Schwartz v. Clark County et al

Filing 56

ORDER Denying Plaintiff's 47 Motion for Re-Taxation of Costs. Signed by Judge James C. Mahan on 9/11/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK J. SCHWARTZ,

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Plaintiff(s),

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Case No. 2:13-CV-709 JCM (VCF)
ORDER

v.
CLARK COUNTY, NEVADA, et al.,

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Defendant(s).

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Presently before the court is plaintiff Mark J. Schwartz’s (hereinafter “plaintiff”) motion

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to retax the bill of costs filed by defendants Clark County Nevada and Jacqueline R. Holloway

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(hereinafter “defendants”). (Doc. # 47). Defendants filed a response. (Doc. # 51). Plaintiff did

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not file a reply, and the deadline has now passed.

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I.

Background

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Plaintiff brought the instant case in state court for alleged violations of the Americans

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with Disabilities Act (“ADA”), Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. §

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1983, and Nevada Revised Statute § 613. On April 25, 2013, defendants removed the case to

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this court. (Doc. # 1).

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On December 26, 2013, defendants filed a motion for summary judgment. (Doc. # 22).

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Plaintiff filed a response, (doc. # 26), defendants filed a reply, (doc. # 29), and plaintiff filed a

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supplemental brief, (doc. # 40). On July 16, 2014, the court granted defendants’ motion for

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summary judgment. (Doc. # 43).

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On July 17, 2014, defendants submitted a bill of costs. (Doc. # 45). On July 18, 2014,

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plaintiff filed the instant motion.

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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). “Rule 54(d) creates a

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presumption for awarding costs to prevailing parties; the losing party must show why costs

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should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir.

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2003).

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Title 28 U.S.C. § 1920 governs the billing of costs. Pursuant to section 1920(4), costs are

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available for “making copies of any materials where the copies are necessarily obtained for use

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in the case.” 28 U.S.C. § 1920(4). Section 1920(4) “does not specifically require that the copied

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document be introduced into the record to be an allowable cost.” Haagen-Dazs Co. v. Double

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Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990).

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“Notwithstanding the district court’s discretionary authority under federal rule of civil

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procedure 54(d) to refuse to tax costs in favor of a prevailing party, a district court may not rely

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on its ‘equity power’ to tax costs beyond those expressly authorized by section 1920.” Romero

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v. Pomona, 883 F.2d 1418, 1428 (9th Cir. 1989) (citing Crawford Fitting Co. v. J.T. Gibbons,

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Inc., 482 U.S. 437, 442 (1987)).

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Further, local rule 54-1(a) provides that “the prevailing party shall be entitled to

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reasonable costs.” LR 54-1(a). Under local rule 54-6(a), “[t]he cost of copies of an exhibit

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necessarily attached to a document required to be filed and served is taxable.” LR 54-6(a).

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III.

Discussion

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A. Motion for retaxation

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Defendants’ itemized request includes general copy charges of $93.45. (Doc. # 45).

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Plaintiff contends that these charges are not taxable because they are not covered by section 1920

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or local rule 54-6. (Doc. # 47). Plaintiff further argues that given the court’s electronic filing

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system, copies of the documents described by defendants were not “necessary” under the

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relevant legal standards above. (Doc. # 47). Finally, plaintiff contends that defendants may not

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recover the cost of copying discovery documents, as they are not filed with the court and thus are

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not covered by the language of local rule 54-6. (Doc. # 47).

James C. Mahan
U.S. District Judge

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Defendants’ second itemization requests taxation for copies of attachments to defendants’

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statement regarding removal, (doc. # 11); confidential early neutral evaluation statement; initial

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disclosures and supplements; motion for summary judgment, (doc. # 26); response to first

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motion to compel discovery, (doc. # 23); reply to response to motion for summary judgment,

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(doc. # 29); and supplemental brief, (doc. # 41). (Doc. # 45).

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Fees for exemplification and copying are permitted under section 1920(4) for the

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“physical preparation and duplication of documents.” Romero v. City of Pomona, 883 F.2d

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1418, 1428 (9th Cir. 1989). Defendants’ requested costs comport with those typically awarded

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by courts in this jurisdiction under section 1920(4). See Evanow v. M/V Neptune, 163 F.3d 1108,

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1118 (9th Cir. 1998) (affirming taxation of costs for photocopies, trial exhibits, and deposition

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transcripts); Hammersmith, Inc. v. Taco Bell Corp., no. 91-35188, 1992 WL 138661, at *1 (9th

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Cir. June 22, 1992) (allowing costs of multiple copies for service, filing with court, and

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documents produced for discovery); Go-Video, Inc. v. Matsushita, no. 92-16387, 1993 WL

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495232, at *1 (9th Cir. Nov. 26, 1993) (affirming cost award as reasonable where prevailing

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parties “selected only those papers necessary for their motions, instead of filing copies of their

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entire archives”); Gottlieb v. Convergent Techs., no. 90-15084, 1991 WL 164258 (9th Cir. Aug.

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26, 1991) (allowing taxation of cost of copying documents produced to other parties, rejecting an

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alternative theory as a “novel and unduly narrow construction”).

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Further, the court finds that defendants’ copying costs were reasonably necessary under

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local rule 54-1(a). Defendants sought taxation for copies of attachments to their early neutral

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evaluation statement, initial disclosures, motions, and responses. (Doc. # 45). Under federal rule

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of civil procedure 26, a party must comply with discovery requests and furnish the opposing

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party with initial disclosures. Fed. R. Civ. P. 26(a)(1)(A). Similarly, parties subject to early

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neutral evaluation must submit evaluation statements. LR 16-6(f). Therefore, the costs that

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defendants incurred in filing these required documents are taxable.

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Other attachments for which defendants seek taxation of copying costs are documents

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that presumably were not in defendants’ possession before the filing of this suit. These include

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copies of documents such as the state court summons in this case and plaintiff’s job description

James C. Mahan
U.S. District Judge

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questionnaire. The court finds that these copies were “necessarily obtained for use in the case”

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and constituted exhibits “necessarily attached to a document required to be filed.” 28 U.S.C. §

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1920(4); LR 54-6(a). Accordingly, their costs are taxable.
It is well-established under section 1920(4) that a document need not be filed with the

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See Haagen-Dazs Co., 920 F.2d at 588.

Accordingly, defendants’

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court to be taxable.

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attachments to discovery documents are taxable and plaintiff’s argument in this regard is without

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merit.

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Similarly, the fact that many documents may be electronically filed does not affect

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whether the costs at issue are taxable. As previously stated, some of the documents cited by

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defendants were not filed. Instead, these documents were presumably provided to plaintiff in

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hard copy form. This is corroborated by the certificates of service on certain of plaintiff’s

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exhibits, stating that they were served by mail. Further, defendants may have been required to

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pay copying fees to obtain certain documents not in their possession.

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For the foregoing reasons, the court will deny the motion to retax costs.

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B. Request for stay

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Plaintiff alternatively requests that the taxation of costs be stayed pending appeal. (Doc.

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# 47). Plaintiff does not cite any legal authority in support of this request.

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As the prevailing parties, defendants are entitled to a bill of costs. Defendants’ bill of

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costs was timely filed pursuant to local rule 54-1(a). LR 54-1(a) (“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

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

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Local rule 54-1(c) further states that “[t]he clerk shall tax the costs not later than fourteen

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(14) days after the filing of objections or when the time within which such objections may be

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filed has passed.” Accordingly, the court finds a stay inappropriate.

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James C. Mahan
U.S. District Judge

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IV.

Conclusion

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For the foregoing reasons,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the motion to retax

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costs, (doc. # 47), be, and the same hereby is, DENIED.
DATED September 11, 2014.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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