Edick v. Allegiant Air, LLC et al

Filing 54

ORDER Denying 48 Motion for Re-Taxation of Costs. Signed by Judge James C. Mahan on 10/3/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SANDRA EDICK, individually and as
Special Administrator for the Estate of
PHILLIP EDICK, deceased,

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2:11-CV-259 JCM (GWF)

Plaintiff,

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v.

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ALLEGIANT AIR, LLC, et al.,
Defendants.

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ORDER

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Presently before the court is plaintiff Sandra Edick’s motion to retax costs. (Doc. # 48).

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Defendant Allegiant Air, LLC has responded (doc. # 49 & 53) and plaintiff has replied (doc. # 50).

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The court granted defendant’s motion for summary judgment. (Doc. # 42). Defendant moved to tax

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costs (doc. # 44) and the clerk of the court taxed costs against plaintiff in the amount of $12,293.45

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(doc. # 47). Plaintiff now seeks an order which retaxes $10,028 from defendant’s cost bill. The

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amount represents the fees associated with issuing subpoenas in order to obtain plaintiff’s medical

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records.

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As a preliminary matter, defendants failed to comply with Fed. R. Civ. P. 11(a) and Local

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Rule IA 10-2(a). Local Rule IA 10-2(a) states that: “[a]n attorney who is not a member of the Bar

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of this Court, who has been retained or appointed to appear in a particular case, may do so only with

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permission of this Court.” Here, counsel who signed recent filings in this case was neither admitted

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to the Nevada State Bar nor granted pro hac vice status by the court. For this reason, defendant’s

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James C. Mahan
U.S. District Judge

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reply in support of its bill of costs (doc. # 46) and defendant’s opposition to plaintiff’s motion to

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retax costs (doc. # 49) are defective. However, defendant promptly filed corrected versions of the

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above stated documents signed by counsel who has been granted pro hac vice status. Thus, finding

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that defendant has sufficiently cured this defect, the court considers plaintiff’s motion and

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subsequent filings on the merits.

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“Unless otherwise ordered by the Court, the prevailing party shall be entitled to reasonable

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costs. A prevailing party who claims such costs shall serve and file a bill of costs . . . no later than

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fourteen (14) days after the date of entry of the judgment or decree.” Nev. Dist. Court Local Rule

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54-1(a). Here, defendant timely filed its bill of costs. (See doc. # 44).

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Federal Rule of Civil Procedure 54(d)(1) states: “[u]nless a federal statute, these rules, or a

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court order provides otherwise, costs–other than attorney's fees–should be allowed to the prevailing

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party . . . . The clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the

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court may review the clerk’s action.” Here, plaintiff timely filed her motion to retax costs. (See doc.

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# 48).

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Fed. R. Civ. P. 54 “creates a presumption for awarding costs to prevailing parties; the losing

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party must show why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932,

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944-45 (9th Cir. 2003) (internal citation omitted). Lastly, Local Rule 54-14(b) states “[a] motion to

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retax shall particularly specify the ruling of the Clerk excepted to, and no others will be considered

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by the Court. The motion shall be decided on the same papers and evidence submitted to the Clerk.”

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Title 28 U.S.C. § 1920 governs the billing of costs. Courts are free to interpret the meaning

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and scope of the items enumerated as taxable costs under § 1920. Alflex Corp. v. Underwriters

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Laboratories, Inc., 914 F.2d 175, 178 (9th Cir. 1990) disapproved of by Collins v. Gorman, 96 F.3d

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1057 (7th Cir. 1996). The Ninth Circuit has held that “process servers’ fees are properly taxed as

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costs.” Id.; see also Local Rule 54-2.

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Plaintiff makes several arguments as to why she believes the court should retax $10,028 in

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costs. First, plaintiff argues that issuing subpoenas for medical records was unreasonable and

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unnecessary. Second, requiring plaintiff to object to issuing a subpoena is burdensome. Third, the

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James C. Mahan
U.S. District Judge

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amount paid to the process server was excessive and included fees not for service. Fourth, defendant

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did not produce these medical records under Fed. R. Civ. P. 26(e), demonstrating that these records

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were not necessary. The court addresses each argument in turn.

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The medical records obtained were relevant to the decedent’s medical condition which was

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at issue in the case. Plaintiff’s complaint alleged that defendants’ actions were the direct and

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proximate cause of the decedent’s death. Plaintiff does not contest this point. Plaintiff, however,

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argues that defendant should have mailed HIPAA (Health Insurance Portability and Accountability

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Act) forms to the doctors and that plaintiff would have provided authorization for release of the

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decedent’s medical records. Plaintiff contends that this method is less expensive than the course

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chosen by defendant.

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Even if plaintiff would have provided authorization that would have permitted defendant to

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obtain the relevant information in a less costly manner, that does not make defendant’s decision to

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use the subpoena power of the court to defend itself in this action unreasonable. Thus, the court

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declines to retax costs on this basis.

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The clerk of the court noted that plaintiff did not object to the subpoenas at the time they

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were served, and thus granted defendant’s request for cost of serving the subpoenas in its entirety.

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(Doc. # 47). Plaintiff contends that it would be burdensome to object to each subpoena to preserve

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the objection at the taxation of costs stage. Defendant argues that plaintiff could have filed one

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document with the court, objecting to all service of subpoenas.

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The court agrees. If plaintiff was concerned about the possibility of paying for defendant’s

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costs that plaintiff believed to be unreasonable, plaintiff should have placed the court, and more

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importantly, the defendant on notice. In fairness, defendant should not be faced with choosing a

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method authorized by the court and that it believed to be reasonable, only to find that it is unable to

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recover the costs associated with the course of action. Thus, the court finds that the clerk of the court

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did not err in his decision.

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The use of private process servers is common practice and there is no governing law in this

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jurisdiction that caps taxation of costs for private process servers issuing subpoenas. But see

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James C. Mahan
U.S. District Judge

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Arrambide v. Wal-Mart Stores, Inc., 33 Fed. Appx. 199, 203 (6th Cir. 2002). In fact, in Alflex Corp.,

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the Ninth Circuit held that “the cost of private process servers should be taxable under 28 U.S.C. §

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1920(1).” Alflex Corp., 914 F.2d at 178. Plaintiff produced no evidence to the clerk of the court

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establishing that defendant paid more than market rate for the private process server. Reviewing the

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evidence submitted to the clerk of the court, the court declines to retax costs on this ground.

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Lastly, while there is a general duty to supplement discovery after initial disclosures have

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been made, see FED. R. CIV. P. 26(e), the court finds that plaintiff’s application of this rule under

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these circumstances in inapposite. Rule 26(e) requires disclosure where the documents have “not

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otherwise been made known to the other parties during the discovery process or in writing.” FED.

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R. CIV. P. 26(e)(1)(a). However, the subpoenas defendant issued to the medical providers were also

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served on plaintiff; thus plaintiff was aware that defendant was obtaining this information. Further,

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this information was likely known to plaintiff as this information pertained to decedent’s medical

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condition, something plaintiff put at issue in this case.

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For the foregoing reasons,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Sandra Edick’s

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motion to retax costs (doc. # 48) be, and the same hereby is, DENIED.
DATED October 3, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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