M. et al v. Drycreek Joint Elemtnary School District et al

Filing 98

ORDER signed by Judge Garland E. Burrell, Jr., on 11/6/13 ORDERING that defendant's request to tax costs is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G.M., a minor, by and through
his Guardians ad Litem, KEVIN
MARCHESE and LYNDI MARCHESE;
KEVIN MARCHESE, an
ndividual, and LYNDI
MARCHESE, an individual,

ORDER

Plaintiffs,

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v.

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No. 2:10-cv-00944-GEB-GGH

DRYCREEK JOINT ELEMENTARY
SCHOOL DISTRICT,

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Defendant.

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Defendant filed a Bill of Costs on September 21, 2012,

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“request[ing] to tax” $3,005.89 in costs. (Def.’s Bill of Costs,

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ECF

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witness fees and $2,870.89 in “fees for . . . transcripts.” (Id.)

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No.

88.)

The

total

costs

allegedly

comprise

$135.00

in

Plaintiffs filed Objections to the Bill of Costs on
September 28, 2012, arguing, inter alia:
[Defendant’s] Bill of Costs, as submitted to
the Court . . . is defective . . . since it
lacks
any
particularized
affidavit
or
verification supporting the . . . bills that
were attached to the Eastern District Bill of
Costs
(01/11)
revised
form.
Consequently, . . . there is no evidentiary
foundation for the Bill of Costs/attachment
of
[Defendant’s]
unverified
self-serving
documents.

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1

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(Pls.’ Objections 5:27-6:5, ECF No. 89.) Plaintiffs further argue

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that Defendant’s deposition costs “were unnecessary” because each

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of

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underlying administrative case.” (Id. at 6:19-7:2.)

the

persons

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deposed

“provided

their

testimony

in

the

“Federal Rule of Civil Procedure 54(d)(1) and . . .

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Local

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attorney’s

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matter.” Gregorie v. Alpine Meadows Ski Corp., No. CIV S-08-259-

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LKK/DAD,

Rule

292[]
fees,

2011

govern
awarded

WL

the
to

590605,

taxation
the

at

*2

of

costs,

prevailing

(E.D.

party

Cal.

Feb.

other
in

a

10,

than
civil

2011).

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“Federal Rule of Civil Procedure 54(d) . . . provides in relevant

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part: ‘Unless a federal statute, these rules, or a court order

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provides otherwise, costs—other than attorney’s fees—should be

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allowed

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Saipan, Ltd., 132 S. Ct. 1997, 2001 (2012) (quoting Fed. R. Civ.

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P. 54(d)(1)). “Rule 54(d)(1) codifies a venerable presumption

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that prevailing parties are entitled to costs. Notwithstanding

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this presumption, the word ‘should’ makes clear that the decision

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whether

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discretion of the district court.” Marx v. Gen. Revenue Corp.,

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133 S. Ct. 1166, 1172 (2013) (footnote omitted).

to

to

the

prevailing

award

costs

party.’”

ultimately

Taniguchi

lies

v.

within

Kan

the

Pacific

sound

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28 U.S.C. “§ 1920 defines the term ‘costs’ as used in

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Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

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437, 441-42 (1987). Section 1920 prescribes, in relevant part: “A

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judge or clerk of any court of the United States may tax as costs

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the following: . . . (2) Fees for printed or electronically

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recorded transcripts necessarily obtained for use in the case;

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[and] (3) Fees and disbursements for printing and witnesses.”

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(emphasis added). Section 1920(2) includes “an award of costs
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associated with the taking of depositions” that are “reasonably

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necessary.” Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993)

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(superseded by statute on other grounds). However, “courts may

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not tax the costs of transcripts of depositions provided merely

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for the convenience of the requesting attorney.” Id. Further,

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“[i]f

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purposes only, rather than for presentation of the case, courts

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have found that they are not taxable.” Gregorie, 2011 WL 590605,

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at *2 (citing 10 Wright, Miller, & Kane Federal Practice and

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the

depositions

are

for

investigatory

or

for

discovery

Procedure § 2676 (3d ed. & Supp. 2010)).

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“While the [costs enumerated in § 1920] are presumed

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to be taxable, the Court must exercise discretion in assessing

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the costs, only allowing taxation of costs for materials that are

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‘necessarily obtained for use in the case,’ and in an amount that

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is reasonable.” Berryman v. Hofbauer, 161 F.R.D. 341, 344 (E.D.

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Mich. 1995) (citation omitted). “‘The burden is on the prevailing

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[party] to establish the amount of compensable costs . . . to

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which

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necessarily assume the risks inherent in a failure to meet that

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burden.’” English v. Colo. Dept. of Corrs., 248 F.3d 1002, 1013

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(10th Cir. 2001) (quoting Mares v. Credit Bureau of Raton, 801

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F.2d 1197, 1208 (10th Cir. 1986)); accord Plantronics, Inc. v.

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Aliph, Inc., No. C 09-01714 WHA (LB), 2012 WL 6761576, at *3

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(N.D. Cal. Oct. 23, 2012) (“Nothing about . . . Rule 54(d)’s

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presumption excuses a prevailing party from itemizing its costs

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with enough detail to establish that each expense is taxable

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under

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prevailing party has the burden of establishing that the expenses

they

are

section

entitled

1920.”);

[under

Berryman,

3

Rule

161

54].

Prevailing

F.R.D.

at

344

parties

(“[T]he

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he seeks to have taxed as cost
e
e
ts are a
authorize
ed by ap
pplicable
e

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fe
ederal

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un
nder 28 U.S.C. § 1920.”).
U
.

law,
l

inc
cluding

proof

of
f

necess
sity

and
d

reason
nableness
s

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Here, Defendant has no shown that th claim
D
t
ot
he
med costs
s

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ar allowa
re
able und
der Rule 54(d)(1) and § 1920. D
)
Defendant neither
t
r

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“i
itemize[d the co
d]
osts clai
imed,” n or “supp
ported [i
its Bill of Costs
s

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wi
ith] a me
emorandum of cost
m
ts,” as required by Loca Rule 2
d
al
292. E.D.
.

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Ca
al. R. 292(b). Instead, Defendan filed the Bil of Co
I
nt
d
ll
osts form
m

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wi
ith attac
ched invo
oices, an the a
nd
attached invoices total l
s
less than
n

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th
he

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co
orrespond
dence

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He
earings referenc
ces a “f
final co
ost to p
process [an] ord
der [of]
]

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$3
349.30[,] but does not state what the final cost co
]”
d
t
e
omprises.
.

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(S
See ECF No. 88-1.
N
.)

costs
s

reques
sted.
fr
rom

Fu
urther,
the

the

atta
ached

Califo rnia

Of
ffice

Fe
ebruary
of
f

1,

2012
2

Admini
istrative
e

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“Defenda
ant[] ha[
[s] give the Co
en
ourt no basis to analyze
o
e

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th reason
he
nableness of [its reque st or th necess
s
s]
he
sity of t
the costs
s

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fo
or

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(i
indicatin
ng

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co
ost . . . . claim
med

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in
nsufficie
ent

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re
easonable
eness and necess
d
sity of t
the reque
osts). Th
herefore,
,
ested co

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De
efendant’ reques to tax costs i denied
’s
st
x
is
d.

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Da
ated:

which
h

taxati
ion
that

a

wh
hen

is

sought.”
”

Berrym
man,

conc
clusory

avermen
nt

.

been

.
the
e

.

has

oppo sing

No
ovember 6, 2013
6

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28
4

161
that

F.R.D.

344
4

item

of
f

incur
rred”

is
s

“each

necessarily
p
party

at

challeng
ges

the
e