Barnett v. Norman, et al.

Filing 321

ORDER DENYING Plaintiff's Motion to File Reply as Moot 303 , 304 ; ORDER DENYING Objections to Bill of Costs 299 , signed by Magistrate Judge Barbara A. McAuliffe on 6/2/14: Defendants' bill of costs in the amount of $1,303.94 is GRANTED. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TROAS V. BARNETT, 11 Plaintiff, v. 12 13 MARTIN GAMBOA, et al., 14 Defendants. _____________________________________/ Case No. 1:05-cv-01022-BAM PC ORDER DENYING PLAINTIFF’S MOTION TO FILE REPLY AS MOOT (ECF Nos. 303, 304) ORDER DENYING OBJECTIONS TO BILL OF COSTS (ECF No. 299) 15 16 Following a trial by jury, judgment was entered in favor of Defendants Gamboa, Duran 17 and Torres on January 30, 2013. Defendants submitted a bill of costs for $1,303.94 on February 18 12, 2013. Plaintiff filed an objection on March 4, 2013, which was labeled a request for relief 19 from bill of costs and included a proof of service dated February 26, 2013. (ECF No. 299.) 20 Defendants filed an opposition on March 18, 2013. (ECF No. 302.) On April 10, 2014, Plaintiff 21 filed a motion requesting that his response to Defendants’ opposition be filed. (ECF No. 303.) 22 Plaintiff’s response was entered on the Court’s docket the same day. (ECF No. 304.) 23 A. Request to File Reply 24 As stated, Plaintiff filed a motion requesting that his response to Defendants’ opposition be 25 filed. Plaintiff’s motion is unnecessary because his response was filed on April 10, 2014. 26 Accordingly, the motion shall be denied as moot. 27 B. Objections to Bill of Costs 28 As an initial matter, Plaintiff’s objection to the bill of costs was not timely filed. Pursuant 1 to Local Rule 292(c), a party against whom costs are claimed may, within seven days from the 2 date of service, filed specific objections to claimed items. Applying the prison mailbox rule to 3 Plaintiff’s objection, it was deemed filed on February 26, 2013. Douglas v. Noelle, 567 F.3d 4 1103, 1107 (9th Cir. 2009). Plaintiff’s objection was filed fourteen days after service of the Bill of 5 Costs. Although Plaintiff’s objections may be disregarded as untimely, the Court nonetheless 6 considers the substance of Plaintiff’s objections. 7 Defendants seek an award of costs for the fees incurred in obtaining transcripts of 8 Plaintiff’s deposition. (ECF No. 296, p. 1 and Ex. A.) “Fees for printed or electronically recorded 9 transcripts necessarily obtained for use in the case” are recoverable as costs. 28 U.S.C. § 1920(2). 10 Plaintiff first objects to these costs based on an assertion that the changes he sought to 11 make in his deposition testimony were not made to the recorded transcript and were not read into 12 the record. (ECF No. 299, p. 2.) Plaintiff’s argument regarding the reading of the errors into the 13 record is unrelated to the propriety of awarding costs to the prevailing defendants for amounts 14 occurred in obtaining deposition transcripts. Moreover, during the course of the trial, defense 15 counsel expressly noted that Plaintiff’s purported changes to the original deposition transcript 16 were included in the testimony on an errata sheet. Plaintiff also acknowledged that the errata sheet 17 was attached to the transcripts. (ECF No. 314, 157:3-158:5.)1 18 Plaintiff next objects that deposition costs should not be allowed where the deposition was 19 taken merely for counsel’s convenience. (ECF No. 304, p. 2.) Plaintiff’s objection lack merit. At 20 trial, Defendants relied on the deposition transcript during cross-examination of Plaintiff. See 21 ECF No. 314. In other words, the deposition was not taken merely as a convenience for defense 22 counsel, but was necessarily obtained for use in the case. The Court finds that Plaintiff’s reasons for denying costs are not sufficiently persuasive to 23 24 overcome the presumption in favor of an award. Fed. R. Civ. P. 54(d)(1); Save Our Valley v. 25 Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). Accordingly, Plaintiff’s objections shall be 26 denied. 27 /// 28 1 Page numbers refer to the pagination of the Court’s electronic docket. 2 1 C. Conclusion and Order 2 For the reasons stated, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff’s motion requesting that his response to Defendants’ opposition be filed is 4 DENIED as moot; 5 2. Plaintiff’s objections to Defendants’ bill of costs are DENIED; and 6 3. Defendants’ bill of costs in the amount of $1,303.94 is GRANTED. 7 8 9 10 IT IS SO ORDERED. Dated: /s/ Barbara June 2, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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