Wartluft v. Feather River Community District

Filing 66

ORDER signed by Judge Kimberly J. Mueller on 8/5/13 ORDERING that defendant's bill of costs is granted in part and denied in part as discussed in this order; defendant is directed to submit an amended bill of costs in conformance with this order within 21 days. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
PAUL THEIN,
Plaintiff,

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No. 2:06-CV-1777 KJM GGH

v.
FEATHER RIVER COMMUNITY
COLLEGE,

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Defendant.
______________________________/

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MICHELLE JAUREGUITO,
Plaintiff,

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No. 2:06-CV-2687 KJM GGH

v.
FEATHER RIVER COMMUNITY
COLLEGE,

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Defendant.
/

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LAUREL WARTLUFT,
Plaintiff,

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No. 2:07-CV-2023 KJM GGH

v.
FEATHER RIVER COMMUNITY
COLLEGE,

ORDER

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Defendant.
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/
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On October 7, 2011, this court granted the motion for summary judgment brought

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by defendant Feather River Community College (“Feather River” or “defendant”) against

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plaintiffs Thein, Jaureguito and Wartluft. Consequently, the court dismissed plaintiffs’ federal

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claims and, in its discretion, declined to exercise pendant jurisdiction over plaintiffs’ remaining

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state-law claims. Defendant timely submitted Bills of Costs totaling $22,275 for plaintiff Thein,

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$22,521 for plaintiff Jauregito and $20,599 for plaintiff Wartluft; the bills seek an award of one-

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third of the common costs from each plaintiff. Plaintiffs object on the grounds that defendant’s

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costs include undocumented expenses and items not necessary for litigation of this case and are

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unreasonable. As plaintiffs’ objections and the responses to the objections are the same for each

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of the three cases captioned above, the court will cite only to the objections and the response in

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the Thein case.

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For the reasons discussed below, the court grants defendant’s motion in part.
I. TAXATION OF COSTS

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Rule 54(d) of the Federal Rules of Civil Procedure provides that “[u]nless a

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federal statute, these rules, or a court order provides otherwise, costs—other than attorney's

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fees—should be allowed to the prevailing party.” FED.R.CIV.P. 54(d)(1). “Rule 54(d) creates a

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presumption for awarding costs to prevailing parties; the losing party must show why costs

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should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944–45 (9th Cir.

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2003). “A district court need not give affirmative reasons for awarding costs; instead, it need

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only find that the reasons for denying costs are not sufficiently persuasive to overcome the

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presumption in favor of an award.” Id. at 945.

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Title 28 U.S.C. § 1920 enumerates the expenses a federal court may tax as costs

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under Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–45 (1987).

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Although a district court has broad discretion to allow or disallow a prevailing party’s

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recoupment of the ordinary costs of litigation, the court may not rely on that discretion to tax

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costs beyond those authorized by § 1920. Id.; see also Frederick v. City of Portland, 162 F.R.D.
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139, 142 (D.Or. 1995). Nevertheless, courts are free to construe the meaning and scope of the

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items enumerated as taxable costs in § 1920. Alflex Corp. v. Underwriters Lab., Inc., 914 F.2d

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175, 177 (9th Cir.1990) (per curiam).

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II. ANALYSIS

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A. Transcripts
Plaintiff contends that defendant has billed improperly for transcripts from the

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State Personnel Board (SPB) hearing and the transcript of a deposition in an unrelated case not

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involving any of the parties in this case; that defendant double billed for some deposition and

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hearing transcripts; that defendant submitted bills for “unknown charges” related to the SPB

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hearing and deposition transcripts; that defendant seeks costs for video depositions; and that

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defendant seeks costs for expedited transcripts.

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i. Transcripts of State Personnel Board Hearing and Depositions

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“Fees for printed or electronically recorded transcripts necessarily obtained for

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use in the case” are recoverable as costs. 28 U.S.C. § 1920(2). See Crane-McNab v. County of

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Merced, No. CIV. 1:08–1218 WBS SMS, 2011 WL 794284, at *2 (E.D. Cal. Mar. 1, 2011).

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Plaintiff contends that transcripts from the SPB hearing had no bearing on the outcome of this

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case and, therefore, fall outside of the costs permitted under §1920(2). Defendant recognizes

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that ordinarily transcripts from one case would not be permissible costs in a different case, but

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argues that the situation is different here because the parties were involved in three cases

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pending simultaneously: an administrative hearing before the SPB, a state case in Superior

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Court, and the instant case.

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Defendant avers that the transcripts from the SPB hearing and depositions taken

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in preparation for that hearing were used and relied upon by both parties in their briefs to the

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SPB. Def. Resp. to Pl. Obj. at 4, ECF No. 78. Defendant further contends that because the SPB

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hearing and deposition transcripts were used in the resolution of the SPB action, and because the

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SPB result was the basis for the district court's grant of summary judgment, these transcripts
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were “necessarily obtained” for use in the district court case. ECF No. 78 at 4. Defendant relies

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on the parties’ stipulation to the use of all discovery taken in all three matters, federal, state, and

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administrative, which provides in part that “[t]he parties stipulate and agree that . . . depositions

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taken, in related state court proceedings between, or with, any of the same parties in state court,

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before administrative agencies, and in the related case to be filed in this Court, shall be used and

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treated for all purposes as if the discovery had been conducted and the depositions taken in this

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case.” ECF No. 9 at 4. The stipulation does not explicitly mention costs.

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In Competitive Technologies v. Fujitsu Ltd., another district court held: “[t]o the

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extent an award of costs may be allowable under some circumstances on the basis of agreement

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between the parties, there is no agreement here that would allow for such an award. Specifically,

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the [court order] cited by [defendant] contain[s] no express, or even implied agreement to

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include the costs incurred in the [administrative proceeding] as costs in this action.” No.

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C–02–1673 JCS, 2006 WL 6338914, at *5 (N.D. Cal. Aug. 23, 2006). In Fujitsu, the parties

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agreed to share discovery taken in a federal case and a parallel administrative proceeding.

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Despite this, the court was unwilling to find an implicit agreement to award costs for materials

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obtained in connection with the administrative proceeding where no explicit agreement existed.

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This court finds Fujitsu persuasive and does not approve taxation of the costs of the transcripts

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from the SPB hearing.

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ii. Deposition in an Unrelated Case

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Plaintiff claims that defendant improperly submitted a bill for a deposition taken

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in an unrelated case. Plaintiff does not identify the deposed person by name, but cites to a filing

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on the docket, ECF No. 72 at 29. From this, it appears that defendant submitted a bill for the

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deposition of Ellis Wladislaw, M.D., who was deposed in “Coughran, Elain vs. Beatty, Lance.”

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In reply, defendant cites to a different page of the bill, ECF No. 59 at 27, and states that every

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bill submitted was for an individual properly deposed in the course of this litigation. ECF No.

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78 at 4. Defendant does not discuss Dr. Wladislaw or explain the reference to a wholly different
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case and its relation, if any, to these three cases.
“Costs for depositions transcripts and transcripts from other court proceedings are

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taxable only if they were ‘necessarily obtained’ for use in the case.” Terry v. Allstate Ins. Co.,

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No. Civ. S-05-2261 RRB DAD, 2007 WL 3231716, at *3 (E.D. Cal. Nov. 1, 2007). In addition

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“[i]f the depositions are for investigatory or for discovery purposes only, rather than for

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presentation of the case, courts have found that they are not taxable. . . .Where a motion for

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summary judgment is granted, ‘whether [the cost of a deposition] can be taxed is generally

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determined by deciding whether the deposition reasonably seemed necessary at the time it was

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taken.’” Gregorie v. Alpine Meadows Ski Corp. No. CIV. S–08–259 LKK/DAD, 2011 WL

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590605, at *2 (E.D. Cal. Feb. 10, 2011) (internal quotations and citations omitted).
Defendant avers that the discovery included “the deposition of numerous

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witnesses who were questioned about all three related cases to the extent of their personal

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knowledge.” ECF No. 78 at 3. Nevertheless, defendant has failed to demonstrate that the

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deposition plaintiff objects to was “necessarily obtained” for use in this case; in fact, the

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supporting documents show that Dr. Wladislaw was deposed in connection with a completely

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different case. The court will not approve costs relating to the deposition of this witness.

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iii. Multiple Copies of Transcripts

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Plaintiff contends that defendant double-billed for some of the hearing transcripts

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from the SPB hearing as well as for some of the deposition transcripts from the hearing. ECF

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No. 73 at 3. Defendant responds that it did not double bill; however, because defendant was

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represented by two law firms, “it was necessary and prudent for [it] to order an original and two

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copies of each deposition taken.” ECF No. 78 at 5. Neither §1920(2), nor Rule 292 of the Local

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Rules for the Eastern District of California, specifies the permissible number of copies a party

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may include in a Bill of Costs. Few cases have addressed this issue; however, at least one case

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suggests that a party may tax costs for only one hard copy of a transcript. See McKesson Info.

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Solutions, Inc. v. Bridge Med., Inc., No. CIV. S-02-2669 FCD KJM, 2007 WL 1139557, at *1
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(E.D. Cal. Apr. 17, 2007) (stating that an invoice listing an “original and one copy was properly

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divided in half); see also Cargill Inc. v. Progressive Dairy Solutions, Inc., No. CV–F–07–0349

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LJO–SMS, 2008 WL 5135826, at *4 (E.D. Cal. Dec. 8, 2008) (stating that a party is entitled to

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an original and one copy of a deposition where the additional copy was obtained at no extra

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charge). Other courts have said that “courts may not tax the costs of transcripts of depositions

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provided merely for the convenience of the requesting attorney.” Barber v. Ruth, 7 F.3d 636,

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645 (7th Cir. 1993), superseded on other grounds by rule, FED. R. CIV. P. 30(b). In this case,

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defendant has not shown why the two copies of the deposition transcript were “necessarily

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obtained for use in the case” but rather only that it was convenient to have two. 18 U.S.C.

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§ 1920(4). Defendant will be allowed the cost of the original deposition transcript of each

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witness only.

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iv. Cost for Stenographic and Video Copies of Same Deposition

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In 2008, Congress amended 28 U.S.C. § 1920, which now permits taxation of

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“fees for printed or electronically recorded transcripts necessarily obtained for use in the case.”

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28 U.S.C. § 1920(2). Here it does not appear that defendant is seeking to bill for both

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stenographic and videographic copies of the same deposition. The bill for video depositions will

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be allowed.

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v. Expedited Transcripts

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Plaintiff contends that defendant should not be permitted to recover costs for

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expedited transcripts because “[d]efendant provide[d] no documentation to show why expedited

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transcripts were necessary.” ECF No. 73 at 4. Defendant responds that the expedited copying of

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the exhibits from the SPB hearing was necessary “to ensure that [it] had a correct copy of the

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evidence to date in order to impeach witnesses, refresh recollections and not to duplicate

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evidence that had already been submitted.” ECF No. 78 at 6.

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Courts generally conclude that the costs of expedited transcripts should not be
allowed as a matter of course, but may be permitted upon a showing of necessity. See Kalai v.
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Hawaii, Civil No. 06–00433 JMS–LEK, 2009 WL 2224428, at *11 (D. Haw. Jul. 23, 2009)

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(disallowing cost for expedited deposition transcript where party failed to make a showing of

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need), recommendation adopted by 2009 WL 2516359 (Aug. 13, 2009); Meier v. United States,

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No. C 05–04404 WHA, 2009 WL 982129, at *2 (N.D. Cal. Apr. 13, 2009) (permitting the cost

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for expedited transcript in order to accommodate deposition schedule plaintiff requested). In this

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case, it appears that any expedited transcripts were used only in the SPB hearing, not in this

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litigation. The cost is disallowed.

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B. Witness Fees

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Plaintiff objects to $817 in witness fees claimed by defendants in connection with

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the SPB hearing. Plaintiff contends that because the witness testimony was not necessary for the

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resolution of the federal case, these costs should not be permitted. ECF No. 72 at 4. Plaintiff

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also argues that defendant's lodging costs for witnesses were unreasonable and included two

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no-shows where the witness did not even stay at the hotel but the hotel billed for the night. Id.

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Defendant argues that the witness testimony was relied upon by the SPB in reaching its

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resolution, and that this court in turn relied upon the resolution reached by the SPB. ECF No. 78

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at 6-7. It also argues that the lodging expenses were reasonable.

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Although there is no blanket prohibition on awarding costs incurred in connection

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with related litigation, defendant has not demonstrated here how the particular witnesses’

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testimony, rather than the result of the SPB proceeding, were tied to this court’s resolution of the

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questions presented. Gulfstream III Assoc., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414,

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420 (3d Cir. 1993). As the court disallows this portion of the claimed costs, it need not consider

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whether the expenses were otherwise reasonable.

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C. Exemplifications and Copies
“Under 28 U.S.C. § 1920(4), the fees for exemplification and the costs of making

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copies of any materials where the copies are necessarily obtained for use in the case are taxable

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as costs. Similarly, under Local Rule 292(f)(5) [(E.D. Cal.)], [f]ees for exemplification and
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copies of papers necessarily obtained for use in the action are taxable costs.” AmeriPride

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Services, Inc. v. Valley Indus. Service, Inc., No. CIV. S–00–113 LKK/JFM, 2012 WL 1641749,

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at *3 (E.D. Cal. May 9, 2012) (internal quotations marks omitted). “[T]he Ninth Circuit has held

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that, as long as the items fall within the taxable costs of § 1920 and any applicable Local Rule,

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the cost is permissible.” Tubbs v. Sacramento Cnty. Jail, 258 F.R.D. 657, 660 (E. D. Cal.2009)

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(citing Aflex Corp. v. Underwriters Lab., Inc., 914 F.2d at 177).

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Here, defendant seeks $3,391 in fees for exemplification and copies it claims

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were obtained for use in this case. Plaintiff correctly points out that defendant does not provide

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any documentation with its bill to support the amount requested. Plaintiff cites English v.

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Colorado Department of Corrections, 248 F.3d 1002, 1013 (10th Cir. 2001), which denied costs

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to a prevailing party where the party provided only a “list of [the] names of the[] service

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providers, the amounts paid, and a blanket assertion that the costs incurred are among those

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allowed under

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§ 1920.”

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In response, defendant provides the Declaration of Jennifer L. Hippo, who

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proffers documentation of copy costs totaling $2,266.99. ECF No. 78-1, Ex. 2. Of this amount,

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$913.86 is identified with a date, a dollar amount, and the accompanying text “Photocopying

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Charges for this period;” with other expenses identified on a separate sheet as “In House

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Photocopy Costs;” costs for copies of medical records and copies of records from Don Huggins,

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Ph.D., along with costs for copies of records from the SPB, from PACER, and for an incident

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report from the Plumas County Sheriff. ECF No. 78-1 at 35. Defendant contends that the

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“redacted billing statements . . . show sufficient information demonstrating that the expense of

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copying documents was the result of numerous motions, legal briefing, and the State Personnel

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Board hearing.” ECF No. 78 at 7-8.

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Despite defendant's protestations, the information provided is not sufficient to
show that the copies made were “necessarily obtained for use in this case.” Not only does the
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requested amount of $3,391 not match up with billing statements, but the defendants also fail to

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show which copying costs were expended in which case, administrative, state, or federal.

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Moreover, as in another case in this district, “[w]hile defendants contend that some of these

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copies were made pursuant to plaintiffs’ requests and some were made in an effort to pursue

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informal resolution of the case, it is not clear which, if any, of these copies were made for the

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purpose of presenting any argument to the court or complying with discovery requests.” Yeager

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v. Bowlin, No. CIV. 2:08-102 WBS JFM, 2010 WL 716389, at *3 (E.D. Cal. Feb. 26, 2010; see

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also Ferreira v. M/V CCNI Antofagasta, No. 2:04-cv-1916-MCE-DAD, 2007 WL 3034941, at

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*2 (E.D. Cal. Oct. 16, 2007) (“The mere recitation of the phrase ‘necessarily incurred,’as

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Plaintiff has done in his Bill of Costs, is not sufficient to meet the requirements of Section 1920

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and the supporting authorities.”). The court disallows all the costs for copies and

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exemplification.

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D. Other Costs
Plaintiff objects to defendant's “other costs” in the amount of $377. These costs

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are listed as “Capitol: Binding, copies, etc. re: Rule 26 Disclosure” and “Capitol: Binding,

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copies, etc. re: Depositions,” and supported by invoices attached to the Bill of Costs. See ECF

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72, Ex. C. Regarding the binding and tabs included in this category, there is no showing that

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either of these claims come within the parameters of the Local Rules or 28 U.S.C. § 1920. Cf.

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MEMC Elec/Materials v. Mitsubishi Materials, No. C–01–4925 SBA (JCS), 2004 WL 5361246,

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at *12 (N.D. Cal. Oct. 22, 2004), adopted as modified by 2004 WL 5363614 (N.D. Cal. Nov. 22,

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2004) (finding that cost of tabs cannot be taxed where they are not authorized by Local Rules).

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Defendant also claims costs for CD duplication and the expenses identified as

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“Heavy Litigation” and “Light Litigation Copies.” ECF 72, Ex. C. Defendant avers that “most

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of these documents were transmitted to plaintiff through discovery.” ECF No. 78 at 8.

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Furthermore, defendant claims that the “Heavy Litigation” copies made on January 7, 2007,

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were in connection with its Rule 26 disclosure, and that the “Light Litigation Copies” made on
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March 8, 2010, “were done in response to Plaintiff's request for production of documents.” Id.

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These costs are taxable. See Tahoe Tavern Prop. Owners Ass'n v. U.S. Forest Service, No. CIV.

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S-06-407 LKK/GGH, 2007 WL 1725494, at *2 (E.D. Cal. June 14, 2007).

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IT IS THEREFORE ORDERED that defendant’s bill of costs is granted in part

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and denied in part as discussed above; defendant is directed to submit an amended bill of costs in

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conformance with this order within twenty-one (21) days.

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DATED: August 5, 2013.

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UNITED STATES DISTRICT JUDGE

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