Stevens v. Corelogic, Inc.

Filing 214

ORDER Denying 211 Motion to Re-Taxation Costs. Signed by Judge Cynthia Bashant on 1/11/2017. (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT STEVENS, et al.,

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Case No. 14-cv-1158-BAS-JLB

Plaintiffs,

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ORDER DENYING MOTION TO
RE-TAX COSTS

v.

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CORELOGIC, INC.,

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Defendant.

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I.

INTRODUCTION

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Plaintiff real estate photographers brought an action against Defendant

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CoreLogic, Inc., alleging violations of the Digital Millennium Copyright Act, 17

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U.S.C. §1202. (ECF No. 34.) Pursuant to Federal Rule of Civil Procedure 30(b)(6),

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Plaintiffs sought to take the deposition of CoreLogic on specified areas pertaining to

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the platform used to upload real estate photographs. CoreLogic designated nine

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employees who could answer questions regarding the designated areas and made

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these individuals available for depositions. (Declaration of Darren J. Quinn, ECF

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No. 211-2 (“Quinn Decl.”), Exhs. 1-7.) Plaintiffs also deposed an additional seven

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CoreLogic employees. (Quinn Decl., Exhs. 8-11.)

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On July 1, 2016, this Court granted summary judgment in favor of Corelogic
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and the Clerk entered judgment against Plaintiffs. (ECF Nos. 198, 199.) CoreLogic

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filed a Bill of Costs, seeking among other fees, a $40 witness fee for each of the

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sixteen employee witnesses who were deposed.

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submitted a declaration from its attorney, signed under penalty of perjury, attesting

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that each of these costs were necessarily incurred in the action. (Id.) Over the

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objection of Plaintiffs, the Clerk taxed costs in favor of CoreLogic, including the

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$640 in witness fees. (ECF No. 209.) Plaintiffs now move for review of the Clerk’s

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taxation of costs, arguing that this $640 should not have been awarded.

(ECF No. 201.)

CoreLogic

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The Court finds this motion suitable for determination on the papers submitted

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and without oral argument. See CivLR 7.1(d)(1). For the reasons stated below, the

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Court DENIES Plaintiffs’ motion to retax costs. (ECF No. 211.)

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II.

ANALYSIS

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Federal Rule of Civil Procedure 54 provides “[u]nless a federal statute, these

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rules, or a court order provides otherwise, costs—other than attorney's fees—should

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be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “Rule 54(d)(1) codifies

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a venerable presumption that prevailing parties are entitled to costs.” Marx v. Gen.

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Revenue Corp., 568 U.S. __, 133 S. Ct. 1166, 1172 (2013). This rule “also places on

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the losing party the burden to show why costs should not be awarded.” Quan v.

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Computer Sciences Corp., 623 F.3d 870, 888 (9th Cir. 2010) (quotations omitted).

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Under 28 U.S.C. §1821 “a witness in attendance . . . before any person

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authorized to take his deposition pursuant to any rule or order of a court of the United

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States” “shall be paid an attendance fee of $40 per day for each day’s attendance.”

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28 U.S.C. §1821(a)(1), (b). This witness fee is taxable as costs. 28 U.S.C. §1920(3).

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Pursuant to Civil Local Rule 54.1, a prevailing party is entitled to fees paid to

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witnesses, including $40 per day as provided in 28 U.S.C. §1821, even if the witness

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attends voluntarily and is not under subpoena, and for witness fees for officers and

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employees of a corporation if they are not parties in their individual capacities.

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CivLR 54.1b4(a)(2), 54.1b4(c). See also Kemart Corp. v. Printing Arts Research
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Labs.’, Inc., 232 F.2d 897, 901 (9th Cir. 1956) (witness fees for corporate officers

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are recoverable as witness fees because no recovery was sought from the officers

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individually and their interest was not more than the natural concern of an officer

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for the welfare of his corporation); El Dorado Irrig. Dist., v. Traylor Bros., Inc., No.

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CIV S-03-949 LKK/GGH, 2007 WL 512428, at *9 (E.D. Cal. Feb. 12, 2007)

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(although parties are generally not able to recover witness fees for their own

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attendance, “it is proper for the court to assess witness fees for directors and officers

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of a corporate party who are not personally involved in the litigation.”); Modick v.

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Carvel Stores of New York, Inc., 209 F. Supp. 361, 365 (S.D.N.Y. 1962) (“[W]itness

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fees are properly included as costs…pursuant to 28 U.S.C. §1920(3). This is true

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even where the witness is friendly and appears voluntarily and is an officer of a

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corporate defendant.”)

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Plaintiffs argue the witness fees were improperly allowed in this case because:

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(1) the witness fees were not incurred pursuant to a subpoena; (2) the depositions

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were of a party witness pursuant to Rule 30 and parties are not entitled to recover

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witness fees; (3) Defendant waived the witness fees by not requesting them at or

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prior to the depositions; (4) CoreLogic provided no evidence it paid any witness

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fees; (5) a single Rule 30(b)(6) deposition notice for which CoreLogic proffered nine

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witnesses counts as one deposition notice and, therefore, CoreLogic is entitled to

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only one witness fee. None of these arguments has merit.

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First, as discussed above, neither the fact that the witnesses appeared

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voluntarily and not pursuant to subpoenas, nor the fact that these were employees of

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the Defendant, prevent Defendant from recovering witness fees. None of the

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individuals deposed was a named party, and none was personally involved in the

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litigation. Because the witnesses appeared voluntarily, they did not demand witness

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fees before appearing. This, however, does not mean Defendant waived the right to

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request the fees at a later date.

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Furthermore, CoreLogic provided a declaration from its attorney under
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penalty of perjury that each of these costs was necessarily incurred and that the

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witness fees were paid to each of the witnesses. This is sufficient evidence that it

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incurred the witness fees.

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Finally, Plaintiffs’ deposition notice issued pursuant to Rule 30(b)(6) asked

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for the corporate person most knowledgeable in 32 different areas of inquiry,

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including those who could describe how 14 different products and services worked,

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who used them, how much profit was made on them, how they were marketed, and

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various other areas including preservation of metadata in the listings. Reasonably,

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CoreLogic designated nine different employees who could help to answer these

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areas of inquiry. The fact that Plaintiffs may have used one omnibus notice of

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deposition does not protect them from the need to pay for each of the witnesses they

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requested to depose.

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The Clerk correctly taxed costs for each of the sixteen witnesses deposed by

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the Plaintiffs at $40 each for a total of $640. The Motion to Retax Costs is DENIED.

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IT IS SO ORDERED.

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DATED: January 11, 2017

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