Pruitt v. Genentech, Inc.

Filing 184

ORDER signed by District Judge John A. Mendez on 8/26/19 GRANTING in part and DENYING in part 167 Bill of Costs filed by Timothy Pruitt and 169 Bill of Costs filed by Genentech, Inc.. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY PRUITT,

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No.

2:17-cv-00822-JAM-AC

Plaintiff,
v.
GENENTECH, INC.,
Defendant.

ORDER GRANTING IN PART AND
DENYING PLAINTIFF’S BILL OF
COSTS, AND GRANTING IN PART AND
DENYING IN PART DEFENDANT’S BILL
OF COSTS

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Timothy Pruitt filed a lawsuit in Solano County Superior

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Court after Genentech, Inc. fired him in July 2016.

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count complaint alleged violations of the California Fair

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Employment and Housing Act (“FEHA”), California Labor Code

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Section 1102.5, the California Family Rights Act (“CFRA”), and

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the Family and Medical Leave Act (“FMLA”).

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He also raised defamation and wrongful termination claims.

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Genentech removed this case to federal court.
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His ten-

Compl., ECF No. 1-1.
Id.

Notice of Removal,

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ECF No. 1.

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The Court dismissed Pruitt’s defamation claim.

ECF No. 18.

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Furthermore, the Court granted Genentech summary judgment on

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Pruitt’s FEHA discrimination claim, CFRA claim, and FMLA claim.

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Minutes for 1/8/2019 Hearing; see also, Transcript of 1/8/2019

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Proceedings at 28:20-29:6.

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summary judgment on Pruitt’s FEHA and Section 1102.5 retaliation

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claims to the extent that those claims rested on the theory that

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Genentech retaliated against Pruitt for taking medical leave.

The Court also granted Genentech

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Id. at 29:9-13.

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trial, as did his FEHA and Section 1102.5 retaliation claims

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based on the theory that Genentech retaliated against him for

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filing a race-based discrimination complaint.

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a verdict in favor of Pruitt on his wrongful termination and

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Section 1102.5 retaliation claims, and in favor of Genentech on

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the FEHA retaliation claim.

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Pruitt’s wrongful termination claim went to

The jury returned

Jury Verdict, ECF No. 163.

As the prevailing party in this action, Plaintiff seeks to

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recover costs totaling $17,072.16.

Plf.’s Bill of Costs, ECF No.

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167.

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costs incurred after Pruitt rejected its Rule 68 offer.

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Bill of Costs, ECF No. 169; Def.’s Objections, ECF No. 170.

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Pruitt opposes Genentech’s claimed costs.

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No. 171.

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PART AND DENIES IN PART Pruitt’s bill of costs, and GRANTS IN

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PART AND DENIES IN PART Genentech’s bill of costs.1

Genentech opposes Pruitt’s motion and seeks to recover the
Def.’s

Plf.’s Objections, ECF

For the reasons discussed below, the Court GRANTS IN

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for July 16, 2019.
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I.

OPINION

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A.

Legal Standard

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In general, “costs—other than attorney’s fees—should be

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allowed to the prevailing party.”

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

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A party’s bill of costs must conform to 28 U.S.C. § 1924.

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Cal. L.R. 292(b).

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supported by a memorandum of costs and an affidavit of counsel

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that costs claimed are allowable by law, are correctly stated,

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and were necessarily incurred.”

E.D.

It must “itemize the costs claimed and [] be

Id.

“The party against whom

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costs are claimed may . . . file specific objections to claimed

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items with a statement of grounds for objections.”

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L.R. 292(c).

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reasons that are “sufficiently persuasive to overcome the

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presumption in favor of an award.”

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Antitrust Litig., 779 F.3d 914, 932 (9th Cir. 2015).

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Ultimately, a district court must “exercise its discretion in

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determining whether to allow certain costs.”

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No. 2:08-cv-102-WBS-JFM, 2010 WL 716389, at *1 (E.D. Cal. Feb.

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26, 2010) (citing Amarel v. Connell, 102 F.3d 1494, 1523 (9th

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Cir. 1997)).

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B.

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The objecting party bears the burden of presenting

In re Online DVD-Rental

Yeager v. Bowlin,

Analysis
1.

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E.D. Cal.

Pruitt’s Bill of Costs

Pruitt claims $17,062.16 in costs.

Plf.’s Bill of Costs at

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1.

Genentech does not challenge Pruitt’s $435 filing fee, but

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objects to the remaining costs on three grounds: (1) Pruitt

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failed to establish his claimed transcript, demonstrative, and

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copying costs were necessarily incurred; (2) Rule 68(d) bars

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Pruitt from collecting costs incurred after March 18, 2019; and
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(3) the costs Pruitt claims for video depositions are

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duplicative.

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a.

Costs Incurred following Rule 68 Offer

Pruitt incurred $942.30 in costs following Genentech’s

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March 18, 2019 offer of judgment.

Although Pruitt contends

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Genentech cannot recover costs following its Rule 68 offer—an

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argument discussed below, infra at 6—Pruitt does not oppose

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Genentech’s argument that Rule 68 bars Pruitt from recovering

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costs incurred after Genentech made the rejected March 18 offer.

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Correctly so.

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finally obtains is not more favorable than the unaccepted offer,

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the offeree must pay the costs incurred after the offer was

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made.”

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served Pruitt with an offer of judgment amounting to $600,000,

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inclusive of costs, expenses, and attorneys’ fees.

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Julie A. Totten ISO Genentech’s Bill of Costs ¶ 2, Exh. A.

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Pruitt did not accept this offer.

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where the jury returned a verdict for him in the amount of

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$233,126.

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judgment less favorable than the one Genentech offered, the

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Court DENIES the $942.30 in costs he incurred from April 1-4,

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2019.

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Rule 68 states, “[i]f the judgment []the offeree

Fed. R. Civ. Proc. 68(d).

b.

Because Pruitt obtained a

Section 1920(1) Costs

Pruitt is entitled to tax “fees of the clerk” under 28
U.S.C. § 1920(1).

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lawsuit against Genentech.

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See Decl. of

Rather, he proceeded to trial

Verdict Form, ECF No. 163.

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On March 18, 2019, Genentech

c.

Pruitt incurred $435 when he filed his
The Court awards Pruitt this cost.

Section 1920(2),(4) Costs

Section 1920(2) allows a party to tax costs for “printed or
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electronically recorded transcripts necessarily obtained for use

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in the case.”

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party to tax costs for “exemplification and the costs of making

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copies of any materials where the copies are necessarily

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obtained for use in the case.”

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claims $16,637.16 in costs under these two sections.

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28 U.S.C. § 1920(2).

Section 1920(4) allows a

28 U.S.C. § 1920(4).

Pruitt

The Court does not award Pruitt the $1441.25 incurred for

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videotaping his two-day deposition.

The Court agrees with

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Genentech’s objection that these costs are duplicative of the

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$2571.40 he incurred for stenographic transcripts of that same

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deposition.

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Costco Wholesale Corp., No. 1:17-cv-00959-EPG, 2019 WL 1168531,

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at *2 (E.D. Cal. Mar. 13, 2019).

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duplication of these deposition costs was necessary and absent

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such an explanation he is not entitled to recover this cost.

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See Def.’s Objection at 4 (citing Sullivan v.

Pruitt did not explain why

Furthermore, Pruitt failed to provide a specific basis for

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the remaining $14,253.61 claimed in transcript and copying costs

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were “necessarily obtained.”2

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Indeed, Pruitt’s counsel filed an affidavit and receipts in

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support of the bill of costs, ECF No. 168, but did not file a

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“memorandum of costs” at all.

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narrow construction of § 1920(4) [which] requires recognition

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that the circumstances in which a copy will be deemed

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necessarily obtained . . . will be extremely limited.”

See 28 U.S.C. § 1920(2),(4).

The Ninth Circuit adopts “[a]

Pac.

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Based on the receipts attached to McHenry’s declaration, Pruitt
incurred $14,203.69 rather than $14,253.61 in transcript costs
prior to Genentech’s Rule 68 offer. See McHenry Decl., Exh. 2.
Pruitt’s bill of costs incorrectly lists the cost of Hall’s
deposition transcript as $881.47 instead of $831.55.
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Marine Center, Inc. v. Philadelphia Indem. Insur. Co., No. 1:13-

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cv-00992-DAD-SKO, 2017 WL 6538990, at *4 (E.D. Cal. Dec. 21,

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2017) (quoting In re Online DVD-Rental Antitrust Litig., 779

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F.3d at 930).

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previously denied a prevailing party costs where the bill of

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costs included “[t]he mere recitation of the phrase ‘necessarily

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incurred.’”

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Antofagasta, No. 2:04-cv-1916-MCE-DAD, 2007 WL 3034941, at *2

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(E.D. Cal. Oct. 16, 2007)).

As Genentech argues, the Eastern District has

Def.’s Objections at 2 (citing Ferreira v. M/V CCNI

But before the Court denied costs

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in Ferreira, it issued a minute order permitting the plaintiff

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twenty (20) days “to provide further support” for the costs in

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question.

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here.

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costs explaining why his remaining Section 1920(2)&(4) costs

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were “necessarily obtained.”

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Id.

The Court affords Pruitt the same opportunity

Within twenty (20) days, Pruitt must file a memorandum of

In sum:
Original amount of costs requested
Deduction for costs related to costs incurred
following Rule 68 offer
Deduction for cost of videotaped depositions
Deduction for remaining transcript and copying
costs pending supplemental briefing
TOTAL costs awarded

$17,072.16
-$942.30
-$1,441.25
-$14,253.61
$435

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2.

Genentech’s Bill of Costs

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Genentech claims $18,571.82 in costs.

Genentech contends

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Rule 68(d) requires Pruitt to pay these costs.

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Costs, ECF No. 169-1.

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a prevailing defendant from recovering costs absent the suit was

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“frivolous, unreasonable, or groundless”; and (2) Genentech’s

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claimed costs are unnecessary and unreasonable.

Def.’s Memo. of

Pruitt objects, arguing (1) FEHA prohibits

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Plf.’s Objection

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1-4.
The Court finds FEHA does not bar Genentech from recovering

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costs under Rule 68(d).

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claims went to trial: the FEHA claim, the Section 1102.5 claim,

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and the wrongful termination claim.

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Bill of Costs (“Reply”) at 1-2.

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claims had largely overlapping elements.

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if the Court prevented Genentech from seeking costs related to

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its FEHA defense, Genentech could still claim identical costs

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See Reply ISO Genentech’s

See also Verdict Form.
Id.

These

Accordingly, even

under the remaining two claims.

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As Genentech argues, three of Pruitt’s

a.

Section 1920(2) Costs

Genentech claims $2,897.91 in costs under 28 U.S.C.

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§ 1920(2).

Genentech argues it incurred these costs printing the

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depositions it was required to lodge with the Court under Local

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Rule 133(j); printing deposition excerpts it might need for

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impeachment refreshing witnesses’ recollection; and obtaining

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draft transcripts of portions of the trial proceedings.

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Costs at 2-3.

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Genentech to obtain depositions for “every potential witness on

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the parties’ witness lists.”

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disagrees.

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the scope of litigation, attempting to admit evidence that was

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relevant only to his previously-dismissed discrimination claims.

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It was not clear, even at the pretrial conference, who and how

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many of Pruitt’s witnesses he intended to call.

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the depositions Genentech printed were necessarily obtained given

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Pruitt’s litigation strategy.

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$2,897.91 for these costs.

Memo. of

Pruitt objects, arguing it was not necessary for

Plf.’s Objections at 2.

The Court

Up to and throughout trial, Pruitt sought to expand

The Court finds

The Court awards Genentech

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b.

Section 1920(3) Costs

Genentech claims $2,378.28 in costs under 28 U.S.C.

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§ 1920(3).

Pruitt’s only objection to these costs is that

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Genentech’s witnesses lived too far away.

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Genentech’s vocational expert flew into Sacramento from Michigan.

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Its economist and forensic psychiatrist flew in from Southern

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California.

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proposition that the costs Genentech incurred fell outside

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Section 1920(3).

Plf.’s Objection at 4.

Pruitt does not provide any authority for the

Genentech incurred $3,724.61 in lodging,

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sustenance, parking, and air and ground transportation for three

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of its witnesses.

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Genentech claims reflects a reasonable reduction of those costs.

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The Court awards Genentech $2,378.28 for these costs.

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c.

See Totten Decl., Exh. E.

The $2,378.28

Section 1920(4) Costs

The Court does not find all the costs Genentech claimed for

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“exemplification and [] making copies” were necessary for its

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defense.

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Genentech contends it incurred $13,295.63 in Section 1920(4)

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copying costs.

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Pruitt argues these costs are unreasonable because Genentech’s

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“kitchen sink approach to trial exhibits” and use of color

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printing render many of these costs unnecessary.

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Objection at 2-3.

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that the sheer number of exhibits Genentech included in its

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exhibit list compared to the number of exhibits admitted at trial

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renders the non-admitted exhibits “unnecessary.”

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Objections at 3.

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construction of “necessarily obtained,” it does not interpret the

See 28 U.S.C. § 1920(4); see also Def.’s Bill of Costs.

Def.’s Bill of Costs; Memo. of Costs at 3.

The Court agrees in part.

Plf.’s

The Court disagrees

See Plf.’s

Although the Ninth Circuit adopts a narrow

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phrase so narrowly as to “specifically require that the copied

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document[s] be introduced into the record.”

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Rental Antitrust Litig., 779 F.3d at 927.

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used the exhibit copies to prepare its witnesses and aid in

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witness examination.

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counsel’s request, provided copies of its exhibits to Pruitt.

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Reply at 4.

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confirms the exhibits were reasonably needed either for

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Genentech’s case-in-chief or for impeachment purposes.

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Memo. of Costs at 3.

In re Online DVDGenentech argues it

It also, at opposing

The Court’s review of Genentech’s exhibit list

See

Def.’s Amended Exhibit List, ECF No. 88.
Review of Genentech’s exhibits does, however, belie

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Genentech’s contention that it needed thousands of color copies

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for its defense.

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argues “[u]sing color copies . . . [was] entirely appropriate and

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[] necessary to ensure that binders contained true and correct

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copies of the parties’ exhibits.”

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exhibits are primarily copies of email correspondence,

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performance evaluations, employee files, and investigation notes.

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See Def.’s Amended Exhibit List.

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persuasive Genentech’s argument that black and white copies would

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undermine the veracity of those exhibits.

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page, Genentech’s color copies were five times more expensive

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than its black-and-white copies.

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Genentech’s $8,069 in costs for color printing to $1,613.80.

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See id.; Plf.’s Objections at 3.

Reply at 5.

Genentech

Genentech’s

The Court does not find

At fifty cents per

The Court therefore reduces

Finally, the Court reduces the costs Genentech claims for

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copying video exhibits.

As Plaintiff argues, and as Genentech

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eventually concedes, the only video exhibits needed were the two

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videos relating to the “cafeteria incident.”
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Id.; Reply at 4.

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Genentech represents the cost for copying these two videos in

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each party’s preferred format was $440.

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therefore, reduces Genentech’s video-copying costs from $2,060 to

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$440.

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Reply at 5.

The Court,

In sum:
Original amount of costs requested
Deduction for costs of color copying
Deduction for costs of copying unnecessary video
exhibits
TOTAL costs awarded

$18,571.82
-$6,455.20
-$1,620.00
$10,496.20

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II.

ORDER

For the reasons set forth above, the Court GRANTS IN PART

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AND DENIES IN PART Pruitt’s bill of costs.

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Pruitt $435 and denies $2,383 of Pruitt’s claimed costs.

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the remaining $14,253.61 in Section 1920(4) costs, the Court

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orders Pruitt to file a memorandum of costs within twenty days of

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this order explaining why these fees were necessarily incurred.

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Genentech may file a response to this memorandum within five days

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thereafter.

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The Court awards
As to

The Court also GRANTS IN PART AND DENIES IN PART Genentech’s

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bill of costs.

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and denies $8,075.20 of Genentech’s claimed costs.

The Court awards Genentech $10,496.62 in costs

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IT IS SO ORDERED.

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Dated: August 26, 2019

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