Stevens v. Corelogic, Inc.

Filing 214

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

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ROBERT STEVENS, et al., 11 Case No. 14-cv-1158-BAS-JLB Plaintiffs, 12 ORDER DENYING MOTION TO RE-TAX COSTS v. 13 CORELOGIC, INC., 14 Defendant. 15 16 17 18 I. INTRODUCTION 19 Plaintiff real estate photographers brought an action against Defendant 20 CoreLogic, Inc., alleging violations of the Digital Millennium Copyright Act, 17 21 U.S.C. §1202. (ECF No. 34.) Pursuant to Federal Rule of Civil Procedure 30(b)(6), 22 Plaintiffs sought to take the deposition of CoreLogic on specified areas pertaining to 23 the platform used to upload real estate photographs. CoreLogic designated nine 24 employees who could answer questions regarding the designated areas and made 25 these individuals available for depositions. (Declaration of Darren J. Quinn, ECF 26 No. 211-2 (“Quinn Decl.”), Exhs. 1-7.) Plaintiffs also deposed an additional seven 27 CoreLogic employees. (Quinn Decl., Exhs. 8-11.) 28 On July 1, 2016, this Court granted summary judgment in favor of Corelogic –1– 14cv1158 1 and the Clerk entered judgment against Plaintiffs. (ECF Nos. 198, 199.) CoreLogic 2 filed a Bill of Costs, seeking among other fees, a $40 witness fee for each of the 3 sixteen employee witnesses who were deposed. 4 submitted a declaration from its attorney, signed under penalty of perjury, attesting 5 that each of these costs were necessarily incurred in the action. (Id.) Over the 6 objection of Plaintiffs, the Clerk taxed costs in favor of CoreLogic, including the 7 $640 in witness fees. (ECF No. 209.) Plaintiffs now move for review of the Clerk’s 8 taxation of costs, arguing that this $640 should not have been awarded. (ECF No. 201.) CoreLogic 9 The Court finds this motion suitable for determination on the papers submitted 10 and without oral argument. See CivLR 7.1(d)(1). For the reasons stated below, the 11 Court DENIES Plaintiffs’ motion to retax costs. (ECF No. 211.) 12 II. ANALYSIS 13 Federal Rule of Civil Procedure 54 provides “[u]nless a federal statute, these 14 rules, or a court order provides otherwise, costs—other than attorney's fees—should 15 be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “Rule 54(d)(1) codifies 16 a venerable presumption that prevailing parties are entitled to costs.” Marx v. Gen. 17 Revenue Corp., 568 U.S. __, 133 S. Ct. 1166, 1172 (2013). This rule “also places on 18 the losing party the burden to show why costs should not be awarded.” Quan v. 19 Computer Sciences Corp., 623 F.3d 870, 888 (9th Cir. 2010) (quotations omitted). 20 Under 28 U.S.C. §1821 “a witness in attendance . . . before any person 21 authorized to take his deposition pursuant to any rule or order of a court of the United 22 States” “shall be paid an attendance fee of $40 per day for each day’s attendance.” 23 28 U.S.C. §1821(a)(1), (b). This witness fee is taxable as costs. 28 U.S.C. §1920(3). 24 Pursuant to Civil Local Rule 54.1, a prevailing party is entitled to fees paid to 25 witnesses, including $40 per day as provided in 28 U.S.C. §1821, even if the witness 26 attends voluntarily and is not under subpoena, and for witness fees for officers and 27 employees of a corporation if they are not parties in their individual capacities. 28 CivLR 54.1b4(a)(2), 54.1b4(c). See also Kemart Corp. v. Printing Arts Research –2– 14cv1158 1 Labs.’, Inc., 232 F.2d 897, 901 (9th Cir. 1956) (witness fees for corporate officers 2 are recoverable as witness fees because no recovery was sought from the officers 3 individually and their interest was not more than the natural concern of an officer 4 for the welfare of his corporation); El Dorado Irrig. Dist., v. Traylor Bros., Inc., No. 5 CIV S-03-949 LKK/GGH, 2007 WL 512428, at *9 (E.D. Cal. Feb. 12, 2007) 6 (although parties are generally not able to recover witness fees for their own 7 attendance, “it is proper for the court to assess witness fees for directors and officers 8 of a corporate party who are not personally involved in the litigation.”); Modick v. 9 Carvel Stores of New York, Inc., 209 F. Supp. 361, 365 (S.D.N.Y. 1962) (“[W]itness 10 fees are properly included as costs…pursuant to 28 U.S.C. §1920(3). This is true 11 even where the witness is friendly and appears voluntarily and is an officer of a 12 corporate defendant.”) 13 Plaintiffs argue the witness fees were improperly allowed in this case because: 14 (1) the witness fees were not incurred pursuant to a subpoena; (2) the depositions 15 were of a party witness pursuant to Rule 30 and parties are not entitled to recover 16 witness fees; (3) Defendant waived the witness fees by not requesting them at or 17 prior to the depositions; (4) CoreLogic provided no evidence it paid any witness 18 fees; (5) a single Rule 30(b)(6) deposition notice for which CoreLogic proffered nine 19 witnesses counts as one deposition notice and, therefore, CoreLogic is entitled to 20 only one witness fee. None of these arguments has merit. 21 First, as discussed above, neither the fact that the witnesses appeared 22 voluntarily and not pursuant to subpoenas, nor the fact that these were employees of 23 the Defendant, prevent Defendant from recovering witness fees. None of the 24 individuals deposed was a named party, and none was personally involved in the 25 litigation. Because the witnesses appeared voluntarily, they did not demand witness 26 fees before appearing. This, however, does not mean Defendant waived the right to 27 request the fees at a later date. 28 Furthermore, CoreLogic provided a declaration from its attorney under –3– 14cv1158 1 penalty of perjury that each of these costs was necessarily incurred and that the 2 witness fees were paid to each of the witnesses. This is sufficient evidence that it 3 incurred the witness fees. 4 Finally, Plaintiffs’ deposition notice issued pursuant to Rule 30(b)(6) asked 5 for the corporate person most knowledgeable in 32 different areas of inquiry, 6 including those who could describe how 14 different products and services worked, 7 who used them, how much profit was made on them, how they were marketed, and 8 various other areas including preservation of metadata in the listings. Reasonably, 9 CoreLogic designated nine different employees who could help to answer these 10 areas of inquiry. The fact that Plaintiffs may have used one omnibus notice of 11 deposition does not protect them from the need to pay for each of the witnesses they 12 requested to depose. 13 The Clerk correctly taxed costs for each of the sixteen witnesses deposed by 14 the Plaintiffs at $40 each for a total of $640. The Motion to Retax Costs is DENIED. 15 IT IS SO ORDERED. 16 DATED: January 11, 2017 17 18 19 20 21 22 23 24 25 26 27 28 –4– 14cv1158

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?