Kalitta Air L.L.C. v. Central Texas Airborne System

Filing

FILED PER CURIAM OPINION (JEROME FARRIS, SUSAN H. BLACK and SANDRA S. IKUTA) We AFFIRM in part, REVERSE in part, and REMAND for further proceedings. Each party shall bear their own costs on appeal. FILED AND ENTERED JUDGMENT. [8908063]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KALITTA AIR L.L.C., as assignee of
American International Airways,
Inc.
Plaintiff-Appellant,

No. 13-15015
D.C. No.
4:96-cv-02494CW

v.
CENTRAL TEXAS AIRBORNE SYSTEM
INC.,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted
November 8, 2013—San Francisco, California
Filed December 19, 2013
Before: Jerome Farris, Susan H. Black*,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion

*

The Honorable Susan H. Black, Senior Circuit Judge for the U.S. Court
of Appeals for the Eleventh Circuit, sitting by designation.

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SUMMARY**

Costs
The panel affirmed in part, and reversed in part, the
district court’s award of costs following a unanimous jury
verdict in favor of defendant.
The panel held that the district court erred in awarding
$1,310 in costs for the fees that defendant’s counsel paid to
be admitted to the Northern District of California on a pro
hac vice basis because 28 U.S.C. § 1920(1) does not allow for
an award of pro hac vice fees as taxable costs. The panel also
held that the costs of deposition editing and synchronizing
were not authorized by § 1920, and therefore reversed the
district court’s award of costs associated with those services.
Finally, the panel affirmed the district court’s award to
defendant for costs for retainers and fees for graphics
consultants, and costs awarded following the first jury trial in
2002.

COUNSEL
Mark L. McAlpine (argued) and Don W. Blevins, McAlpine
PC, Auburn Hills, Michigan, for Plaintiff-Appellant.
E. Joshua Rosenkranz and Robert M. Yablon (argued),
Orrick, Herrington & Sutcliffe LLP, New York, New York,
for Defendant-Appellee.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
PER CURIAM:
Appellant Kalitta Air L.L.C. (Kalitta) appeals the district
court’s award of $622,036.38 in costs to Appellee Central
Texas Airborne System Inc. (CTAS) following a jury’s
unanimous verdict in favor of CTAS. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part, reverse in part,
and remand for further proceedings.
BACKGROUND
In 1996, Kalitta1 filed a lawsuit against numerous
defendants, including CTAS, alleging various causes of
action stemming from the modification of two of its aircraft
from passenger to cargo planes and the Federal Aviation
Administration’s subsequent issuance of an Airworthiness
Directive that effectively grounded those planes. The district
court granted summary judgment to CTAS on Kalitta’s
negligence claim, and, after a jury trial in 2001 on Kalitta’s
negligent misrepresentation claim, the court entered judgment
in favor of CTAS. In June 2002, the district court awarded
CTAS $355,370 in costs.
In December 2002, this Court affirmed the district court’s
judgment in part and reversed and remanded in part.

1

American International Airways, Inc. (AIA)—Kalitta’s
predecessor—instigated this action. While the litigation was pending,
AIA merged with another company, Kitty Hawk. Several years later, after
Kitty Hawk filed for bankruptcy, Kalitta Air L.L.C. was formed and
obtained the right to pursue this litigation. For convenience, we refer only
to Kalitta.

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GATX/Airlog Co. v. Evergreen Int’l Airlines Inc., 52 F. App’x
940, 942–43 (9th Cir. 2002) (unpublished). The district court
held a second trial that resulted in a mistrial. On
interlocutory appeal from certain post-trial rulings, this Court
again affirmed in part and reversed and remanded in part.
Kalitta Air, L.L.C. v. Cent. Tex. Airborne Sys. Inc., 315 F.
App’x 603, 607 (9th Cir. 2008) (unpublished). Following a
third trial in which Kalitta pursued only its claim of
negligence, the jury rendered a verdict in favor of CTAS.
CTAS subsequently filed a bill of costs for $724,021.37.
Kalitta objected and the clerk of court awarded CTAS
$691,591.73 in costs. Kalitta then moved the district court to
review the clerk’s costs award, arguing in pertinent part that
(1) pro hac vice admission fees were not taxable; (2) CTAS
sought impermissible costs for the creation of visual aids by
graphics consultant firms; (3) CTAS impermissibly sought
costs for deposition video production and trial presentation
support; (4) CTAS could not recover costs for transcript
synchronization;2 and (5) many of the deposition costs taxed
in the district court’s 2002 costs award were beyond the scope
of Northern District of California Civil Local Rule 54-3.
In relevant part, the district court affirmed the clerk’s
award of $1,310 to CTAS for pro hac vice admission fees,
noting this Circuit has not ruled on the issue and that some
courts allow the costs to be taxed while others do not.
Regarding Kalitta’s arguments about costs for graphics
consultants, the district court concluded fees for

2

Synchronization enables a video deposition “to be cut according to
designated lines of transcript and for the text of the testimony to be
displayed when the video is played.” Hynix Semiconductor Inc. v.
Rambus Inc., 697 F. Supp. 2d 1139, 1151 (N.D. Cal. 2010).

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exemplification and copying were permitted only for the
physical preparation of documents, not the intellectual effort
involved in their creation. Accordingly, while it was not
entirely clear how much time was spent on non-compensable
activities from the invoices CTAS submitted, the court found
an additional reduction of $16,500 was appropriate.
The district court also found that costs for the preparation
of deposition video clips were taxable, but CTAS’s invoices
included more than just the costs for the production of the
deposition clips. Although CTAS voluntarily reduced its
request for the relevant invoice by 30%, the district court
found a 50% reduction was appropriate and disallowed an
additional $9,906.90 in costs. The district court further found
that the costs for transcript synchronization were recoverable
as exemplification costs and denied Kalitta’s request for a
reduction. Finally, the district court concluded Kalitta
provided no basis for the court to revisit its 2002 costs award.
Accordingly, the district court awarded CTAS $622,036.38
in costs, and this appeal followed.
STANDARD OF REVIEW
“We review the district court’s award of costs for abuse
of discretion.” Sea Coast Foods, Inc. v. Lu-Mar Lobster &
Shrimp, Inc., 260 F.3d 1054, 1058 (9th Cir. 2001). We also
review the district court’s rulings regarding the local rules for
abuse of discretion, Alliance of Nonprofits for Ins., Risk
Retention Grp. v. Kipper, 712 F.3d 1316, 1327 (9th Cir.
2013), but review de novo the question of whether the district
court has the authority to award costs, United States ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963,
968 (9th Cir. 1999).

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DISCUSSION

Federal Rule of Civil Procedure 54 provides that, in
general, costs should be awarded to the prevailing party in a
civil action. Fed. R. Civ. P. 54(d)(1). The general costs
statute, 28 U.S.C. § 1920, defines the term “costs” as used in
Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 441 (1987). Section 1920 provides:
A judge or clerk of any court of the United
States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees, expenses, and costs of special

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interpretation services under section 1828 of
this title.
28 U.S.C. § 1920(1)–(6).
A. Pro Hac Vice Admission Fees
Kalitta contends the district court erred by awarding
CTAS $1,310 in costs for the fees that CTAS’s counsel paid
to be admitted to the Northern District of California on a pro
hac vice basis. We agree.
Section 1920(1) authorizes the district court to tax as
costs “[f]ees of the clerk.” 28 U.S.C. § 1920(1). Focusing on
the plain language of the statute, the specific context in which
the language is used, as well as the broader context of the
statute as a whole, United States v. Havelock, 664 F.3d 1284,
1289 (9th Cir. 2012) (en banc), we conclude § 1920(1)’s
reference to fees of the clerk draws its meaning from
28 U.S.C. § 1914, which authorizes the district court to
collect a filing fee and “such additional fees only as are
prescribed by the Judicial Conference of the United States,”
28 U.S.C. § 1914(a), (b).
The Judicial Conference’s fee schedule does not refer to
pro hac vice fees at all. Rather, it provides for a $176 fee
“[f]or original admission of attorneys to practice,” including
a certificate of admission. 28 U.S.C. § 1914, District Court
Miscellaneous Fee Schedule #10. We read the Judicial
Conference’s use of the phrase “original admission” as
referring to the permanent admission of attorneys to the
district court’s bar. Such original admission does not include
the temporary and limited leave to practice before the district

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court granted by pro hac vice status.3 Accordingly, because
§ 1914(b) allows a clerk to collect only those fees prescribed
by the Judicial Conference, and the Judicial Conference has
not specifically provided for pro hac vice fees, we conclude
that § 1920(1) does not allow for an award of pro hac vice
fees as taxable costs.
This conclusion also comports with the Supreme Court’s
recent statements emphasizing that “taxable costs are limited
by statute and are modest in scope.” Taniguchi v. Kan Pac.
Saipan, Ltd., — U.S. —, 132 S. Ct. 1997, 2006 (2012). In
Taniguchi, the Court considered whether § 1920(6)—which
authorizes the district court to compensate a party for the
expense of an interpreter—includes the cost of translating
documents. Id. at 2000. In concluding the statute does not
cover the cost of translating documents, the Court focused on
the plain meaning of the word “interpreter” and concluded
that interpretation covers oral, not written, translation. Id. at
2002–05. Given the Court’s close reading of the statute and
emphasis that “[t]axable costs are limited to relatively minor,
incidental expenses,” and, further, that “costs almost always
amount to less than the successful litigant’s total expenses in
connection with a lawsuit,” id. at 2006 (internal quotation
marks omitted), we construe § 1920 narrowly.
We recognize that the Seventh and Eighth Circuits have
awarded costs for the pro hac vice admission of counsel. See
Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894,

3
Although it may seem incongruous to allow the permanent admission
of attorneys to be taxed as a cost under § 1920(1) while disallowing costs
for the pro hac vice admission of counsel, it is the province of the Judicial
Conference rather than this Court to alter the plain language of the
Conference’s fee schedule.

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898 (8th Cir. 2009); United States ex rel. Gear v. Emergency
Med. Assocs. of Ill., Inc., 436 F.3d 726, 730 (7th Cir. 2006).
The Seventh and Eighth Circuits, however, allowed for the
taxing of pro hac vice admission fees prior to the Supreme
Court’s decision in Taniguchi and without any clear
explanation of their reasons for doing so. We think the better
course is to hew closely to the statute’s language, scheme,
and context, recognizing that § 1920 is narrow, limited, and
modest in scope. See Taniguchi, 132 S. Ct. at 2006.
Accordingly, we reverse the district court’s award of costs for
the pro hac vice admission of CTAS’s counsel.
B. Deposition Editing
Kalitta also maintains the district court erred by awarding
CTAS the costs associated with editing deposition videotapes
into clips to be played at trial, as well as the costs associated
with synchronizing the deposition videotapes with their
transcripts. We agree that the costs of deposition editing and
synchronizing are not authorized by § 1920 and therefore
reverse the district court’s award of costs associated with
those services.
There is no direct provision for deposition editing in the
costs statute. Section 1920(4) permits the district court to tax
as costs “[f]ees for exemplification and the costs of making
copies of any materials where the copies are necessarily
obtained for use in the case.” 28 U.S.C. § 1920(4). The cost
of editing deposition videotapes into clips to be played at trial
in lieu of live witness testimony is not taxable because it is a
service in excess of the costs of making copies of the
videotape and, further, is an expense incidental to trial
preparation akin to preparing a witness for trial. Cf. Indep.
Iron Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 678 (9th

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Cir. 1963). The costs of editing depositions into video clips
to be played for the jury as a substitute for live witness
testimony does not fall within any definition of
“exemplification,” and is not taxable under the costs statute.4
Similarly, synchronizing deposition videotapes with their
transcripts, while convenient, was not an act of copying or
exemplification and was not truly necessary for trial. See In
re Williams Sec. Litig.–WCG Subclass, 558 F.3d 1144, 1147
(10th Cir. 2009) (“The ‘necessarily obtained for use in the
case’ standard does not allow a prevailing party to recover
costs for materials that ‘merely added to the convenience of
counsel’ or the district court.” (citation omitted)). The costs
of transcript and deposition synchronization do not fit
squarely within the costs statute, and we, like the Supreme
Court, “see no compelling reason to stretch the ordinary
meaning of the cost items Congress authorized in § 1920.”
Taniguchi, 132 S. Ct. at 2006.
Although the Sixth Circuit has affirmed a district court’s
award of costs for the synchronization of video and
4

As explained by the Fourth Circuit:
“Exemplification” has appeared in the [costs] statute
since 1853, when the word meant “an illustration by
example” or “an official transcript of a document from
public records, made in a form to be used as evidence,
and authenticated as a true copy.” Today, the word
means “the act or process” of “showing or illustrating
by example,” or “an official transcript of a public
record, authenticated as a true copy for use as
evidence.”

Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249,
262 (4th Cir. 2013) (brackets and footnotes omitted).

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deposition transcripts, the Sixth Circuit explained only that
“the costs beyond transcription are taxable” and “the costs
[Appellant] objects to are covered by § 1920.” BDT Prods.,
Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419–20 (6th Cir.
2005), abrogated in part on other grounds by Taniguchi,
132 S. Ct. at 2000. The Sixth Circuit did not provide any
basis for its decision specific to transcript synchronization,
and, further, the decision in BDT Products predates the
Supreme Court’s decision in Taniguchi. We decline to follow
the Sixth Circuit’s lead in light of the modest scope of § 1920
and the Supreme Court’s adherence to a narrow construction
of the costs statute. Accordingly, the district court’s award of
costs for editing and synchronizing deposition videotapes is
reversed.
C. Graphics Consultants and 2002 Costs Award
Kalitta contends the district court further erred by
awarding CTAS costs for retainers and fees for graphics
consultants and by refusing to reconsider its 2002 costs award
following the first jury trial. However, Kalitta’s arguments
regarding graphics consultants and the district court’s 2002
costs award are either waived or lack merit, and we therefore
affirm the court’s award of those costs.
We AFFIRM in part, REVERSE in part, and REMAND
for further proceedings. Each party shall bear their own costs
on appeal.