Schroeder v. Ace Towing Services, Inc. et al
Filing
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ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S BILL OF COSTS re 98 - Signed by Judge BARRY M. KURREN on 2/5/2015. "For the foregoing reasons, the Court DENIES Plaintiff's request to stay taxation of costs, and GRANTS the City's Bill of Costs (Doc. 98). Specifically, the Court ORDERS that costs in the amount of $443.20 be taxed in favor of Defendant City and County of Honolulu." (emt, )CERTIFIC ATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ERIC SCHROEDER,
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)
Plaintiff,
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vs.
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ACE TOWING SERVICES, INC., ET )
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AL.,
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)
Defendants,
)
_______________________________ )
CIV. NO. 13-00706 BMK
ORDER GRANTING DEFENDANT
CITY AND COUNTY OF
HONOLULU’S BILL OF COSTS
ORDER GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU’S BILL OF COSTS
Before the Court is Defendant City and County of Honolulu’s Bill of
Costs, filed January 26, 2015. (Doc. 98.) Defendant City and County of Honolulu
(hereinafter “City”) requests $443.20 in costs pursuant to Rule 54(d)(1) of the
Federal Rules of Civil Procedure (“FRCP”) and Rule LR 54.2 of the Local Rules of
Practice for the United States District Court for the District of Hawaii (“Local
Rule”). (Doc. 98-1 at 1; Doc. 98-2 at 2.) The Court finds this matter suitable for
disposition without a hearing pursuant to Local Rule LR 7.2(d). After careful
consideration of the Bill of Costs, as well as the supporting and opposing papers, the
Court GRANTS the City’s Bill of Costs. As discussed more thoroughly below, the
Court ORDERS that Defendant City and County of Honolulu be awarded costs in
the amount of $443.20.
BACKGROUND
The parties and the Court are familiar with the factual and procedural
background of this case; therefore, the Court will only address herein the
background that is relevant to the instant Bill of Costs.
Plaintiff Eric Schroeder (“Plaintiff”) brought this 42 U.S.C. § 1983
action challenging the City’s rules, ordinances, and policies relating to tow
operations. (Doc. 1 at 2-3, ¶ 3.) On October 10, 2011, Plaintiff parked his vehicle
in a tow away zone on Bethel Street. (Doc. 45-2 at 1.) On that day, at
approximately 5:00 p.m., Honolulu Police Department (“HPD”) Officer Christopher
G. Chung (“Officer Chung”) issued a “Notice of Parking Infraction” (“Parking
Citation”) to Plaintiff’s vehicle, alleging a violation of Revised Ordinances of
Honolulu (“ROH”) § 15-14.8, prohibiting the parking of a vehicle in a tow away
zone. (Doc. 1-2 at 9, ¶ 28; see also Doc. 45-2 at 1-2.) After issuing the Parking
Citation, Officer Chung contacted HPD’s Communications Division to initiate a tow
of Plaintiff’s vehicle. (Doc. 45-1 at 2, ¶ 5.) Pursuant to a contract with the City,
Ace Towing/Waialae Chevron (“Ace Towing”) towed Plaintiff’s vehicle from
Bethel Street to its impound yard. (Doc. 49-1 at 6.) Plaintiff thereafter went to
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Ace Towing’s impound yard to retrieve his vehicle, and asked for an opportunity to
contest the tow of his vehicle and whether there was an indigent release program
available to retrieve his vehicle. (Doc. 55-1 at 9.) Plaintiff was not afforded an
opportunity to contest the tow of his vehicle at that time nor was he able to retrieve
his vehicle via an indigent release program, and therefore, Plaintiff paid $137.50 to
retrieve his vehicle. (Doc. 55-1 at 9.) Plaintiff also retrieved the Parking Citation
Officer Chung issued to his vehicle, which alleged that Plaintiff had been parked in a
tow away zone, in violation of ROH § 15-14.8. (Doc. 55-1 at 9-10; Doc. 45-2.)
The Parking Citation notified Plaintiff of his right to challenge the
parking violation in the State of Hawaii District Court of the First Circuit (“State
District Court”). (Doc. 45-2 at 2.) In accordance with the notice provided by the
Parking Citation, Plaintiff submitted a written statement to the State District Court,
denying committing the parking infraction. (See Doc. 45-2 at 1; Doc. 73-4 at 2;
Doc. 84-2; Doc. 88-2 at 2-3, ¶ 5.) Plaintiff requested that the State District Court
dismiss the Parking Citation because, inter alia, his vehicle was parked in a
commercial loading/unloading zone with the proper “commercial tags” displayed,
and the street signage “was unconstitutionally vague, confusing and failed to
provide reasonable notice.” (Doc. 84-2 at 2.) Plaintiff’s submission was reviewed
in chambers, and a Judgment was issued against Plaintiff. (Doc. 73-4 at 2.) On
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January 9, 2012, Plaintiff requested a trial de novo. (Doc. 73-4 at 2; see also Doc.
45-4 at 1.) Prior to trial, Plaintiff reached an agreement with the State, which the
State District Court accepted and ordered, and the Parking Citation was dismissed by
nolle prosequi. (Doc. 56-19 at 2, ¶ 2; Doc. 56-19 at 5.)
Although Plaintiff did not request reimbursement of his towing
expenses during negotiations with the State, the City has a procedure in place
whereby claimants may submit a claim to recover towing expenses. (See Doc.
73-2.) In order to initiate a claim for towing expenses, a claimant needs to submit a
letter or a “Standard Claim Form” to the Department of the Corporation Counsel for
review. (Doc. 73-2 at 3, ¶ 9.) A claim is thereafter reviewed, and if denied,
claimants are able to resubmit their claim for reconsideration setting forth additional
evidence or reasons why the claim should be granted. (Doc. 73-2 at 3, ¶¶ 11-12.)
Plaintiff did not avail himself of the City’s claim reimbursement process.
All of the parties filed dispositive motions in this case. On September
4, 2014, the City filed a Motion for Judgment on the Pleadings or in the Alternative,
Motion for Summary Judgment. (Doc. 44.) On September 8, 2014, Ace Towing
filed a Motion to Dismiss and/or for Summary Judgment. (Doc. 49.) On
September 10, 2014, Plaintiff filed a Motion for Summary Judgment, voluntarily
dismissing four of his original seven causes of action, and maintaining that the
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City’s Tow Ordinances were unconstitutional facially and as applied for failing to
provide Plaintiff with the right to notice and the opportunity to be heard at a
meaningful time and in a meaningful manner following the seizure and detainment
of his vehicle. (See Doc. 55-1 at 23, 26.) Plaintiff further argued that the City’s
Tow Ordinances violate the due process guarantees of the Hawaii State Constitution
as well as the U.S. Constitution for its alleged failure to provide notice and a
meaningful opportunity to be heard. (Doc. 55-1 at 24-25.)
These matters came on for hearing on December 15, 2014. (Doc. 82.)
On January 12, 2015, the Court granted both the City’s and Ace Towing’s Motions,
and denied Plaintiff’s Motion. (Doc. 95 at 2.) Specifically, the Court held that the
process available to Plaintiff to adjudicate the underlying parking violation, and
thereafter to make a claim for reimbursement of the towing expenses, satisfied due
process requirements, and thus, Plaintiff’s due process rights were not violated.
(Doc. 95 at 7, 15.)
On January 26, 2015, the City filed its Bill of Costs, seeking the
reimbursement of $400 in filing fees, and $43.20 in in-house copying costs. (Doc.
98-1 at 1.) On February 2, 2015, Plaintiff filed a Memorandum in Opposition to the
City’s Bill of Costs. (Doc. 99 at 2.) In his two-page Opposition, Plaintiff does not
challenge the costs requested, and instead, Plaintiff only requests that the Court
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“stay taxation of costs until either the time to appeal from the Judgment entered has
expired or if appeal is taken and a decision filed.” (Doc. 99 at 2.) For the
foregoing reasons, the Court DENIES Plaintiff’s request to stay taxation of costs,
and GRANTS the City’s Bill of Costs in the amount of $443.20.
DISCUSSION
Before proceeding to a discussion of the City’s Bill of Costs, the Court
first addresses Plaintiff’s request to stay taxation of costs pending appeal. (See
Doc. 99 at 2.) In assessing whether to issue a stay pending appeal, courts consider
“(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Hilton v.
Braunskill, 481 U.S. 770, 776 (1987) (citations omitted). Plaintiff fails to allege
any facts indicating a strong likelihood of success on the merits on appeal, or that he
will be irreparably injured absent a stay if costs in the amount of $443.20 are taxed
against him. Particularly, Plaintiff’s opposition fails to even indicate whether an
appeal will actually be filed. (See Doc. 99 at 2 (requesting that the Court stay
taxation of costs “until either the time to appeal from the Judgment entered has
expired or if appeal is taken and a decision filed”).) Accordingly, the Court
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concludes that there are no grounds for a stay, and therefore, Plaintiff’s request for a
stay is DENIED.
Proceeding to the City’s Bill of Costs, FRCP Rule 54(d)(1) provides
that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs
– other than attorney’s fees – should be allowed to the prevailing party.” The Local
Rules provide that “[t]he party entitled to costs shall be the prevailing party in whose
favor judgment is entered[.]” Local Rule LR 54.2(a). On January 12, 2015, the
Court entered an Order Granting the City’s Motion for Judgment on the Pleadings or
in the Alternative, Motion for Summary Judgment, and denied Plaintiff’s Motion for
Summary Judgment, as to all of Plaintiff’s remaining claims. (Doc. 95.)
Accordingly, the City is the prevailing party in this action.
Courts have discretion to award costs pursuant to FRCP Rule 54(d), see
Yasui v. Maui Electric Co., 78 F. Supp. 2d 1124, 1126 (D. Haw. 1999), and the
burden is on the losing party to demonstrate why costs should not be awarded.
Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Indeed, “Rule
54(d) creates a presumption in favor of awarding costs to prevailing parties, and it is
incumbent upon the losing party to demonstrate why the costs should not be
awarded.” Id. While courts have discretion to award costs pursuant to FRCP Rule
54(d), courts may only tax costs that are specified in 28 U.S.C. § 1920. See Yasui,
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78 F. Supp. 2d at 1126 (citations omitted); see also Alflex Corp. v. Underwriters
Labs., Inc., 914 F.2d 175, 176 (9th Cir. 1990) (providing that Section 1920
enumerates expenses that a federal court may tax as a cost under the discretionary
authority found in FRCP Rule 54(d)). Section 1920 permits this Court to tax the
following as costs:
(1)
(2)
(3)
(4)
(5)
(6)
Fees of the clerk and marshal;
Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
28 U.S.C. § 1920.
The City’s Bill of Costs includes costs in the amount of $443.20 for
filing fees and in-house copying costs. (Doc. 98.) These costs are taxable under
28 U.S.C. § 1920. Although Plaintiff generally opposes the City’s Bill of Costs,
Plaintiff does not otherwise object to the costs requested. (See generally Doc. 99.)
I.
Fees of the Clerk
The City requests reimbursement of $400 for fees of the clerk, and
provides a receipt detailing $400 in civil filing fees paid in this matter. (Doc. 98-1
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at 1; 98-4 at 2.) Insofar as fees of the clerk are taxable under 28 U.S.C. § 1920(1),
the City is entitled to its costs of $400.
II.
Copy Costs
The City also requests reimbursement of in-house copying costs
totaling $43.20. (Doc. 98 at 2-3.) Section 1920(4) explicitly provides for the
taxation of copying costs for copies “necessarily obtained for use in the case.” 28
U.S.C. § 1920(4). Local Rule LR 54.2(f)(4) sets forth specific requirements that
must be met when requesting costs for copying expenses incurred:
The cost of copies necessarily obtained for use in the case is taxable
provided the party seeking recovery submits an affidavit describing the
documents copied, the number of pages copied, the cost per page, and
the use of or intended purpose for the items copied.
Local Rule LR 54.2(f)(4) further provides that “[t]he cost of copies obtained for the
use and/or convenience of the party seeking recovery and its counsel is not taxable.”
Moreover, it is the practice of this Court “to allow taxation of copies at $.15 per page
or the actual cost charged by commercial copiers, provided such charges are
reasonable.” Id.
In support of the request for in-house copying costs, the City submitted
an invoice listing the documents copied, the number of pages of each document
copied, and the cost per page, for a total of 288 pages at $0.15 per page. (Doc. 98 at
2-3.) The City maintains that the items copied, which were dispositive motions and
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their related documents, were necessarily obtained for use in the defense of this
action and to comply with the Court’s rules regarding courtesy copies. (Doc. 98-3
at 3, ¶ 10.) Insofar as copying costs are taxable under 28 U.S.C. § 1920(4), the City
is entitled to its in-house copying costs of $43.20.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s request to stay
taxation of costs, and GRANTS the City’s Bill of Costs (Doc. 98). Specifically, the
Court ORDERS that costs in the amount of $443.20 be taxed in favor of Defendant
City and County of Honolulu.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 5, 2015
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Schroeder v. Ace Towing Services, Inc., et al., Civ. No. 13-00706 BMK, ORDER GRANTING
DEFENDANT CITY AND COUNTY OF HONOLULU’S BILL OF COSTS.
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