Jones v. County of Sacramento et al

Filing 191

ORDER signed by Magistrate Judge Dale A. Drozd on 8/12/11 ORDERING that pursuant to 165 Bill of Costs Submitted by plaintiff, defendants' SHALL BE TAXED in the amount of $14,598.15. (Attachments: # 1 Bill of Cost Taxed)(Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DRAKE JONES,

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Plaintiff,

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No. CIV S-09-1025 DAD

v.
COUNTY OF SACRAMENTO,
et al.,

ORDER

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Defendants.

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Pending before the court is plaintiff’s March 23, 2011 bill of costs. (Doc. No.

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165.) Defendants filed objections to plaintiff’s bill of costs on March 30, 2011, taking issue with

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several of the amounts requested by plaintiff. (Doc. No. 166.) Those objections will be

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addressed in turn below.

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The factual background has been set forth in detail in an order filed this same day

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with respect to plaintiff’s motion for attorneys’ fees and will not be repeated herein. In short,

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plaintiff prevailed at trial, in part, on his claim that the defendant deputies had violated his

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constitutional rights. Plaintiff has submitted a bill of costs. Defendants have filed written

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objections thereto.

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Federal Rule of Civil Procedure 54(d)(1) and Eastern District Local Rule 292(f)

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govern the taxation of costs, other than attorney’s fees, awarded to the prevailing party in a civil

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matter. The Supreme Court has interpreted Rule 54(d)(1) to require that district courts consider

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only those costs enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc.,

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482 U.S. 437, 441-42 (1987). Section 1920 provides that:

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A judge or clerk of the court may tax the following:

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(1) Fees of the clerk and marshal;

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(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;

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(3) Fees and disbursements for printing and witnesses;
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(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;

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(5) Docket fees under section 1923 of this title;
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(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

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A bill of costs shall be filed in the case and, upon allowance,
included in the judgment or decree.

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Rule 54 (d)(1) provides that “costs . . . should be allowed to the prevailing party.”

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Fed R. Civ. P. 54(d)(1). This provision establishes a presumption that costs will be awarded to

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the prevailing party, but allows the court discretion to decide otherwise. Association of Mexican

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American Educators v. State of California, 231 F.3d 572, 591-92 (9th Cir. 2000).

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The court is to exercise its discretion in determining whether to allow certain

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costs. See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1996) (holding that the district court

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has discretion to determine what constitutes a taxable cost within the meaning of § 1920); Alflex,

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914 F.2d at 177 (same). The losing party has the burden of overcoming the presumption in favor

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of awarding costs to the prevailing party. See Russian River Watershed Prot. Comm. v. City of

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Santa Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998) (noting that the presumption “may only be
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overcome by pointing to some impropriety on the part of the prevailing party”); Amarel, 102

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F.3d at 1523; see also Local Rule 292(d) (“If no objection is filed, the Clerk shall proceed to tax

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and enter costs.”).

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ANALYSIS
I. Plaintiff’s Bill of Costs

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A. Fees of the Clerk

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Plaintiff seeks $350 in costs for fees of the clerk. Such costs are explicitly

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allowed under 28 U.S.C. § 1920, and the Local Rules, and defendants do not object to plaintiff’s

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requested amount. Accordingly, plaintiff is entitled to recover $350 in costs for fees of the clerk.

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B. Fees for Service of Summons

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Plaintiff seeks $1,836.25 in costs for fees related to the service of summons. A

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substantial portion of the amount requested by plaintiff is for 17.5 hours of summons service at a

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rate of $90 an hour. Defendants object to the requested amount, arguing that the maximum

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allowable rate for service of summons is $55 per hour. Moreover defendants argue that

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plaintiff’s total contains a $4 accounting error.

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Counsel for plaintiff used a private process server to achieve service of summons

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instead of the U.S. Marshals Service. Fees for service by a person other than a U.S. Marshal are

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taxable costs, to the extent such fees do not exceed the amount allowable for the same service by

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a U.S. Marshal. Local Rule 292(f)(2). The rate for service of summons by a U.S. Marshal is $55

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per hour. 28 C.F.R. § 0.114(a)(3). Plaintiff therefore is only entitled to recover costs for 17.5

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hours of summons service at a rate of $55 per hour. Moreover, plaintiff did indeed commit an

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accounting error in the amount of $4 in the bill of costs submitted.

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Accordingly, after reviewing plaintiff’s bill of costs, the court finds that plaintiff

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is entitled to recover $1,219.75 in costs for fees related to the service of summons.

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C. Fees for Depositions and Transcripts

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Plaintiff seeks $13,238.11 in costs for fees for depositions and transcripts.

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Defendants object to the amount requested, arguing that: 1) plaintiff cannot recover costs

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incurred for shipping and handling; 2) plaintiff cannot recover costs for obtaining copies of

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transcripts in various formats; and 3) plaintiff cannot tax the cost for a late cancellation of a

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deposition to the defendants.

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With respect to the shipping and handling of deposition transcripts, “[t]he court

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will allow shipping costs related to the transcripts, as they are associated with court reporters’

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fees and were necessarily incurred in order to obtain the transcripts.” Nielsen v. Trofholz

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Technologies, Inc., No. CIV. 2:09-960 WBS KJN, 2010 WL 5136164 at *2 (E.D. Cal. Dec. 9,

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2010). However, with respect to costs for obtaining copies of depositions in multiple formats,

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plaintiff has failed to explain the necessity of these costs. “Something beyond ‘convenience or

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duplication to ensure alternative methods for presenting materials at trial’ is needed to tax costs”

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to the defendants. Nielsen, 2010 WL 5136164 at *2 (quoting Cherry v. Champion Int’l Corp.,

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186 F.3d 442, 449 (4th Cir. 1999)).

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Finally, with respect to the cost incurred for a late cancellation of a deposition,

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defendants contend that plaintiff is attempting to tax to the defendants the cost incurred for the

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late cancellation of the deposition of Shawn Fore, who was not listed as a witness on plaintiff’s

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initial or supplemental disclosures, who was not a witness called to testify at trial and whose

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deposition was never taken. In light of defendants’ argument, and the court’s discretion, this

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charge will also not be taxed to the defendants.

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Accordingly, upon reviewing plaintiff’s bill of costs, the court finds that plaintiff
is entitled to $10,600.85 in costs for deposition and transcript fees.
D. Fees for Printing
Plaintiff seeks $258.85 in costs for printing fees. Such costs are explicitly
allowed under 28 U.S.C. § 1920 and defendants do not object to plaintiff’s requested amount.
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Accordingly, plaintiff is entitled to recover $258.85 in costs for printing fees.

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E. Fees for Witnesses

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Plaintiff seeks $1,590 in costs for fees for witnesses. Defendants object to this

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amount, arguing that the amount includes compensation for witnesses that plaintiff failed to

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submit proof of payment to and that the amount is based on a rate in excess of the maximum

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allowed.

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Of the $1,590 in costs plaintiff seeks, $1,050 is sought for fees paid to John

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Greene, M.D., defendants’ rebuttal expert witness. Plaintiff cannot be awarded costs for expert

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witness fees in excess of a $40 per diem attendance fee. See West Virginia University Hospital

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v. Casey, 499 U.S. 83, 102 (1991); Crawford Fitting, 482 U.S. at 439; Van Horn v. Dhillon, No.

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08-CV-01622 LJO DLB, 2011 WL 66244 at *7 (E.D. Cal. Jan. 10, 2011); Ruff v. County of

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Kings, 700 F. Supp.2d 1225, 1243 (E.D. Cal. 2010). Plaintiff will accordingly be awarded only

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$40 in costs for Mr. Greene’s attendance fee.

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With respect to defendants’ argument that plaintiff failed to submit proof of

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payment as to all witnesses listed in plaintiff’s bill of costs, the court is unpersuaded. The bill of

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costs submitted by counsel for plaintiff is signed under the penalty of perjury. Moreover, counsel

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for defendants does not dispute that the individuals identified in plaintiff’s bill of costs appeared

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as witnesses at trial.

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Accordingly, after reviewing plaintiff’s bill of costs, the court finds that plaintiff
is entitled to $560 in costs for witness fees.

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F. Fees for Exemplification and Copies

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Plaintiff seeks $1,608.70 in costs for fees for exemplification and copies.

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Defendants object to this request, arguing that plaintiff failed to provide an explanation or

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itemized statement for the cost of these copies. Moreover, counsel for defendants asserts that the

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copies were most likely made for the convenience of counsel.

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The court also finds defendants argument in this regard unpersuasive. Again,

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counsel for plaintiff has submitted a bill of costs that is signed under the penalty of perjury with

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documentation supporting the requested costs. Moreover, the items at issue are specifically

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identified as taxable costs under both 28 U.S.C. § 1920 and Local Rule 292(f)(5). “[T]he Ninth

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Circuit has held that, as long as the items fall within the taxable costs of § 1920 and any

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applicable Local Rule, the cost is permissible.” Tubbs v. Sacramento County Jail, 258 F. R. D.

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657, 660 (E.D. Cal. 2009) (citing Aflex, 914 F.2d at 177).

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Accordingly, after reviewing plaintiff’s bill of costs and defendants’ objections
thereto, the court finds that plaintiff is entitled to the requested $1,608.70 for fees for
exemplification and copies.

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CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED that pursuant to the

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March 23, 2011 Bill of Costs (Doc. No. 165) submitted by plaintiff, defendants’ SHALL BE

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TAXED in the amount of $14,598.15.1

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DATED: August 12, 2011.

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DAD:6
orders.consent/jones1025.o.billofcosts

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The Clerk of Court’s Taxation of Costs in this amount is attached hereto.
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