Lopez v. Cook, et al

Filing 525

ORDER signed by District Judge Kimberly J. Mueller on 8/9/2017 GRANTING 520 Motion for Reconsideration and VACATES the $4,000 award for the costs plaintiff purportedly incurred serving subpoenas in connection with his first trial. Plaintiff may file a new motion for costs supported by affidavit as required by 28 U.S.C. § 1924 within fourteen days of the date this order is filed. (Washington, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW R. LOPEZ, 12 Plaintiff, 13 14 No. 2:03-cv-01605-KJM-DB v. ORDER J. HARRISON, et al., 15 Defendants. 16 17 This matter is before the court on defendant J. Harrison’s unopposed motion for 18 reconsideration. Mot. for Recons. (“Mot.”), ECF No. 520. Defendant seeks reconsideration of 19 the court’s December 20, 2016 order (“Fee Order”), ECF No. 519, which awarded plaintiff 20 Andrew Lopez $4,000 for the cost of serving subpoenas. The court submitted defendant’s motion 21 without a hearing. Min. Order, ECF No. 524. For the reasons set forth below, the court 22 GRANTS defendant’s motion and permits plaintiff to refile a properly supported motion for 23 costs. 24 I. FACTUAL AND PROCEDURAL BACKGROUND This lawsuit began over a decade ago. The parties and the court are familiar with 25 26 the twists and turns the case has taken since it was filed, so the court here reviews only those facts 27 relevant to defendant’s motion. 28 ///// 1 1 Plaintiff alleged several prison officials including defendant violated his 2 constitutional rights. See Order 1:24–2:3, ECF No. 353 (describing history of case). The case 3 eventually proceeded to jury trial, with plaintiff representing himself. Id. at 1:22–23. The jury 4 returned a defense verdict; plaintiff appealed, the judgment was reversed in part, and the case was 5 remanded. Id. at 2:3–14. The case again went to trial. Plaintiff, this time represented by counsel, 6 prevailed on one claim against defendant. See Fee Order 1:17–21 (describing the second trial). 7 After the second trial, plaintiff sought attorney’s fees and costs for (1) serving 8 subpoenas in connection with plaintiff’s first trial and (2) an expert witness. Am. Mot. for Att’y’s 9 Fees (“Fee Mot”), ECF No. 508; Navarro Decl. 5:27–28, ECF No. 508-2. Defendant opposed the 10 motion. Opp’n to Fees Mot. (“Fee Opp’n”), ECF No. 513. The court awarded plaintiff $1.50 in 11 attorney’s fees and $4,000 for the cost of serving subpoenas, but denied costs associated with the 12 expert witness. Fee Order 8:20–10:16. 13 The instant motion for reconsideration concerns the $4,000 award for the cost of 14 serving subpoenas. Plaintiff sought $4,000 for “[f]unds spent on serving subpenas [sic] at first 15 trial by Lopez family.” Navarro Decl. 5:27–28. Plaintiff did not itemize his request or provide 16 any additional documentation concerning the service. See id. Defendant contended plaintiff was 17 not entitled to that amount, arguing: 18 21 While Plaintiff may be entitled to recover a specific amount for witness fees and mileage, he submitted no proof, by way of receipts or declaration, that he incurred such expenses. Moreover, other than the parties, only [another inmate], who was produced under Court order and writ, testified at the first trial. Thus, no evidence shows that Plaintiff incurred any witness fee or mileage to secure the attendance of a witness at his first trial. 22 Fee Opp’n 5:4–9 (emphasis in original) (citations omitted). The court did not address defendant’s 23 argument that plaintiff’s request lacked supporting evidence. Instead, the court focused on 24 whether the fees plaintiff sought were of the sort a party may recover, reasoning that the Ninth 25 Circuit “has held private process servers’ fees can be taxed as costs under [28 U.S.C. §] 1920(1)” 26 and awarding plaintiff the $4,000 he sought. Fee Order 10:1–13 (citing Alflex Corp. v. 27 Underwriters Labs., Inc., 914 F.2d 175, 178 (9th Cir. 1990)). 28 ///// 19 20 2 1 Defendant now moves for reconsideration of that award under Federal Rule of 2 Civil Procedure 60(b)(6), arguing the court erred by awarding costs that lacked evidentiary 3 support. Mot. 1:23–27. Notwithstanding Local Rule 230(c), plaintiff did not file an opposition or 4 statement of non-opposition to defendant’s motion. Defendant represents to the court that 5 plaintiff “is agreeable to reconsideration for the limited purpose of the Court’s consideration of 6 documentary evidence to support the necessity and reasonableness of the cost incurred.” Id. 7 2:15–17. The motion is thus deemed unopposed.1 8 II. LEGAL STANDARD 9 Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from a 10 final judgment, order or proceeding. Fed. R. Civ. P. 60(b). The first five subsections of the rule 11 allow relief for enumerated reasons, while Rule 60(b)(6) allows relief for any justifiable reason 12 not otherwise specified in Rule 60(b). Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088–89 (9th Cir. 13 2001). Relief under Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent 14 manifest injustice.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 15 2006) (citation omitted). A motion for reconsideration under Rule 60(b)(6) “should not be 16 granted, absent highly unusual circumstances, unless the district court is presented with newly 17 discovered evidence, committed clear error, or if there is an intervening change in the controlling 18 law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 19 2009) (citation omitted). “A motion for reconsideration ‘may not be used to raise arguments or 20 present evidence for the first time when they could reasonably have been raised earlier in the 21 litigation.’” Id. (emphasis in original) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 22 877, 890 (9th Cir. 2000)). 23 III. DISCUSSION 24 25 Federal Rule of Civil Procedure 54(d)(1) allows the prevailing party in a lawsuit to recover its costs, other than attorney’s fees, “[u]nless a federal statute, [the civil rules], or a court 26 1 27 28 A stipulation would likely have hastened the resolution of this matter by an impacted court. 3 1 order provides otherwise.” Fed. R. Civ. P. 54(d)(1). The ability to recover costs is generally 2 limited by 28 U.S.C. §§ 1920 and 1924. Section 1920 enumerates which fees and expenses may 3 be taxed as costs. 28 U.S.C. § 1920. Section 1924 requires “the party claiming any item of cost 4 or disbursement [to supply] an affidavit . . . that such item is correct and has been necessarily 5 incurred in the case and that the services for which fees have been charged were actually and 6 necessarily performed.” 28 U.S.C. § 1924. “With regard to individual itemized costs, the burden 7 is on the party seeking costs . . . to establish the amount of compensable costs and expenses to 8 which it is entitled.” City of Alameda v. Nuveen Mun. High Income Opportunity Fund, 9 No. C 08-4575 SI, 2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) (quotation omitted). 10 Defendant argues the court erred in awarding plaintiff $4,000 for the cost of 11 serving subpoenas because plaintiff’s request was not accompanied by an affidavit that the cost 12 was necessary as required by § 1924. Mot. 5:25–27. Defendant’s opposition to plaintiff’s initial 13 motion for attorney’s fees and costs was notably less precise than the instant motion: he did not 14 cite § 1924 in his opposition and he characterized the costs plaintiff sought as “witness fees and 15 mileage” rather than costs for private service of subpoenas. Fee Opp’n 5:1–9. Defendant did 16 argue that plaintiff “submitted no proof, by way of receipts or declaration, that he incurred such 17 expenses.” Id. at 5:5–6 (emphasis removed). While the argument in context was not clearly 18 directed at the lack of support for the requested subpoena service costs, the court is persuaded that 19 reconsideration is warranted here to address the evidentiary defect in the record supporting (or 20 not) plaintiff’s request. 21 Defendant also argues reconsideration is appropriate because the court did not 22 consider whether $4,000 exceeds the amount the U.S. Marshal would have charged for the same 23 service. Mot. 6:12–7:6. Defendant did not raise that argument before, so the court does not 24 address it here. See Marlyn Nutraceuticals, 571 F.3d at 880. 25 IV. CONCLUSION 26 Partial reconsideration of the court’s December 20, 2016 order, ECF No. 519, is 27 warranted. The court GRANTS the motion for reconsideration, ECF No. 520, and VACATES 28 the $4,000 award for the costs plaintiff purportedly incurred serving subpoenas in connection 4 1 with his first trial. Plaintiff may file a new motion for costs supported by affidavit as required by 2 28 U.S.C. § 1924 within fourteen days of the date this order is filed. 3 4 IT IS SO ORDERED. DATED: August 9, 2017. 5 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?