Ameripride Svc Inc v. Valley Industrial, et al

Filing 922

ORDER signed by Judge Lawrence K. Karlton on 05/08/12 GRANTING plaintiff's 914 Bill of Costs in the amount of $140,500.72. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AMERIPRIDE SERVICES, INC.,
A Delaware corporation,
NO. CIV. S-00-113 LKK/JFM

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Plaintiff,
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v.
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VALLEY INDUSTRIAL SERVICE, INC.,
a former California corporation,
et al.,

O R D E R

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Defendants.
/

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AND CONSOLIDATED ACTION AND
CROSS- AND COUNTER-CLAIMS.
/

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This matter comes before the court on Plaintiff AmeriPride’s

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bill of costs and Defendant TEO’s objections thereto. Although the

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Clerk of the Court typically taxes and enters costs, see Local Rule

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292, due to the complexity of this particular case, the court here

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issues an order addressing the parties’ contentions.

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For the reasons provided below, the court GRANTS Plaintiff’s
bill of costs in the amount of $140,500.72.
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I. BACKGROUND

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On April 20, 2012, the court entered judgment in the above-

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captioned case.

Judgment, ECF No. 916.

The court provided that

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“plaintiff has established defendant’s liability under § 107,” and

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that, in determining equitable apportionment under § 113(f)(1),

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“the fairest apportionment is to divide responsibility equally”

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between the parties, which “would result in each party being

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responsible for $7,754,456.18 in costs expended so far.”

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ECF No. 915, at 7-14.

Order,

Furthermore, because “plaintiff has borne

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all of these costs for the many years since the first cleanup

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order,” the court ordered “defendant to also pay interest . . .

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accruing on the date when the costs were paid by AmeriPride,” in

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the amount of $2,219,966.19.

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determined that “defendant shall be responsible for one half of all

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future costs.”

Id. at 14-15.

Finally, the court

Id. at 15.

In Plaintiff’s bill of costs presently before the court,

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Plaintiff seeks $140,500.72.

See Hodson Decl., ECF No. 919, Ex.

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(Revised

Total

Bill

Costs).

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contending,

inter

alia,

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“ordinary” case, it would be inequitable to award AmeriPride its

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costs; (2) if the court does award costs, they should be allocated

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according to the parties’ equitable share and, thus, “TEO should

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be liable for no more than one half of AmeriPride’s total taxable

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costs”; (3) AmeriPride should be not be allowed to recover the

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costs for depositions which were not used at trial, and which could

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not reasonably have been expected to be used, nor should AmeriPride

of

that:

(1)

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Defendant
because

this

TEO
was

objects,
not

an

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recover fees for witnesses who did not appear for trial and whose

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depositions were not necessarily obtained for use in this case; and

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(4) AmeriPride’s costs related to its internal review of documents

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are not taxable.

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See Def’s Objections, ECF No. 917.
II. STANDARD FOR TAXING COSTS

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Federal Rule of Civil Procedure 54(d)(1) and Eastern District

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Local Rule 54-292(f) govern the taxation of costs, other than

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attorney’s fees, to the prevailing party in a civil matter.

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Federal Rule of Civil Procedure 54(d)(1), unless a federal statute,

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the Federal Rules, or a court order provides otherwise, costs –-

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other than attorney’s fees –- should be allowed to the prevailing

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party.

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discretion to tax whatever costs seem appropriate.

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only costs defined in 28 U.S.C. § 1920 and Local Rule 292.

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Fed. R. Civ. P. 54(d)(1).

Under

Trial courts do not have
Courts may tax

According to 28 U.S.C. § 1920, the court may tax as costs: (1)

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fees

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electronically recorded transcripts necessarily obtained for use

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in the case; (3) fees and disbursements for printing and witnesses;

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(4) fees for exemplification and the costs of making copies of any

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materials where the copies are necessarily obtained for use in the

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case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation

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of court appointed experts, compensation of interpreters, and

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salaries, fees, expenses, and costs of special interpretation

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services under 28 U.S.C. § 1828.

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of

The

the

Local

clerk

Rules

and

marshal;

provide

that

(2)

fees

items

for

taxable

printed

as

or

costs

additionally include, inter alia: (1) per diem, mileage, and
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subsistence for witnesses; and (2) “[o]ther items allowed by any

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statute or rule or by the Court in the interest of justice.” Local

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Rule 292(f)(8)&(11).

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Parties prevail when, inter alia, they obtain “judgment on the

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merits.”

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Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d

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855 (2001).

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a presumption in favor of awarding costs to the prevailing party,

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which can only be overcome when the court exercises its discretion

See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Under Federal Rule of Civil Procedure 54(d), there is

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to disallow costs for specific reasons.

Ass’n of Mexican-Am.

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Educators v. Cal., 231 F.3d 572, 591 (9th Cir. 2000) (en banc).

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Put another way, a losing party must establish a reason to deny

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costs by overcoming the presumption which, itself, provides all the

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reason a court needs for awarding costs.

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Transit, 335 F.3d 932, 944-45 (9th Cir. 2003).

Save Our Valley v. Sound

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In cases in which the prevailing party has been only partially

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successful, some courts have chosen to apportion costs among the

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parties or to reduce the size of the prevailing party’s award to

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reflect the partial success. See Wright & Miller, Federal Practice

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& Procedure Civil 3d § 2667.

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entirely prevailed, or when both sides prevailed, or when the

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litigation was thought to be the result of fault on the part of

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both parties,” some courts have denied costs to both sides. Barber

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v. T.D. Williamson, Inc., 254 F.3d 1223, 1233-35 (10th Cir. 2001);

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see, e.g., Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997)

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(“In the event of a mixed judgment, however, it is within the

Or, in cases in which “neither side

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discretion of a district court to require each party to bear its

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own costs.”).

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III. ANALYSIS

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AmeriPride established TEO’s liability under § 107 and further

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established that, under a § 113(f)(1) equity analysis for which the

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court held a full trial on the merits, AmeriPride was warranted a

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total payment by TEO of $9,974,421.95.

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litigation, initiated and pursued to conclusion against TEO,

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Defendant TEO would have owed Plaintiff AmeriPride nothing. Thus,

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Plaintiff was the successful, or prevailing, party in this action.

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The court therefore presumes, as an initial matter, that Defendant

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is liable for Plaintiff’s costs.

But for AmeriPride’s

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Defendant argues that, due to the complexity and difficulty

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of the case, TEO’s good faith defense, and the court’s equitable

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apportionment of the costs between the parties, AmeriPride should

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not be awarded all of its taxable costs. The court here determines

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that Defendant’s proffered reasons for denying costs are not

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sufficiently persuasive to overcome the presumption in favor of an

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award and that no “severe injustice” will result from an award of

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costs in this case.

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See Save Our Valley, 335 F.3d at 945.

Defendant TEO further objects to specific line items of

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Plaintiff’s Bill of Costs.

The Ninth Circuit has held that, as

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long as the items fall within the taxable costs of § 1920 and any

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applicable Local Rule, the cost is permissible.

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Underwriters Laboratories, Inc., 914 F.2d 175, 177 (9th Cir. 1990).

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Defendant specifically objects to Plaintiff’s costs for: (1)
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Alflex Corp. v.

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certain depositions, in the amount of $13,615.85; (2) certain

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mileage and witness fees, in the amount of $181.21; and (3) certain

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items for exemplification and copies, in the amount of $47,691.76.

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A. Deposition Costs

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28 U.S.C. § 1920(2) provides that “[f]ees for printed or

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electronically recorded transcripts necessarily obtained for use

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in the case” are taxable costs.

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added).

28 U.S.C. § 1920(2) (emphasis

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In response to Defendant TEO’s filed objections, AmeriPride

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has withdrawn from its Bills of Costs the amount of $1,032.50 for

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the deposition of Glen Delsarto, taken on October 14, 2005.

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Reply, ECF No. 919, at 3.

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the time the remainder of these [contested] depositions were taken,

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TEO

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Huhtamkaki, AmeriPride, and others, and, therefore, the depositions

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of the witnesses for Huhtamaki, Mission Linen, and Chromalloy

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“could

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preparation” in the instant case against TEO.

was

a

reasonably

Indeed,

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defendant

the

have

court

Pl’s

AmeriPride argues, however, that “[a]t

in

the

been

consolidated

expected

consolidated

to

lawsuit”

be

used

between

for

trial

Id. at 3-4.

Huhtamaki’s

case

against

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AmeriPride and AmeriPride’s case against TEO and others on November

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4,

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depositions that Defendant contests as taxable costs were taken

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after that date. The court credits Plaintiffs assertion that these

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remaining

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reasonably have been expected to be used for trial preparation and,

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thus, were necessarily obtained for use in the case.

2005.

See

Order,

depositions,

ECF

at

No.

the

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185.

time

Each

they

of

were

the

remaining

taken,

could

Defendant’s

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objections as to these remaining depositions are overruled and

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Plaintiff is awarded the costs for these remaining contested

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depositions.

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B. Mileage and Witness Fees

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According to 28 U.S.C. § 1920(3), “[f]ees and disbursements

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for printing and witnesses” are taxable costs. Additionally, under

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Local Rule 292(f)(8), “per diem, mileage, and subsistence for

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witnesses” are also taxable as costs.

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Because, as stated above, the court determines that the

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depositions of Royce Wayne Day and Alfred Mazzola, at the time they

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were taken, could reasonably have been expected to be used for

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trial preparation, the court overrules Defendant’s objections to

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the “costs for mileage and witness fees” for those depositions.

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See Def’s Objections, ECF No. 917, at 18.

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Furthermore, because the deposition of Garland C. Bonner was

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cited in AmeriPride’s motion for summary judgment, the attendance

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and mileage fees for that deposition clearly fall within the

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purview of 28 U.S.C. § 1920(3) and Local Rule 292(f)(8). The court

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therefore overrules Defendant’s objections as to the costs of

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Garland Bonner’s attendance and mileage as well.

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Plaintiff is awarded the costs of these contested mileage and
witness fees.

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C. Exemplification and Copies

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Under 28 U.S.C. § 1920(4), the “[f]ees for exemplification and

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the costs of making copies of any materials where the copies are

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necessarily obtained for use in the case” are taxable as costs.
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Similarly, under Local Rule 292(f)(5), “[f]ees for exemplification

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and copies of papers necessarily obtained for use in the action”

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are taxable costs.

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Defendant argues that AmeriPride’s “costs related to its

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internal scanning, importing and electronic review of documents”

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were “not incurred in order to produce documents to TEO,” but

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rather, “were incurred so that AmeriPride could more conveniently

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review the documents prior to, and then again after, the document

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production to TEO.”

Def’s Objections, ECF No. 917, at 19.

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Plaintiff replies that “these documents were scanned and produced

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to TEO at TEO’s request and in the electronic format TEO demanded,”

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and

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recognition)

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demanded.”

that

“[i]mporting,
were

coding

necessary

to

and

OCR

produce

(optical

the

character

documents

as

TEO

Pl’s Reply, ECF No. 919, at 4.

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On balance, the court credits Plaintiff’s assertions and finds

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that the contested costs for scanning, importing, coding, and OCR

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of documents produced to TEO were necessarily incurred for use in

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the case. Defendant’s objections as to these costs are overruled.

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Plaintiff is awarded these costs for scanning and coding documents.

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IV. CONCLUSION

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For the foregoing reasons, the court GRANTS Plaintiff’s bill
of costs in the amount of $140,500.72.

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IT IS SO ORDERED.

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DATED: May 8, 2012.

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