Gatx/Airlog Company, et al v. Evergreen Intl, et al

Filing 2264


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 KALITTA AIR, LLC, 5 6 7 8 9 United States District Court For the Northern District of California 10 No. C 96-2494 CW Plaintiff, v. CENTRAL TEXAS AIRBORNE SYSTEMS, et al., ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR REVIEW OF CLERK'S NOTICE OF TAXABLE COSTS AND GRANTING STAY Defendants. ________________________________/ 11 12 Plaintiff Kalitta Air moves for review of the Clerk’s notice 13 of taxable costs and an order setting taxable costs in this matter 14 at $177,000. 15 of costs pending the outcome of its appeal. 16 Texas Airborne Systems (CTAS) opposes the motion, arguing that all 17 but a few items in the Clerk's award of $691,591.783 were proper. 18 CTAS does not oppose Kalitta's request for a stay, but argues that 19 Kalitta should be required to post a supersedeas bond in the 20 amount of 150 percent of the costs awarded. The matter was decided 21 without oral argument. 22 by the parties, the Court GRANTS IN PART Plaintiff's motion for 23 review of the Clerk's taxation of costs, and GRANTS Plaintiff's 24 request to stay collection of costs pending appeal. 25 orders Plaintiff to post a supersedeas bond in the amount of fifty 26 percent of the taxable costs or $311,018.19. 27 28 Kalitta also requests that the Court stay collection Defendant Central Having considered all of the papers filed The Court 1 2 BACKGROUND In 1996, Kalitta Air filed a lawsuit against numerous 3 Defendants, including CTAS. 4 favor of CTAS. 5 costs, and, on Kalitta's motion, the Court reduced the taxable 6 costs to $355,370.08. 7 pending Kalitta's appeal, and ordered Kalitta to post a 8 supersedeas bond in the amount of 50 percent of the taxable costs. 9 In 2003, the Ninth Circuit affirmed in part and reversed in part In 2001, a jury rendered a verdict in The Clerk awarded CTAS $489,319.37 in taxable The Court stayed collection of those costs United States District Court For the Northern District of California 10 this Court's decision and remanded the case. 11 jury trial resulted in a mistrial, and the Court granted in part 12 CTAS's motion for judgment as a matter of law. 13 and CTAS cross-appealed. 14 affirmed in part and reversed in part this Court's decision and 15 remanded the case. 16 favor of CTAS. 17 Circuit. In 2005, a second Kalitta appealed In 2008, the Ninth Circuit again In 2012, a third jury rendered a verdict in Kalitta has filed a notice of appeal to the Ninth 18 On April 10, 2012, CTAS sought $724,021.37 in costs. 19 8, 2012, the Clerk awarded CTAS $691,591.73 in taxable costs. 20 Clerk found that CTAS was entitled to $1,310 in Fees of the Clerk, 21 $300,632.78 for exemplification and copies, $20.00 for docket 22 fees, $34,178.87 for depositions subsequent to the first trial, 23 and the $355,370 awarded by the Court after the first trial. 24 Civil L.R. 54-3(c), (d), (f). 25 26 27 28 2 On May The See 1 2 DISCUSSION I. Taxable Costs 3 A. 4 Kalitta first argues that it is inequitable to tax costs at Equity Argument the level awarded by the Clerk. 6 54(d)(1) creates a presumption in favor of awarding a prevailing 7 party its costs other than attorneys' fees, but vests in the 8 district court the discretion to refuse to award such costs if the 9 district court gives specific reasons explaining why the case is 10 United States District Court For the Northern District of California 5 not ordinary and why it would be ‘inappropriate or inequitable to 11 award costs.’” 12 Inc., 407 F.3d 1027, 1038 (9th Cir. 2005) (quoting Ass'n of 13 Mexican-Am. Educators v. California, 231 F.3d 572, 591, 593 (9th 14 Cir. 2000) (en banc)). 15 “Federal Rule of Civil Procedure Jack Russell Terrier Network v. Am. Kennel Club, Kalitta bases its equity argument on its contentions that the 16 case was close and difficult, it litigated in good faith, and, it 17 asserts, many of the costs were caused by CTAS’s decision to 18 change its trial strategy after the first trial. 19 than half of the costs taxed are the costs already awarded by the 20 Court following the first trial. 21 case cited by Kalitta in support of its argument emphasizes the 22 losing party’s financial resources as a factor in determining 23 whether to deny costs. 24 231 F.3d at 591. 25 the costs is a significant factor in many cases in the Ninth 26 Circuit. 27 1038 (affirming the denial of costs where the district court noted 28 the losing party’s “lack of financial resources”). However, more More importantly, the primary See Ass’n of Mexican-American Educators, Indeed, the losing party’s ability to pay for See, e.g., Jack Russell Terrier Network, 407 F.3d at 3 Kalitta is 1 clearly able to pay CTAS’s costs in this case. 2 Reply at 7 (“Kalitta’s financial condition is such that its 3 ability to pay the costs in the event of an unsuccessful appeal 4 are beyond question.”). 5 6 See Plaintiff’s The Court finds that the equities do not support a reduction of CTAS’s costs. 7 B. 8 Kalitta next argues that various items in CTAS’s bill of 9 costs should be reduced because they go beyond what is permitted. United States District Court For the Northern District of California 10 Reduction of Costs Claimed by CTAS 1. 11 Pro Hac Vice Admission The Clerk awarded CTAS $1,310 for pro hac vice admission 12 fees. 13 There is no rule in the Ninth Circuit regarding such fees, and 14 some courts have allowed such costs, while others have not. 15 Competitive Technologies v. Fujitsu Ltd., 2006 U.S. Dist. LEXIS 16 98312, at *12-13 (N.D. Cal.) (noting that “the Ninth Circuit has 17 not addressed this issue” and that “a number of district courts in 18 the Ninth Circuit have not allowed such fees to be recovered”); 19 but see SEIU v. Rosselli, 2010 U.S. Dist. LEXIS 122202, at *10 20 (N.D. Cal.) (allowing recovery of $1,260 in pro hac vice fees). 21 The Clerk’s order awarding $1,310 for pro hac vice admission fees 22 is affirmed. 23 2. 24 Kalitta argues such fees are not proper taxable costs. See Exemplification and Copying Costs Under 28 U.S.C. § 1920, the court may tax “the costs of 25 making copies of any materials where the copies are necessarily 26 obtained for use in the case.” 27 are “necessarily obtained” copies. 28 copying disclosures or formal discovery documents is allowable, Local Rule 54-3(d) clarifies what 4 For example, the cost of 1 while the cost of copying motions, pleadings and notices is not. 2 CTAS claimed $318,457.19 in exemplification and copying costs. 3 The Clerk reduced this amount to $300,632.78. 4 this amount should be reduced further on several bases. 5 a. In-House Copying Costs Kalitta argues that 6 CTAS has claimed $26,186.95 and $13,430.15 for in-house 7 copying costs incurred by the two law firms that represented it. 8 These amounts represent a voluntary fifty percent discount by 9 CTAS. Kalitta argues that CTAS has failed to establish that the United States District Court For the Northern District of California 10 amount sought was for copies made for permissible purposes. 11 responds generally that it need not provide “copy-by-copy 12 documentation of costs.” 13 CTAS The invoices submitted by CTAS do not indicate the purpose of 14 the copies made. 15 firm does not even indicate the number of pages copied, or the 16 amount charged per page. 17 Pages 42-74. 18 copies were made and the total amount charged. 19 in-house copying by Steven Levitt & Associates, P.C. includes the 20 page count and rate per page for some entries, but not all. 21 Docket No. 2234, Exhibit B, Part 2, Pages 22-41. 22 not provide a description for each individual page copied, its 23 documentation provides no basis for determining which, if any, of 24 the in-house copying costs are taxable. 25 The invoice for in-house copying by the Sedgwick See Docket No. 2234, Exhibit B, Part 2, The invoice indicates only the date on which the The invoice for See While CTAS need Moreover, because CTAS has failed to provide documentation of 26 the number of copies made or the rate charged for those pages, it 27 is impossible for the Court to make any determination of the 28 reasonableness of these costs. Cf. Meier v. United States, 2009 5 1 U.S. Dist. LEXIS 31391, at *6-7 (N.D. Cal.) (finding that party’s 2 claim of costs “for approximately 5,000 pages of in-house copying 3 taxed at a rate often cents per page” was reasonable). 4 CTAS’s argument that it has voluntarily discounted its in- 5 house copying costs by fifty percent is unavailing in light of the 6 amount sought and the lack of documentation of the number of 7 copies made, the amount charged per copy, and the purpose of the 8 copies. 9 distinguishable. The cases it cites in support of this argument are Cf. Langston v. N. Am. Asset Dev. Corp. Group United States District Court For the Northern District of California 10 Disability Plan, 2010 U.S. Dist. LEXIS 12507, at *28 (N.D. Cal.) 11 (reducing by twenty-five percent a claim of $539 for 3,850 pages 12 at a rate of fourteen cents per page to $404.25); Saberi v. BFS 13 Retail & Commer. Operations, LLC, 2011 U.S. Dist. LEXIS 54864, at 14 *23 (N.D. Cal.) (accepting a twenty percent voluntary discount on 15 non-discovery-related copying costs where the party “scrupulously 16 detailed the costs sought to be recovered as best it could” and 17 submitted a table “specifying cost [and] specific statute 18 authorizing cost”). 19 20 The Court grants Kalitta’s motion with respect to CTAS’s inhouse copying costs and disallows $39,617.10 in costs. 21 22 b. Visual Aid Development Civil Local Rule 54-3(d)(5) provides, “The cost of preparing 23 charts, diagrams, videotapes and other visual aids to be used as 24 exhibits is allowable if such exhibits are reasonably necessary to 25 assist the jury or the Court in understanding the issues at 26 trial.” 27 of the exhibits were required by a judge. The cost of reproducing exhibits is allowable when copies 28 6 Civil L.R. 54-3(d)(4). 1 Kalitta challenges charges submitted for visual aid 2 development by graphics consultants, first arguing that the 3 exhibits were not reasonably necessary. 4 complex engineering and financial concepts. 5 the exhibits presented by CTAS were reasonably necessary to assist 6 the jury and the Court in understanding the issues in the case. 7 This case involved The Court finds that Kalitta next argues that CTAS is overreaching, attempting to 8 recover for time spent developing the content of the exhibits 9 rather than the physical creation and duplication of those United States District Court For the Northern District of California 10 exhibits. 11 only for the physical preparation and duplication of documents, 12 not the intellectual effort involved in their production.” 13 v. Shanahan, 80 F.3d 1366, 1371 (9th Cir. 1996) (internal 14 quotations omitted). 15 meetings, on-site trial support, case review, and coordination are 16 not permissible because they “do not arise from the physical 17 preparation of demonstratives.” 18 Intel Corp., 2009 U.S. Dist. LEXIS 122596, at *7-8 (N.D. Cal.). 19 “Fees for exemplification and copying are permitted Zuill Accordingly, costs for things such as Computer Cache Coherency Corp. v. The Court has reviewed the invoices from FTI Consulting, 20 Fulcrum Legal Graphics and LegalEdge submitted by CTAS and found 21 that there are multiple entries for meetings and telephone calls, 22 trial consulting, on-site trial support, and other impermissible 23 charges. 24 much time was spent on the impermissible items. 25 bears the burden of demonstrating the reasonableness of the costs 26 incurred. 27 reasonable. It is not entirely clear from the invoices produced how However, CTAS The Court finds that a further reduction of $16,500 is 28 7 c. 1 Production of Deposition Clips to Be Played Before the Jury 2 3 Kalitta argues that CTAS should not recover costs associated 4 with the production of deposition clips to be played for the jury 5 because these costs are in excess of the “cost of an original and 6 one copy of any deposition” permitted by Local Rule 54-3(c)(1). 7 However, as discussed above, Local Rule 54-3(d)(5) allows recovery 8 of costs for “videotapes and other visual aids to be used as 9 exhibits.” Courts have allowed costs for the production of United States District Court For the Northern District of California 10 deposition clips pursuant to Local Rule 54-3(d)(5) because such 11 clips can “assist[] the jury in understanding the evidence.” 12 of Alameda v. Nuveen Mun. High Income Opportunity Fund, Nos. 08- 13 4575, 09-1437, 2012 U.S. Dist. LEXIS 7403, at *10 (N.D. Cal.), 14 citing BDT Prods, Inc. v. Lexmark Int’l, 405 F.3d 415, 419-20 (6th 15 Cir. 2005); see also Hynix Semiconductor Inc. v. Rambus Inc., 697 16 F. Supp. 2d 1139, 1150-51 (N.D. Cal. 2010) (allowing the taxation 17 of costs related to video synchronization). 18 City The Court finds that the costs for preparing deposition clips 19 to be played for the jury are allowable. However, the invoice to 20 which Kalitta objects includes costs beyond the production of 21 those deposition clips. 22 support, duplication and shipment of hard drives, trial 23 preparation, setting up and striking a war room, meetings and 24 reviewing outlines are not recoverable. 25 related to exhibits are only recoverable to the extent that they 26 “arise from the physical preparation of demonstratives.” 27 Cache Coherency Corp., 2009 U.S. Dist. LEXIS 122596, at *7-8. 28 CTAS has applied a voluntary thirty percent reduction to the These costs, including trial presentation 8 As discussed above, costs Computer 1 relevant invoice to account for any expenses not directly related 2 to the physical preparation of the deposition clips. 3 after reviewing the invoice, the Court finds that the thirty 4 percent reduction is not sufficient. 5 that a fifty percent reduction is more appropriate. 6 the Court disallows an additional $9,906.90 in costs. However, Instead, the Court finds Accordingly, 7 3. 8 CTAS claimed $48,864.27 in costs for depositions after the 9 Deposition Costs first trial in this matter. United States District Court For the Northern District of California 10 $14,685.40. 11 The Clerk then reduced this amount by reduced on several grounds. 12 a. Kalitta now argues that these costs should be further Costs Beyond Exemplification or an Original and One Additional Copy of Depositions 13 14 Kalitta objects to CTAS’s claim for costs related to the 15 following items that appear on various invoices: 16 videoconference and internet streaming fees for depositions; $225 17 for ASCII discs; $1,127 for “Condensed Transripts,” “E-mail of e- 18 trans,” “Interactive Realtime,” and “LEF File”; and $112.75 for 19 next day air delivery. 20 Accordingly, the Court reduces the bill of costs by $3,477.25. 21 $2,012.50 in CTAS waives its request for these costs. Kalitta also objects to two additional items related to these 22 invoices: “DVD Copy” and “Compact Disc transferred from VHS.” 23 Kalitta argues that allowing recovery for the cost of a DVD copy 24 of a videotaped deposition in addition to the written transcript 25 exceeds the allowable cost. 26 "The cost of an original and one copy of any deposition (including 27 video taped depositions) taken for any purpose in connection with Local Civil Rule 54-3(c)(1) provides, 28 9 1 the case is allowable. 2 costs for videotaped depositions. 3 CTAS points to this Rule's allowance of Several courts in this district have interpreted Rule 54- 4 3(c)(1) to allow a party to recover the cost of one DVD copy in 5 addition to the stenographic transcript for videotaped 6 depositions. 7 Dist. LEXIS 23834, at *7-8 (N.D. Cal.); Pixion Inc. v. PlaceWare 8 Inc., 2005 U.S. Dist. LEXIS 11351, at *5-6 (N.D. Cal.); MEMC Elec. 9 Materials v. Mitsubishi Materials, 2004 U.S. Dist. LEXIS 29359, at See, e.g., Asyst Techs. v. Emtrak Inc., 2009 U.S. United States District Court For the Northern District of California 10 *17-33, n.5-14 (N.D. Cal.), citing Tilton v. Capital Cities/ABC, 11 115 F.3d 1471 (10th Cir. 1997); Meredith v. Schreiner Transport, 12 814 F. Supp. 1004 (D. Kan. 1993). 13 that a prevailing party may recover costs for both the 14 stenographic and video copies of a videotaped deposition when both 15 are reasonably necessary. 16 This Court agrees and finds It appears that the two entries for “DVD Transferred from 17 VHS” and “Compact Disc transferred from VHS” are charges for the 18 creation of a single video copy of a videotaped deposition and are 19 therefore allowable. 20 shows that CTAS received two DVD copies of the deposition for 21 $110. 22 However, the invoice for the “DVD Copy” Accordingly, the Court reduces the bill of costs by $55. b. Transcript Synchronization for Depositions from the First Trial 23 24 Kalitta next objects to invoices for “Transcript 25 Synchronization” of four depositions from 1999, arguing that these 26 are costs for impermissible additional copies of depositions. 27 However, as discussed above, such costs are recoverable as 28 exemplification costs, because the purpose of the synchronization 10 1 was to create deposition clips to show to the jury. 2 requested reduction of costs related to video synchronization is 3 denied. 4 5 c. Kalitta’s Deposition Costs from the First Trial Kalitta argues that certain deposition costs from the first trial should be further reduced from the amount awarded by the 7 Court in 2002. 8 that order. 9 first trial. 10 United States District Court For the Northern District of California 6 d. However, Kalitta provides no basis for revisiting The Court will not further reduce the costs from the Summary of Additional Reductions from the Clerk’s Taxation of Costs 11 12 1. $39,617.10 in in-house copying costs 13 2. $16,500 in visual aid production costs 14 3. $9,906 in exemplification costs related to the production of deposition clips 15 16 4. $3,477.25 in costs waived by CTAS 17 5. $55.00 for a second DVD copy of a deposition 18 Total Reduction: 19 Total Net Costs Awarded: $622,036.38 $69,555.35 20 C. Stay of Collection 21 Federal Rule of Civil Procedure 62(d) provides that an 22 appellant may obtain a stay of execution on the judgment of the 23 district court after posting a supersedeas bond. 24 a bond protects the prevailing party from the risk of a later 25 uncollectible judgment and compensates him for delay in the entry 26 of final judgment.” 27 859 F.2d 818, 819 (9th Cir. 1988). 28 staying collection of the judgment for costs without first posting “The posting of National Labor Relations Board v. Westphal, 11 Kalitta moves for an order 1 a supersedeas bond. 2 judgment for costs is distinguishable from other judgments and 3 should be stayed until the appellate process is complete, citing 4 Brown v. American Enka Corp., 452 F. Supp. 154, 160 (E.D. Tenn. 5 1976). 6 Kalitta argues, as it did in 2002, that a The Court again finds that there is nothing in the language 7 of Rule 62 that suggests that a judgment for costs should be 8 treated differently than any other judgment. 9 Court requires Kalitta to post a supersedeas bond in order to stay Accordingly, the United States District Court For the Northern District of California 10 the enforcement of the judgment for costs. 11 as to the amount of the bond that the Court should require. 12 Court exercises its discretion to order a bond in the amount of 13 fifty percent of the taxable costs. The parties disagree The 14 CONCLUSION 15 For the foregoing reasons, Kalitta’s motion for an order 16 modifying the Clerk’s assessment of taxable costs and setting 17 taxable costs is GRANTED in part and DENIED in part. 18 costs of $622,036.38 are awarded. 19 collection of costs pending appeal is GRANTED, on condition that 20 Kalitta post a supersedeas bond in the amount of fifty percent of 21 the taxable costs or $311,018.19. Taxable Kalitta’s request to stay 22 23 IT IS SO ORDERED. 24 25 26 Dated: 12/5/2012 CLAUDIA WILKEN United States District Judge 27 28 12

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