Robinson et al v. KIA Motors America, Inc.
Filing
164
ORDER signed by District Judge Susan Oki Mollway on 8/25/16 ORDERING that KIA is entitled to $2,381.45 as costs ($350.00 for fees of the clerk, $1320.15 for fees for deposition transcripts, $691.30 for witness fees, and $20.00 for docket fees). (Becknal, R)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LISA ROBINSON,
Plaintiff,
vs.
KIA MOTORS AMERICA, INC., a
California corporation,
Defendant.
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No. 2:10-cv-03187-SOM
ORDER REGARDING DEFENDANT’S
BILL OF COSTS
ORDER REGARDING DEFENDANT’S BILL OF COSTS
I.
INTRODUCTION.
On February 24, 2007, Plaintiff Lisa Robinson purchased
a new 2007 Kia Sportage, which was accompanied by written and
implied warranties from Defendant Kia Motors America, Inc.
Lisa
Robinson brought suit against KIA, alleging that the vehicle had
a number of defects covered by warranty, and that KIA had
violated California’s Song-Beverly Consumer Warranty Act and the
Magnuson-Moss Warranty Act by refusing to buyback or replace the
vehicle after failing to repair it.
KIA prevailed at trial on
both claims, then filed a Bill of Costs in which it requested
reimbursement from Lisa Robinson of $6007.51 in costs.
Robinson has objected to KIA’s Bill of Costs.
Lisa
This court elects
to decide this matter without a hearing.
After careful consideration of KIA’s Bill of Costs and
the supporting and opposing memoranda, this court sustains in
part and overrules in part Lisa Robinson’s objections and awards
costs in the reduced amount of $2,381.45, as discussed below.
II.
ANALYSIS.
“Federal Rule of Civil Procedure 54(d)(1) and Eastern
District Local Rule 292(f) govern the taxation of costs, other
than attorney’s fees, awarded to the prevailing party in a civil
matter.”
Jones v. County of Sacramento, No. CIV S-09-1025 DAD,
2011 WL 3584330, at *1 (E.D. Cal. Aug. 12, 2011).
Rule 54(d)(1)
provides in relevant part, “Unless a federal statute, these
rules, or a court order provides otherwise, costs--other than
attorney’s fees--should be allowed to the prevailing party.”
“The Supreme Court has interpreted Rule 54(d)(1) to
require that district courts consider only those costs enumerated
in 28 U.S.C. § 1920.”
Id. (citing Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441-42 (1987).
Section 1920 permits
this court to tax the following as costs:
(1)
Fees of the clerk and marshal;
(2)
Fees for printed or electronically
recorded transcripts necessarily
obtained for use in the case;
(3)
Fees and disbursements for printing and
witnesses;
(4)
Fees for exemplification and the costs
of making copies of any materials where
the copies are necessarily obtained for
use in the case;
2
(5)
Docket fees under section 1923 of this
title;
(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.
“‘By its terms, the rule creates a presumption in favor
of awarding costs to a prevailing party, but vests in the
district court discretion to refuse to award costs.’”
Warkentin
v. Federated Life Ins. Co., No. 1:10-CV-00221-SAB, 2015 WL
3833857, at *1 (E.D. Cal. June 19, 2015) (quoting Ass’n of
MexicanAmerican Educators v. California, 231 F.3d 572, 591 (9th
Cir. 2000)).
“The losing party has the burden of overcoming the
presumption in favor of awarding costs to the prevailing party.”
Randhawa v. Skylux Inc., No. CIV. 2:09-2304 WBS, 2012 WL 3834861,
at *1 (E.D. Cal. Sept. 4, 2012) (citing Russian River Watershed
Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir.
1998)).
“If the court declines to award costs as requested by
the prevailing party it should specify its reasons for doing so.”
Lasic v. Moreno, No. 2:05-CV-0161-MCE-DAD, 2007 WL 4180655, at *1
(E.D. Cal. Nov. 21, 2007) (citing Berkla v. Corel Corp., 302 F.3d
909, 921 (9th Cir. 2002)).
KIA seeks taxation of $6,007.51 in costs, itemized as
follows:
A.
Fees of the Clerk:
B.
Fees for service of summons and
3
$350.00
subpoena:
$485.40
C.
Fees for printed or electronically
recorded transcripts necessarily
obtained for use in the case: $1,797.82
D.
Fees and disbursements for printing:
$1,400.10
E.
Fees for witnesses:
F.
Fees for exemplification and the costs
of making copies of any materials where
the copies are necessarily obtained for
use in the case: $462.49
G.
Docket fees under 28 U.S.C. § 1923:
$20.00
H.
Other costs:
Total:
$947.20
$544.50
$6,007.51
ECF No. 159.
Lisa Robinson does not dispute that KIA is the
prevailing party, but she objects to most of KIA’s requested
costs.
See ECF No. 160.
A.
Fees of the Clerk.
Section 1920(1) permits a prevailing party to recover
“[f]ees of the clerk[.]”
28 U.S.C. § 1920(1).
KIA seeks $350.00
in filing fees relating to its removal of the present action to
this court.
See ECF No. 159.
Lisa Robinson has not objected to
this requested amount, nor is there anything in the record
indicating that KIA should not recover this fee paid.
KIA is
entitled to an award of its filing fees in the amount of $350.00.
4
B.
Fees for Service of Summons and Subpoena.
KIA seeks to recover the costs it incurred for the
service of subpoenas for Lisa Robinson’s and Kevin Robinson’s
telephone records.
See ECF No. 159-1.
Recovery of fees for the service of summons and
subpoenas is permitted by 28 U.S.C. § 1920(1) and Local Rule
292(f)(2).
Local Rule 292(f)(2) permits the taxation of costs
for “Marshal’s fees and fees for service by a person other than
the Marshal under Fed. R. Civ. P. 4 to the extent they do not
exceed the amount allowable for the same service by the Marshal
(28 U.S.C. §§ 1920(1), 1921).”
KIA has not demonstrated that its requested fees do not
exceed the U.S. Marshal’s fees for service, as required by Local
Rule 292(f).
See, e.g., Gregory v. Allied Prop. & Cas. Ins. Co.,
No. CIV S-10-1872 KJM EF, 2013 WL 949529, at *1 (E.D. Cal. Mar.
11, 2013) (sustaining objection to recovery of fees for service
because prevailing party failed to comply with Local Rule 292(f)
regarding U.S. Marshal’s fees for service).
The Marshal’s fees
are established by regulation at an hourly rate.
§ 0.114.
See 28 C.F.R.
Here, because the length of time required for the
service effected is not indicated by KIA, the Marshal’s fees for
service cannot be calculated by this court.
Lisa Robinson’s
objection to the taxation of this cost is therefore sustained.
5
C.
Fees for Printed or Electronically Recorded
Transcripts Necessarily Obtained for Use in the
Case.
Lisa Robinson asserts that KIA is not entitled to
recover its costs relating to her deposition or the depositions
of Kevin Robinson and Thomas Lepper.
See ECF No. 160, at 2-4.
“‘A deposition need not be absolutely indispensable to
justify an award of costs; rather, it must only be reasonably
necessary at the time it was taken, without regard to later
developments that may eventually render the deposition unneeded
at the time of trial or summary disposition.’”
Taylor v. Albina
Cmty. Bank, No. CV-00-1089-ST, 2002 WL 31973738, at *8 (D. Or.
Oct. 2, 2002) (quoting Frederick v. City of Portland, 162 FRD
139, 143 (D. Or. 1995)).
“Depositions are ‘necessary’ if
introduced into evidence or used at trial for impeachment or
cross-examination.”
U.S. ex rel. Berglund v. Boeing Co., No.
03:02-CV-193-AC, 2012 WL 697140, at *2 (D. Or. Feb. 29, 2012)
(citing Arboireau v. Adidas Salomon AG, No. 01-105-ST, 2002 WL
31466564, at *5 (D. Or. June 14, 2002)).
“The cost of a
deposition not used at trial still may be recovered ‘if taking
the deposition was reasonable as part of the pretrial preparation
of the case rather than merely discovery for the convenience of
counsel, or if the deposition was required for a dispositive
motion.’”
Berglund, 2012 WL 697140, at *2 (citation omitted).
See also Indep. Iron Works, Inc. v. U.S. Steel Corp., 322 F.2d
6
656, 678 (9th Cir. 1963) (“If the depositions were merely useful
for discovery then they were not taxable items and their expense
should have been borne by the party taking them, as incidental to
normal preparation for trial.” (citation omitted)).
“Disallowance of expenses for depositions not used at trial is
within the district court’s discretion.”
Id.
This court finds that it was necessary for KIA to take
Lisa Robinson’s deposition.
Lisa Robinson was a critical witness
in the prosecution of her lemon law case, alleging among other
things that KIA had refused her request for KIA to buyback or
replace her vehicle after she had tried to have it repaired by an
authorized KIA repair facility.
Because Lisa Robinson’s case
hinged on her own testimony at trial, it was reasonably necessary
for KIA to depose Lisa Robinson and to obtain a certified
transcript of her deposition in case KIA needed to use it to
impeach her during trial.
See Berglund, 2012 WL 697140, at *2
(“Depositions are ‘necessary’ if introduced into evidence or used
at trial for impeachment or cross-examination.”).
Even if KIA
had not ultimately needed to use the deposition transcript to
impeach Lisa Robinson, the costs of Lisa Robinson’s deposition
and the certified transcript would still be awarded because these
items appeared reasonably necessary at the time they were
incurred by KIA.
See Taylor, 2002 WL 31973738, at *8 (deposition
“must only be reasonably necessary at the time it was taken,
7
without regard to later developments that may eventually render
the deposition unneeded at the time of trial or summary
disposition” (citation and quotation marks omitted)).
KIA is not entitled to its costs relating to Kevin
Robinson’s deposition.
KIA argues that these costs were
necessary because Kevin Robinson was technically a plaintiff
until dismissed by Lisa Robinson on the second day of trial.
ECF No. 162, at 2.
See
Lisa Robinson explains that she notified KIA
prior to the deposition that the Robinsons’ marriage had already
been dissolved prior to her repair visits with KIA, that Kevin
Robinson had only driven the vehicle a few times before the
divorce, and that Lisa Robinson was the sole owner of the vehicle
through the order of dissolution.
See ECF No. 160, at 8.
KIA does not dispute that it was notified of these
facts prior to the deposition.
See ECF No. 162.
At the
deposition, Kevin Robinson confirmed what KIA had been told by
Lisa Robinson, and made clear to KIA that he had no interest in
the lawsuit and was not involved in the lawsuit or the underlying
events.
See ECF No. 96-3.
Given KIA’s knowledge prior to the deposition that
Kevin Robinson, while a named plaintiff, was not seeking any
recovery from KIA, KIA has not shown that the taking of his
deposition was reasonably necessary in light of the facts known
to counsel at the time it was taken.
8
See Taylor, 2002 WL
31973738, at *9.
Kevin Robinson’s inclusion in the case caption
as a plaintiff is insufficient, without more, to establish that
the costs for obtaining his deposition transcript were
necessarily obtained for use in the case.
This court denies the
costs for Kevin Robinson’s deposition.
KIA seeks to recover costs it incurred in relation to
two deposition dates for Lisa Robinson’s expert, Thomas Lepper.
See ECF No. 159-6.
This court sustains Lisa Robinson’s objection to the
taxation of the $81.90 that KIA allegedly incurred in connection
with its first attempt to depose Lepper on May 17, 2012.
KIA
noticed this deposition without first confirming with Lisa
Robinson that her counsel or Lepper would be available on the
date specified in the notice.
See ECF No. 160, at 8-9.
Although
Lisa Robinson notified KIA prior to this date that neither her
counsel nor Lepper would be able to attend the deposition, KIA
nonetheless went forward with the deposition and had the court
reporter make a record of Lepper’s nonappearance.
162, at 3.
See ECF No.
KIA offers no explanation for why this was necessary.
KIA could have avoided these costs by working with Lisa Robinson
to reschedule Lepper’s deposition.
This court grants KIA its costs for its deposition of
Lepper on August 14, 2012.
See ECF No. 159-10.
Lisa Robinson
contends that Lepper’s detailed expert report obviated any need
9
for Kia to depose Lepper to discover his findings and opinions.
See ECF No. 160, at 3.
But it was reasonably necessary for KIA
to take the deposition of Lepper to test the strengths and
weaknesses of the opinions expressed in his report, and to try to
develop evidence to impeach or rebut Lepper on the stand.
This
court awards KIA its deposition costs for Lepper under § 1920(2).
However, this court reduces the costs taxed for Lisa
Robinson’s and Thomas Lepper’s depositions to the extent they
include fees for shipping and handling.
10.
See ECF Nos. 159-7, 159-
“[T]he fees sought for shipping and handling are not
recoverable because 28 U.S.C. § 1920 does not provide for an
award for such services.”
Secalt S.A. v. Wuxi Shenxi Const.
Mach. Co., Ltd., No. 2:08-CV-336 JCM GWF, 2010 WL 5387576, at *1
(D. Nev. Dec. 21, 2010) (citing Frederick v. City of Portland,
162 F.R.D. 139 (D. Or., 1995), aff’d in part, rev’d in part on
other grounds by 668 F.3d 677 (9th Cir. 2012)).
KIA does not
provide any rebuttal argument with regard to the delivery fees.
Also, because KIA fails to explain why a CD was necessary, its
requested costs for Lepper are further reduced by $10.00 for the
“Exhibits/CD” charge.
KIA is entitled to recover a total of $1320.15 for
deposition transcripts.
10
D.
Photocopying Fees.
Lisa Robinson objects to KIA’s request, pursuant to
§ 1920(3), for printing costs of $1,400.10 for 1,604 color copies
at .50¢ per page and 5,981 black-and-white copies at .10¢ per
page.
See ECF No. 160, at 4.
KIA submitted a spreadsheet in
support of its request that itemized printing jobs purportedly
for this case by their date, dollar amount, and whether they were
printed in black-and-white or color.
See ECF No. 159-11.
This court notes that 28 U.S.C. § 1920(3) provides for
costs for “disbursements for printing,” but unlike other
subsections in § 1920, does not expressly state that the cost of
printing must be “necessarily obtained” for a prevailing party to
recover these costs.
It would make little sense to read
§ 1920 as permitting a prevailing party to recover any and all
printing costs for a matter, even if they were excessive and
unnecessarily incurred.
Other courts who have addressed the taxation of
photocopying costs under § 1920 generally require the prevailing
party to show that the photocopying costs were necessary to the
case.
See, e.g., Competitive Techs. v. Fujitsu Ltd., No.
C-02-1673 JCS, 2006 WL 6338914, at *7-8 (N.D. Cal. Aug. 23,
2006); A.H.D.C. v. City of Fresno, No. CIV-F-97-5498 OWW, 2004 WL
5866234, at *7 (E.D. Cal. Oct. 1, 2004).
These cases “draw a
distinction between those expenses necessary to the action and
11
those intended for the convenience of counsel.”
Gregory, 2013 WL
949529, at *1 (citing Willnerd v. Sybase, Inc., No.
1:09—cv—00500—BLW, 2012 WL 175341, at *6 (D. Idaho Jan. 20,
2012)); A.H.D.C., 2004 WL 5866234, at *7 (“[t]his court will only
allow photocopying charges that were necessary for discovery and
for trial presentation and will not allow photocopying charges
for the convenience, preparation, research, or records of
counsel” (citation omitted)).
“Courts have held that ‘extra
copies of filed papers, correspondence, and copies of cases’ are
not ‘necessarily obtained for use in the case’ but rather, are
for the convenience of attorneys and thus are not allowable.”
Competitive Techs., 2006 WL 6338914, at *7-8 (citations omitted).
See also Berglund, 2012 WL 697140, at *4 (“recoverable copying
costs do not include extra copies of filed papers,
correspondence, and copies of cases since these are prepared for
the convenience of the attorneys” (citation and quotation marks
omitted)).
KIA acknowledges that it must show that its printing
costs were necessary, and argues that it is sufficient that
“KMA’s counsel has verified that fees for printing include only
those which were necessary for the case.”
See ECF No. 162, at 5.
However, “a party’s conclusory assertion that all copies were
reasonably necessary to its case is, by itself, insufficient.”
Reg’l Care Servs. Corp. v. Companion Life Ins. Co., No.
12
CV-10-2597-PHX-LOA, 2012 WL 2260984, at *6 (D. Ariz. June 15,
2012) (quoting Berglund, 2012 WL 697140, * 4).
In fact, the spreadsheet submitted by KIA in support of
its photocopying costs does not provide sufficient detail to show
that any of the photocopies it made were necessarily incurred.
The spreadsheet contains no description as to the types of
documents printed or their purpose in the litigation.
No. 159-11.
See ECF
Although there is a “Narrative” field in the
spreadsheet for each print job, these entries generically state
that the job was an “Accrued in-house color document print” or
“Accrued in-house B&W document print.”
See id.
There is also a
“Task” field for each job, but this field only classifies each
task as either “E101” or “E102” without any further explanation
of what those codes mean.
See id.
KIA attempts to explain these costs by stating that the
photocopy jobs coincided in time with the filings of the parties’
motions in limine and preparation for trial.
See ECF No. 162, at
4-5 (“The printing costs incurred between April 22 and May 19,
2015 directly coincide with the filings of the parties’ motions
in limine, oppositions to those motions and replies to those
motions.
The printing costs incurred between June 13 and 24,
2016 coincide with the preparation for the trial which started on
June 29, 2016.”).
Notably, KIA never actually says that the
printing costs were for these tasks, or were not copies for
13
counsel’s convenience.
See id.
It is unclear why KIA needed to incur nearly $500.00 in
color copying costs for approximately 1,000 color copies around
the time of the parties’ motions in limine.
Having reviewed the
parties’ motions in limine, as well as their responses, replies,
and the accompanying memoranda and exhibits, this court notes
that there were only a handful of pages that might have required
color printing.
A few exhibits to Lisa Robinson’s motions in
limine included highlighted portions of written interrogatories.
But there were no other exhibits such as photographs or
spreadsheets that were in color.
Nor does KIA explain why any of
the evidentiary issues raised by the motions in limine
necessitated the large volume of color copies it printed around
the time of the motions in limine.
This case was a relatively uncomplicated matter that
involved two claims with largely overlapping legal elements and a
relatively small amount of evidence.
Given the size and
complexity of this case, it is unclear to this court why KIA
needed to make 1,604 color copies and 5,981 black and white
copies for the parties’ motions in limine and KIA’s trial
preparation.
Because KIA has not adequately explained the nature
of the photocopying costs, this court cannot determine which
costs, if any, are properly awardable.
This court is, of course, not saying that KIA did not
14
actually have necessary copying costs.
KIA submitted exhibit
binders during trial and, while some of the contents of the
binders might arguably have been unnecessary, some of the
contents were certainly necessary.
However, KIA has not itself
taken the time to identify what portions of the binders were
necessary and what the applicable chargers were.
In fact, this
court cannot tell which entries or charges listed in pages
attached to KIA’s filings relate to the exhibit binders.
Under
these circumstances, KIA does not show which copying costs should
be awarded, and this court awards none.
E.
Witness Fees.
Lisa Robinson objects to the witness fees that KIA
requests for Chris Valenti, Doug Peterson, and Thomas Lepper.
See ECF No. 160, at 5.
KIA asserts that it paid Thomas Lepper $875.00 for his
deposition.
KIA says that, at the very least, it is entitled to
recover $255.90 of that amount as statutory witness fees pursuant
to §§ 1920(3) and 1821, including $40.00 per diem and the mileage
rate for 389 miles of travel to and from the deposition.
No. 159-1, at 2; ECF No. 159-14.
See ECF
Lisa Robinson objects because
“[t]he fees paid to Mr. Lepper were not 28 U.S.C. § 1920(3)
witness fees.”
objection.
See ECF No. 160, at 5.
See ECF No. 162, at 5.
KIA does not refute this
KIA instead insists that any
fees it paid to Thomas Lepper can be taxed as if KIA paid per
15
diem and mileage fees under § 1821.
This court sustains Lisa
Robinson’s objection.
Under §§ 1920 and 1821, the taxation of a cost is
permitted when the prevailing party has paid for that particular
item.
Under 28 U.S.C. § 1920(3), a prevailing party may recover
witness fees subject to the provisions of 28 U.S.C.
§ 1821.
Section 1821(a) provides that fees and allowances may be
paid to a witness “in attendance at any court of the United
States, or before a United States Magistrate Judge, or before any
person authorized to take his deposition pursuant to any rule or
order of a court of the United States.”
Section 1821(b)
provides, “A witness shall be paid an attendance fee of $40 per
day for each day’s attendance.”
This statute further provides,
“A travel allowance equal to the mileage allowance which the
Administrator of General Services has prescribed, pursuant to
section 5704 of title 5, for official travel of employees of the
Federal Government shall be paid to each witness who travels by
privately owned vehicle.”
“Under these provisions, additional amounts paid as
compensation, or fees, to expert witnesses cannot be allowed or
taxed as costs in cases in the federal courts” unless the expert
witness is appointed by the court.
Henkel v. Chicago, St. P., M.
& O. Ry. Co., 284 U.S. 444, 446 (1932) (discussing predecessor
statutes to 28 U.S.C. §§ 1920 and 1821) (citations omitted)).
16
KIA can only recover for the statutory per diem and mileage fees
that it paid to Thomas Lepper, but not for additional amounts it
paid as compensation or fees.
KIA has not shown that it actually paid Thomas Lepper
for his per diem attendance and mileage.
Although KIA submits as
evidence a check it allegedly paid to Lepper in the amount of
$875.00, KIA does not break down what the payment included.
This
court therefore cannot tell whether it included mileage and
attendance, or whether it covered only Lepper’s time.
That is,
this court cannot tell whether Lepper claimed or KIA paid the
$40.00 witness fee or mileage.
See ECF No. 159-14.
KIA is not
entitled to recover any per diem or mileage costs that KIA fails
to show it incurred in the first place.
Lisa Robinson also argues that KIA’s request for the
$40.00 per diem costs for Valenti and Peterson as well as
Peterson’s mileage costs should be denied because KIA failed to
provide proof that it made these payments.
5.
See ECF No. 160, at
Unlike with Lepper, however, there is no suggestion that what
KIA paid Peterson and Valenti could have been for anything other
than the per diem witness fee and mileage fee.
The affidavit by
KIA’s counsel states that KIA actually incurred the costs it
requests for Valenti and Peterson.
See ECF No. 159.
This court
has no reason to doubt that KIA actually incurred costs it says
it incurred.
This court therefore concludes that the affidavit
17
is sufficient to establish KIA’s entitlement to the taxation of
its witness costs for Peterson and Valenti.
KIA is entitled to $691.30 in witness fees.
F.
Exemplification Fees.
KIA lists as exemplification fees the amounts it paid
for certified copies of Kevin Robinson’s and Michele Cameron’s
deposition transcripts, as well its costs to make three
demonstrative exhibits for trial.
See ECF No. 159-1.
This court denies KIA’s request to recover costs for
Kevin Robinson’s certified deposition transcript because, as
discussed above, the deposition itself was not necessary.
KIA
already had a certified transcript of his deposition that it had
ordered in 2011.
See ECF No. 159-8.
KIA may have ordered an
additional certified transcript to submit during trial
proceedings, but this was an unnecessarily incurred cost given
KIA’s knowledge that Kevin Robinson had no interest in the case.
Moreover, the bulk of the cost of this additional certified
transcript was for overnight shipping and handling, which KIA has
neither demonstrated is awardable under 28 U.S.C. § 1920 or
necessary for its case.
The court does not award any costs
relating to the “exemplification fee” for a second copy of Kevin
Robinson’s certified deposition transcript.
This court also denies KIA its costs for the certified
transcript of Michele Cameron’s deposition.
18
Lisa Robinson
designated portions of Michele Cameron’s transcript to be read
into evidence.
See ECF No. 135.
KIA counter-designated portions
of Cameron’s deposition transcript “for laying the foundation for
the witness, for completeness of plaintiffs’ designations and for
providing the context of plaintiffs’ designations.”
at 2-3.
ECF No. 143,
KIA argues that its counter-designation of portions of
Cameron’s deposition testimony necessitated its having to order a
certified copy of her deposition transcript.
5-6.
See ECF No. 162, at
However, Lisa Robinson had filed a complete copy of
Cameron’s deposition before KIA filed its counter-designation.
ECF No. 135-1.
case file.
KIA could have used the transcript already in the
Moreover, if Cameron’s deposition were read at trial,
Lisa Robinson, as the plaintiff, would have used Cameron’s
deposition transcript, and KIA could have used the same
transcript when its counter-designations were read.
In fact,
this court’s experience is that, when deposition readings occur
during trial, the reading is usually from a transcript copy
prepared by attorneys, who have highlighted, blacked out, or
otherwise marked the copy for ease of reading.
That process
would not have required KIA to have its own full certified
transcript copy in addition to the copy Robinson had already
filed.1
1
This court notes that, even if these costs were taxed,
they would be reduced by $55.00 for the shipping and handling
fees.
19
KIA also seeks costs for three demonstrative poster
boards, including a time/mileage chart to show the use of the
vehicle during the period in which Lisa Robinson attempted to
have it repaired, a list of the types of repairs attempted by the
dealership, and a list of possible reasons for the air
conditioner malfunction.
See ECF No. 162, at 7.
The costs of demonstrative exhibits, including visual
aids used at trial, are permitted as “fees for exemplification
and copies of papers necessarily obtained for use in the case.”
28 U.S.C. § 1920(4).
See, e.g., Jo Ann Howard & Assocs., P.C. v.
Cassity, 146 F. Supp. 3d 1071, 1086 (E.D. Mo. 2015)
(“Demonstrative exhibits fall within the ambit of
‘exemplification’ under the Court’s plain language interpretation
of the term” in 28 U.S.C. § 1920(4) (citation omitted)).
“[E]ven
if the demonstrative exhibits qualify as an exemplification, they
must still have been ‘necessarily obtained.’”
Id. (citations
omitted).
These costs are denied because KIA has not shown that
the demonstrative exhibits were necessarily obtained for use in
the case.
KIA could have presented these exhibits to the jury
free of charge via the electronic display system in the
courtroom.
See id. at 1087 (denying costs for demonstrative
exhibits in part because “they could have been presented to the
jury free of charge via the electronic display system in the
20
courtroom”).
KIA knew or should have known that it could use the
court’s audio/visual resources to display electronic
demonstrative exhibits well before KIA incurred the cost of
having its demonstrative exhibits made.
See ECF Nos. 129, 159-
17.
G.
Docket Fees.
KIA seeks to recover $20.00 in docket fees pursuant to
28 U.S.C. § 1920(5) and 28 U.S.C. § 1923.
Section 1923(a) provides:
See ECF No. 159.
“Attorney’s and proctor’s docket fees
in courts of the United States may be taxed as costs as follows:
$20 on trial or final hearing (including a default judgment
whether entered by the court or by the clerk) in civil, criminal,
or admiralty cases[.]”
Lisa Robinson has not objected to the
taxation of this cost.
This court grants KIA’s request to
recover its docket fees of $20.00.
H.
Other Fees.
Finally, KIA seeks $544.50 for the filing of its Answer
in Sacramento County Superior Court before it removed the case to
federal court.
See ECF Nos. 2, 159.
Although federal filing fees may be recovered under 28
U.S.C. §§ 1920(1) and 1923, “neither statute provides for taxing
clerk’s fees paid to state courts, and district courts are
constrained by the federal statutes delineating taxable costs.”
Gregory, 2013 WL 949529, at *2 (citing Crawford, 482 U.S. at
21
442).
III.
This fee is therefore denied.
CONCLUSION.
KIA is entitled to $2,381.45 as costs ($350.00 for fees
of the clerk, $1320.15 for fees for deposition transcripts,
$691.30 for witness fees, and $20.00 for docket fees).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Robinson v. Kia Motors America, Inc., No. 2:10-cv-03187-SOM; ORDER REGARDING
DEFENDANT’S BILL OF COSTS
22
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