Davis v. Hollins Law

Filing 106

ORDER signed by Judge Lawrence K. Karlton on 6/24/14 ORDERING that the court hereby GRANTS plaintiff's bill of costs in the amount of $1923.15. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DAVIS,

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No. CIV. S-12-3107 LKK/AC

Plaintiff,
v.

ORDER

HOLLINS LAW, A PROFESSIONAL
CORPORATION,

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Defendant.
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Plaintiff Michael Davis sued defendant Hollins Law, A

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Professional Corporation, alleging violations of the federal Fair

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Debt Collection Practices Act, 15 U.S.C. §§ 1692 - 1692p

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(“FDCPA”) and California’s Rosenthal Fair Debt Collection

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Practices Act, Cal. Civ. Code §§ 1788 - 1788.33 (“Rosenthal

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Act”). The gravamen of plaintiff’s complaint was that defendant

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placed collection calls to his home phone, and left a voicemail

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message which failed to disclose that the communication was from

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a debt collector, violating both statutes.

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On April 15, 2014, a bench trial was held in this matter. At

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its conclusion, the court found that defendant had violated the

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FDCPA and the Rosenthal Act. The court deferred its ruling on
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damages, and directed plaintiff to file a petition for his

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attorney’s fees. Plaintiff did so, but also filed an untimely

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bill of costs. By order dated June 10, 2014, the court awarded

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plaintiff $250.00 in damages and $35,813.30 in attorney’s fees,

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but denied plaintiff’s cost bill without prejudice. Davis v.

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Hollins Law, __ F. Supp. 2d __, 2014 WL 2619651, 2014 U.S. Dist.

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LEXIS 81024 (E.D. Cal. Jun. 12, 2014).

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Plaintiff has now filed a renewed bill of costs, seeking a

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total of $2392.90. (ECF No. 103.) Defendant has filed objections

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thereto.

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below.

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I. May plaintiff claim his attorneys’ travel expenses as costs?

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(ECF

No. 104.)

These

filings

are

considered

in

turn

Plaintiff claims $1,996.95 in airfare and hotel expenses
incurred by his counsel, who was based in Los Angeles.
Defendant objects, correctly, that such travel expenses are

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not taxable as costs. 28 U.S.C. § 1920 provides for taxation of

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the following costs:

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(1) Fees of the clerk and marshal;
(2) Fees
for
printed
or
electronically
recorded transcripts necessarily obtained for
use in the case;

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(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;
(5) Docket fees under section 1923 of this
title;

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(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
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fees,
expenses,
and
costs
of
special
interpretation services under section 1828 of
this title.

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Local Rule 292(f) additionally provides for the taxation of costs

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attributable to: (1) per diem, mileage, and subsistence for

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witnesses (under 28 U.S.C. § 1821); (2) fees to masters,

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receivers, and commissioners (under Fed. R. Civ. P. 53(a)); (3)

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certain costs on appeal (under Fed. R. App. P. 39(e)); and

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(4) “[o]ther items allowed by any statute or rule or by the Court

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in the interest of justice.”

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According to the Supreme Court, “Section 1920 enumerates

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expenses that a federal court may tax as a cost under the

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discretionary authority found in Rule 54(d).” Crawford Fitting

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Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). Rule 54(d), in

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turn, provides that “unless . . . a court order provides

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otherwise, costs – other than attorney's fees – should be allowed

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to the prevailing party.” However, “the discretion granted by

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Rule 54(d) is not a power to evade [the Rule’s] specific

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congressional command. Rather, it is solely a power to decline to

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tax, as costs, the items enumerated in [28 U.S.C.] § 1920.”

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Crawford Fitting, 482 U.S. at 442.

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If the court were to halt its analysis here, then it would

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have to decline to award plaintiff’s travel expenses as costs.

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However, plaintiff is not proceeding solely under 28 U.S.C.

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§ 1920, Rule 54(d), and Local Rule 292. The FDCPA explicitly

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provides for the plaintiff to recover, “in the case of any

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successful action to enforce the foregoing liability, the costs

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of the action . . . .” 15 U.S.C. 1692k(a)(3). In the Ninth

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Circuit, fee-shifting statutes which provide for the recovery of

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costs by prevailing plaintiffs provide a sufficient basis for the

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recovery of travel expenses. “Plaintiffs are entitled to their

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transportation costs as part of an award of fees under section

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1988. Even though not normally taxable as costs, out-of-pocket

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expenses incurred by an attorney which would normally be charged

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to a fee paying client are recoverable as attorney’s fees under

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section 1988.” Chalmers v. City of Los Angeles, 796 F.2d 1205,

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1216 n. 7 (9th Cir. 1986). See also Grove v. Wells Fargo Fin.

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Cal., Inc., 606 F.3d 577, 580 (9th Cir. 2010) (“[W]e repeatedly

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have allowed prevailing plaintiffs to recover non-taxable costs

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where statutes authorize attorney’s fees awards to prevailing

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parties.”).

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In at least one subsequent, unpublished opinion, the Ninth

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Circuit applied Chalmers to award non-taxable costs to a

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prevailing plaintiff in an FDCPA case. See Giovannoni v. Bidna &

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Keys, 255 Fed. Appx. 124, 126 (9th Cir. 2007) (citing 15 U.S.C.

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§ 1692k(a)(3)). Several magistrate judges in this Circuit have

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followed suit in other FDCPA cases. See Lowe v. Elite Recovery

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Solutions L.P., No. S–07–0627-RRB-GGH, 2008 WL 324777, 2008 U.S.

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Dist. LEXIS 8353 (E.D. Cal. Feb. 5, 2008); Goray v. Unifund CCR

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Partners, No. 06–00214-HG–LEK, 2008 WL 2404551, 2008 U.S. Dist.

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LEXIS 47130 (D. Haw. Jun. 13, 2008).

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Accordingly, plaintiff, as the prevailing party, is entitled

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to recover non-taxable costs stemming from his attorney’s travel

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to and from this judicial district. This decision is in keeping

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with the court’s previously-expressed view that “[C]onsumers in

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the

Eastern

District

ought

to
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enjoy

similar

flexibility

in

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responding to unfair collection practices that debt collectors do

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in defending themselves.” Davis, __ F. Supp. 2d at __, 2014 WL

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2619651 at *5, 2014 U.S. Dist. LEXIS 81024 at *14-15. To deny

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attorneys

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recover

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meritorious

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undesirable result.1

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II. May plaintiff claim his deposition-related travel expenses as
costs?

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their

outside

this

travel

expenses

cases

within

judicial

this

may

district
deter

district,

the

them
which

ability
from

would

to

taking
be

an

Plaintiff claims $393.80 in travel expenses for “FLIGHTS FOR

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from

DEPO.”

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Defendant objects, arguing that plaintiff’s counsel did not

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attend July 5, 2013 plaintiff’s deposition, but instead retained

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local counsel to handle the matter.

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It may be that plaintiff’s counsel flew to Sacramento not

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for the deposition, but to prepare plaintiff for his deposition.

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Billing records that plaintiff previously filed in support of his

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earlier attorney’s fee motion show 0.5 hours billed on July 3,

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2013 for “Deposition preparation with client.” (ECF No. 91-1.)

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Regardless, it is immaterial whether the claimed travel expenses

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were for deposition preparation, rather than for a deposition

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that plaintiff’s counsel did not attend. As previously noted,

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As for defendant’s objection that plaintiff’s travel expenses
are unreasonable because they “could have been avoided if
[p]laintiff’s counsel had filed the matter in the Central
District of California,” the court previously observed that “[i]f
defendant objected to the chosen venue, it could have brought a
motion to transfer under 28 U.S.C. § 1404. Objecting to venue at
this late date is churlish.” Davis, __ F. Supp. 2d at __, 2014 WL
2619651 at *7, 2014 U.S. Dist. LEXIS 81024 at *21. For defendant
to again raise this objection is doubly churlish.
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“Counsel’s failure to adequately prepare plaintiff for deposition

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is inexcusable,” Davis,__ F. Supp. 2d at __, 2014 WL 2619651 at

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*9, 2014 U.S. Dist. LEXIS 81024 at *25-26. As proper deposition

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preparation could have ended this case much earlier, the court

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will disallow these costs.

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III. What service-related costs may plaintiff claim?

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Plaintiff claims $75.95 in service fees.

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Defendant objects to these fees, arguing that, per Local

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Rule 292(f)(2), plaintiff may only claim fees for service by a

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person other than the Marshal . . . to the extent they do not

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exceed the amount allowable for the same service by the

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Marshal . . . .” According to Defendant, “Plaintiff has not

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presented evidence as to the total amount he would have been

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charged by the U.S. Marshals, therefore it cannot be determine

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[sic] if the amount he requested exceeds the amount that would be

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charged by the U.S. Marshals . . . .” (Opposition 5, ECF

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No. 104.)

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This objection is valid. The Marshals Services’ fees are

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established by regulation, 28 C.F.R. § 0.114, at an hourly rate,

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currently “$65 per hour (or portion thereof) for each item

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served . . . .” Here, the length of time required for service is

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not noted and the equivalent cost for service by the Marshals

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cannot be calculated. Accordingly, plaintiff has not demonstrated

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the level of compensation to which he is entitled.

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IV. CONCLUSION

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Defendant’s remaining objections are meritless. In light of
the foregoing, the amount allowed under plaintiff’s Bill of Costs

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will be decreased by $469.75. Accordingly, the court hereby

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GRANTS plaintiff’s bill of costs in the amount of $1923.15.

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IT IS SO ORDERED.

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DATED:

June 24, 2014.

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