Bashkin v. San Diego County et al

Filing 191

ORDER denying Plaintiff's 186 Motion to Retax Defendants' Bill of Costs. Signed by Judge Anthony J. Battaglia on 10/5/12. (cge)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Paul Bashkin,

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Plaintiff,
v.
San Diego County; et al.,
Defendants.

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Case No. 08cv1450 AJB (WVG)
ORDER DENYING PLAINTIFF’S
MOTION TO RE-TAX COSTS
[Doc. No. 186]

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The Plaintiff, Paul Bashkin, filed a motion to re-tax Defendants’ bill of costs pursuant to Federal

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Rule of Civil Procedure 54(d) and Local Civil Rule 54.1.h. (Doc. No. 186.) The hearing set for October

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12, 2012 is hereby VACATED as the Court finds ths motion appropriate for submission on the papers

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without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, Plaintiff’s

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motion is DENIED.

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Background
Upon application of County of San Diego, Howard Kluge, and Brett Garrett (“Defendants”), a

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hearing for taxation of costs was held on August 2, 2012 at 10:00am. Plaintiff Paul Bashkin appeared.

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James Chapin, representing Defendants, appeared telephonically. (Doc. No. 179.) On August 8, 2012,

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Paul Bashkin brought to the attention of the Clerk’s Office that the amount taxing costs did not coincide

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with the written indications of the Order Taxing Costs. After further review of the Order Taxing Costs

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(Doc. No. 179), the Order was amended to reflect the written indications. (Doc. No. 181.)

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On August 31, 2012, Plaintiff filed a motion to re-tax Defendants’ bill of costs (Doc. No. 186),

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which were taxed in an Amended Order Taxing Costs on August 8, 2012 (Doc. No. 181.) Specifically,

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Plaintiff objects to the following portions of the Court’s order: (1) taxation of Defendants’ deposition

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costs; (2) taxation of Defendants’ claimed witness fee; and (3) taxation of Defendants’ “CD

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Transcription” Exhibit. (Doc. No. 186, p. 2-3.) On September 17, 2012, Defendants filed an opposition

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to the motion to re-tax costs. (Doc. No. 189.)

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Legal Standard

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Under Rule 54(d), this Court has broad discretion to vacate or amend the Clerk’s decision to tax

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costs. Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006). In exercising this discretion, the

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Court is mindful that a losing party bears the burden of establishing a reason to avoid taxation of costs.

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Save Our Valley v. Sound Transit, 335 F.3d 932, 944–45 (9th Cir. 2003). Although a district court must

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“specify reasons” for its refusal to tax costs to the losing party, the Court need not “specify reasons for

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its decision to abide the presumption and tax costs to the losing party.” Assoc. of Mexican-American

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Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000); Save Our Valley, 335 F.3d at 945.

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Under Rule 54(d), trial courts do not have discretion to tax whatever costs seem appropriate.

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Courts are limited by 28 U.S.C. § 1920 in which costs they can tax. Section 1920 “enumerates the

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expenses a federal court may tax as costs under the discretionary authority found in Rule 54(d).” Alflex

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Corp. v. Underwriters Laboratories, Inc. 914 F.2d 175, 176 (9th Cir. 1990) (citing Crawford Fitting Co.

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v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). Section 1920 provides:

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A judge or clerk of any court of the United States may tax as costs the following:
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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, and costs of special interpretation services
under section 1828 of this title.

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28 U.S.C. § 1920. While courts are limited to the items enumerated as taxable costs under § 1920, they

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are free to interpret the meaning and scope of such items. Alflex, 914 F.2d at 177. Once it has been
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established that a certain item falls within the scope of § 1920, the power to tax such costs is qualified

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only by the requirement that they be necessarily obtained for use in the case. Id.

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Discussion

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In the motion to re-tax costs, Plaintiff objects to the Defendants’ (1) deposition costs; (2) claimed

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witness fees; and (3) “CD Transcription” exhibit.

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A.

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Deposition Costs
Plaintiff objects to the costs requested for defense counsel’s copy of the deposition transcript of

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Howard Kluge. (Doc. No. 186, p. 2:4-5.) In its Amended Order Taxing Costs, the Court denied the

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objection because Defendants’ counsel indicated that this one copy of the deposition was the copy

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allowed for defense of the deposition taken by Plaintiff. (Doc. No. 181.) Plaintiff contends that this

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finding violates Local Civil Rule 54.1(b)(3)(a).

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Local Rule 54.1(b)(3) provides for recovery of deposition costs including the cost of “an original

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and one copy of any deposition necessarily obtained for use in the case.” In defending this action and

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preparing for trial, Defendants ordered one certified copy of the transcript of the deposition taken by

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Plaintiff of Defendant Howard Kluge at a cost of $726.23. (Decl. James Chapin ¶3, Ex. B to Bill of

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Costs.) Plaintiff challenges this cost on the theory that he ordered one original and one certified copy of

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Kluge’s deposition. (Doc. No. 186, p. 2:13-14.) Regardless of Plaintiff’s incurred costs for Kluge’s

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deposition, only one copy of the deposition transcript was taxed for Defendants’ use in defending the

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action. Accordingly, Plaintiff’s motion to re-tax as to deposition costs is DENIED.

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B.

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Witness Fees
Plaintiff objects to the $40 witness fee of George Denny’s attendance. (Doc. No. 186, p. 2:24-

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25.) Plaintiff contends that the witness fee should not have been awarded because there was no

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evidence that Denny was subpoenaed for trial, and Defendants admitted that Denny did not actually

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attend trial. (Id. at 2:27-3:1.)

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Pursuant to Local Rule 54.1(b)(4)(a), recoverable fees paid to witnesses include “per diem,

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mileage, subsistence and attendance fees as provided in 28 U.S.C. § 1821 paid to witnesses subpoenaed

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and/or actually attending the proceeding . . .” A subpoena for appearance at trial was served on George

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Denny at a cost of $67.36, which included mileage. (Ex. C. to Bill of Costs.) On the day of trial,
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Plaintiff declined to present his case, and the case was dismissed before Denny arrived. Defendants

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waived the mileage portion of the fee, and the remaining $40 is taxable for the costs of subpoenaing

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Denny. Accordingly, Plaintiff’s motion to re-tax Defendants’ witness fees is DENIED.

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C.

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“CD Transcription” Exhibit
Plaintiff further objects to fees in the amount of $1,050.20 for “costs associated with the copying

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of material which were used for trial exhibits,” specifically a CD transcription. (Doc. No. 186, p. 3:11-

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12.) Plaintiff contends the awarded fee in the amount of $618.80 for the cost of “models, blowups, and

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photocopies of exhibits” is in violation of Local Rule 54.1(b)(6). (Doc. No. 186, p. 3:14-17.)

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Local Rule 54.1(b)(6)(a)(2) provides that the cost of copies necessarily obtained for use in the

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case are taxable if one of more of six criteria are met, including that “copies were used as court exhibits,

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either admitted into evidence, or attached to a motion.” Defendants ordered a certified transcript of

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Plaintiff’s recorded statement to the Sheriff’s Office Internal Affairs for use in trial and in reply to

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Plaintiff’s opposition to Defendants’ motion for summary judgment. (Doc. No. 189, p. 2:26-3:1.)

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Pursuant to Local Rule 54.1(b)(6)(a)(2), the copies are taxable because they were used as court exhibits

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and attached to a motion. Accordingly, Plaintiff’s motion to re-tax Defendants’ “CD Transcription”

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exhibit is DENIED.

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Conclusion
For the reasons set forth above, Plaintiff’s Motion to Re-tax Costs is hereby DENIED. Plaintiff

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shall pay a total of $1,384.80 in taxable costs to Defendants as set forth in the Amended Order Taxing

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Costs. (Doc. No. 181.)

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IT IS SO ORDERED.
DATED: October 5, 2012

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Hon. Anthony J. Battaglia
U.S. District Judge

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