National Union Fire Insurance Company of Pittsburgh, PA v. Allied Property and Casualty Insurance Company
Filing
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ORDER TAXING COSTS signed by Chief Judge Morrison C. England, Jr. on 7/15/2014 ORDERING 89 Costs are taxed in favor of Plaintiff in the amount of $10,734.39. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA., a
Pennsylvania corporation,
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Plaintiff,
No. 2:12-cv-01380-MCE-KJN
ORDER TAXING COSTS
v.
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY, an Iowa
corporation,
Defendant.
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On April 14, 2004, this Court granted summary judgment in favor of Defendant
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Allied Property and Casualty Insurance Company (“Defendant”). As the prevailing party,
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Defendant has filed a Bill of Costs, pursuant to 28 U.S.C. § 1920, in the amount of
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$15,722.53. Plaintiff National Union Fire Insurance Company of Pittsburgh, PA
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(“Plaintiff”) has filed Objections to that request. No reply to those objections was
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tendered on behalf of the defense.
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Under Federal Rule of Civil Procedure 54(d), the prevailing party in a lawsuit may
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recover its costs “unless the court otherwise directs.” As this language suggests, the
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ultimate decision on whether to award costs is a matter within the court’s discretion.
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Ass’n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 591-92 (9th Cir. 2000).
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Pursuant to Local Rule 292(a), costs are awardable in conformity with the provisions of
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28 U.S.C. §1920, and such other provisions of law as may be applicable. In addition,
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Local Rule 292(f)(11) allows the Court to tax other items it believes should be
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compensable “in the interest of justice.” If the court declines to award costs as
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requested by the prevailing party it should specify its reasons for doing so. Berkla v.
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Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002).
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Plaintiff objects to three separate categories of costs claimed. First, it asserts that
witness fees sought for Christopher Caskey are improper and should be disallowed.
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Second, Plaintiff takes issue with certain “messenger services” incurred by Defendant.
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Third and finally, Plaintiff contends that Defendant has failed to establish that much of
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the claimed exemplification and copying expense were “necessarily obtained for use in
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the case” as required in order to be recoverable under 28 U.S.C. § 1920(4).
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Turning first to witness fees, Mr. Caskey is the only individual for whom
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reimbursement is sought. Defendant correctly points out that an ordinary witness “shall
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be paid an attendance fee of $40 per day for each day’s attendance,” plus permissible
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expenses. 28 U.S.C. § 1821(b), (c). Absent express statutory authority for shifting fees
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(with respect to certain court-appointed experts, for example), reimbursement for witness
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fees is limited by § 1821(b). Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). As
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Plaintiff points out, Defendant has neither identified Caskey as an expert nor cited any
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authority that permits the Court to expand Mr. Caskey’s fee. Consequently, the taxable
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costs attendant to Caskey’s deposition are limited to the statutorily prescribed $40 fee,
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plus claimed mileage in accordance with 28 U.S.C. § 1821(c)(2). This brings the taxable
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amount down from the $848.56 figure claimed by Defendant to $167.65, in addition to
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the $127.65 in mileage expense which is compensable under § 1821(c)(2).
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Plaintiff secondly objects to “messenger services” totaling $180.42 that were
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incurred in overnighting documents by FedEx to this Court and to the Nevada County
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Superior Court. Those costs are not recoverable. Communication charges like courier,
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mail, telephone, telex and fax costs cannot be taxed. El-Fadl v. Central Bank of Jordan,
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163 F.R.D. 389, 390 (D.D.C. 1995).
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Third and finally, with respect to whether copy and exemplification charges were
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“necessarily obtained for use in the case,” the Court finds that much of the $4,550.12
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has not been shown to meet that threshold. The burden is on the prevailing party, here
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Defendant, to establish the amount of compensable costs to which it is entitled.
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G.M. ex rel. Marchese v. Drycreek Joint Elem. Sch. Dist., 2013 WL 59555076 at *2 (E.D.
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Cal. Nov. 7, 2013). Plaintiff specifically takes issue with an invoice totaling $3,450.16
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that contains no information as to the content of the documents, or even a clear
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indication of their source. Plaintiff similarly objects to a $676.75 invoice from First Legal
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Solutions since the invoice sheds no light on either the contents or the source of the
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“1,947 B/W scans” listed as having been made. Those objections are well taken. In
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addition, Defendant has filed nothing by way of response to Plaintiff’s objections that
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would further substantiate its claims in this regard. While the Court does find the
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remainder of the copying expenses to be compensable, subtracting the above two items
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brings the taxable amount down by $4,126.81, or from $4,550.12 to $423.31.
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Given the foregoing, costs are taxed in favor of Plaintiff in the amount of
$10,734.39.
IT IS SO ORDERED.
Dated: July 15, 2014
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