Sullivan v. Costco Wholesale Corporation et al

Filing 105

ORDER SUSTAINING OBJECTIONS IN PART AND AWARDING COSTS. The Court awards costs to Defendants, and against Plaintiff, in the amount of $3,110.23 ($696.38 for fees of the clerk, $327.92 for fees for service of subpoenas, $1,830.80 for fees for printed or electronically recorded transcripts, $235.13 fees for witness, and $20.00 for docket fees). Order signed by Magistrate Judge Erica P. Grosjean on 3/13/2019. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SULLIVAN,

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Case No. 1:17-cv-00959-EPG

Plaintiff,

ORDER SUSTAINING OBJECTIONS
IN PART AND AWARDING COSTS

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v.

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(ECF Nos. 99, 101)

COSTCO WHOLESALE CORPORATION
AND TRICAM INDUSTRIES, INC.,
Defendants.

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I.
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INTRODUCTION AND BACKGROUND

In this product liability action, Christopher Sullivan (“Plaintiff”) alleges that he sustained

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injuries when he fell while using a stepstool designed and manufactured by Tricam Industries, Inc.
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and distributed by Costco Wholesale Corporation (collectively, “Defendants”). (ECF No. 2.) On

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January 8, 2019, the action came before the Court for a jury trial. (ECF No. 78.) On January 14,
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2019, the jury returned a verdict for Defendants, (ECF No. 89), and the Clerk of the Court entered
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Judgment on January 18, 2019, (ECF No. 96).
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On January 31, 2019, Defendants submitted a Bill of Costs, requesting that the clerk tax costs
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against Plaintiff in the amount of $7,444.93. (ECF No. 99.) Defendants seek taxable costs incurred
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for: (1) clerk’s fees; (2) service of subpoenas; (3) printed or electronically recorded transcripts; (4)

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witnesses; (5) exemplification and copying; and (6) docket fees. Id.

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Plaintiff filed Objections to the Bill of Costs on February 8, 2019, arguing that the costs are

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unnecessary and unreasonable. (ECF No. 101.) Defendants requested a hearing on the Objections,

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(ECF No. 103), but failed to appear for the hearing, (ECF No. 104).

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For the reasons set forth below, this Court sustains Plaintiff’s objections in part, and awards
costs to Defendants in the amount of $3,110.23.

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II.

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Federal Rule of Civil Procedure 54(d)(1) provides, in pertinent part: “Unless a federal statute,

LEGAL STANDARD

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these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be

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allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). This rule creates a presumption that costs

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will be taxed against the losing party, but “vests in the district court discretion to refuse to award

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costs” if the losing party shows why costs should not be awarded. Ass’n of Mexican–Am. Educators

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v. State of California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc). “Although a district court

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must ‘specify reasons’ for its refusal to tax costs to the losing party [the Ninth Circuit has] never

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held that a district court must specify reasons for its decision to abide the presumption and tax costs

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to the losing party.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (internal

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citations omitted) (emphasis in original).

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28 U.S.C. § 1920 generally defines the expenses that may be taxed as costs under Rule

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54(d). See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441–42 (1987). Pursuant to 28

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U.S.C. § 1920, a judge or court clerk may tax as costs: fees for printed or electronically recorded

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transcripts necessarily obtained for use in the case; fees and disbursements for printing and

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witnesses; fees for copies of necessary papers; docket fees, and compensation of court appointed

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experts. 28 U.S.C. § 1920; see also E.D. Cal. L.R. 292(f).

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III.

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DISCUSSION
A. Service of Subpoena on CSAA Insurance Exchange

Defendants seek to recover $103.00 in costs for service of a subpoena duces tecum on

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Plaintiff’s employer, CSAA Insurance Exchange. Plaintiff argues that service of the subpoena was

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unnecessary because the materials sought were duplicative of materials and information produced by

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Plaintiff.

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The Court agrees. Plaintiff claimed lost wages in connection with three weeks of missed

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work immediately after his fall of January 2, 2016, and 63 hours after his related left shoulder

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surgery in 2016. Plaintiff included pay slips reflecting these lost wages as part of his Rule 26 initial

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disclosures. The service of the subpoena was therefore unnecessary.

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Thus, Plaintiff’s objection is sustained.

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B. Fees for Service of Subpoena on Bill Lamonica
Defendants seek to recover $445.00 in costs for attempted service of a deposition subpoena

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on Bill Lamonica. Plaintiff argues that the attempted service of the deposition subpoena was

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unnecessary because Mr. Lamonica was never served. Instead, Plaintiff’s counsel informed Mr.

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Lamonica of the date and time of the deposition. Plaintiff also argues that the $175.00 incurred for

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rush/next day service is unreasonable because Defendants’ untimely request necessitated the cost.

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The Court agrees that the costs for rush delivery service should not be taxed. However, the

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Court disagrees that attempting to serve Mr. Lamonica with the deposition subpoena was

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unnecessary. Mr. Lamonica was a witness in the case and appeared at trial. Defendants’ efforts to

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subpoena Mr. Lamonica, although ultimately unproductive, were necessary.

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Thus, Plaintiff’s objection is sustained in part. See Rhodehouse v. Ford Motor Co., No.

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216CV01892JAMDMC, 2019 WL 699947, at *2 (E.D. Cal. Feb. 20, 2019) (declining to tax costs

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for rush service charges).The Court thus reduces the taxable costs for service of the subpoena by

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$175.00.

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C. Fees for Electronically Recorded Deposition Transcripts
Defendants seek to recover $585.45 in costs for video recording the depositions of Bill

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Lamonica and James Silverthorne, M.D. Plaintiff asserts that the costs associated with these video

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recordings are not recoverable under 28 U.S.C. § 1920 or E.D. Cal. L.R. 292, and that the video

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recordings were not necessarily obtained for use in this trial.

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Court reporter’s fees and costs related to depositions necessarily obtained for use in the case

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are recoverable. See E.D. Cal. L.R. 292(f)(3); 28 U.S.C. § 1920(2). Nevertheless, to recover, “the

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prevailing party must demonstrate that a videotaped copy of the deposition was necessary.” Weco

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Supply Co. v. Sherwin-Williams Co., 2013 WL 56639, at *5 (E.D. Cal. Jan. 3, 2013). Here,

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Defendants do not explain why they needed to videotape the depositions of Mr. Lamonica and Dr.

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Silverthorne, and therefore fail to demonstrate that the video recordings were necessarily obtained

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for use in this case.

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Thus, Plaintiff’s objection is sustained.
D. Fees for Multiple Printed and Electronically Recorded Deposition Transcripts
Defendants seek to recover $334.5 in costs for three transcripts of the deposition of James

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Silverthorne M.D.: (1) a full version, (2) a condensed version, and (3) an electronic version. Plaintiff

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contends that the language of 28 U.S.C. § 1920(2) limits recovery of costs to either a printed or an

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electronically recorded transcript. Plaintiff argues that while the cost for the original transcript, and a

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copy is reasonable, the $51.00 charge for additional transcripts is redundant, unnecessary, and

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therefore unreasonable.

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“Neither § 1920(2) nor Rule 292 of the Local Rules for the Eastern District of California,

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specifies the permissible number of copies a party may include in a Bill of Costs.” Thein v. Feather

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River Cmty. Coll., No. 2:06-CV-1777 KJM GGH, 2013 WL 4012637, at *3 (E.D. Cal. Aug. 6,

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2013). In this District, courts have declined to tax the costs of transcripts that are merely provided

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for the convenience of the attorneys. See id. (allowing costs for only original where party did not

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show that copy was necessarily obtained for use in action); Oyarzo v. Tuolumne Fire Dist., No. 1:11-

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CV-01271-SAB, 2014 WL 1757217, at *8 (E.D. Cal. Apr. 30, 2014) (denying costs for video

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depositions where prevailing party did not show “that video recording the depositions was

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‘necessarily obtained’ for use in this trial, rather than merely for the convenience of counsel”);

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Cargill Inc. v. Progressive Dairy Solutions, Inc., No. 1:07–cv–0349–LJO–SMS, 2008 WL 5135826,

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at *4 (E.D.Cal. Dec.8, 2008) (allowing for two copies of deposition transcript where one was

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complimentary); McKesson Info. Solutions, Inc. v. Bridge Med., Inc., No. civ. S–02–2669 FCD

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KJM, 2007 WL 1139557, at *1 (E.D.Cal. April 17, 2007) (cost of deposition transcript were divided

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in half where two copies were provided).

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Here, Defendants have not shown why the condensed version and the electronic version of

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the deposition transcript were “necessarily obtained” for use in this case, rather than merely for the

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convenience of counsel. Thus, Plaintiff’s objection is sustained, and the Court reduces the taxable

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costs for the deposition transcript by $51.00 to $283.50.

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E. Fees for Exemplification and Copying
Defendants seek to recover $1,690.00 in costs for twenty-seven 32” x 40” color exhibit

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boards that were used at trial. Plaintiff contends these exhibit boards were duplicative of exhibits

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previously produced and not necessary for use in this case.

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Defendants also seek to recover $1,730.25 for copying costs of various materials for use at

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trial and for witness preparation. Plaintiff contends these costs are not sufficiently described by

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Defendants to allow the court to determine whether these costs are recoverable, and may include

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costs for copies made in-house and for convenience of counsel.

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28 U.S.C. § 1920(4) enables the Court to allow copying costs for any document “necessarily

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obtained for use in the case.” “Recovery is allowed for costs of copies reasonably and necessarily

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procured in connection with discovery and use in presenting arguments and evidence to the Court,

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but not for in-house copying made for the convenience of counsel.” Royal Specialty Underwriting v.

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Himax Furniture Indus. Corp., No. 03-6586, 2005 U.S. Dist. LEXIS 28712, at *16 (E.D. Cal. Nov.

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17, 2005).

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“The costs of demonstrative exhibits, including visual aids used at trial, are permitted as ‘fees

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for exemplification and copies of papers necessarily obtained for use in the case.’” Robinson v. Kia

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Motors Am., Inc., No. 2:10-CV-03187-SOM, 2016 WL 4474505, at *6 (E.D. Cal. Aug. 25, 2016)

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(quoting 28 U.S.C. § 1920(4)); see also, Jo Ann Howard & Assocs., P.C. v. Cassity, 146 F. Supp. 3d

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1071, 1086 (E.D. Mo. 2015) (“Demonstrative exhibits fall within the ambit of ‘exemplification’

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under the Court’s plain language interpretation of the term” in 28 U.S.C. § 1920(4) (citation

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omitted)). “[E]ven if the demonstrative exhibits qualify as an exemplification, they must still have

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been ‘necessarily obtained.’” Jo Ann Howard & Assocs., P.C., 146 F. Supp. 3d at 1086 (citations

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omitted).

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Here, Defendants have not shown that the demonstrative exhibits were necessarily obtained

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for use in the case. Defendants could have presented these exhibits to the jury free of charge via the

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electronic display system in the courtroom. See id. at 1087 (denying costs for demonstrative exhibits

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in part because “they could have been presented to the jury free of charge via the electronic display

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system in the courtroom”).

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Defendants also fail to demonstrate that the various materials copied were necessarily

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obtained for use in this case. Defendants support their request for copying costs with a production

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summary report. The report lists various reproduction entries, but fails to describe the documents

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copied, the use of or intended purpose for the items copied, or the cost per page. A number of entries

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indicate “In-House Reproduction” which suggests they were simply copies made for the

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convenience of counsel. This production summary report is not sufficient to show that the copies

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made were necessarily obtained for use in this case. See, e.g., Robinson, 2016 WL 4474505, at *5

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(“The spreadsheet submitted by [the prevailing party] in support of its photocopying costs does not

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provide sufficient detail to show that any of the photocopies it made were necessarily incurred.”).

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The Court also notes that Plaintiff created the joint trial exhibit binders used by both parties at trial

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and was responsible for copying all the exhibits included.

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Thus, Plaintiff’s objection is sustained.

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IV.

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Based on the foregoing, the Court awards costs to Defendants, and against Plaintiff, in the

CONCLUSION AND ORDER

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amount of $3,110.23 ($696.38 for fees of the clerk, $327.92 for fees for service of subpoenas,

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$1,830.80 for fees for printed or electronically recorded transcripts, $235.13 fees for witness, and

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$20.00 for docket fees).

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IT IS SO ORDERED.
Dated:

March 13, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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