Rocky Mountain Bank -v- Google, Inc.

Filing 407

Rocky Mountain Bank -v- Google, Inc.

Doc. 407

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FRANK R. UBHAUS, CA STATE BAR NO. 46085 THOMAS P. MURPHY, CA STATE BAR NO. 121251 BERLINER COHEN TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE: [phone] FACSIMILE: [phone] [e-mail] [e-mail] ATTORNEYS FOR DEFENDANT SAN JOSE ARENA MANAGEMENT COMPANY, LLC dba HP PAVILION MANAGEMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DENIZ BOLBOL, AN INDIVIDUAL, JOSEPH CUVIELLO, AN INDIVIDUAL, AARON LODGE, AN INDIVIDUAL, TRACEY DEMARTINI, AN INDIVIDUAL, AND ALFREDO KUBA, AN INDIVIDUAL, Plaintiffs, v. THE RINGLING BROS. AND BARNUM AND BAILEY CIRCUS; THE CITY OF SAN JOSE, AND HP PAVILION MANAGEMENT, Defendants.

CASE NO. C04 00082 JW HP PAVILION MANAGEMENT'S NOTICE OF MOTION AND MOTION TO REVIEW AND VACATE CLERK'S TAXATION OF COSTS [FRCP RULE 54(D)(1), LOCAL RULE 54-5] Date: Time: Judge: Courtroom: October 20, 2008 9:00 a.m. Hon. James Ware 8

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HP PAVILION'S MOTION TO VACATE COSTS AND MPA IN SUPPORT OF SAME
Dockets.Justia.com

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NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 20, 2008, at 9:00 a.m., or as soon thereafter as the matter may be heard in the above-entitled court, located at 280 South First Street, Courtroom 8, San Jose, California, Defendant San Jose Arena Management Company, LLC dba HP Pavilion Management will and hereby does move for an order pursuant to FRCP Rule 54(d)(1) and Local Rule 54-5 reviewing and vacating the Clerk's taxation of costs, on the ground that Plaintiff Deniz Bolbol ("Bolbol") included in her bill of costs items which are not recoverable under Local Rule 54-3(b), namely, the costs of certain trial transcripts, and on the further ground that Bolbol may not recover costs against HP Pavilion Management incurred after April 18, 2005, because the judgment obtained by Plaintiffs is not more favorable than HP Pavilion Management's April 15, 2005 offer of judgment under Rule 68, which was served on April 18, 2005. This motion will be based on this Notice of Motion, the Memorandum of Points and Authorities served and filed herewith, the declaration of Thomas P. Murphy in support of the motion, the papers and records on file herein, on such oral and documentary evidence as may be presented at the hearing on the motion, on the reply brief, if any, and on the argument at the hearing on the motion. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION By this motion, HP Pavilion Management asks Court to review and vacate the Clerk's June 27, 2008 taxation of costs, on two grounds. First, Bolbol has been allowed $4,534.50 as court reporter fees for the trial transcripts in this case which are not recoverable under this Court's local rules. Second, Bolbol is not entitled to costs after April 18, 2005 in any event. HP Pavilion Management served a FRCP Rule 68 offer of judgment on April 18, 2005. It is HP Pavilion Management's position that Bolbol failed to obtain a judgment against HP Pavilion Management that is more favorable than the offer of judgment, and that therefore all of her claimed costs incurred after that date should be disallowed. HP Pavilion Management is mindful that, in deciding the attorneys' fees motion of Bolbol and Cuviello, the Court has previously
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determined that the Rule 68 offer is not more favorable than the judgment. Docket No. 446. HP Pavilion Management reasserts its position solely in order to preserve its rights on review of that determination, in particular as it may be applied to the Clerk's June 27, 2008 taxation of costs. II. FACTUAL BACKGROUND The Court entered its Judgment and Permanent Injunction on August 30, 2006. See Docket No. 332. On September 13, 2006, Plaintiffs electronically filed a bill of costs in which they claimed $8,156.26 in costs. Docket No. 344. The Clerk taxed costs in the amount of $8,009.76 two days later. Docket No. 353. On October 2, 2006, HP Pavilion Management filed a motion to vacate or review the clerk's taxation of costs, in part on the basis that the clerk taxed costs prematurely. Docket No. 359 (a courtesy copy of this motion is attached as Exhibit A to the Declaration of Thomas P. Murphy in Support of Motion to Review Clerk's Taxation of Costs ("Murphy Declaration"), filed concurrently herewith. In the alternative, HP Pavilion Management argued that the transcript and any costs incurred after April 18, 2005 were improperly allowed. Id. at pp. 5-6.1 On April 16, 2007, Bolbol and Plaintiff Joseph Cuviello ("Cuviello") opposed HP Pavilion Management's October 2, 2006 motion. Docket No. 415; Murphy Declaration, Exhibit B. In their opposition, Bolbol and Cuviello agreed that the clerk had prematurely taxed the costs (Id. at p. 2:3), but devoted nearly all of the opposition to addressing the merits of HP Pavilion Management's arguments concerning whether the Rule 68 offer was more favorable than the judgment and whether the costs of trial transcripts were properly allowed. Id. at pp. 2:6-7:17. As the Court is aware, prior to trial in this matter, on April 15, 2005, HP Pavilion Management served a Rule 68 Offer of Judgment on Bolbol and Cuviello in which HP Pavilion Management offered to allow judgment to be taken against it in the amount of $5,000 as to each plaintiff, together with reasonable attorneys' fees and costs incurred to the date of the offer, and to permit access to HP Pavilion facilities for speech activities. See October 2, 2006 Declaration of Thomas P. Murphy in Support of Motion to Vacate or Review Clerk's Taxation of Costs, ¶ 4 and Exhibit B thereto. Docket No. 360. The August 30, 2006 Judgment and Permanent Injunction awarded Bolbol and Cuviello each damages of $2,400.00. The Court also awarded certain injunctive relief. See Docket Entry No. 332. HP Pavilion Management contended that the final judgment was less favorable than the Rule 68 offer so that Bolbol and Cuviello could not recover attorneys' fees or costs after April 18, 2005. See infra.
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HP Pavilion Management filed a reply to the opposition on May 7, 2007; that reply addressed only the merits of its arguments regarding the Rule 68 offer and the trial transcripts. Id. On August 22, 2007, the Court issued an order indicating that it would allow attorneys' fees after HP Pavilion Management served its April 18, 2005 Rule 68 offer and referring the question of the amount of fees to Magistrate Judge Seeborg. Docket No. 446. This order also granted HP Pavilion Management's motion to vacate the taxation of costs and ordered Bolbol and Cuviello to resubmit their costs bill by September 10, 2007, with HP Pavilion Management to file its objections by September 17, 2008 and the Clerk to tax costs immediately following that date. Id. at p. 8:1-5. The order also provided that the parties' right to file post-taxations motions were not affected by the order. Id. Bolbol and Cuviello did not file a cost bill by September 10, 2007 but later sought leave to file a late cost bill. Docket Nos. 454, 455. On April 25, 2008, the Court allowed Bolbol and Cuviello leave to file a late cost bill. Docket No. 466, p. 2. Bolbol filed a cost bill that same day, seeking $8,009.76 in costs. Docket No. 467, p. 2. Cuviello has not filed a resubmitted bill of costs. On June 27, 2008, the Clerk taxed costs in favor of Bolbol in the amount of $5,426.31. Docket No. 492. Of this amount, $4,534.50 represented the costs of trial transcripts. Id. A. Under this Court's Local Rules, Bolbol May Not Be Allowed the Cost of Trial Transcripts.

The Clerk has allowed Bolbol costs that are not allowable under this Court's local rules. Costs were taxed in the amount of $4,534.50 for fees of the court reporter for trial transcripts. Docket No. 492. Under Local Rule 54-3(b), the costs of transcripts other than those necessarily obtained for an appeal or the cost of a transcript of a statement by a judge from the bench which is to be reduced to a formal order prepared by counsel are not normally allowable unless, before they are incurred, they are approved by a judge or stipulated to be recoverable by counsel. Bolbol has not made and cannot make any showing that the Court approved such costs or that counsel stipulated that they would be recoverable. Moreover, although Bolbol has appealed from the Court's judgment in this case, it cannot be said that the transcripts were necessarily obtained for an appeal. First, $957 of her claim is for
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transcripts of proceedings held on January 10 and 13, 2006. Docket No. 467, p. 15. These were apparently ordered on an expedited basis on January 20, 2006, months before the Court conducted its trial on injunctive relief in May 2006 and long before the final judgment was entered on August 30, 2006. Docket No. 338. Also, on May 12, 2006, before the injunction trial, Bolbol and Cuviello ordered additional transcripts of proceedings held on January 10, 2006 to January 20, 2006, for which Bolbol was allowed $3,195.12. Bolbol and Cuviello ordered these transcripts before the result of the injunction trial was even known. Hence, the transcripts were not necessarily obtained for an appeal. Indeed, Bolbol has previously argued that the transcripts were used for "preparing for the second phase of trial where the permanent injunction was at issue." Docket No. 415, p. 7:2-3. Although she likened her use of the transcripts in this manner to the use of transcripts for an appeal (Id. at p. 7:1-17), in doing so she effectively acknowledged that she had not obtained the transcripts for an appeal. And although in June 2007, Bolbol filed an appeal from the judgment (Docket No. 439), there is no indication that she ordered the transcripts in January and May 2006 for that purpose. To the contrary, as noted it appears that she obtained them for use in the district court proceedings. Local Rule 54-3(b)(3) is clear: "the cost of other transcripts [apart from transcripts necessarily obtained for an appeal or a statement by a judge from the bench which is to be reduced to a formal order' is not normally allowable unless, before it is incurred, it is approved by a judge or stipulated to be recoverable by counsel" (italics added). There was no such judicial approval or stipulation. In any event, under Federal Rules of Appellate Procedure Rule 39(a), appellate costs, including necessary reporter's transcripts (FRAP Rule 39(d)), are assessed in favor of the party prevailing in the appeal. The cost of the reporter's transcript, if needed to determine the appeal, is taxed in the district court for the benefit of the party entitled to costs under FRAP Rule 39. See FRAP Rule 39(e). If the basis for allowing the cost of the reporter's transcript is that it is necessary for appeal, then it would be premature to tax that cost before the pending appeals are determined. Accordingly, under Local Rule 54-3(b), the Court should disallow the $4,534.50. 45 allowed to Bolbol as transcript costs.
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B.

HP Pavilion Management's Rule 68 Offer Precludes Allowing Bolbol Costs Incurred After April 18, 2005.

In connection with the attorneys' fees motion of Bolbol and Cuviello, the Court has previously determined that the relief the Bolbol and Cuviello obtained by judgment was more favorable than the relief which HP Pavilion Management proposed in its April 18, 2005 Rule 68 offer. Docket No. 446. However, the Court never directly reached the merits of HP Pavilion Management's motion to review the Clerk's September 2006 taxation of costs. Accordingly, solely for the purpose of preserving its rights on review of the award of costs, HP Pavilion Management reasserts its position regarding its Rule 68 offer, as stated in its earlier briefing in connection with its initial motion to vacate or review the Clerk's taxation of costs as well as in its opposition to the attorneys' fee motion of Bolbol and Cuviello. To that end, it adopts and incorporates by reference its arguments contained in that prior briefing as reflected in Exhibits A, C and D to the Murphy Declaration. According to the invoices and other materials that Bolbol submitted with her bill of costs, all of the claimed costs except for $390.80 (for the transcript of the deposition of Carl Mitchell) were incurred after April 18, 2005. Consequently, should HP Pavilion Management's view regarding its Rule 68 offer prevail, only $390.80 in costs is potentially allowable to Bolbol in light of the cost shifting provisions of Rule 68. III. CONCLUSION For the foregoing reasons, the Court should disallow Bolbol's costs as set forth above. DATED: JULY 7, 2008 RESPECTFULLY SUBMITTED, BERLINER COHEN BY: /S/ FRANK R UBHAUS THOMAS P. MURPHY ATTORNEYS FOR SAN JOSE ARENA MANAGEMENT COMPANY, LLC DBA HP PAVILION MANAGEMENT

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