Eaglesmith et al v. Ray et al

Filing 277

ORDER signed by Judge John A. Mendez on 3/25/13 GRANTING in part and DENYING in part 251 and 253 Motions to Review Taxation of Costs. The total costs are reduced to $49,398.03, with $12,349.51, a quarter of the total costs, taxed against Bruce Barnes and $12,349.51 taxed against Ramona Eaglesmith. (Manzer, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13

JERALD CLINTON (J.C.)
EAGLESMITH, RAMONA
EAGLESMITH, EILEEN COX, and
BRUCE BARNES,
Plaintiffs,

14
15
16
17
18
19

v.

No.

2:11-cv-00098 JAM-AC

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTIONS TO REVIEW TAXATION OF
COSTS

JEFF RAY, as an individual,
SUE SEGURA, as an individual,
and BOARD OF TRUSTEES OF
PLUMAS COUNTY OFFICE OF
EDUCATION/PLUMAS COUNTY
UNIFIED SCHOOL DISTRICT,
Defendants.

20
21

This matter is before the Court on Plaintiffs Bruce Barnes’

22

and Ramona Eaglesmith’s (collectively “Plaintiffs”) Motions to

23

Review Taxation of Costs (Doc. ##251, 253 respectively).

24

Defendants Jeff Ray, Sue Segura, and the Board Of Trustees Of

25

Plumas County Office Of Education/Plumas County Unified School

26

District (collectively “Defendants”) oppose the motions (Doc.

27

##263, 264) and Plaintiffs replied (Doc ##267, 268).

28

reasons set forth below, Plaintiffs’ motions are GRANTED in part
1

For the

1

and DENIED in part.1

2
3

I.

4

BACKGROUND

There were four individuals originally named as Plaintiffs

5

in this action: Bruce Barnes, Ramona Eaglesmith, J.C. Eaglesmith,

6

and Eileen Cox. On October 31, 2012, this Court granted

7

Defendants’ motions for summary judgment against Plaintiff Bruce

8

Barnes and against Plaintiff Ramona Eaglesmith.

9

Granting Summary Judgment Against Plaintiff Bruce Barnes, Doc

10

#247; Order Granting Summary Judgment Against Plaintiff Ramona

11

Eaglesmith, Doc. #248.

12

Eaglesmith and Eileen Cox survived summary judgment.

13

for Motion Hearing, Doc. #232.

14

See Order

Several claims brought by Plaintiffs J.C.
See Minutes

On November 14, 2012, Defendants filed bills of costs,

15

seeking a quarter of the total costs, $49,966.01, from each of

16

the two losing Plaintiffs.

17

2012, the Clerk of the Court entered orders taxing costs in the

18

amount of $12,491.50 against Plaintiff Barnes and $12,491.50

19

against Plaintiff Eaglesmith for court fees and other costs

20

associated with the litigation.

21

2012, Plaintiffs filed separate motions to review taxation of

22

costs.

Doc. ##233, 239.

On November 30,

Doc. ##249, 250.

On December 7,

Doc. ##251, 253.

23
24
25
26
27
28

1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for March 6, 2013.
2

1

II.

OPINION

2

A.

Legal Standard

3

Federal Rule of Civil Procedure 54(d)(1) provides, in

4

pertinent part, that “costs—other than attorney’s fees—should be

5

allowed to the prevailing party.”

6

This rule creates a presumption that costs will be taxed against

7

the losing party, but “vests in the district court discretion to

8

refuse to award costs” if the losing party shows why costs should

9

not be awarded.

Fed. R. Civ. P. 54(d)(1).

Ass’n of Mexican-Am. Educators v. State of

10

California, 231 F.3d 572, 591-92 (9th Cir. 2000) (en banc).

11

If the court declines to award costs, it must “specify

12

reasons” for denying costs.

Id. (citing Subscription Television,

13

Inc. v. Southern Cal. Theater Owners Ass’n, 576 F.2d 230, 234

14

(9th Cir. 1978)).

15

decision to abide by the presumption and tax costs to the losing

16

party.

17

Cir. 2003) (citing Ass’n of Mexican-Am. Educators, 231 F.3d at

18

592-93).

However, it need not specify reasons for its

Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th

19

In addition, courts are limited to the items enumerated as

20

taxable costs under 28 U.S.C. § 1920, but are free to interpret

21

the meaning and scope of such items.

22

Underwriters Laboratories, Inc., 914 F.2d 175, 176-77 (9th Cir.

23

1990).

24

within the scope of § 1920, the power to tax such costs is

25

qualified only by the requirement that they be necessarily

26

obtained for use in the case.

27

judge or clerk of court may tax as costs the following: (1) Fees

28

of the clerk and marshal; (2) Fees for printed or electronically

Alflex Corp. v.

Once it has been established that a certain item falls

Id.

3

Section 1920 provides that a

1

recorded transcripts necessarily obtained for use in the case;

2

(3) Fees and disbursements for printing and witnesses; (4) Fees

3

for exemplification and the costs of making copies of any

4

materials where the copies are necessarily obtained for use in

5

the case; (5) Docket fees under §1923 of this title;

6

(6) Compensation of court appointed experts, compensation of

7

interpreters, and salaries, fees, expenses, and costs of special

8

interpretation services under § 1828 of this title. 28 U.S.C.

9

§ 1920.

10

B.

11

Although Plaintiffs submitted separate motions to review

Discussion

12

costs, the arguments for both are largely the same and

13

therefore, the Court addresses both motions together.

14

1.

Apportionment of Costs

15

Plaintiffs argue that costs should be denied because

16

Defendants have made no effort to attribute particular costs to

17

the causes of action brought by each individual Plaintiff.

18

Defendants disagree, arguing that Plaintiffs are jointly and

19

severally liable for all the costs incurred and therefore,

20

apportioning a quarter of the total costs to each Plaintiff is

21

permissible.

22

Although neither party has provided Ninth Circuit case law

23

on the issue, the general rule is that a district court may

24

apportion costs between parties as it sees fit.

25

Sacramento County Jail, 258 F.R.D. 657, 660 (E.D. Cal. 2009)

26

(citing Croker v. Boeing Co. (Vertol Div.), 662 F.2d 975, 998 (3d

27

Cir. 1981)).

28

side of the bar—either prevailing or non-prevailing—the court may

See Tubbs v.

“In dividing costs among multiple parties on one

4

1

choose to impose costs jointly and severally or to disaggregate

2

costs and to impose them individually.”

3

the losing parties to introduce evidence and persuade the court

4

that costs should be apportioned.”

5

“the default rule is that costs may be imposed jointly and

6

severally.”

7

221 F.3d 449, 469 (3d Cir. 2000)).

8

has the burden of establishing that costs are so uniquely

9

particular to another party that it would be inequitable to tax

Id.

Id.

The burden is “on

If they fail to do so,

Id. (citing In re Paoli R.R. Yard PCB Litigation,
As a result, a losing party

10

those costs against them.

11

Inc., 697 F. Supp. 2d 1139, 1147 (N.D. Cal. 2010) (citing In re

12

Paoli R.R. Yard PCB Litigation, 221 F.3d at 471).

13

Hynix Semiconductor Inc. v. Rambus

Here, Plaintiffs litigated this case as one unit, shared

14

legal counsel, consolidated discovery, and Plaintiffs are in a

15

better position than Defendants to specifically apportion and

16

segregate costs between Plaintiffs Barnes and Eaglesmith.

17

Moreover, Plaintiffs have provided no evidence to demonstrate

18

that certain costs are unique to the claims or defenses of

19

another party and should therefore be specifically apportioned.

20

Accordingly, the Court finds that holding Plaintiffs jointly and

21

severally liable is appropriate in this case.

22

are jointly and severally liable for the costs, the Court has

23

discretion to divide the costs equally among the four Plaintiffs

24

to reduce the risk of duplicative costs.

25

Fresh Meats, Inc., 457 F.3d 748, 764 (8th Cir. 2006) (affirming

26

the district court’s equitable division of costs among thirteen

27

plaintiffs against a common defendant because it reduces the risk

28

of duplicative costs).
5

Because Plaintiffs

See Marmo v. Tyson

1

The Court, therefore,

2

quarter of the total costs.

3

2.

4
5

holds each Plaintiff liable for one

Plaintiff Defendants’ Specific Costs
a.

Deposition Costs

Plaintiffs argue that Defendants have made no effort to

6

distinguish which depositions were taken to rebut Plaintiff

7

Barnes’ and Plaintiff Eaglesmith’s claims.

8

above, Plaintiffs bear the burden of demonstrating that the fees

9

should be apportioned, which they have not done.

However, as mentioned

To the

10

contrary, both Plaintiffs argue that they are essential witnesses

11

in support of Plaintiffs J.C. Eaglesmith’s and Eileen Cox’s

12

claims, further demonstrating that Plaintiffs have argued this

13

case as a unit.

14

persuade the Court that the deposition costs should be

15

apportioned, the Court finds that Plaintiffs have not met their

16

burden.

17

(“Hynix has not met its burden of demonstrating how the

18

depositions of Micron, Nanya or Samsung witnesses are so unique

19

to the claims and defenses related to them as opposed to being

20

related to the common claims and defenses asserted by all the

21

manufacturers including Hynix.”)

22

b.

23

Because Plaintiffs have provided no evidence to

See Hynix Semiconductor Inc., 697 F. Supp. 2d at 1148

Computer Technician Costs

Plaintiffs argue that Defendants have buried numerous

24

charges for computer technician fees under different fee

25

categories, including costs for “heavy litigation scanning,”

26

bates labeling in electronic format,” “optical character

27

recognition,” “hourly tech time,” “make 1 blowback set of all PDF

28

files outside off folders; slipsheet with file name,” among
6

1
2

others.

Defendants contend that all these fees are recoverable.

Under § 1920(4), “fees are permitted only for the physical

3

preparation and duplication of documents, not the intellectual

4

effort involved in their production.”

5

1418, 1428 (9th Cir. 1989) abrogated on other grounds by Townsend

6

v. Holman Consulting Corp., 914 F.2d 1136 (9th Cir. 1990). Thus,

7

costs associated with physically replicating or producing

8

documents or data are recoverable under § 1920(4), while costs

9

arising out of discovery-related activities tied to strategic,

10

confidentiality, or other types of concerns typically entrusted

11

to lawyers involve intellectual effort and are not recoverable.

12

Id. at 1427–28 (affirming the district court’s denial of costs

13

associated with “fees paid to the experts who assembled, analyzed

14

and distilled the data incorporated into their trial exhibits”);

15

Competitive Techs. v. Fujitsu Ltd., No. 02–1673, 2006 WL 6338914,

16

at *9 (N.D. Cal. Aug.23, 2006) (distinguishing Romero, and

17

awarding costs for Bates stamping documents before production, on

18

the grounds that “[e]xpert research is not the same as Bates

19

stamping, which the Court determines is an aspect of the physical

20

preparation or duplication of documents”).

21

Romero v. Pomona, 883 F.2d

Here, the costs mentioned by Plaintiffs relate to production

22

and do not include costs associated with strategic review of

23

documents or decision-making.

24

associated with intellectual effort.

25

converting e-data from one format into another, blowbacks, and

26

Bates stamping are valid exemplification costs.

27

Inc. v. Aliph, Inc., No. 09-01714, 2012 WL 6761576, *12 (N.D.

28

Cal. Oct. 23, 2012) (“Printing copies (or blowbacks), printing

Therefore, these costs are not

7

Further, costs related to

See Plantronics,

1

native files from the computer to PDF . . . are the equivalent of

2

photocopying.

3

or paper discovery, including Bates stamping and putting

4

slipsheets (or some marker) between documents to show document

5

breaks.”); see also

6

WVG, 2011 WL 4835742, *7-8 (S.D. Cal. Oct. 12, 2011) (noting that

7

courts are divided over whether converting e-data from one format

8

into another is a valid exemplification cost but holding that

9

converting data into .TIFF format was a valid cost).

10

Certain ancillary tasks are common to electronic

Jardin v. DATAllegro, Inc., 08-CV-1462-IEG

Accordingly, except for optical character recognition

11

(“OCR”), which is discussed below, the Court finds that these

12

costs related to electronic discovery are recoverable.

13
14

c.

Copying Costs

Plaintiffs argue that Defendants have not identified which

15

copying costs were necessary to defend their claims.

16

particular, Plaintiffs contend that the costs of creating

17

electronically searchable documents are not recoverable.

18

In

Pursuant to § 1920(2), “[f]ees for printed or electronically

19

recorded transcripts necessarily obtained for use in the case”

20

are taxable costs.

21

or deposition is ‘necessary’ must be determined in light of the

22

facts known at the time the expense was incurred.”

23

Behavioral Health, Inc. v. Alameda County Med. Ctr., 646 F. Supp.

24

2d 1206, 1219 (E.D. Cal. 2009) (citing Estate of Le Blanc v. City

25

of Lindsay, No. 04–5971, 2007 WL 2900515, at *2 (E.D. Cal. Sept.

26

28, 2007)).

27

electronically searchable, is not taxable, unless requested by

28

the parties, because it is generally for the convenience of the

28 U.S.C. § 1920(2).

“Whether a transcript

Sunstone

Courts have held that OCR, which makes documents

8

1

parties.

2

Opportunity Fund, No. 08-4575, 2012 WL 177566 (N.D. Cal. Jan. 23,

3

2012) (holding that “that OCR and metadata extraction are not

4

recoverable.”)(citation omitted); Computer Cache Coherency Corp.

5

v. Intel Corp., No. 05-01766, 2009 WL 5114002, at *4 (N.D. Cal.

6

Dec. 18, 2009) (holding that OCR and metadata extraction are not

7

recoverable because both were for the convenience of the

8

lawyers).

City of Alameda, Cal. v. Nuveen Mun. High Income

9

Here, Defendants seek a total of $567.98 in OCR costs.

10

Bill of Costs Against Plaintiff Bruce Barnes, Doc. #234 at 4, and

11

Doc. #235 at 2; Bill of Costs Against Plaintiff Ramona

12

Eaglesmith, Doc. #240 at 4, and Doc. #241 at 2.

13

is no evidence that the parties agreed to make documents

14

searchable; therefore, the costs associated with OCR are not

15

recoverable.

16
17
18
19

See

However, there

Accordingly, the Court finds that the total amount taxed
should be reduced by $567.98 to $49,398.03.
3.

Civil Rights Litigants

Plaintiffs contend that the Court should deny all costs

20

because they were part of a larger litigation effort to remedy

21

invidious discrimination in the Plumas County public schools.

22

Defendants argue that Plaintiffs’ civil rights case was not of

23

great public importance and involved only personal claims.

24

The Ninth Circuit has held that “[d]istrict courts should

25

consider the financial resources of the plaintiff and the amount

26

of costs in civil rights cases” because “the imposition of such

27

high costs on losing civil rights plaintiffs of modest means may

28

chill civil rights litigation.”

Stanley v. Univ. of S.
9

1

California, 178 F.3d 1069, 1079-80 (9th Cir. 1999) (citations

2

omitted).

3

“important issues . . . the answers [to which are] far from

4

obvious,” id. at 1080, issues of “substantial public importance,”

5

and are “close and difficult.”

6

Educators (“Association”), 231 F.3d at 591–92.

7

the Ninth Circuit affirmed the district court’s denial of a cost

8

award exceeding $200,000 because the plaintiffs’ claims had

9

statewide implications for the public schools of California,

These concerns are present in cases that raise

Assoc. of Mexican–American
In Association,

10

their students, and a significant contingent of their teachers.

11

Id. at 592.

12

Here, Plaintiffs have not provided any evidence of their

13

financial resources and the cost award is substantially lower

14

than the costs sought but denied in Association.

15

even though Plaintiffs’ claims involved discrimination at Plumas

16

County public schools, the relief they sought, if obtained, was

17

limited to them with no greater implications.

18

Court is not persuaded that Plaintiffs’ claims involved issues of

19

substantial public importance.

20
21

In addition,

Therefore, the

Accordingly, the Court finds that complete denial of costs
is not warranted.

22

C.

Stay Pending Resolution

23

Plaintiffs request, for the first time in their replies, for

24

this Court to stay costs pending completion of the underlying

25

litigation pursuant to Federal Rule of Civil Procedure 62.

26

However, “It is improper for a moving party to introduce new

27

facts or different legal arguments in the reply brief than those

28

presented in the moving papers.”
10

United States ex rel. Giles v.

1

Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000); see also

2

State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990)

3

(“[Parties] cannot raise a new issue for the first time in their

4

reply briefs.”)(citations omitted)).

5

not have the opportunity to address whether a stay would be

6

appropriate in this case.

7

Court to consider it.

In addition, Defendants did

Accordingly, it is improper for the

8
9
10

III. ORDER
For the foregoing reasons, Plaintiffs’ motions are GRANTED

11

in part and DENIED in part.

12

$49,398.03, with $12,349.51, a quarter of the total costs, taxed

13

against Bruce Barnes and $12,349.51 taxed against Ramona

14

Eaglesmith.

15
16
17

The total costs are reduced to

IT IS SO ORDERED.
Dated: March 25, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
11