Alcohol Monitoring Systems, Inc. v. Actsoft, Inc. et al

Filing 378

ORDER granting in part and denying in part 370 Defendants' Motion for Review of Taxation of Costs. Additional costs shall be taxed in favor of defendants and against plaintiff in the amount of $1099.45. By Judge Philip A. Brimmer on 9/24/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 07-cv-02261-PAB-MJW
(Consolidated with 08-cv-01226)
ALCOHOL MONITORING SYSTEMS, INC.,
Plaintiff,
v.
ACTSOFT, INC.,
OHIO HOUSE MONITORING SYSTEMS, INC., and
U.S. HOME DETENTION SYSTEMS AND EQUIPMENT, INC.,
Defendants.

ORDER

This matter is before the Court on the Motion for Review of Taxation of Costs
[Docket No. 370] filed by defendants ActSoft, Inc., Ohio House Monitoring Systems,
Inc., and U.S. Home Detention Systems and Equipment, Inc. The Court granted
summary judgment in favor of defendants on October 25, 2011 [Docket No. 335]. On
October 27, 2011, plaintiff Alcohol Monitoring Systems, Inc. (“AMS”) and defendants
stipulated to final judgment in favor of defendants [Docket No. 337]. Defendants, as the
prevailing parties, filed a proposed Bill of Costs [Docket No. 348]. On January 26,
2012, the Clerk of the Court allowed certain costs in favor of defendants in the amount
of $7,510.60 [Docket No. 363]. On February 2, 2012, defendants filed the present
motion challenging the taxation of those costs, arguing that the Clerk should have taxed
an additional $12,807.27 in their favor.

Defendants ask the Court to review the Clerk’s award of costs and tax the full
amount of costs they requested in four categories: (1) deposition transcripts; (2) witness
costs; (3) copying costs; and (4) translation costs. Docket No. 370 at 1.
A. Transcripts
Title 28, United States Code, § 1920 governs what costs are taxable under Rule
54(d)(1) and allows the Court to tax fees “for printed or electronically recorded
transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). When a
“deposition was reasonably necessary to the litigation, the resulting costs are generally
allowable.” Karsian v. Inter-Regional Fin. Group, Inc., 13 F. Supp. 2d 1085, 1088 (D.
Colo. 1998) (citations omitted). However, if the deposition was taken “simply for
discovery purposes, then costs are not recoverable.” Id.
Defendants seek to recover $561.90 in costs for the deposition transcripts of
Michael Iiams, AMS’ Chairman and CEO. Docket No. 370 at 4. Defendants argue that
the transcript of Mr. Iiams’ deposition was reasonably necessary for use in this case
because Mr. Iiams was disclosed as a witness in both parties’ Final Witness Lists
[Docket Nos. 309, 312]. In response, plaintiff contends that defendants should not
recover this cost because Mr. Iams’ deposition transcript was not used in connection
with a dispositive motion. Docket No. 372 at 3. Plaintiff claims that, simply because
defendants took Mr. Iiams’ deposition, it does not follow that the deposition transcript
was necessary. Id. at 4.
The Tenth Circuit has noted that whether costs are taxable is based on whether
the item taxed was “necessarily obtained for use in the case.” In re Williams Sec.

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Litigation-WCG Subclass, 558 F.3d 1144, 1147 (10th Cir. 2009). Reasonableness
must be based on the “particular facts and circumstances at the time the expense was
incurred” and not with the benefit of hindsight. Id. at 1148. Moreover, the Tenth Circuit
does not require use of depositions in dispositive motions. Id.
Here, Mr. Iiams was listed as a witness on both parties’ final witness lists,
designated as AMS’ Rule 30(b)(6) representative, and the case appeared to be going to
trial when his deposition was taken. Callicrate v. Farm Land Indus., Inc., 139 F.3d
1336, 1339 (10th Cir. 1998) (“if materials or services are reasonably necessary for use
in the case,” even if they are ultimately not used to dispose of the matter, the district
court “can find necessity and award the recovery of costs.”). Based on the foregoing,
the Court finds that Mr. Iiams’ November 18, 2008 deposition transcript was reasonably
necessary to prepare for the possibility of trial and will award defendants $561.90 in
costs.
B. Witnesses
Section 1920(3) allows the Court to tax “[f]ees and disbursements for printing
and witnesses.” Defendants argue that they should be awarded travel and lodging
costs for Kevin Thigpen, Vice President of Business Development at ActSoft. Docket
No. 370 at 5. Defendants claim that Mr. Thigpen was prepared to testify about
defendants’ likelihood of irreparable harm absent an injunction during the preliminary
injunction hearings held on April 27 and April 28, 2009. Id. at 6. Defendants argue
that, even though Mr. Thigpen did not ultimately testify, they should recover his travel
costs. Id. Plaintiff claims that Mr. Thigpen’s presence at the preliminary injunction

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hearing was as a party representative, not as a witness. Docket No. 372 at 5-6. As
such, plaintiff states that defendants are not entitled to travel costs. Id.
Section 1920(3) does not specify whether a party can recover witness costs for
testimony at a preliminary injunction hearing. In addition, defendants have not clearly
articulated why Mr. Thigpen’s testimony at the hearing was reasonably necessary to the
instant action. Accordingly, the Court will not grant defendants the costs associated
with Mr. Thigpen’s travel and expenses.
C. Copies
Section 1920 allows the Court to tax “[f]ees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the
case.” 28 U.S.C. § 1920(4). Defendants seek costs for obtaining certified copies of
deposition transcripts. As with other costs, defendants bear the burden of
demonstrating that the requested copies were “reasonably necessary for use in the
case.” See In re Williams, 558 F.3d at 1149 (citation omitted).
Defendants seek costs for obtaining certified copies of transcripts for three
deponents – Don White, AMS’ Chief Operating Officer, Mr. Iiams, and Mr. Hawthorne,
AMS’ co-founder and Chief Technical Officer. Docket No. 370 at 6. Specifically,
defendants seek $176.65 for certified copies of Don White’s deposition, $48.80 for
certified copies of Mr. Iams’ deposition, and $86.25 for certified copies of Mr.
Hawthorne’s deposition. Id. at 7. In addition, defendants seek $85.85 for a certified
copy of Robert Zettl’s deposition. Id. at 6. Defendants state that they were going to call
Mr. Zettl in their case in chief although he was a former witness for plaintiff. Id. at 7.

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According to defendants, the certified copies of these depositions were necessary to
impeach these witnesses at trial. Id. Plaintiff objects to these costs primarily because
the certified copies were not used. Docket No. 372 at 7.
The Court finds that the certified transcripts for all four of these witnesses were
reasonably necessary for use in the case and were not obtained primarily for
defendants’ convenience. See In re Williams, 558 F.3d at 1149. Three of these
witnesses were listed in plaintiff’s final witness list, see Docket No. 309, and Mr. Zettl
was listed in defendants’ final witness list. Docket No. 312. Moreover, the use of the
deposition transcripts was foreclosed only because the Court granted defendants’
summary judgment motion. Callicrate, 139 F.3d at 1340. Accordingly, the Court will
award $397.55 to defendants.
Defendants seek $140.00 for a certified copy of the prosecution history of U.S.
Patent No. 7,462,149 (the “’149 patent”). Defendants argue that the certified copy of
the ’149 patent was reasonably necessary in this case and was cited in defendants’
successful motion for summary judgment [Docket No. 332]. Plaintiff’s only objection to
these costs is that the certified copies were not used at trial.
The Court agrees that the certified copies of the ’149 patent were reasonably
necessary for use in this case and that they were not obtained for counsel’s
convenience. See Pehr v. Rubbermaid, Inc., 194 F.R.D. 404, 407 (D. Kan. 2000)
(finding that, although not challenged by plaintiff, defendant can recover costs to secure
copies of a patent’s prosecution history). Therefore, the Court will award $140.00 to
defendants.

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D. Translation Costs
Finally, defendants argue that they should be awarded their costs pursuant to 28
U.S.C. § 1920(6) for the translation of computer code. Docket No. 370 at 8.
Defendants claim that the translation of the computer source code was reasonably
necessary for the resolution of the case.
In a recent case, however, the Supreme Court held that compensation of
interpreters, under 28 U.S.C. § 1920(6), “does not apply to translators of written
materials.” Taniguchi v. Kan Pac. Saipan, LTD., --- U.S. ----, 132 S.Ct. 1997, 2000
(2012). Defendants’ motion compares David Beazley’s work on the computer source
code to the translation of documents. See Docket No. 370 at 8-9. As such, defendants
request the exact sort of costs the Supreme Court recently deemed unrecoverable
under 28 U.S.C. § 1920(6). Therefore, the Court will not tax this cost.
For the foregoing reasons, it is
ORDERED that Defendants’ Motion for Review of Taxation of Costs [Docket No.
370] is GRANTED in part and DENIED in part. Additional costs shall be taxed in favor
of defendants and against plaintiff in the amount of $1099.45.

DATED September 24, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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