Blanton v. County of Sacramento et al
Filing
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ORDER TAXING COSTS signed by Chief Judge Morrison C. England, Jr on 6/25/13. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID BLANTON,
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Plaintiff,
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No. 2:09-cv-01832-MCE-CKD
v.
ORDER TAXING COSTS
COUNTY OF SACRAMENTO;
SACRAMENTO COUNTY SHERIFF’S
DEPARTMENT; CHRIS BITTLE;
DONALD BRICKER; and CRYSTAL
FISCHER BRADNAX,
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Defendants.
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Defendants County of Sacramento, Sacramento County Sheriff’s Department,
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Chris Bittle, Donald Bricker and Crystal Fischer Bradnax (“Defendants”) have submitted
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a Bill of Costs in the above-referenced matter, pursuant to 28 U.S.C. § 1920, following a
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grant of summary judgment in favor of Defendants on July 9, 2012. Defendants now
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request to recover costs in the amount of $1,996.13, and David Blanton (“Plaintiff”)
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objects to that request. The costs sought by Defendants relate to fees for service of
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summons and subpoenas, fees for printed or electronically recorded transcripts
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necessarily obtained for use in the case, fees for exemplification and copying and other
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costs.
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Under Federal Rule of Civil Procedure 54(d), the prevailing party in a lawsuit shall
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recover its costs “unless . . . a court order provides otherwise.” Fed. R. Civ. P. 54(d). As
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this language suggests, the ultimate decision on whether to award costs is a matter
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within the court’s discretion. Association of Mexican-American Educators v. State of Cal.,
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231 F.3d 572, 591-92 (9th Cir. 2000). If the court declines to award costs as requested
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by the prevailing party, however, it should specify its reasons for doing so. Berkla v.
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Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002). The Ninth Circuit has held that “a district
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court need not give affirmative reasons for awarding costs; instead, it need only find that
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the reasons for denying costs are not sufficiently persuasive to overcome the
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presumption in favor of an award. The presumption itself provides all the reason a court
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needs for awarding costs.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir.
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2003). There consequently is a presumption that the prevailing party will be awarded
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costs.
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A.
Fees for Service of Summons and Subpoena1
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Plaintiff argues that the $55 fee for serving a deposition subpoena on Defendant
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Fischer is not taxable because “defendants unilaterally cancelled the deposition—
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apparently conceding that the deposition was not necessary to the case.” (Plaintiff’s
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Objections to Amended Bill of Costs, ECF No. 66 at 1.) Additionally, Plaintiff argues that
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the $5 database access fee for locating Defendant Fischer’s address is not taxable
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because “[r]esearch costs to determine an address are not fees for service of the
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subpoena.” Id. Plaintiff asserts that the $60 total fee for service of summons and
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subpoena should not be taxed.
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Defendants did not submit a reply to Plaintiff’s Opposition, therefore the only documents
considered are the Amended Bill of Costs (ECF No. 65) and Plaintiff’s Objections (ECF No. 66).
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Plaintiff fails to cite any case law that states that an address-finding fee is not
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taxable as a fee for the service of the subpoena. Section 0.114 of title 28 of the Code of
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Federal Regulations discusses allowable fees for services, noting that the U.S. Marshals
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Service2 shall collect fees for process served at the rate of $55 per hour, “plus travel
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costs and any other out-of-pocket expenses.” 28 C.F.R. § 0.114(a)(3). Out-of-pocket
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expenses include “any other third-party expenditure incurred in executing process.”
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§ 0.114(b). A database fee to locate a person’s address can reasonably be said to
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constitute a third-party expenditure that was necessary to serve process on Defendant
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Fischer. Because Plaintiff is unable to cite case law to support the deletion of the $5 fee
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from the bill of costs, the Court rejects Plaintiff’s objection to this $5 fee.
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With regard to the $55 service fee for the subpoena of a witness for a deposition
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that was later cancelled by Defendants, Plaintiff fails to cite any binding case authority,
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relying on a case from the Northern District of Illinois and a case from the Southern
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District of Florida. Because Plaintiff’s argument is not sufficiently persuasive to overcome
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the presumption in favor of awarding costs, the Court rejects Plaintiff’s objection to this
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$55 fee.
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B.
Fees for Transcripts
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Defendants listed fees totaling $1,596.75 for printed or electronically recorded
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transcripts necessarily obtained for use in the case. Plaintiff does not object to the cost
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of the transcripts themselves, but does object to the $200 appearance fee and the $75
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delivery fee, and thus requests that the amount of $1,596.75 be reduced by $275.
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The Ninth Circuit also allows for fees from a private process server to be taxed. See Alflex
Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 178 (9th Cir. 1990).
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Plaintiff cites to a previous case by this Court, which noted that “[t]he court will not tax
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the cost of postage and handling of the deposition transcripts, since those costs are not
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enumerated in the statute.” Shook v. Town of Truckee, 2009 WL 321273 (E.D. Cal.
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2009). The Court finds Plaintiff’s objection to the delivery fees of $75 to be well taken.
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Plaintiff argues that the $200 appearance fee should not be taxed, but cites only
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to cases involving postage and delivery fees. Both the Eastern District and the Ninth
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Circuit have, however, held that appearance fees should not be taxed. See McKesson
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Info. Solutions, Inc. v. Bridge Med., Inc., 2007 WL 1139557, at *1 (E.D. Cal. Apr. 17,
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2007); Bosse v. Napolitano, 337 F. App’x 633, 637 (9th Cir. 2009) (“the district court
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excluded reporter appearance fees”). The Court therefore sustains Plaintiff’s objection to
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the appearance fee of $200.
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C.
Costs for Copies
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Plaintiff objects to the fee of $195.20 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.
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Plaintiff argues that Defendants “make no attempt to show that whatever copies they
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claim were necessary and indeed fail to even describe what was copied or how the copy
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cost was calculated.” (Plaintiff’s Objection at 2.) Plaintiff claims that Defendants have
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failed to “carry their burden of demonstrating that they incurred this cost ‘necessarily.’”
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(Id.) In their bill of costs, Defendants fail to attach any receipts or provide any
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explanation as to the basis for claiming the exemplification and copying costs in the
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amount of $195.20. Merely claiming that amount as recoverable costs without any
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further substantiation is plainly insufficient. Plaintiff’s objection to the exemplification and
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copying costs is also well taken.
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D.
Other Costs
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Plaintiff objects to Defendant’s “other costs” amount of $144.18, arguing that the
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only explanation given for this amount is a few pages from a LexisNexis bill. (Plaintiff’s
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Objection at 2.) Plaintiff cites to cases that held that computerized legal research is not a
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taxable cost under 28 U.S.C. § 1920. This Court has previously considered this issue in
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U.S. ex rel. Stierli v. Shasta Serv. Inc, 2007 WL 1516934 (E.D. Cal. May 22, 2007),
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holding that expenses related to computerized legal research are not reimbursable
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under 28 U.S.C. §1920. Id. at *1. The $144.18 in claimed “other costs” can accordingly
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not be permitted.
Given the foregoing, costs are taxed in favor of Defendants in the reduced
amount of $1,381.75.3
IT IS SO ORDERED.
DATED: June 25, 2013
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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT
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Plaintiff states in his objection that Defendants’ bill of costs should be reduced to $1,521.75. This
appears to be a miscalculation, as Plaintiff’s requests, when added together, equal $1,381.75.
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