practice § 54.101[ 1][c], pp. 54–159 (3d ed. 2012)). However, “[s]uch a provisi on is not contrary to Rule 54(d)(1) and does not displace the court’s di scretion under the Rule.” Id.

Applying this approach, the Court finds nothing contrary to Rule 54(d) in the statute. Section 216(b) is silent regardin g the court’s authority when the defendant is the prevailing party. Because § 216(b) addresses only an award of costs to a prevailing plaintiff and neither § 216(b) nor any other provision of the FLSA precludes an award of costs to a prevaili ng defendant, this C ourt concludes that Lindsey Management is not precluded from collecting its costs incurred. The fact that a prevailing party prosecutes its ri ghts under the Federal Rules of Civil
Procedure to an award of costs cannot be seen as chilling the flow of litigation. “Indeed, the very possibility that a losing party will be required to reimburse the prevailing party for its costs should cau se parties to litig ation to pause and calculate the risks of pursuing meritless or marginal claims.” Reger v. The Nemours Found., Inc., 599 F.3d 285, 289 (3 d Cir. 2010). “After all, the Rules presume that the prevailing party is entitle d to costs.” Id. “It is incumbent on an attorney to explain the risks of litigation to his or her client—including the risk that under Rule 54(d)(1) they may have to pa y costs should their litigation ultimately prove unsuccessful.” Id.

The district court’s holdi ng is reversed because, pursuant to Marx, Lindsey Management is entitled to a decision whet her its Bill of Cost s should be awarded under Rule 54(d)(1) without consideration of the FLSA’s silence on the issue of prevailing defendants. Even so, Ru le 54(d)(1) provides that costs should be awarded to the prevailing party. “Notw ithstanding this presumption, the word- 5 - ‘should’ makes clear that th e decision whether to award costs ultimately lies within
the sound discretion of the district c ourt.” Marx, 133 S. Ct. at 1172-73; also quoting Taniguchi v. Kan Pacific Saipan , Ltd., 566 U.S. ____, ____, 132 S. Ct. 1997, 2001, 182 L.Ed.2d 903 (2012) (“Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prev ailing parties”). Accord ingly, the district court is directed to consider upon rema nd whether Lindsey Management’s Bill of
Costs should be awarded.

III.

For the foregoing reasons, the distri ct court’s order denying Lindsey Management’s Bill of Costs is vacated, a nd this case is remanded to the district
court for consideration of whether costs should be awarded under Rule 54(d)(1).

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