Levitt v. Yelp! Inc.

Filing 96

OBJECTIONS to re 94 Bill of Costs Plaintifffs' Objections to Yelp! Inc.'s Bill of Costs by Boris Y. Levitt. (Ongaro, David) (Filed on 11/23/2011)

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1 2 3 4 5 6 7 8 9 10 LAWRENCE D. MURRAY, State Bar No. 77536 NOAH W. KANTER, State Bar No. 224580 MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Telephone: (415) 673-0555 Facsimile: (415) 928-4084 DAVID R. ONGARO, State Bar No. 154698 AMELIA D. WINCHESTER, State Bar No. 257928 ONGARO BURTT & LOUDERBACK LLP 595 Market St., Suite 610 San Francisco, CA 94105 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 Attorneys for Plaintiffs BORIS Y. LEVITT et al. UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 5 BORIS Y. LEVITT D/B/A RENAISSANCE 3 RESTORATION, CATS AND DOGS ANIMAL HOSPITAL, INC., TRACY CHAN D/B/A MARINA DENTAL CARE, and JOHN MERCURIO D/B/A WHEEL TECHNIQUES; on behalf of themselves and all others similarly situated 18 19 20 21 Case No. CV 10-01231 EMC Consolidated with CV 10-02351 EMC PLAINTIFFS’ OBJECTIONS TO YELP! INC.’S BILL OF COSTS Plaintiffs, v. YELP! INC.; and DOES 1 through 100, inclusive, Defendants. 22 23 24 25 26 27 28 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC; CV 10-02351 EMC Defendants. 1 I. INTRODUCTION Defendant Yelp!, Inc. (“Yelp”) submitted a Bill of Costs, requesting that the Court tax its 2 3 costs against Plaintiffs Boris Y. Levitt, d/b/a Renaissance Restoration, a/k/a Renaissance Furniture 4 Restoration, Cats and Dogs Animal Hospital, Inc., Tracy Chan, d/b/a Marina Dental Care, a/k/a 5 Marina Dental Care and John Mercurio d/b/a Wheel Techniques (collectively “Plaintiffs”). Yelp, 6 however, cannot recover any costs in this case. 7 Yelp filed its bill of costs after its deadline for filing, which constitutes a waiver of any 8 claimed costs. Even if the court were to overlook Yelp’s waiver, Yelp’s Bill of Costs is replete 9 with items that are not permitted by law and unjustifiably undocumented. Yelp claims costs that 10 are simply not recoverable, including Reporter’s transcripts not permitted under the Local Rules, 11 expedited transcript fees, which are prohibited, filing fees, which were undocumented (and 12 purportedly supported by bill that could not have been for the filing) and costs, loosely described 13 as “government record reproductions” for Westlaw and/or Lexis Nexis printouts. In addition to the numerous problems with Yelp’s Bill of Costs, this Court should exercise 14 15 its discretion and decline to award any costs to Yelp. As explained below, because of the nature of 16 this case, as well as the financial disparities between the parties, it would be inappropriate to 17 award costs to a large corporate defendant for a close case that had the potential to greatly benefit 18 the public. 19 II. FACTUAL BACKGROUND 20 A. Yelp’s Untimely Filing of its Bill of Costs 21 Pursuant to the order granting Yelp’s motion to dismiss, the judgment in the above-entitled 22 matter was entered in favor of Yelp on October 26, 2011. See Dkt. No. 90. Yelp filed a Bill of 23 Costs on November 10, 2011, which was 15 days after judgment was entered in this case. See 24 Dkt. No. 94. 25 B. Fees of the Clerk 26 In its Bill of Costs, Yelp requested $653.50 for “Fees of the Clerk.” See Dkt. No. 94. Yelp’s 27 itemization of costs states that the “$653.50” cost is for “[f]iling Fees incurred in connection with 28 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC; CV 10-02351 EMC 1 removal of action from California State Court to Federal District Court” on 4/30/2010. See Dkt. 2 94-1. No bill or documentation is attached that demonstrates that $653.50 constitutes the filing fee 3 for a removal. The only documentation of this cost is what appears to be a “Cooley Godward 4 Kronish LLP” statement designating, for “costs and disbursements through April 30, 2010” the 5 following: “filing fees, Constant, J. Alan, SF Sup. Filing 653.50.” No date is noted for this charge 6 and aside from “Renaissance Restoration,” no client or case is identified. Pursuant to the Court’s 7 website, the filing fee in a civil case is only $350.00. See also Dkt. No. 1 (stating filing fee for 8 removal in this case). During the parties’ meet and confer efforts, Plaintiff’s counsel raised this 9 issue with Yelp’s counsel. See Declaration of Amelia D. Winchester (hereafter “Winchester 10 Decl.”) attached hereto as Exhibit 1, ¶2. Despite a request, no further documentation of this 11 purported cost was provided to Plaintiffs. 12 13 C. Fees for Printed or Electronically Recorded Transcripts Necessarily Obtained for Use in the Case 14 In its Bill of Costs, Yelp designates “$563.90” as “[f]ees for printed or electronically recorded 15 transcripts necessarily obtained for use in the case.” It its itemization of costs, Yelp states that the 16 “$563.50” is for a transcript of the July 19, 2010 proceeding ($157.30), a transcript of the March 17 7, 2011 proceeding ($232.00), and the transcript of October 14, 2011 proceeding ($174.60). See 18 Dkt. 94-1. 19 Pursuant to docket entry No. 30, the July 19, 2010 proceeding consisted of Defendants’ 20 Motion to Consolidate and Plaintiff’s Motion to Compel. No bill or documentation is attached to 21 Yelp’s itemization that demonstrates that $157.30 constitutes the bill or invoice for the transcript. 22 See Dkt. 94-1. Instead, the only documentation of this cost is what appears to be a “Cooley 23 Godward Kronish LLP” statement designating, for “costs and disbursements through July 31, 24 2010” “Sullivan, Katherine A. Powell Copy of Transcript 157.30.” There is no indication of the 25 date of the hearing on which the transcript was purportedly taken, the name of the case, the date 26 the transcript was obtained on, or whether it was obtained on an expedited basis. Neither party is 27 appealing the orders on these two motions. 28 2 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 On March 7, 2011, the Court heard Defendants’ Motion to Dismiss Plaintiff’s Second 2 Amended Complaint. See Dkt. No. 68. Yelp attaches a certification of the transcript fees charged 3 by Kathy Wyatt stating that the charge is for “ECF & 1 copy” with a billing rate of “7.25” per 4 page. According to the Court’s website, the $7.25 per page charge would have been for the cost of 5 an “hourly transcript.” An “ordinary transcript” costs at the most, $3.25 per page. Neither party is 6 appealing the order on Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint. 7 On October 14, 2011, the Court heard oral arguments on Yelp’s Motion to Dismiss Plaintiff’s 8 Third Amended Complaint. See Dkt. No. 88. Yelp attaches in its itemization an invoice from the 9 United States District Court for the Northern District of California for a transcript obtained on an 10 expedited basis of $4.85 per page. 11 According to Yelp’s counsel, these transcripts were obtained as because they may allow 12 Yelp’s counsel to “prepare themselves” for Plaintiff’s appeal or otherwise provide “background 13 information.” See Winchester Decl. ¶2, Ex. 1. 14 15 D. Fees for Exemplification and the Costs of Making Copies Necessarily Obtained for Use in the Case 16 Yelp requests $2.50 for fees for exemplification and the costs of making copies of any 17 materials where the copies are necessarily obtained for use in the case. It its itemization, Yelp 18 states only that these costs are for “[r]eproduction of government record for use in Declaration of 19 S. Ashlie Beringer in Support of Motion to Dismiss First Amended Class Action Complaint Filed 20 by Defendant Yelp, Inc. on October 22, 2010 (5 pages @$.10/page)” [$.50] and “[r]eproduction of 21 government record for use in Statement of Recent Decision Filed by Defendant Yelp, Inc. on 22 February 22, 2010 (20 pages @ $.10/page)” [$2.50]. Yelp submitted no bills or documentation to 23 support these costs. When asked during the parties’ meet and confer efforts, Yelp reported that 24 these costs were for Westlaw or Lexis Nexis case charges, and the costs of printing. See 25 Winchester Decl. ¶2, Ex. 1. 26 E. The Parties’ Meet and Confer Conferences 27 28 3 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 Plaintiff sent Yelp a meet and confer letter on November 17, 2011. See Winchester Decl. ¶3, 2 Ex. 2. The parties met and conferred several times on Friday, November 18, 2011 and on Monday, 3 November 21, 2011. See id. ¶2, Ex. 1. No resolution was reached. 4 III. ARGUMENT 5 A. Legal Standard 6 Federal Rule of Civil Procedure 54(d) allows a prevailing party to recover costs unless a 7 federal statute or court provides otherwise. “The court’s discretion in awarding costs under Rule 8 54(d) is limited to awarding costs that are within the scope of 28 U.S.C. § 1920.” Hynix 9 Semiconductor Inc. v. Rambus, Inc., 697 F.Supp.2d 1139, 1142 (2010). In the Northern District, 10 “Civil Local Rule 54-3 itemizes the costs that are allowed under section 1920.” Id. It is within the 11 district court’s discretion to award costs. See Ass’n of Mexican American Educators v. State of 12 California, 231 F.3d 572, 593 (2000). 13 B. Plaintiffs Satisfied their Obligation to Meet and Confer 14 Local Rule 54-2 requires that “[a]ny objections [to a Bill of Costs] must contain a 15 representation that counsel met and conferred in an effort to resolve disagreement about the 16 taxable costs claimed in the bill, or that the objecting party made a good faith effort to arrange 17 such a conference.” 18 Plaintiffs have fully satisfied their meet and confer requirements. In an effort to avoid filing 19 formal objections, Plaintiffs sent Yelp a meet and confer letter on November 17, 2011. See 20 Winchester Decl. ¶3, Ex. 2. On Friday, November 18, 2011, counsel for both parties met and 21 conferred telephonically regarding Plaintiffs’ objections. See id. ¶2, Ex. 1. At that time, in 22 addition to all issues raised herein, Plaintiffs’ counsel requested that Yelp provide the appropriate 23 documentation for its undocumented costs. 24 On Monday, November 21, 2011, counsel for both parties met and conferred once again. See 25 id. ¶2, Ex. 1. Plaintiffs’ counsel sent an additional email documenting their concerns. See id. ¶2, 26 Ex. 1. No resolution could be reached, and Yelp provided no additional documentation to support 27 its purported costs. 28 4 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 C. Yelp has Waived its Right to Claim any Costs 2 Local Rule 54-1(a) provides that a “prevailing party claiming taxable costs must serve and 3 file a bill of costs” by “[n]o later than 14 days after entry of judgment or order under which costs 4 may be claimed.” Local Rule 54-1(c) specifically addresses a waiver of costs: “[a]ny party who 5 fails to file a bill of costs within the time period provided by this rule will be deemed to have 6 waived costs.” 7 The entry of judgment was issued on October 26, 2011. Yelp filed its Bill of Costs on 8 November 10, 2011. Accordingly, Yelp filed its Bill of Costs after the mandatory 14-day deadline 9 established by the Local Rules. During the parties’ meet and confer efforts, Yelp acknowledged 10 that it filed the bill of costs after the deadline, but, despite its waiver of costs, declined to withdraw 11 the bill of costs. Because Yelp waived costs, none of the costs claimed by Yelp in its bill of costs 12 are allowable by law. See Local Rule 54-1; Campbell v. National Passenger Railroad Corp., 718 13 F.Supp.2d 1093, 1107 (2010) (costs were waived under Local Rule 54-1(c) because timely claim 14 was not made). 15 D. Yelp’s Filing Fees are Not Recoverable 16 Local Rule 54-3(a)(1) provides that “the clerk’s filing fee is allowable if paid by Claimant.” 17 Rule 54-1(a) requires that a bill of costs “must state separately and specifically each item of 18 taxable costs claimed” and that “[a]ppropriate documentation to support each item claimed must 19 be attached to the bill of costs.” In addition, the bill of costs must be “supported by an affidavit 20 . . . that the costs are correctly stated, were necessarily incurred, and are allowable by law.” 21 Local Rule 54-1(a) (emphasis added). 22 Yelp cannot recover any filing fee costs because it waived its right to obtain any costs in this 23 matter. Even if Yelp had not waived costs, Yelp’s purported filing fees are not recoverable 24 because Yelp failed to comply with Local Rule 54-1(a). Yelp’s bill of costs, which are supported 25 by a signed affidavit by its counsel, state that the claimed filing fee of $653.50 was “incurred in 26 connection with removal of action from California State Court to Federal District Court.” The 27 Court’s website, however, shows that a filing fee in this Court is only $350.00, and similarly, 28 5 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 docket entry No. 1 in this case also states that a $350.00 filing fee was paid for the removal. As a 2 result, despite Yelp’s declaration, the $653.50 cost claimed was not a removal filing fee. During 3 the parties’ meet and confer conferences, Yelp offered no explanation for the discrepancy. Yelp, therefore, failed to provide “appropriate documentation” to support this item as required 4 5 by Local Rule 54-1(a), and cannot recover the filing fee cost. See Kelly v. U.S. Bank, No. 08- 6 1421-AC, 2011 WL 2934023 (D. Or. June 21, 2011) (declining to award costs when party “failed 7 to adequately itemize or document the costs is [sic] seeks”). Yelp did not provide a bill or other 8 documentation that demonstrates that the $653.50 charge constitutes the filing fee for its removal. 9 The only documentation of this cost is what appears to be a “Cooley Godward Kronish LLP” 10 statement that states under “costs and disbursements through April 30, 2010,” “filing fees, 11 Constant, J. Alan, SF Sup. Filing 653.50.” No date is noted for this charge and the only apparent 12 connection to this case is a notation at the top of the sheet stating “Renaissance Restoration.” 13 Moreover, the submitted fee appears to be for a superior court filing, as opposed to a “USDC” 14 filing charge (one of which is listed on the top of the cost list for $52.50). Plainly, this submission 15 is inadequate and does not appropriately document any recoverable filing fees. 16 Because Yelp failed to submit appropriate documentation of this cost, and because the 17 submitted cost is plainly not the Clerk’s filing fee for the removal, Yelp’s request for filing fee 18 costs must be denied. 19 E. Yelp’s Transcript Costs are Not Recoverable 20 Pursuant to Local Rule 54-3(b)(3), “the costs of [] transcripts is not normally allowable unless, 21 before it is incurred, it is approved by a Judge or stipulated to be recoverable by counsel” 22 (emphasis added). The only reporters’ transcripts that are allowable are “1) the cost of transcripts 23 necessarily obtained for an appeal;” and 2) the cost of a transcript of a statement by a Judge from 24 the bench which is to be reduced to a formal order prepared by counsel.” Local Rule 54-3(b)(1)- 25 (2). 26 27 As set forth above, Yelp cannot recover any costs for transcripts because it has waived its right to claim costs. Even if Yelp had not waived costs (it has), Yelp’s requested costs for transcripts 28 6 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 are not recoverable. Accordingly to Yelp’s counsel, it is Yelp’s position that the costs for 2 transcripts are recoverable because they were “necessarily obtained for an appeal” pursuant to 3 Local Rule 54-3(b). Yelp does not maintain that the transcripts were allowable based on a 4 statement by a Judge from the bench, or otherwise approved by a Judge or stipulated to be 5 recovered by counsel. 6 When asked, Yelp’s counsel justified the transcripts as being “necessarily obtained for an 7 appeal” because they might allow Yelp’s counsel to “prepare themselves” for Plaintiff’s appeal or 8 otherwise provide “background information.” See Winchester Decl. ¶2, Ex. 1. That justification 9 plainly does not meet the exception for transcript costs “necessarily obtained for an appeal.” 10 As a preliminary matter, the only issue being appealed in this case is Defendant’s Motion to 11 Dismiss Plaintiff’s Third Amended Complaint (Docket No. 89) and the Judgment (Docket No. 12 90). See Dkt. No. 92 (Plaintiff’s Notice of Appeal). Neither party is appealing Defendants’ 13 Motion to Consolidate, yet Yelp includes the cost for that transcript in its Bill of Costs. 14 Accordingly, Yelp’s request for costs for the July 19, 2010 proceeding was not “necessarily 15 obtained for an appeal.” See Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2010 WL 16 1691869 at *7 (N.D. Cal. April 23, 2010) (transcript costs not recoverable if no appeal). 17 Similarly, neither party is appealing Defendants’ Motion to Dismiss Plaintiff’s Second 18 Amended Complaint. As a result, Yelp’s costs for the transcript of the March 7, 2011 hearing was 19 also not “necessarily obtained for an appeal” and therefore cannot be claimed simply to possibly 20 provide background information. Finally, because Plaintiff is appealing the ruling from October 21 14, 2011 hearing, and subsequent order, a transcript from those proceedings will be filed by the 22 court reporter several months before Yelp’s response to the appeal is due. See Dkt. No. 95. That 23 transcript, accordingly, was also not “necessarily obtained for an appeal” and does not meet the 24 standard articulated under Rule 54-3(b). 25 In addition to the fact that the reporter’s transcripts are not recoverable costs, Yelp’s submitted 26 transcript costs are problematic for other reasons. Pursuant to Local Rule 54-1(a) “[a]ppropriate 27 documentation to support each item claimed must be attached to the bill of costs.” Yelp’s 28 7 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 submitted transcript cost from the July 19, 2010 proceedings was not appropriately documented, 2 and is therefore not recoverable. As noted above, no bill or documentation is attached to Yelp’s 3 bill of costs that demonstrates that $157.30 constitutes a bill or invoice for a transcript. See Dkt. 4 94-1. Instead, the only documentation of this cost is what appears to be a statement from “Cooley 5 Godward Kronish LLP” designating, for “costs and disbursements through July 31, 2010” 6 “Sullivan, Katherine A. Powell Copy of Transcript 157.30.” There is no indication of the date of 7 the hearing on which the transcript was purportedly taken, and aside from stating in the middle of 8 the page “Renaissance Restoration,” whether it was even for this matter. Further, the bill does not 9 indicate whether the transcript was completed on an expedited basis, which would not be 10 recoverable. Yelp has had ample opportunity to supplement this cost, but has not done so. 11 Because Yelp has failed to comply Rule 54-d(1)’s requirement that “appropriate documentation” 12 must support each claim, it must be denied. 13 The other transcript costs submitted by Yelp for the March 7, 2011 and October 14, 2011 14 proceedings are for transcripts obtained on an hourly and expedited basis, at $7.25 and $4.85 per 15 page respectively. In addition to the other issues set forth above, it is well-settled that expedited 16 transcript charges are not recoverable as costs. See Affymetrix, Inc. v. Multilyte Ltd., No. C 03- 17 03779, 2005 WL 2072113 (N.D. Cal. Aug. 26, 2005) (expedited fees for hearing transcripts not 18 recoverable). These charges, therefore, cannot be claimed by Yelp. 19 F. Yelp’s Copying Costs are Not Recoverable 20 Yelp maintains it is entitled to its copying costs for “[r]eproduction of government record for 21 use in Declaration of S. Ashlie Beringer in Support of Motion to Dismiss First Amended Class 22 Action Complaint Filed by Defendant Yelp, Inc. on October 22, 2010 (5 pages @$.10/page)” 23 [$.50] and “[r]eproduction of government record for use in Statement of Recent Decision Filed by 24 Defendant Yelp, Inc. on February 22, 2010 (20 pages @ $.10/page)” [$2.50]. 25 Again, Yelp’s copying costs are not recoverable because Yelp waived its right to obtain costs. 26 Even disregarding the waiver, Yelp failed to provide “appropriate documentation” to support these 27 items. No bills are submitted to support the itemization. Further, according to Yelp’s counsel, the 28 8 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC 1 purported “government record” reproduction charges are for Westlaw or Lexis Nexis case 2 printouts. Westlaw and Lexis Nexis, however, are privately-owned companies – not a state or 3 federal government office or record repository. For all of those reasons, Yelp’s copying costs are 4 not recoverable. 5 G. Cost Recovery is Not Appropriate 6 In addition to the reasons noted above, Yelp should not be awarded costs because – given the 7 nature of this litigation – they are unwarranted. A district court has discretion not to award costs. 8 See Ass’n of Mexican American Educators v. State of California, 231 F.3d 572, 593 (2000). In 9 determining whether to award costs, courts may consider the losing party’s limited financial 10 resources, whether the case involves issues of substantial public importance, whether there is great 11 economic disparity between the parties and whether the issues were close and difficult. Id. at 592. 12 Here, Plaintiffs were small business owners that attempted to take on a large multi-million 13 dollar corporation that is now in the process of filing for an IPO. The case involved issues of 14 substantial public importance as they related to the alleged unlawful conduct of an internet 15 provider, whose presence and actions impact nearly every small business in the country. The 16 issues were close and difficult as was evidenced by the multiple pleadings and discrepancies 17 between the orders issued on Yelp’s Motions to Dismiss Plaintiffs’ Second and Third Amended 18 Complaints. For all of those reasons, Yelp’s request for costs should be denied. 19 IV. 20 21 CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that Yelp’s claimed Bill of Costs be denied in its entirety. 22 23 24 25 26 DATED: November 23, 2011 ONGARO BURTT & LOUDERBACK LLP By: /s/ David R. Ongaro David R. Ongaro Attorneys for Plaintiffs BORIS Y. LEVITT et al. 27 28 9 PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS Case No. CV 10-01321 EMC

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