Friends of Tahoe Forest Access et al v. United States Department of Agriculture et al

Filing 61

ORDER signed by Judge John A. Mendez on 4/16/2014 OVERRULING 53 Objections to 52 Bill of Costs; GRANTING the defendants' costs; AWARDING costs in the amount of $14,875.23. (Michel, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRIENDS OF TAHOE FOREST ACCESS, et al., No. 12-cv-01876 JAM-CKD 12 Plaintiffs, 13 v. 14 15 16 UNITED STATES DEPARTMENT OF AGRICULTURE, et al., ORDER OVERRULING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ BILL OF COSTS AND AWARDING COSTS TO DEFENDANTS Defendants. 17 18 This matter is before the Court on Defendants U.S. 19 Department of Agriculture; Tom Vilsack, Secretary of the 20 Department of Agriculture; U.S. Forest Service; Tom Tidwell, 21 Chief of the U.S. Forest Service; Randy Moore, Regional Forester 22 for the U.S. Forest Service’s Pacific Southwest Region; and Tom 23 Quinn’s, Forest Supervisor at the Tahoe National Forest, 24 (collectively “Defendants”) Bill of Costs (Doc. #52). 25 Friends of Tahoe Forest Access, Webilt Four Wheel Drive Club, 26 Friends of Greenhorn, Nevada County Woods Riders, Grass Valley 4- 27 Wheel Drive Club, High Sierra Motorcycle Club, David C. Wood, and 28 Kyra (collectively “Plaintiffs”) filed objections to Defendants’ 1 Plaintiffs 1 bill of costs (Doc. #53) and Defendants replied (Doc. #59). 1 2 the following reasons, the Court overrules Plaintiffs’ objections 3 to Defendants’ bill of costs and awards costs to Defendants. For 4 5 I. 6 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND The facts are well known to the parties and therefore the 7 following is only a brief summary. On January 6, 2014, the Court 8 granted summary judgment in favor of Defendants on all seven 9 causes of actions and denied Plaintiffs’ motion for summary 10 judgment. 11 After judgment was entered, Defendants submitted their bill of 12 costs, requesting $14,875.23 (Doc. #52). Order Granting Defendants’ Motion (“Order”), Doc. #50. 13 14 II. OPINION 15 A. Legal Standard 16 Federal Rule of Civil Procedure 54(d)(1) provides, in 17 pertinent part, “Unless a federal statute, these rules, or a 18 court order provides otherwise, costs—other than attorney’s fees— 19 should be allowed to the prevailing party.” 20 54(d)(1). 21 taxed against the losing party, but “vests in the district court 22 discretion to refuse to award costs” if the losing party shows 23 why costs should not be awarded. 24 v. State of California, 231 F.3d 572, 591-92 (9th Cir. 2000) (en 25 banc). Fed. R. Civ. P. This rule creates a presumption that costs will be Ass’n of Mexican-Am. Educators 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 April 9, 2014. 2 1 If the court declines to award costs, it must “specify 2 reasons” for denying costs. 3 Inc. v. Southern Cal. Theater Owners Ass’n, 576 F.2d 230, 234 4 (9th Cir. 1978)). 5 decision to abide by the presumption and tax costs to the losing 6 party. 7 Cir. 2003) (citing Ass’n of Mexican-Am. Educators, 231 F.3d at 8 592-93). 9 However, it need not specify reasons for its Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th B. 10 11 Id. (citing Subscription Television, Discussion 1. Request to Defer Plaintiffs request that the Court exercise its discretion to 12 defer consideration of the bill of costs during the appeal of 13 this case. 14 the Court from ruling on Defendants’ bill of costs. 15 to the Advisory Committee Notes for Federal Rule of Civil 16 Procedure 54(d)(“Rule 54”), “If an appeal on the merits of the 17 case is taken, the court may rule on the claim for fees, may 18 defer its ruling on the motion, or may deny the motion without 19 prejudice, directing under subdivision (d)(2)(B) a new period for 20 filing after the appeal has been resolved.” 21 54(d) Advisory Committee Notes on 1993 Amendments. 22 the Court exercises its discretion and finds that there is no 23 basis to defer a decision on the bill of costs pending 24 Plaintiffs’ appeal. 25 26 Defendants respond that the appeal does not prevent 2. Pursuant to Fed. R. Civ. P. Accordingly, Administrative Record Plaintiffs contend that the declaration submitted by 27 Defendants does not provide sufficient justification for the 28 portions of the administrative record that were provided. 3 1 However, Defendants were required to file a hard copy of the 2 administrative record with the Court pursuant to Local Rule 3 138(b), which provides that “attorneys shall, if possible, submit 4 the administrative record in electronic format with a mandatory 5 courtesy copy in paper for the assigned Judge or Magistrate 6 Judge.” 7 providing a copy of the administrative record to the Court were 8 necessarily incurred. 9 hard copy of only a portion of the administrative record, as L.R. 138(b). Therefore, any costs associated with Further, Defendants’ decision to provide a 10 authorized by the Court, reduced the overall cost and is not a 11 ground to deny costs. 12 13 3. Print Orders Plaintiffs argue that there is no indication why Defendants 14 believed it was necessary or appropriate to send a copying job to 15 an outside contractor. 16 recoverable even if they are contracted out. 17 Further, neither Rule 54 nor § 1920 prohibit the use of an 18 outside contractor to make copies. 19 administrative record was necessary in this case. 20 the use of an outside contractor is part of Defendants’ practice 21 and the contract was awarded pursuant to low-bid contracting. 22 Decl. of Terry Brennan ¶¶ 8, 10-13. 23 are recoverable. 24 4. Defendants contend that copying costs are 28 U.S.C. § 1920(4). As mentioned above, the In addition, Therefore, the copying costs Print Orders 25 Plaintiffs also argue that Print Orders 2-00028-GPO-12 and 26 3-0032-GPO-13 do not provide sufficient information to form the 27 basis of cost recovery. 28 questions regarding the print orders, they fail to provide any Although Plaintiffs raise several 4 1 case law to support their argument that Defendants should not 2 recover these costs. 3 Under § 1920(4), “fees are permitted only for the physical 4 preparation and duplication of documents, not the intellectual 5 effort involved in their production.” 6 1418, 1428 (9th Cir. 1989) abrogated on other grounds by Townsend 7 v. Holman Consulting Corp., 914 F.2d 1136 (9th Cir. 1990). 8 costs mentioned by Plaintiffs relate to production and do not 9 include costs associated with strategic review of documents or Romero v. Pomona, 883 F.2d The 10 decision-making. 11 intellectual effort. 12 from one format into another, blowbacks, and Bates stamping are 13 valid exemplification costs. 14 Inc., No. 09-01714, 2012 WL 6761576, *12 (N.D. Cal. Oct. 23, 15 2012) (“Printing copies (or blowbacks), printing native files 16 from the computer to PDF . . . are the equivalent of 17 photocopying. 18 or paper discovery, including Bates stamping and putting 19 slipsheets (or some marker) between documents to show document 20 breaks.”); see also Jardin v. DATAllegro, Inc., 08-CV-1462-IEG 21 WVG, 2011 WL 4835742, *7-8 (S.D. Cal. Oct. 12, 2011) (noting that 22 courts are divided over whether converting e-data from one format 23 into another is a valid exemplification cost but holding that 24 converting data into .TIFF format was a valid cost). Therefore, these costs are not associated with Further, costs related to converting e-data See Plantronics, Inc. v. Aliph, Certain ancillary tasks are common to electronic 25 In addition, both invoices list the services provided and 26 Defendants have also provided a declaration explaining all the 27 costs. 28 finds that these costs are recoverable and the invoices provide See Decl. of Terry Brennan ¶¶ 4-12. 5 Therefore, the Court 1 sufficient detail to substantiate the costs incurred to create 2 electronic and hard copies of the administrative record. 3 5. 4 Transcript Plaintiffs claim that Defendants overpaid for the transcript 5 by paying $262.80 because Plaintiffs only paid $94.50. 6 as Defendants point out, the first party to order a transcript 7 pays the original transcript rate while later parties pay a lower 8 rate. 9 http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCour 10 ts/DistrictCourts/FederalCourtReportingProgram.aspx (last visited 11 April 11, 2014). 12 transcript. United States Courts, Federal Court Reporting Program, 13 14 However, 6. Accordingly, Defendants did not overpay for the NEPA Cases Plaintiffs also argue that costs should not be taxed in this 15 case because the case presented issues of national importance, 16 this case was close and complex, and awarding costs would chill 17 future NEPA suits. Opp. 12-14. 18 The Ninth Circuit has held that “[d]istrict courts should 19 consider the financial resources of the plaintiff and the amount 20 of costs in civil rights cases” because “the imposition of such 21 high costs on losing civil rights plaintiffs of modest means may 22 chill civil rights litigation.” 23 California, 178 F.3d 1069, 1079-80 (9th Cir. 1999) (citations 24 omitted). 25 “important issues . . . the answers [to which are] far from 26 obvious,” id. at 1080, issues of “substantial public importance,” 27 and are “close and difficult.” 28 Educators (“Association”), 231 F.3d at 591–92. Stanley v. Univ. of S. These concerns are present in cases that raise Assoc. of Mexican–American 6 In Association, 1 the Ninth Circuit affirmed the district court’s denial of a cost 2 award exceeding $200,000 because the plaintiffs’ claims had 3 statewide implications for the public schools of California, 4 their students, and a significant contingent of their teachers. 5 Id. at 592. 6 Here, Plaintiffs have not provided any evidence of their 7 financial resources and the cost award is substantially lower 8 than the costs sought but denied in Association. 9 although NEPA cases are important, the nature of the case in and In addition, 10 of itself is insufficient for a court to refuse to award costs. 11 See e.g., Pit River Tribe v. Bureau of Land Mgmt., 2:04-CV-00956 12 JAM, 2013 WL 6185240 (E.D. Cal. Nov. 26, 2013) (awarding 13 $19,851.60. in costs to the prevailing defendants in a NEPA 14 lawsuit). 15 action and their bill of costs is neither exorbitant or 16 unreasonable. 17 costs. Defendants were the prevailing party on all causes of Accordingly, they are entitled to all of their 18 19 20 III. ORDER For the reasons set forth above, the Court overrules 21 Plaintiffs’ objections and grants Defendants’ costs. 22 awarded are $14,875.23. 23 24 IT IS SO ORDERED. Dated: April 16, 2014 25 26 27 28 7 Total costs

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