F I L E D

United States Court of Appeals

Tenth Circuit

AUG 7 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID C. MUNOZ, M.D.

Plaintiff-AppellantCross-Appellee,

v.

ST. MARY-CORWIN HOSPITAL;

ST. MARY-CORWIN REGIONAL

MEDICAL CENTER OF PUEBLO,

COLORADO, a Colorado nonprofit

corporation; SISTERS OF CHARITY

HEALTH SERVICES COLORADO,

a Colorado corporation; CENTURA

HEALTH CORPORATION,

a Colorado corporation,

Defendants-AppelleesCross-Appellants.

Nos. 99-1377 & 99-1391

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-WM-2346)

Submitted on the briefs:

Diane MacArthur Brown of Olsen & Brown, L.L.C., Niwot, Colorado,

for Plaintiff-Appellant-Cross-Appellee.

Glenn H. Schlabs and William L. Sasz of Sherman & Howard, L.L.C.,

Colorado Springs, Colorado, for Defendants-Appellees-Cross-Appellants.
1 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

-2-

Before TACHA , PORFILIO , and EBEL , Circuit Judges.

TACHA , Circuit Judge.

Plaintiff David C. Munoz, M.D., appeals the district court’s grant of

summary judgment to St. Mary-Corwin Hospital, St. Mary-Corwin Regional

Medical Center of Pueblo, Colorado, Sisters of Charity Health Services Colorado,

and Centura Health Corporation (defendants) on his complaint alleging that

defendants illegally discriminated against him on the basis of his age and national

origin. Plaintiff brought his federal claims under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634 and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Plaintiff also asserted state law

claims for breach of contract and promissory estoppel. In a cross-appeal,

defendants challenge the district court’s denial of their request for an award of

costs. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the

district court’s grant of summary judgment on behalf of defendants and reverse

and remand as to defendants’ appeal of the court’s denial of costs. 1
-3-

I. Background

In the summer of 1994, plaintiff entered a three-year residency program at

St. Mary-Corwin Hospital in Pueblo, Colorado, under the direction of Dr. Charles

Raye. Residents in the program received quarterly performance evaluations from

the faculty. Upon starting the program, plaintiff signed an employment agreement

setting out the obligations and expectations of the residents and the hospital. The

agreement provided that a resident could only be terminated for cause, and set out

a grievance process whereby a resident subjected to an adverse employment

action would receive written notice of the action and a right to appeal the action

to the Graduate Medical Education Committee (the Committee). Any appeal of an

adverse employment action was to be conducted according to the program’s due

process policy which provided for a hearing at which the resident could present

information relevant to the appeal. The resident was to receive a written decision.

Plaintiff claims that soon after he started the residency program, Dr. Raye

targeted him for criticism. Following plaintiff’s first evaluation, considered

good, although it expressed concern with plaintiff’s failure to thoroughly check

out every patient and his performance of procedures without required supervision,

Dr. Raye began to closely supervise plaintiff’s performance. In November 1994,

plaintiff performed a circumcision without faculty supervision. The procedure

was not done correctly and a urologist was required to correct the circumcision. 
-4-

Plaintiff was directed not to perform any more unsupervised procedures. Later

that day, plaintiff violated this directive and was observed doing another

unsupervised circumcision.

On February 22, 1995, plaintiff was placed on probation. He did not avail

himself of the program’s grievance process regarding the warning for performing

unsupervised procedures or the probation action. Plaintiff was ultimately

terminated from the program on April 10, 1995. In Dr. Raye’s memorandum to

plaintiff’s file regarding termination, he detailed numerous other infractions of

the rules regarding patient care by plaintiff. See Appellant’s App. Vol. III

at 611-12. Plaintiff grieved his termination and was present at a hearing before

the Committee. The Committee upheld plaintiff’s termination.

Because some faculty members expressed concern that plaintiff’s trouble

with the program may have been caused by psychological problems, the

committee agreed to meet to reconsider plaintiff’s termination based on the

outcome of a voluntary psychiatric evaluation. Plaintiff was told that he may or

may not be included in this second meeting. Following consideration of the

plaintiff’s psychiatric evaluation, the committee met without plaintiff in

attendance and affirmed its decision to terminate him from the residency program.

Plaintiff appealed the Committee’s termination decision to the hospital’s

acting CEO, Dr. William Turman. Following a meeting with plaintiff and
-5-

consideration of all the information he had been given regarding plaintiff’s

performance in the program, Dr. Turman denied plaintiff’s appeal, finding that it

would be “inappropriate for [plaintiff] to continue in the Residency.” Id. at 667.

Plaintiff brought this action in federal court alleging that his termination

was based on age and national origin discrimination. Plaintiff also asserted state

law claims for breach of contract, alleging that his termination was without cause

and violated due process--and promissory estoppel, claiming he reasonably relied

on defendants’ affirmative action policy. The district court granted defendants’

motion for summary judgment on all of plaintiff’s claims.

On appeal, plaintiff contends that the district court erred in (1) granting

defendants summary judgment on his breach of contract and estoppel claims;

(2) granting defendants summary judgment on his claims of age and national

origin discrimination; (3) striking plaintiff’s expert rebuttal witness; and

(4) denying plaintiff’s motion to compel discovery. We will address each of

these in turn.

II. Discussion - No. 99-1377

A. Standard of Review

We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the court below. Bullington v. United Air
-6-

Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard,

we examine the factual record and draw reasonable inferences therefrom in a light

most favorable to the nonmoving party. Bullington , 186 F.3d at 1313.

As the moving parties, defendants shoulder “the initial burden to show that there

is an absence of evidence to support the nonmoving party’s case.” Thomas v.

IBM, 48 F.3d 478, 484 (10th Cir. 1995) (further quotation omitted). If defendants

meet this burden, it falls to plaintiff to “identify specific facts that show the

existence of a genuine issue of material fact.” Id. “The party opposing the

motion must present sufficient evidence in specific, factual form for a jury to

return a verdict in that party’s favor.” Id. (further quotation omitted).

B. Breach of Contract and Promissory Estoppel Claims

Plaintiff asserted state law breach of contract claims alleging defendants

breached the provisions of the employment agreement. Applying Colorado law,

we have held that an employer’s personnel policies and procedures can form an

implied contract. See Bullington , 186 F.3d at 1322. Policies and procedures that
2

In their appellate brief, defendants assert that “[t]here is no ‘affirmative

action program’ applicable to the residency program, and it had none when

Dr. Munoz was a resident.” Appellees’ Br. at 6. Plaintiff does not rebut this

factual assertion on appeal. Moreover, plaintiff’s entire argument to this court

on the estoppel issue states: “Even were there no contractual documents in

this case, the promissory elements of estoppel were present in abundance.” 

Appellant’s Br. at 63.

-7-

“are nothing more than ‘vague assurances’ by the employer will not suffice.” Id.

(quoting Vasey v. Martin Marietta Corp ., 29 F.3d 1460, 1465 (10th Cir. 1999)).

Plaintiff also asserted a claim of promissory estoppel premised on his

alleged reliance on defendants’ affirmative action policy. In order to sustain

a claim under the theory of promissory estoppel, plaintiff “must demonstrate that

the employer should have reasonably expected the employee to consider the

policy as a commitment from the employer, that the employee reasonably relied

on the statements to [his] detriment, and that injustice can be avoided only by

enforcement of the policy.” Id.

In rejecting these claims, the district court provided a thorough analysis of

the facts and the law. In plaintiff’s sixty-three page appellate brief, he devotes

only one short page to these issues and does not point this court to any error in the

district court’s analysis or conclusions. 2 This court is “not required to

manufacture a party’s argument on appeal when it has failed in its burden to draw

our attention to the error below.” National Commodity & Barter Ass’n Nat’l

Commodity Exch. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989); see also
-8-

Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding that

perfunctory complaints which fail to frame and develop an issue are insufficient

to invoke appellate review). Therefore, we affirm the district court on plaintiff’s

breach of contract and promissory estoppel issues for substantially the reasons

stated in its August 4, 1999 order.

C. ADEA and Title VII Claims

This court analyzes ADEA claims under the three-step framework set forth

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See Bolton

v. Scrivner, Inc. , 36 F.3d 939, 944 (10th Cir. 1994); cf. Reeves v. Sanderson

Plumbing Prods., Inc. , No. 99-536, 2000 WL 743663, at *5 (U.S. June 12, 2000)

(assuming, without deciding, that McDonnell Douglas framework is applicable to

ADEA cases). In the very recent case of Perry v. Woodward , 199 F.3d 1126

(10th Cir. 1999), we stated:

A plaintiff relying on McDonnell Douglas bears the initial burden of

establishing a prima facie case by a preponderance of the evidence.

One way a plaintiff may establish a prima facie case of wrongful

termination is by showing that: (1) []he belongs to a protected class;

(2) []he was qualified for [his] job; (3) despite [his] qualifications,

[]he was discharged; and (4) the job was not eliminated after [his]

discharge. If the plaintiff establishes [his] prima facie case, a

rebuttable presumption arises that the defendants unlawfully

discriminated against [him]. The defendants must then articulate

a legitimate, nondiscriminatory reason for the adverse employment

action suffered by the plaintiff. If the defendant is able to articulate

a valid reason, the plaintiff can avoid summary judgment only if []he

is able to show that a genuine dispute of material fact exists as to

whether the defendant’s articulated reason was pretextual.
3

In its summary judgment order, the district court applied the prima facie

case test articulated by this court in Sanchez v. Denver Public Schools , 164 F.3d

527, 531 (10th Cir. 1998), stating in order to establish the fourth element, a

plaintiff must show that “(4) [he] was treated less favorably than others not in the

protected class.” We recognize that this element was modified by this court’s

decision in Perry and that no panel of this court has addressed the question of

whether the Perry test applies to ADEA claims. Because plaintiff here cannot

establish a prima facie case under either test, we do not, at this time, address the

applicability of Perry to ADEA cases.

4 We recognize that although the district court granted defendants summary

judgment on plaintiff’s ADEA claim based on plaintiff’s failure to establish a

prima facie case, the district court proceeded to address pretext in relation to

plaintiff’s ADEA claim in conjunction with its discussion of pretext in relation to

plaintiff’s Title VII claim. While we affirm the district court’s decision on the

basis of plaintiff’s failure to establish a prima facie case, we note that our

subsequent discussion of pretext in relation to plaintiff’s Title VII claim is

applicable to his ADEA claim as well.

-9-

Id. at 1135 (citations omitted). 3 The Perry court further stated that “the fourth

test of the prima facie case is met if the discharged plaintiff can show that

someone was hired to replace [him]” and plaintiff is not required to prove that the

person hired to replace him belonged to the protected group. Id. at 1138.

Applying O’Connor v. Consolidated Coin Caterers Corp. , 517 U.S. 308

(1996), the district court concluded that plaintiff had not established the fourth

element of his prima facie case. 4

 Here, plaintiff was terminated at age forty-three. 

He was replaced by a resident who was age forty-one. Thus, both were forty or

older and members of the protected class. See 29 U.S.C. § 631(a) (ADEA

protection is afforded to those “individuals who are at least 40 years of age”). In
-10-

O’Connor , the Supreme Court held that a plaintiff does not have to prove that he

was replaced by someone outside the protected class to establish the fourth

element of the McDonnell Douglas prima facie case. See id. at 312 (“The fact

that one person in the protected class has lost out to another person in the

protected class is . . . irrelevant, so long as he has lost out because of his age.”). 

The Court held that a prima facie case of age discrimination “requires ‘evidence

adequate to create an inference that an employment decision was based on a[n]

[illegal] discriminatory criterion,’” id. (quoting International Bhd. of Teamsters.

v. United States , 431 U.S. 324, 358 (1977)), and this inference of age

discrimination “cannot be drawn from the replacement of one worker with another

worker insignificantly younger” id. at 313. Here, we agree with the district court

that because plaintiff’s replacement was only two years his junior--an obviously

insignificant difference--the necessary inference of discrimination was precluded,

and he failed to establish his prima facie case. See Perry, 199 F.3d at 1136 (“It is

undeniable that the Court in O’Connor reiterated that there must be a logical

connection between each element of the prima facie case and the inference of

discrimination.”).

Finally, plaintiff claims that defendants discriminated against him on the

basis of national origin in violation of Title VII of the Civil Rights Act of 1964.

Plaintiff contended that the heightened scrutiny and increased restrictions placed
-11-

on his work and performance were evidence of pretext. Moreover, he contended

that other residents with similar or worse infractions of the rules were not

subjected to heightened scrutiny. Specifically, plaintiff claims that “numerous

non-Hispanic and younger comparators who committed comparable alleged

misdeeds and were in identical or comparable circumstances . . . were not fired,

disciplined or treated the same as plaintiff.” Appellant’s Br. at 58.

A plaintiff alleging violations of Title VII must present either direct or

indirect evidence sufficient to show intentional discrimination. See Shorter v.

ICG Holdings, Inc. , 188 F.3d 1204, 1207 (10th Cir. 1999). Here, it appears that

plaintiff is attempting to assert a disparate treatment claim. “Because disparate

treatment is a form of intentional discrimination, the plaintiff must prove that

[his] employer acted with a discriminatory intent or motive.” Bullington ,

186 F.3d at 1315. The same prima facie elements reiterated above apply to

plaintiff’s national origin discrimination claim. See Perry , 199 F.3d at 1135. 

Because the district court assumed that plaintiff established a prima facie case

of national origin discrimination and applied the burden shifting analysis of

McDonnell Douglas , we do likewise.

Once plaintiff establishes a prima facie case of discrimination, the

defendants must offer legitimate, non-discriminatory reasons for their adverse

employment decision. See Bullington , 186 F.3d at 1316. Plaintiff then bears the
-12-

ultimate burden of establishing that defendants’ proffered reasons are pretext for

national origin discrimination. Id. Plaintiff must demonstrate pretext by

establishing “either that a discriminatory reason more likely motivated the

employer or . . . that the employer’s proffered explanation is unworthy of

credence.” Id. at 1317 (further quotation omitted) (alteration in original).

The Supreme Court has recently held that a prima facie case of

discrimination, combined with sufficient evidence of pretext, is sufficient as

a matter of law to show intentional discrimination. See Reeves , 2000 WL 743663,

at *9. “Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Hardy v. S.F. Phosphates Ltd. , 185 F.3d

1076, 1080 (10th Cir. 1999) (further quotation omitted).

In their brief supporting their motion for summary judgment, defendants

stated that plaintiff was terminated from the residency program for performing

unsupervised procedures, failing to adhere to supervisory directives, failing to

respond to faculty, failing to address the complaints of an emergency room

patient, treating an emergency room patient in a manner that caused the patient to

leave the hospital, failing to follow instructions regarding contacting a surgeon
5 The record indicates that several of these incidents formed the basis for the

Colorado State Board of Medical Examiners’ action in placing plaintiff’s license

on five-years probation. In the probation agreement, plaintiff admitted that he

performed an unsupervised circumcision which required further corrective surgery

and that he discharged a patient without needed oxygen. See Appellant’s App.

Vol. III at 622. He also admitted that these incidents “establish[] that [plaintiff]

has engaged in unprofessional conduct.” Id.

6

In response to defendants’ motion for summary judgment, plaintiff

submitted more than one thousand “Undisputed Facts in Opposition to

Defendants’ Motion for Summary Judgment.” See Appellant’s App. Vol. III,

at 750-913. Both in the district court and on appeal, plaintiff cites to large

numbers of these “undisputed facts” to support his allegations. The district court

refused to sift through these facts in order to determine which, if any, may

contradict defendants’ proffered reasons. On appeal, plaintiff submitted over

(continued...)

-13-

about a patient, and planning an improper treatment program for a patient. 

Dr. Raye determined that these incidents indicated poor judgment on plaintiff’s

part. 5 The district court concluded that these constituted legitimate

nondiscriminatory reasons for plaintiff’s termination from the residency program.

The burden of persuasion then shifted back to plaintiff to show that

defendants’ claimed reasons for terminating him were pretextual, that is,

“unworthy of credence.” Bullington , 186 F.3d at 1317 (further quotation omitted). 

Although plaintiff cites us to the seemingly inexhaustible litany of “undisputed

facts” listed in his response to defendants’ motion for summary judgment and his

appellate brief, he fails to support his allegations of pretext with any specific

facts or empirical evidence other than his general statements that other residents

were treated more favorably. 6

 He has not only failed to prove that he was treated
6

(...continued)

2000 pages of appendix. In his brief, he cites to depositions and exhibits without

providing this court with any indication of where in this voluminous record we

may be able to find these documents. Therefore, we also decline to “search the

record in an effort to determine whether there exists dormant evidence which

might require submission of the case to a jury.” Thomas v. Wichita Coca-Cola

Bottling Co. , 968 F.2d 1022, 1025 (10th Cir. 1992); see also SIL-FLO, Inc. v.

SFHC, Inc. , 917 F.2d 1507, 1513-14 (10th Cir. 1990) (stating that not only will

the court not sift through the record to find support for an argument, the court

will not manufacture arguments for the party).

-14-

less favorably than other residents because of his national origin, he has failed to

prove that defendants acted with discriminatory intent or motive. See id. at 1315. 

Moreover, he offers no evidence, circumstantial or otherwise, indicating that there

was any nexus between defendants’ decision to terminate his residency and his

Hispanic origin. See Shorter , 188 F.3d at 1210 (holding that plaintiff must

establish nexus between discriminatory intent and discharge determination). 

In conclusion, we agree with the district court that plaintiff has not presented

sufficient evidence to create a genuine dispute of material fact as to whether the

defendants’ proffered reasons are pretext for national origin discrimination. 

See Bullington , 186 F.3d at 1316. Therefore, summary judgment for defendants

was appropriate. See Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 530

(10th Cir. 1994) (“Even though all doubts must be resolved in [plaintiff’s] favor,

allegations alone will not defeat summary judgment.”).

D. Striking Plaintiff’s Rebuttal Witness
-15-

Plaintiff argues that the district court erred in granting defendants’ motion

to strike the rebuttal opinion of his expert witness, Robert Jeffrey, Jr. “This court

reviews for an abuse of discretion a district court’s refusal to allow rebuttal

testimony.” Koch v. Koch Indus., Inc. , 203 F.3d 1202, 1224 (10th Cir. 2000),

petition for cert. filed (U.S. July 3, 2000) (No. 00-28). The court’s decisions

regarding the presentation of evidence will not be disturbed absent a showing of

manifest injustice to the parties. See Camcoa, Inc. v. NEC Tels., Inc. , 931 F.2d

655, 663 (10th Cir. 1991).

Plaintiff designated Mr. Jeffrey’s opinion to rebut the opinion of

defendants’ expert witness, Dr. Wilson D. Pace. Defendants moved to strike. 

In an order granting defendants’ motion, the magistrate judge concluded that

Mr. Jeffrey’s opinion did not rebut that of Dr. Pace. Plaintiff filed a lengthy

opposition to the magistrate judge’s order in the form of an appeal to the district

court. The district court overruled plaintiff’s objections.

Dr. Pace rendered an opinion on the standards and procedures applicable to

intern physicians in the area of plaintiff’s residency and family practice. He also

reviewed plaintiff’s performance during his time in the residency program and

rendered the opinion that the process leading to plaintiff’s termination comported

with the due process contained in the residency manual. Mr. Jeffrey, on the other
-16-

hand, rendered his opinion in the areas of fundamentally fair personnel

procedures and due process and discrimination in employment.

On appeal, plaintiff asserts that the district court erred in finding that

Mr. Jeffrey’s opinion did not rebut that of Dr. Pace. He claims that the court

“somehow overlooked the actual contents of plaintiff expert’s opinion and failed

to detect the abundant, lengthy and precise analysis vis-a-vis the residency

program’s written due process procedures and documents.” Appellant’s Br. at 66. 

Once again, plaintiff’s argument is woefully lacking in support. He does not

point this court to the record evidence of Dr. Pace’s opinion allegedly rebutted by

Mr. Jeffrey’s opinion. Instead, he points us to statements in Mr. Jeffrey’s opinion

where he opines that the procedures afforded plaintiff before his termination

violated Mr. Jeffrey’s own perception of due process and fundamental fairness.

It appears, as the district court found, that Mr. Jeffrey’s opinion concerned

his view of due process and fundamental fairness in the workplace and his

opinion of what constitutes discrimination. Our reading does not indicate that he,

in any way, offered rebuttal testimony to the opinion of Dr. Pace, and therefore

we cannot determine that the district court’s order striking Mr. Jeffrey’s opinion

was an abuse of the court’s discretion.

E. Discovery Claim
7 Following consideration of plaintiff’s objections to the magistrate judge’s

order, the district court overruled the magistrate judge’s determination that

compliance with Nos. 5 and 6 was sufficient. In so doing the court ordered

defendants to produce any documents withheld from their responses to

interrogatories Nos. 5 and 6. See Appellant’s App. Vol. I at 223. The record

does not indicate that plaintiff renewed his motion to compel as to these requests.

-17-

Lastly, plaintiff claims that the district court erred in denying his motion

to compel. Plaintiff filed a order to compel responses to Nos. 5-8 in his first

request for production of documents, and Nos. 1-3, 5, 13-16, and 18-21 in his

second request for production of documents and interrogatories. The magistrate

judge found that because plaintiff’s discovery requests were not in compliance

with the court’s scheduling order, plaintiff was not entitled to a second set of

written discovery and therefore, the court would only consider plaintiff’s motion

to compel as to Nos. 5-8 of his first request for production of documents.

The magistrate judge accepted as sufficient defendants’ response that they

had fully complied with Nos. 5 and 6. 7

 In No. 7, plaintiff requested extensive

information regarding negative intern performance over a five year period. 

Although defendants asserted that this request was overly broad, they responded

that they had provided copies of all disciplinary action and performance

evaluations within the five-year time frame. Defendants also found plaintiff’s

request No. 8 for personnel files for every intern placed on or considered for

probation or terminated during the same five-year period to be equally overly
-18-

broad. They did provide copies of the disciplinary actions from the requested

files. The magistrate judge found defendants’ compliance to be sufficient, and

following consideration of plaintiff’s objections, the district court sustained the

order. We review the district court’s discovery order for abuse of discretion. 

Gomez v. Martin Marietta Corp ., 50 F.3d 1511, 1520 (10th Cir. 1995).

On appeal, plaintiff contends that certain notes evincing occasions when

a resident was criticized were not produced. Without any specificity or statement

of relevance, plaintiff asserts that files and documents relating to “ other

residents” were “intentionally withheld.” Appellant’s Br. at 60 (emphasis in

original). We have held that “an employer’s general practices are relevant even

when a plaintiff is asserting an individual claim for disparate treatment.” Gomez,

50 F.3d at 1520. This grant is not, however, without limits, and the district court

“is given wide discretion in balancing the needs and rights of both plaintiff and

defendants.” Id. (quotation omitted).

When, as is apparent here, a plaintiff brings an initial action without any

factual basis evincing specific misconduct by the defendants and then bases

extensive discovery requests upon conclusory allegations in the hope of finding

the necessary evidence of misconduct, that plaintiff abuses the judicial process. 

Therefore, the magistrate judge appropriately recognized that defendants’

compliance was sufficient and the likely benefit of any further attempted fishing
-19-

expedition would be negligible. See, e.g., Jarvis v. Nobel/Sysco Food Servs. Co. ,

985 F.2d 1419, 1423 n.4 (10th Cir. 1993).

In discovery matters, we believe the district court is in the best position to

weigh the variables and determine the appropriate limits. Cf. Moothart v. Bell ,

21 F.3d 1499, 1504 (10th Cir. 1994) (concluding that the abuse of discretion

standard is appropriate in reviewing a trial court’s evidentiary rulings because the

trial court has the firsthand ability to view the witness or evidence and assess

credibility and probative value). We agree that the district court allowed plaintiff

ample discovery regarding the disciplinary treatment of other residents in the

program. See Gomez , 50 F.3d at 1520 (concluding the district court did not abuse

its discretion in limiting discovery in Title VII case where the plaintiff was

provided abundant discovery). Therefore, we conclude the district court did not

abuse its discretion in denying plaintiff’s motion to compel.

III. Discussion - No. 99-1391

In their cross-appeal, defendants challenge the district court’s denial of

their request for costs, a decision we review for an abuse of discretion. See Klein

v. Grynberg , 44 F.3d 1497, 1506 (10th Cir. 1995). Federal Rule of Civil

Procedure 54(d) allows an award of costs to prevailing parties. The Rule states

that “costs other than attorneys’ fees shall be allowed as of course to the

prevailing party unless the court otherwise directs.” Fed. R. Civ. P. 54(d)(1). 
-20-

“This court has held that Rule 54(d) creates a presumption that the prevailing

party shall recover costs.” Klein , 44 F.3d at 1506. Moreover, the district court

“must provide a valid reason for not awarding costs to a prevailing party.” 

Cantrell v. International Bhd. of Elec. Workers, 69 F.3d 456, 459 (10th Cir.

1995).

Here, the district court summarily denied an award of costs to defendants

without explanation. Thus, we have no basis for judging whether the court

abused its discretion. Therefore, the part of the district court’s judgment

decreeing that each party shall bear his own costs is reversed and the matter is

remanded to the trial court for further consideration of defendants’ request for

costs. 

The judgment of the United States District Court for the District of

Colorado is in case No. 99-1377 is AFFIRMED. The denial of costs appealed in

case No. 99-1391 is REVERSED, and the matter is REMANDED for further

proceedings consistent with this order and judgment.