Vectren Communications Services, Inc. v. City of Alameda

Filing 349

ORDER RE: DEFENDANT'S MOTION FOR REVIEW OF CLERK OF COURT'S TAXATION OF COSTS 331 342 (Illston, Susan) (Filed on 7/22/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VECTREN COMMUNICATIONS SERVICES,

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United States District Court
For the Northern District of California

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Plaintiff,

No. C 08-3137 SI
ORDER RE: DEFENDANT’S MOTION
FOR REVIEW OF CLERK OF COURT’S
TAXATION OF COSTS

v.
CITY OF ALAMEDA,
Defendant.

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Defendant City of Alameda has filed a motion for review of the Clerk’s taxation of costs.

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Pursuant to Civil Local Rule 7-1(b), the Court took the matter under submission without oral argument.

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The Court GRANTS Alameda’s motion to file an enlarged reply brief, and AWARDS costs to Alameda

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as set forth in this order. This order resolves Docket Nos. 331 and 342.

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BACKGROUND

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Defendant City of Alameda seeks to recover costs in the amount of $316,063.84, consisting of

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(1) $1,087.43 in fees of the Clerk for filing the appeal and PACER charges; (2) $626.53 for service of

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subpoenas; (3) $19,047.81 for reporters’ transcripts; (4) $56,451.94 for deposition costs; (5)

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$100,213.21 for document production costs; (4) $5,928.85 for trial exhibits; (5) $41,767.16 for charts

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and video; (6) $28,606.91 for witness expenses; and (7) $62,334.00 for bond premiums.

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Vectren filed objections to the Bill of Costs, and on April 30, 2014, the Clerk issued its notice

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of Taxation of Costs. The Clerk taxed costs in the amount of $157,347.88. Alameda now seeks review

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of the Clerk’s Taxation of Costs. The matter has been extensively briefed.

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LEGAL STANDARD

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28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax costs. Pursuant to Federal

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Rule of Civil Procedure 54(d), costs incurred by the prevailing party may be assessed against the losing

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party as of course and may be taxed by the clerk. “Unless a federal statute, these rules, or a court order

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provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed.

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R. Civ. P. 54(d)(1). “Rule 54(d) creates a presumption in favor of awarding costs to prevailing parties,

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and it is incumbent upon the losing party to demonstrate why the costs should not be awarded.” Stanley

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v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Taxable costs are listed in 28 U.S.C. § 1920

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as follows:

United States District Court
For the Northern District of California

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

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Civil Local Rule 54-3 provides additional “standards for interpreting the costs allowed under section

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1920.” Intermedics v. Ventritex, Co., No. C-90-20233, 1993 U.S. Dist. LEXIS 17803, at *2 (N.D. Cal.

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Dec. 2, 1993). The taxation of costs lies within the trial court’s discretion. In re Media Vision Tech.

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Secs. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996).

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According to Civil Local Rule 54-1(a), a bill of costs “must state separately and specifically each

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item of taxable costs claimed.” Civ. L. R. 54-1(a). Further, a party seeking costs must provide an

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affidavit stating that the costs were “necessarily incurred, and are allowable by law” and “[a]ppropriate

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documentation to support each item claimed.” Id. With regard to individual itemized costs, “the burden

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is on the party seeking costs . . . to establish the amount of compensable costs and expenses to which

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it is entitled.” Allison v. Bank One-Denver, 289 F.3d 1223, 1248-49 (10th Cir. 2002).

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DISCUSSION
I.

Fees of the Clerk

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A.

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Alameda seeks to recover the $455 fee it paid to the Clerk of the district court in 2011 to file the

Filing fee for appeal

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first appeal.1 Vectren objects that this cost is not recoverable because the Ninth Circuit’s August 2,

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2013 Memorandum Opinion states that “[e]ach party shall bear its own costs on appeal.” Alameda

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responds that the Ninth Circuit did not award costs on appeal because at the conclusion of the parties

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cross-appeals in 2013, neither party was the prevailing party. The Court agrees with Alameda that this

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filing fee is now recoverable because Alameda is the prevailing party.

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B.

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Alameda seeks to recover $623.43 it paid to the court to access court records on PACER.

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Vectren objects that these costs are not recoverable under Civil Local Rule 54-3(d)(3), which states that

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United States District Court
For the Northern District of California

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“the cost of reproducing copies of motions, pleadings, notices, and other routine case papers is not

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allowable.” Vectren also notes that this Court denied Alameda’s requests for PACER costs in the

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related Nuveen and Osher cases.

PACER fees

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Alameda responds that the PACER charges are not for reproducing copies of pleadings, but

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rather for viewing documents. Alameda asserts that these costs are recoverable pursuant to 28 U.S.C.

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§ 1914, which allows “[t]he clerk to collect from the parties such additional fees only as are prescribed

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by the Judicial Conference.” 28 U.S.C. § 1914(b). The Judicial Conference Schedule of Fees which

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immediately follows Section 1914 includes PACER fees. See id.

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The Court has reviewed the authority cited by Alameda and concludes that PACER fees are

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recoverable as “fees of the clerk” under 28 U.S.C. § 1920. See e.g., Padula v. Morris, No. 2:05-cv-

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00411-MCE-EFB, 2012 WL 525575, at *3 (E.D. Cal. Feb. 16, 2012). The Court also notes that Alameda

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did not cite Section 1914 as a basis for recovery of PACER fees in the Nuveen and Osher cases.

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Accordingly, the Court awards $1,087.43 in fees of the Clerk for filing the appeal and PACER
charges.

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///

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Both parties have filed second cross-appeals from the Court’s March 27, 2014 summary
judgment order.
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II.

Subpoena fees

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Alameda seeks $625.53 for fees for service of subpoenas. The Clerk disallowed $211.53 of

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these fees as “outside the ambit of Civil Local Rule 54-3(a).” Alameda’s motion did not address this

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reduction, and Vectren’s opposition states that “[t]herefore, Vectren understands that Alameda is not

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contesting the Clerk’s decision regarding this item . . . .” Docket No. 339 at 3:10. Alameda’s reply

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continues to seek all of the subpoena fees, but does not advance any argument about why the disallowed

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costs are recoverable. The Court finds that Alameda has not met its burden to demonstrate that the

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disallowed costs are recoverable, and further that it is improper for Alameda to seek these costs for the

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first time in its reply. Accordingly, the Court awards the amount taxed by the Clerk, $414.00.

United States District Court
For the Northern District of California

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III.

Reporter’s transcript costs

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Alameda seeks costs incurred in obtaining transcripts of the trial and key hearings in this case,

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as well as a transcript of an Alameda City Council meeting (at the Court’s request), for a total of

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$19,047.81. Alameda states that the transcripts were ordered in anticipation of the appeal as well as for

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use during trial court proceedings. Alameda seeks these costs pursuant to 28 U.S.C. § 1920(2), which

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allows for the recovery of costs incurred for “printed or electronically recorded transcripts necessarily

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obtained for use in the case,” and pursuant to Civil Local Rule 54-3(b)(1), which states that “[t]he cost

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of transcripts necessarily obtained for an appeal is allowable.” Alameda notes that Vectren sought, and

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was awarded, these same costs in 2010.2

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Alameda argues that the transcripts were essential to the presentation of this case both at the

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district court level and on appeal. Alameda notes that both sides made extensive use of trial transcripts

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during closing arguments, post-trial motions, and on appeal, and that the need for trial transcripts was

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particularly important given the month-long length of trial, the number and complexity of the issues,

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and the more than 20 witnesses who testified. With regard to hearing transcripts, Alameda asserts that

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both sides used hearing transcripts in motion practice and on appeal.

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Vectren states that the Clerk disallowed the trial transcript costs when Vectren sought those
costs in 2010. However, as Alameda notes, when the Clerk disallowed certain transcript costs claimed
by Vectren, the Clerk cited Civil Local Rule 54-3(c) as the basis for doing so. That local rule relates
to deposition costs. See Civil Local Rule 54-3(c).
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Vectren argues that the reporters’ transcript costs are not recoverable under the Local Rules

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because the transcripts were not “necessarily obtained for an appeal” as required by Civil Local Rule

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54-3(b)(1). Vectren notes that the trial transcripts were ordered during trial and used during trial.

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However, Alameda seeks these costs pursuant both to the local rules and Section 1920, and Section

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1920 allows for recovery of costs for transcripts obtained “for use in the case,” and is not limited to

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appeal. The Court agrees with Alameda, and finds that the reporters’ transcript costs are recoverable

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and awards $19,047.81.

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IV.

Costs associated with depositions

United States District Court
For the Northern District of California

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Alameda seeks $56,451.94 in costs associated with depositions.3 Alameda states that the parties

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took 26 depositions in this case, and that all but one were videotaped. The largest component of these

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costs, totaling $49,131.11, is for original deposition transcripts, transcript copies, videotape charges,

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copying of deposition exhibits, and normal delivery charges. The remaining costs are for (1) expedited

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transcripts, including express delivery, in the amount of $3,116.33; (2) rough disks or draft transcripts,

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totaling $3,600.40; and (3) condensed transcripts, final ASCII disks, e-transcripts, and scanned exhibits,

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totaling $605.00.

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Alameda seeks these costs pursuant to Civil Local Rule 54-3(c), which provides that “[t]he cost

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of an original and one copy of any deposition (including videotaped depositions) taken for any purpose

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in connection with the case is allowable.” Civil Local Rule 54-3(c)(1). That rule also provides that

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“[t]he cost of reproducing exhibits to depositions is allowable if the cost of the deposition is allowable.”

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Id. at (2). Vectren does not object to the $49,131.11 requested for original deposition transcripts,

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transcript copies, videotape charges, copying of deposition exhibits, and normal delivery charges.

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Vectren does object to the remaining “extra” costs, such as for expedited transcripts, as not recoverable

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under Civil Local Rule 54-3(c)(1).

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Alameda addresses Vectren’s objections to the “extra” deposition costs as follows. With regard

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The Clerk reduced these costs by $15,000-$20,000, and it is unclear from the docket which
costs were disallowed. Alameda states that Vectren sought the same disputed “extra” deposition costs
in 2010, and that the Clerk reduced Vectren’s deposition costs in 2010, but that it is also unclear which
of Vectren’s costs were disallowed.
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to expedited and rough transcripts, Alameda acknowledges that while such costs are generally not

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recoverable, they may be allowable where circumstances warrant expedited transcription of testimony.

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Alameda cites Meier v. United States, No. C 05-4404 WHA, 2009 WL 982129, at *2 (N.D. Cal. Apr.

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13, 2009), in which Judge Alsup awarded over $6,000 in expedited transcript costs to the defendant

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where “the depositions were expedited in order to accommodate the tight deposition schedule plaintiff

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himself requested. The costs to expedite the depositions therefore were not ‘extra’; they were necessary

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under the circumstances of this case.” Alameda asserts that the “rough” disks and expedited transcripts,

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totaling $6,716.73, were necessary to prepare for depositions, hearings, and other court deadlines.
The Court exercises its discretion and finds that the costs for these additional copies of

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United States District Court
For the Northern District of California

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deposition transcripts are not recoverable in this case. Unlike in Meier, where the expedited transcripts

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were necessitated by the deposition schedule that the plaintiff requested, Alameda has not shown that

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the deposition schedule or court deadlines were requested by Vectren, as opposed to jointly agreed upon

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or otherwise set by the Court. While the Court recognizes that the expedited and rough transcripts were

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useful to Alameda to prepare for depositions, hearings, and court filings, the Court does not find it

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appropriate to impose these costs on Vectren under the circumstances here.

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The Court finds that the remaining “extra” costs, totaling $605.00, are recoverable. Alameda

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may recover costs for condensed transcripts because in those instances where Alameda received a

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condensed transcript, Alameda did not receive the original (the originals went to Vectren as part of a

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“Technology Package” ordered by Vectren). See Ancora Tech., Inc. v. Apple, Inc., Case No. 11-CV-

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06357 YGR, 2013 WL 4532927, at *6 (N.D. Cal. Aug. 26, 2013). The costs for electronic transcripts

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and electronic scanning of exhibits are also recoverable. See 28 U.S.C. § 1920(2); Civil Local Rule 54-

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3(c)(3). Accordingly, the Court awards $49,736.11 in deposition costs.

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V.

Document production costs

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Alameda seeks $100,213.214 in document production costs, as follows: (1) the cost of electronic

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production by DTI, a firm recommended by Vectren, in the amount of $26,417, and (2) the combined

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This amount reflects two deductions that Alameda made in response to Vectren’s opposition.
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cost of 83 separate hard copy document productions by several vendors, in the amount of $74,256. The

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parties produced 1,994,377 pages of documents, in both electronic and hard-copy form, with Alameda

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producing 1,935,405 pages and Vectren producing 58,972 pages. Aker Decl. ¶ 19. Alameda seeks these

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costs pursuant to 28 U.S.C. § 1920(4), which states that the Court may tax “fees for exemplification and

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the costs of making copies of any materials where the copies are necessarily obtained for use in the

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case,” and Civil Local Rule 54-3(d)(2), which provides for “[t]he cost of reproducing disclosure or

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formal discovery documents when used for any purpose in the case.” Civil L.R. 54-3(d)(2).
Vectren agrees that most of the electronic production costs are recoverable, with the exception

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of $2,430 for “EDD Tech Time (Search Term Filtering)” and a charge of $1,974 for converting 3.28 GB

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United States District Court
For the Northern District of California

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of data. Vectren asserts that the $2,430 charge is not recoverable because amounts paid for “intellectual

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effort” such as organizing, searching and analyzing are not recoverable as “fees for exemplification.”

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See Zuill v. Shanahan, 80 F.3d 1366, 1371 (9th Cir. 1996) (“fees for exemplification and copying are

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permitted only for the physical preparation and duplication of documents, not the intellectual effort

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involved in their production.”). Alameda has not cited any authority specifically holding that such costs

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are recoverable, and thus the Court disallows this expense. With respect to the $1,974 charge, Vectren

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states that it would be recoverable if that data was actually produced to Vectren, but that Vectren does

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not believe that it was. In response, Alameda has submitted a supplemental declaration from counsel

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stating that the data associated with the disputed charge was produced to Vectren. Supp. Aker Decl. ¶

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5. Accordingly, the Court finds that this cost is recoverable.

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With regard to hard copy document production, Vectren agrees that $21,456.37 – the amount

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of 10 invoices that Vectren was able to match to specific productions – is recoverable by Alameda.

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Towle Decl. ¶ 10. As to the remaining hard copy costs sought by Alameda, Vectren raises a number

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of objections. As a general matter, Vectren states that if Alameda can demonstrate that other invoices

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correspond to document productions, Alameda is entitled to those costs. Vectren also disputes several

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invoices as being related to document production in Nuveen, other costs as nonrecoverable “routine

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monthly copy costs” charged by the Wulfsberg firm, and $486.46 in costs for providing courtesy copies

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to the Court. Vectren also asserts that Alameda should not recover costs for copying documents

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produced by Vectren or third parties, or for making copies of documents that were later withheld on
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privilege grounds and thus not ultimately produced to Vectren.
In response, Alameda notes that Vectren sought and was awarded copying costs incurred not

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only in making its productions to Alameda, but also in copying pages it obtained from Alameda and

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third parties. Aker Decl. Ex. 13. Alameda also explains that it was necessary to make these copies

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because Vectren (and Alameda) produced documents in electronic form. Id. ¶¶ 17-18. Alameda also

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deducted two invoices that were related to Nuveen, and submitted a supplemental declaration of counsel

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explaining that the Wulfsberg firm charges were incurred to copy Vectren’s documents, produced in

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electronic form, for depositions or trial exhibits. Supp. Aker Decl. ¶ 17. With regard to showing that

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the other disputed invoices correspond to document productions, Alameda has shown that the invoices

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United States District Court
For the Northern District of California

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submitted, totaling 340,988 pages, is close to (and less than) the estimated number of hard copy pages

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produced by the parties (357,377 pages). See Docket No. 343 at 10 (explaining calculations). See also

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In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1369 (Fed. Cir. 2011) (applying Ninth Circuit law

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regarding recoverability of copying costs, and holding that “[t]he district court may choose to make a

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reasonable estimate of recoverable copying costs based on an estimate of the total number of pages of

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discovery [that were produced] multiplied by a reasonable price per page.” ). Alameda has also shown

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that the per page charge is reasonable. Aker Decl. ¶ 20, Ex. 13. This case was complex and document

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production was significant, and the Court is satisfied that Alameda has sufficiently documented its

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copying costs, and that Alameda is entitled to recover for copying charges for Court-required courtesy

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copies, as well as copying documents obtained from Vectren and third parties.

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Accordingly, the Court awards $97,783.21 in copying costs.

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VI.

Trial exhibits

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Alameda originally sought $10,661.42 for costs associated with preparation of trial exhibit

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binders. In its motion for review by this Court, Alameda removed three invoices totaling $3,582.25

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from its request, and reduced all of the Blaisdell’s invoices for office supplies by 50% to reflect the

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possibility that the supplies were used for preparing more binders than required by the Court. Aker

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Decl. ¶ 21.

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incurred preparing trial exhibits. Alameda states that with the four sets of binders that the Court

After making these deductions, Alameda states that it now seeks $5,928.85 for costs

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required, its trial exhibits numbered roughly 5,600 pages. In addition, by agreement of the parties, both

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sides exchanged their trial exhibits in scanned electronic form and delivered them on disks.
While the Court finds that Alameda is entitled to recover the cost of preparing trial exhibits,

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there are a number of problems with Alameda’s documentation of these costs. The Blaisdell’s invoices

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listed on Alameda’s Schedule of Costs under “Reproducing Trial Exhibits” do not completely correlate

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with the invoices included within Exhibit E to the Bill of Costs. See Docket No. 324 at 10 (Schedule

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of Costs); Docket No. 325 at Ex. E. There are four copies of invoice #878643-0 for $933.20, and a

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different invoice for the same day with the same invoice number (#878643-0) in the amount of $785.34.

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The Schedule of Costs lists invoice “8786430” without specifying an amount. There are also two copies

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United States District Court
For the Northern District of California

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of an invoice (with no invoice number) dated January 4, 2010 in the amount of $909.60 and another

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invoice dated January 19, 2010 (with no invoice number) in the amount of $112.41; these invoices are

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not listed in the Schedule of Costs. Similarly, invoice #879555 in the amount of $775.80 was included

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in Exhibit E but is not listed on the Schedule of Costs; however, invoice #879555-0 in the amount of

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$374.36 is listed on the Schedule of Costs and included in Exhibit E. In addition, the Schedule of Costs

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lists a Ricoh invoice #OAK10020006 in the amount of $1,732.90, but the Court could not locate that

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invoice in Exhibit E. The Court disallows all of the invoices that are either not listed on the Schedule

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of Costs or for which there is no documentation, and because it is unclear which invoice #878643-0 is

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listed on the Schedule of Costs, the Court also disallows both of those invoices.5

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Accordingly, the Court awards a total of $3,909.69, which consists of $3045.63 (OAK10010256,

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OAK10010282, WRC 9959 and WRC 10113) and $864.06 of Blaisdell’s invoices (half of the total of

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$1,728.12 for Blaisdell invoices 877170-0, 877170-1, 877880-0, 878096-1, 878643-1, 878643-2,

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878643-3, 879555-0).

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The Schedule of Costs lists a block of invoice numbers and a total for all of those invoices as
$1,926.28. See Schedule of Costs at 10. However, in calculating all of the invoices listed except for
#8786430, the amount is $1,353.76; neither of the #878643-0 invoices ($933.20 or $785.34) would
bring the total to $1,926.28.
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VII.

Charts, diagrams and videos
Alameda seeks $41,767.16 in costs incurred to prepare demonstrative aids for trial. Alameda

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states that these costs were incurred in “(a) preparing and electronically presenting its trial exhibits on

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the courtroom’s video screen, (b) synchronizing, editing, and preparing excerpts of videotaped

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deposition testimony for presentation at trial, (c) preparation of trial boards displaying charts, graphs,

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a timeline, and highlighted document enlargements, (d) photographs of relevant Alameda geographical

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features or telecom equipment, and (e) standard blow-ups of various trial exhibits.” Docket No. 331 at

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20:14-19. Alameda seeks these costs pursuant to Civil Local Rule 54-3(d)(5), which states, “[t]he cost

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of preparing charts, diagrams, videotapes and other visual aids to be used as exhibits is allowable if such

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United States District Court
For the Northern District of California

2

exhibits are reasonably necessary to assist the jury or the Court in understanding the issues at the trial.”

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Civil Local Rule 54-3(d)(5).

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Vectren objects to two invoices, the Advanced Courtroom Technologies (“ACT”) invoice for

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$24,741.19 and the Berenson invoice for $13,969.78.6 Alameda has submitted the declaration of

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Mitchell MacQueen, an ACT employee, to explain the various charges on the ACT invoice. MacQueen

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states that ACT provided the following services: (1) preparation of trial exhibits, charges listed under

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the headings “project management” and “trial consultant”; (2) synchronizing videotaped deposition

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testimony, under the heading “video services”; (3) assisting counsel in the courtroom during trial with

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the presentation of videotaped excerpts, under the headings “project management” and “trial

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consultant”; (4) setting up at the beginning of trial, and breaking down at the end, a screen and

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equipment (MacQueen does not state where those charges are found, but they appear to be under

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“logistic”); (5) preparing blow-up for trial, under the “graphic consulting” heading; and (6) delivery of

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DVDs, including parking and toll charges, under “other.” MacQueen Decl. ¶ 2.

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“Only the cost of physical preparation of demonstratives are recoverable under Civ. L.R.

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54-3(d)(5); costs associated with the intellectual effort involved in creating the content of

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demonstratives are not recoverable.” Computer Cache Coherency Corp. v. Intel Corp., No. C-05-01766

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These amounts reflect voluntary deductions by Alameda of $920 from the ACT invoice for
equipment rental charges, and $1,050 from the Berenson invoice for meetings and telephone
conferences.
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RMW, 2009 WL 5114002, at *2 (N.D. Cal. Dec. 18, 2009). Accordingly, the Court awards only those

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charges related to the physical preparation of the demonstratives. However, according to the MacQueen

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declaration, many of charges for physical preparation of demonstratives are listed under the same

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headings as charges for assisting counsel in the courtroom with presenting the exhibits. Alameda has

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not cited any authority holding that charges for assisting counsel in this way are recoverable. Alameda

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bears the burden of showing which charges are recoverable. Accordingly, the Court has reviewed the

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invoice and will only award those charges that are identifiable as being related to physical preparation

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of trial exhibits, which the Court determines is $6,975. The Court also finds that charges for

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synchronizing videotaped deposition testimony are not recoverable. See Kalitta Air L.L.C. v. Central

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United States District Court
For the Northern District of California

1

Texas Airborne Sys., Inc., 741 F.3d 955, 958-59 (9th Cir. 2013).7 In addition, Alameda has not cited

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any authority holding that the other charges – such as for setting up and tearing down screens and

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equipment, and delivery and related charges – are recoverable.

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With regard to the Berenson invoice, Vectren asserts that Alameda should only recover $6,192

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spent physically preparing demonstratives. In response, Alameda has submitted the declaration of

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Lenny Berenson, who explains that other disputed charges were in fact for services preparing the trial

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boards. The Court has reviewed the invoice and the Berenson declaration, and concludes that Alameda

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should recover, in addition to the $6,192 in charges that Vectren concedes, $4,702 spent on “Computer

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Graphics: Exhibit Development,” as Berenson states that those charges were incurred during the first

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step of producing the trial boards. Berenson Decl. ¶ 3. The remaining charges – for development of

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PowerPoint presentation that Alameda did not use (and thus were not “reasonably necessary to assist

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the jury or the Court in understanding the issues at trial”), packaging and courier delivery – are not

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recoverable. In addition, Alameda has not shown that a charge for “digital archival” is recoverable as

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the Berenson declaration does not address that charge.

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Accordingly, the Court awards a total of $20,793.43 for charts, diagrams and visual aids.8

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Alameda’s reliance on this Court’s 2012 decision in Nuveen awarding such costs, as well as
other district court cases issued prior to Kalitta, is unavailing.
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The Court also disallowed the $131.76 charge from One-Hour Delivery for delivery of DVDs.
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VIII. Witness fees

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Alameda seeks $28,606.91 in expert witness costs, consisting of (1) $18,812.50 paid to three

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expert witnesses for their time traveling from Atlanta, Wisconsin and the Virgin Islands to San

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Francisco for deposition and for trial, at the experts’ hourly rates of $250 per hour (Dawson and

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Stockton) and $200 per hour (Asp); (2) $9,668.41 in travel expenses such as hotel, airfare, and other

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charges; and (3) $126 paid in witness fees to two non-expert witnesses.
Civil Local Rule 54-3(e) states, “Witness Expenses. Per diem, subsistence and mileage

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payments for witnesses are allowable to the extent reasonably necessary and provided for by 28 U.S.C.

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§ 1821. No other witness expenses, including fees for expert witnesses, are allowable.” Civil Local

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United States District Court
For the Northern District of California

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Rule 54-3(e). Section 1821 does not list travel time as a recoverable cost. Alameda does not cite any

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authority within the Ninth Circuit holding that expert travel time is recoverable, and Ninth Circuit case

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law suggests that it is not:

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Federal law allows the defendant to recover forty dollars per day per witness. 28
U.S.C. § 1821(b). A federal court may not exceed this limit without explicit statutory
or contractual authorization. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 445, 107 S.Ct. 2494, 2499, 96 L.Ed.2d 385 (1987). The court may not use other
cost provisions like 28 U.S.C. § 1920 or Federal Rule of Civil Procedure 54(d) to
circumvent section 1821(b). Id. at 442, 107 S.Ct. at 2497.
Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1167 (9th Cir. 1995) (holding that district court erred by
awarding expert costs in full because § 1821(b) only allows a witness fee of $40 per day). Alameda
cites United States v. 1.604 Acres of Land, 275 F.R.D. 234, 235 (E.D. Va. 2011), for the proposition that
courts have awarded travel time as a taxable cost. However, the court in that case did not analyze
whether expert travel time is recoverable under § 1821(b), and instead examined whether expert travel
time for depositions was recoverable pursuant to Federal Rule of Civil Procedure 26(b)(4)(E), which
requires “the party seeking discovery” to “pay the expert a reasonable fee for time spent in responding
to discovery under Rule 26(b)(4)(A)” unless manifest injustice would result. See Fed. R. Civ. P.
26(b)(4)(E). Moreover, the court in that case concluded that whether to award such costs was
discretionary, and that the party seeking such costs must show, inter alia, that local experts were
unavailable. See United States v. 1.604 Acres of Land, 275 F.R.D. at 235-36. Here, even if this Court
agreed with the reasoning of United States v. 1.604 Acres of Land, Alameda has made no showing that
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local experts were unavailable.
In support of the request for reimbursement of the experts’ travel expenses, Alameda has

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submitted invoices from its experts. The invoices have varying levels of detail, with some simply listing

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amounts for “travel” on certain dates (invoice #1001 by Stockton, at p. 3), and others itemizing expenses

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separately for airfare, hotel, meals, mileage, etc. (invoice #11730 by Asp). With regard to airfare, 28

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U.S.C. § 1821(c)(1) provides, “A witness who travels by common carrier shall be paid for the actual

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expenses of travel on the basis of the means of transportation reasonably utilized and the distance

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necessarily traveled to and from such witness’s residence by the shortest practical route in going to and

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returning from the place of attendance. Such a witness shall utilize a common carrier at the most

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United States District Court
For the Northern District of California

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economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.”

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28 U.S.C. § 1821(c)(1). The Court finds that for the airfare costs claimed for Dawson and Asp, the

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invoices combined with the Aker Declaration stating that the costs were actually incurred provides a

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sufficient basis for recovery. However, the airfare claimed for Stockton is not documented because the

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invoices do not specify which “travel” costs are attributable to airfare. Accordingly, the Court

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AWARDS $1,213.20 for Dawson’s airfare and $913.79 for Asp’s airfare, and DENIES the airfare

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reimbursement for Stockton without prejudice to Alameda submitting receipts or evidence of the actual

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cost of those airfare expenses.

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With regard to meals and hotel costs, a number of courts within the Ninth Circuit have held that

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these costs are recoverable pursuant to 28 U.S.C. § 1821(d), which provides a subsistence allowance

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to a witness “when an overnight stay is required at the place of attendance because such place is so far

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removed from the residence of such witness as to prohibit return thereto from day to day” “in an amount

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not to exceed the maximum per diem allowance prescribed by the Administrator of General Services.”

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See, e.g., Sunstone Behavioral Health, Inc. v. Alameda County Medical Center, 646 F. Supp. 2d 1206,

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1221 (E.D. Cal. 2009); MEMC Electronic Materials v. Mitsubishi Materials, No. C-01-4925 SBA(JCS),

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2004 WL 5361246, at *9 (N.D. Cal. Oct. 22, 2004). Alameda has not submitted any evidence regarding

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the per diem allowance prescribed by the Administrator of General Services during the applicable time

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periods. In addition, the invoice for Dawson does not state how many nights of lodging were paid for,

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and the Stockton invoices do not separately itemize hotel and meal expenses. The hotel and meal costs
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are DENIED without prejudice to submitting additional information regarding the applicable per diem

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allowance as well as additional documentation regarding the expenses claimed.

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Finally, with regard to the balance of the expenses sought, the Court finds as follows. Alameda

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is entitled to witness fees of $40 each for the two non-expert witnesses rather than the full amount

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sought, and the Clerk properly awarded $80 total for those fees. Alameda is entitled to reimbursement

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of $46.02 for Asp’s airport shuttle. See 28 U.S.C. § 821(c)(3) (providing for reimbursement of taxicab

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fares between places of lodging and carrier terminals). Alameda is also entitled to reimbursement for

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Asp’s mileage pursuant to 28 U.S.C. § 821(c)(3). However, Alameda has not submitted evidence

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regarding the applicable mileage rates.

Alameda may supplement the record on this issue. The

United States District Court
For the Northern District of California

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remaining expenses sought are either not recoverable (e.g., internet access charges or supplies from

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Walgreens) or inadequately documented (unspecified taxicab rides).

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Accordingly, the Court awards a total of $2,253.01 in witness expenses, and may award

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additional costs for Stockton’s airfare, the meals and hotel, and Asp’s mileage, if Alameda makes a

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further submission in accordance with this order.

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IX.

Bond premiums

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Alameda paid $62,334 in premiums for a supersedeas bond to secure the $1.9 million judgment

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entered by the Court on April 20, 2010. Aker Decl. ¶ 27. Alameda seeks to recover this amount

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pursuant to Local Rule 54-3(h), which allows the prevailing party to recover “[p]remiums on

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undertaking bonds and costs of providing security required by law, by order of a Judge, or otherwise.”

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Vectren concedes that Alameda is entitled to recover the bond premiums, but disputes the last

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of those annual premiums, paid in June 2013, as to which Vectren claims Alameda should seek a partial

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refund for the time period after the Ninth Circuit issued its opinion in August 2013. Vectren asserts that

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Alameda is not entitled to recover the entire $20,778 premium for the June 3, 2013 through June 2, 2014

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period because the supersedeas bond filed by Alameda on June 3, 2011 states that “if for any reason the

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appeal is dismissed . . . [the bonding company’s] obligation will be null and void.” Docket No. 268.

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Vectren asserts that Alameda should be entitled to a refund for the portion of the premium covering the

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period after the Ninth Circuit’s Order ending the appeal (from August 27, 2013 through June 2, 2014
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or 280 of the 365 days covered by the premium, amounting to 71.7% of the period, or $14,897).

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Vectren states that it asked Alameda to investigate whether it was entitled to recover a refund, and that

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it should not have to pay the disputed amount if Alameda could obtain a refund.
In response, Alameda states that it “reviewed the terms of the bond in question, as well as

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applicable law, and found no support for Vectren’s position.” Docket No. 343 at 17. However,

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Alameda does not state whether any inquiry was made concerning its entitlement to a refund. The Court

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finds it is reasonable to require Alameda to investigate whether it may be entitled to a refund from the

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bonding agent and/or insurance company. Accordingly, the Court awards $47,437 for the bond

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premiums. The Court will award the remaining disputed portion of the bond premiums upon a showing

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United States District Court
For the Northern District of California

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by Alameda that it is not entitled to a refund of that amount from the bond agent and/or insurance

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company.

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CONCLUSION

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For the foregoing reasons, Alameda’s motion for review of the Clerk’s taxation of costs is

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GRANTED IN PART and DENIED IN PART. The Court AWARDS a total of $242,461.69. If

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Alameda wishes to seek any of the costs that were denied without prejudice, Alameda shall file a

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supplemental submission regarding those costs by August 1, 2014. Vectren may respond by August

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8, 2014. If the parties file supplemental briefs or declarations, the matter will be taken under submission

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without a hearing.

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This order resolves Docket No. 331 and 342.

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IT IS SO ORDERED.

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Dated: July 22, 2014

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SUSAN ILLSTON
United States District Judge

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