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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

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Plaintiff,

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No. 2:03-cv-01605-KJM-DB

v.

ORDER

J. HARRISON, et al.,

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Defendants.

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This matter is before the court on defendant J. Harrison’s unopposed motion for

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reconsideration. Mot. for Recons. (“Mot.”), ECF No. 520. Defendant seeks reconsideration of

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the court’s December 20, 2016 order (“Fee Order”), ECF No. 519, which awarded plaintiff

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Andrew Lopez $4,000 for the cost of serving subpoenas. The court submitted defendant’s motion

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without a hearing. Min. Order, ECF No. 524. For the reasons set forth below, the court

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GRANTS defendant’s motion and permits plaintiff to refile a properly supported motion for

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costs.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit began over a decade ago. The parties and the court are familiar with

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the twists and turns the case has taken since it was filed, so the court here reviews only those facts

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relevant to defendant’s motion.

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Plaintiff alleged several prison officials including defendant violated his

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constitutional rights. See Order 1:24–2:3, ECF No. 353 (describing history of case). The case

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eventually proceeded to jury trial, with plaintiff representing himself. Id. at 1:22–23. The jury

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returned a defense verdict; plaintiff appealed, the judgment was reversed in part, and the case was

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remanded. Id. at 2:3–14. The case again went to trial. Plaintiff, this time represented by counsel,

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prevailed on one claim against defendant. See Fee Order 1:17–21 (describing the second trial).

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After the second trial, plaintiff sought attorney’s fees and costs for (1) serving

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subpoenas in connection with plaintiff’s first trial and (2) an expert witness. Am. Mot. for Att’y’s

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Fees (“Fee Mot”), ECF No. 508; Navarro Decl. 5:27–28, ECF No. 508-2. Defendant opposed the

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motion. Opp’n to Fees Mot. (“Fee Opp’n”), ECF No. 513. The court awarded plaintiff $1.50 in

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attorney’s fees and $4,000 for the cost of serving subpoenas, but denied costs associated with the

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expert witness. Fee Order 8:20–10:16.

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The instant motion for reconsideration concerns the $4,000 award for the cost of

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serving subpoenas. Plaintiff sought $4,000 for “[f]unds spent on serving subpenas [sic] at first

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trial by Lopez family.” Navarro Decl. 5:27–28. Plaintiff did not itemize his request or provide

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any additional documentation concerning the service. See id. Defendant contended plaintiff was

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not entitled to that amount, arguing:

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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.

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Fee Opp’n 5:4–9 (emphasis in original) (citations omitted). The court did not address defendant’s

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argument that plaintiff’s request lacked supporting evidence. Instead, the court focused on

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whether the fees plaintiff sought were of the sort a party may recover, reasoning that the Ninth

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Circuit “has held private process servers’ fees can be taxed as costs under [28 U.S.C. §] 1920(1)”

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and awarding plaintiff the $4,000 he sought. Fee Order 10:1–13 (citing Alflex Corp. v.

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Underwriters Labs., Inc., 914 F.2d 175, 178 (9th Cir. 1990)).

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Defendant now moves for reconsideration of that award under Federal Rule of

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Civil Procedure 60(b)(6), arguing the court erred by awarding costs that lacked evidentiary

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support. Mot. 1:23–27. Notwithstanding Local Rule 230(c), plaintiff did not file an opposition or

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statement of non-opposition to defendant’s motion. Defendant represents to the court that

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plaintiff “is agreeable to reconsideration for the limited purpose of the Court’s consideration of

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documentary evidence to support the necessity and reasonableness of the cost incurred.” Id.

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2:15–17. The motion is thus deemed unopposed.1

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from a

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final judgment, order or proceeding. Fed. R. Civ. P. 60(b). The first five subsections of the rule

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allow relief for enumerated reasons, while Rule 60(b)(6) allows relief for any justifiable reason

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not otherwise specified in Rule 60(b). Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088–89 (9th Cir.

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2001). Relief under Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent

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manifest injustice.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir.

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2006) (citation omitted). A motion for reconsideration under Rule 60(b)(6) “should not be

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granted, absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the controlling

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law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009) (citation omitted). “A motion for reconsideration ‘may not be used to raise arguments or

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present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.’” Id. (emphasis in original) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000)).

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III.

DISCUSSION

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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

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A stipulation would likely have hastened the resolution of this matter by an impacted

court.
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order provides otherwise.” Fed. R. Civ. P. 54(d)(1). The ability to recover costs is generally

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limited by 28 U.S.C. §§ 1920 and 1924. Section 1920 enumerates which fees and expenses may

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be taxed as costs. 28 U.S.C. § 1920. Section 1924 requires “the party claiming any item of cost

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or disbursement [to supply] an affidavit . . . that such item is correct and has been necessarily

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incurred in the case and that the services for which fees have been charged were actually and

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necessarily performed.” 28 U.S.C. § 1924. “With regard to individual itemized costs, the burden

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is on the party seeking costs . . . to establish the amount of compensable costs and expenses to

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which it is entitled.” City of Alameda v. Nuveen Mun. High Income Opportunity Fund,

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No. C 08-4575 SI, 2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) (quotation omitted).

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Defendant argues the court erred in awarding plaintiff $4,000 for the cost of

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serving subpoenas because plaintiff’s request was not accompanied by an affidavit that the cost

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was necessary as required by § 1924. Mot. 5:25–27. Defendant’s opposition to plaintiff’s initial

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motion for attorney’s fees and costs was notably less precise than the instant motion: he did not

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cite § 1924 in his opposition and he characterized the costs plaintiff sought as “witness fees and

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mileage” rather than costs for private service of subpoenas. Fee Opp’n 5:1–9. Defendant did

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argue that plaintiff “submitted no proof, by way of receipts or declaration, that he incurred such

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expenses.” Id. at 5:5–6 (emphasis removed). While the argument in context was not clearly

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directed at the lack of support for the requested subpoena service costs, the court is persuaded that

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reconsideration is warranted here to address the evidentiary defect in the record supporting (or

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not) plaintiff’s request.

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Defendant also argues reconsideration is appropriate because the court did not

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consider whether $4,000 exceeds the amount the U.S. Marshal would have charged for the same

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service. Mot. 6:12–7:6. Defendant did not raise that argument before, so the court does not

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address it here. See Marlyn Nutraceuticals, 571 F.3d at 880.

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IV.

CONCLUSION

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Partial reconsideration of the court’s December 20, 2016 order, ECF No. 519, is

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warranted. The court GRANTS the motion for reconsideration, ECF No. 520, and VACATES

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the $4,000 award for the costs plaintiff purportedly incurred serving subpoenas in connection
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with his first trial. Plaintiff may file a new motion for costs supported by affidavit as required by

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28 U.S.C. § 1924 within fourteen days of the date this order is filed.

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IT IS SO ORDERED.
DATED: August 9, 2017.

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UNITED STATES DISTRICT JUDGE

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