Joseph v. Hartford Fire Insurance Company

Filing 146

ORDER that 142 Motion for Re-Taxation of Costs is DENIED. Signed by Judge James C. Mahan on 7/1/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHEN JOSEPH,

Case No. 2:12-CV-798 JCM (CWH)

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Plaintiff(s),

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ORDER

v.
HARTFORD FIRE INSURANCE COMPANY,

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Defendant(s).

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Presently before this court is defendant Hartford Fire Insurance Company’s (“Hartford”)

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motion to retax costs. (Doc. # 142). Plaintiff Stephen Joseph did not file a response, and the time

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to respond has passed.

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I.

Background

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The instant case was filed by plaintiff in the Eighth Judicial District of Nevada. (Doc. # 1).

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Plaintiff sued defendant for purported mishandling of an underinsured motorist claim, alleging

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causes of action under Nevada state law. (Id.). Defendant petitioned for removal to this court on

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May 12, 2012. (Id.). On September 30, 2014, this court granted defendant’s motion for summary

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judgment on all claims. (Doc. # 130).

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On October 14, 2014, defendant filed its bill of costs, including expert witness fees in the

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amount of $23,043.75. (Doc. # 132). On October 31, 2014, plaintiff filed an objection to the bill

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of costs. (Doc. # 135). Both parties stipulated that defendant could file a reply. (Doc. # 137).

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Defendant filed its reply on November 25, 2014. (Doc. # 139). On May 4, 2015, the clerk taxed

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costs and filed a memorandum of costs taxed. (Docs. ## 140, 141). In its memorandum, the clerk

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excluded the expert witness fees. (Doc. # 141).

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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Federal Rule of Civil Procedure 54(d)(1) states that “costs – other than attorney’s fees –

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should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “A prevailing party who

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claims such costs shall serve and file a bill of costs and disbursements on the form provided by the

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Clerk no later than fourteen (14) days after the date of entry of the judgment or decree.” D. Nev.

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R. 54-1(a).

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“Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party

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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). However, “[t]he party seeking costs bears the burden of proving the amount

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of compensable costs.” Slaughter v. Uponor, Inc., No. 2:08-cv-01223-RCJ-GWF, 2010 WL

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3781800, at *2 (D. Nev. Sept. 20, 2010).

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A prevailing party can move to retax costs. Local Rule 54-14 specifies that a motion to

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retax under Rule 54(d) “shall be filed and served within seven (7) days after receipt of the notice

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[of the clerk’s taxation of costs].” D. Nev. R. 54-14(a); see Fed. R. Civ. P. 54(d)(1) (“On motion

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served within the next 7 days, the court may review the clerk’s action.”). “The motion shall be

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decided on the same papers and evidence submitted to the Clerk.” D. Nev. R. 54-14(b).

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III.

Discussion

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Defendant argues that it is entitled to expert witness fees under Nevada Revised Statute

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18.005(5). Defendant asserts that expert witness fees relate to the substance of the lawsuit. As the

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underlying action was filed in state court, and subject matter jurisdiction in this court is based on

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diversity, defendant argues that Nevada law should apply. Ninth Circuit precedent forecloses

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defendant’s argument, and thus its receipt of expert witness fees.

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Federal law is controlling on issues of procedure in federal court. Aceves v. Allstate Ins.

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Co., 68 F.3d 1160, 1167 (9th Cir. 1995). The Ninth Circuit has noted two possible exceptions to

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the above rule: (1) the federal rule cannot be traced back to a federal statute or duly enacted Federal

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Rule of Civil Procedure; or (2) the federal rule creates an incentive to shop for the federal forum.”

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Id. at 1168.

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James C. Mahan
U.S. District Judge

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Aceves specifically addressed expert witness costs, concluding that assessment of these

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costs is a procedural issue. Id. at 1167. Therefore, “federal law should control the reimbursement

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of expert witnesses in federal courts sitting in diversity jurisdiction.” Id. at 1168. The federal rule

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can be traced back to a federal statute, 28 U.S.C. § 1821(b), and it is “exceedingly unlikely that

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section 1821(b) provides litigants an incentive to sue in or remove to federal courts.” Id.

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The applicable federal laws addressing reimbursement for witness fees are 28 U.S.C. §

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1821 and 28 U.S.C. § 1920. 28 U.S.C. § 1821 allows per diem pay for eligible witness activity. 28

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U.S.C. § 1920 authorizes reimbursement for court-appointed expert witnesses.

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Reviewing both statutes, defendant did not provide this court with a sufficient rationale to

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support awarding costs for its expert witness fees. As previously noted, the federal law, not Nevada

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law, applies to expert witness fees. Defendant’s argument in support of expert witness fees is based

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on Nevada law, and these costs are not recoverable under the applicable federal rules and statutes.

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Defendant’s motion to retax costs will therefore be denied.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to

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retax costs, (doc. # 142), be, and the same hereby is, DENIED.
DATED July 1, 2015.
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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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