Harmon v. United States of America

Filing 48

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Defendants Motion for Entry of Costs (Dkt. 42 ) is GRANTED IN PART and DENIED IN PART in accordance with the findings set forth above. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DOUGLAS G. HARMON,
Case No. 4:15-cv-00173-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
THE UNITED STATES OF AMERICA,
acting by and through BUREAU OF
INDIAN AFFAIRS,
Defendant.

INTRODUCTION
Pending before the Court is Defendant’s Motion for Entry of Costs (Dkt. 42). For
the reasons stated below, the Court will grant the motion in part and deny the motion in
part.
BACKGROUND
Plaintiff Douglas Harmon filed his complaint against the United States on May 21,
2015 asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346
and 2671, et seq. (Dkt. 1). The parties proceeded through discovery, and Mr. Harmon
filed a Motion for Summary Judgment (Dkt. 16) on October 3, 2016. The motion was
fully briefed, and was argued before the Court on February 3, 2017. On March 24, 2017,
the Court entered an order granting the motion in part, and denying it in part. (Dkt. 27).
Subsequently, the United States filed a Motion to Dismiss for lack of jurisdiction. (Dkt.

MEMORANDUM DECISION AND ORDER - 1

30). On June 12, 2017, the Court granted the motion to dismiss and entered judgment in
favor of the United States. (Dkts. 39, 40). The United States timely filed its Motion for
Costs on June 23, 2017. After briefing was complete on the motion for costs, Mr.
Harmon timely appealed the Court’s June 12 decision to the Ninth Circuit. (Dkt. 45).
LEGAL STANDARD
A United States district court may order the payment of “just costs” in any action
that is dismissed for lack of jurisdiction. 28 U.S.C. § 1919. Just costs may include witness
fees and fees for printed or electronic copies of deposition transcripts, so long as the
transcript is necessary for use in the case. 28 U.S.C. § 1920(2)-(3). “A cost award under §
1919 does not turn on prevailing party status and lies within the sound discretion of the
district court.” Otay Land Co. v. United Enterprises Ltd., 672 F.3d 1152, 1156 (9th Cir.
2012). To determine whether to award “just costs” under § 1919, “a district court should
consider what is most fair and equitable under the totality of the circumstances.” Id. at
1157. It does so by applying a two-step analysis: First the court must determine whether
an award of costs is just and equitable, and, if so, it must determine the appropriate
amount of costs to award. Id. Although costs may be “justly awarded even absent
extraordinary circumstances,” the mere fact that a district court may award such costs
“does not mean that costs are mandated. Id. at 1158. Rather, courts have broad discretion
to award costs where doing so is “fair and equitable under the totality of the
circumstances.” Id. at 1159.

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ANALYSIS
The United States asks this Court to award it two separate categories of costs. The
Court will address each request separately.
1.

Witness Fees
The United States seeks to recover as costs witness fees of $40 per person for

seven federal employees who were deposed by Mr. Harmon during the discovery phase
of this action. See Def.’s Reply at 2, Dkt. 44; Woychick Decl. Ex. A at 3, Dkt. 42-2. Under
§ 1821(b), witnesses are entitled to an attendance fee of $40 per day. See 28 U.S.C. §
1821(b). Courts have the discretion to allow payment of witness fees for an appearance at
a deposition to be taxed as costs, “as long as the deposition appeared reasonably
necessary at the time it was taken.” See Alonso v. Union Oil Co. of Cal., 71 F.R.D. 523,
525 (S.D.N.Y. 1976) (allowing the plaintiff to tax witness fees for attendance at a
deposition).
Here, the witnesses were noticed by the Plaintiff, thus any cost associated with
fees paid to them would normally accrue to the Plaintiff. It appears the Plaintiff did not
pay the witnesses the statutory fee under § 1821(b). But, the United States does not allege
that it paid out witness fees to its employees, and seeks to recoup that cost. Rather, the
United States appears to be seeking compensation for making its employees available for
the depositions based on the amount those witnesses should have accrued in fees. See
Def.’s Reply at 2, Dkt. 44 (“the question is whether . . . the United states is eligible and
entitled to recover witness fees on behalf of those employees who appeared and testified

MEMORANDUM DECISION AND ORDER - 3

in response to Plaintiff’s deposition subpoenas.”). The United States points to no
authority which suggests § 1821 entitles an employer to recover the costs of having
employees appear at a deposition. Rather, the plain language § 1821(b) makes clear that
such fees “shall be paid” to the witness. 28 U.S.C. § 1821(b).
The United States argues that it is entitled to recover witness fees on behalf of its
employees, because those employees are not named parties, nor parties in real interest in
this case. Def.’s Reply at 3, Dkt. 44. Whether the non-party employees are entitled to
witness fees, however, is a separate question from whether the United States is entitled to
recover costs in the amount of fees that it did not pay out. The United States cites several
cases for the proposition that non-party employees are entitled to witness fees, and the
Court does not find otherwise here. However, these cases dealt with the issue of whether
a party could recover as costs fees that were actually paid to non-party employees, or
expended on their behalf. See, e.g., Kemart Corp. v. Printing Arts Research Laboratories,
Inc., 232 F.2d 897, 901 (9th Cir. 1956) (“concerning the witness fees paid officers of
appellant corporation”); El Dorado Irrigation Dist. v. Traylor Bros., Inc., No. CIV. S-03949 LKK/GGH, 2007 WL 512428 at *9 (E.D. Cal. Feb. 12, 2007) (allowing a corporate
party to recover costs expended on travel for a non-party employee witness). Here, it
appears neither party actually paid the witness fees the United States seeks to recover as
costs. While Mr. Harmon may be obligated to pay the individual witnesses the fees they
are entitled to under § 1821, the United States is not entitled to recover those fees as
costs.

MEMORANDUM DECISION AND ORDER - 4

2.

Deposition Transcript Costs
The expense of obtaining a deposition transcript may be taxed as a cost long as the

deposition was “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Even
where a transcript is necessarily obtained, however, the court must determine whether
awarding such costs would be “fair and equitable under the circumstances.” Otay, 672
F.3d at 1159. Harmon argues that the awarding of costs is not fair under the
circumstances of this case, because the United States failed to raise the jurisdictional
grounds for dismissal until two years after the action was filed. Pl.’s Resp. at 3, Dkt. 43.
Where a party acts improperly to delay raising a jurisdictional defense, with the
intent to impose costs on the other party, it would be unfair and inequitable for a court to
award costs to that party upon the dismissal of the case. See Otay, 672 F.3d at 1158
(explaining the need to deter parties from acting merely to prolong litigation and impose
costs on the opposing party). Though the United States did not raise the question of
jurisdiction until after the Court decided Plaintiff’s motion for summary judgment, there
is no evidence that it acted in bad faith, or with the intent to impose costs on the Plaintiff.
Rather, as the United States notes, its motion raised a factual challenge to this Court’s
jurisdiction, which relied in part on the depositions at issue here. See Def.’s Br.at 9, Dkt.
30-1. Further, Mr. Harmon also relied on the depositions in his opposition to the motion
to dismiss. See Pl.’s Br. at 5-6, Dkt. 33 (citing deposition testimony by FHIP personnel).
The Court thus finds that the transcripts of depositions were necessarily obtained, and
that the United States did not engage in any improper delay, which would render the

MEMORANDUM DECISION AND ORDER - 5

award of costs unfair and inequitable. For these reasons, and based on the totality of the
circumstances, the costs of obtaining transcripts of depositions noticed by the Plaintiff are
“just costs,” which shall be awarded to the United States.
The cost of the transcripts does not appear to be in dispute. Having reviewed the
government’s Bill of Costs and the supporting invoices, Woychick Aff. Exs. A-B, Dkt. 421, the Court finds that the appropriate cost to award for obtaining transcripts of the
depositions taken in this case is $3276.85, which is the amount paid by the United States
for the transcripts.
ORDER
IT IS ORDERED:
1. Defendant’s Motion for Entry of Costs (Dkt. 42) is GRANTED IN PART and
DENIED IN PART in accordance with the findings set forth above.

DATED: December 5, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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