Bank of America, N.A. v. Remington Place Homeowners' Association et al

Filing 77

ORDER re 73 Bill of Costs. IT IS HEREBY ORDERED that $530.00 in fees obtaining printed or electronically recorded transcripts necessarily obtained for use in this case are taxed as costs. IT IS FURTHER ORDERED that $400.00 in fees for Plaintiff's expert report are taxed as costs. Signed by Magistrate Judge Elayna J. Youchah on 9/9/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BANK OF AMERICA, N.A.,

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Case No. 2:16-cv-00475-RFB-EJY

Plaintiff,
ORDER

v.
REMINGTON PLACE
ASS’N, et al.,

HOMEOWNERS’

Defendants.

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Presently before the Court is Plaintiff Bank of America, N.A.’s (“BANA”) Bill of Costs

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(ECF No. 73). The Court has considered Defendant 9060 Boston Springs Trust’s Objection to Bill

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of Costs (ECF No. 75), and Plaintiff’s Reply to Objection to Bill of Costs (ECF No. 76). At issue is

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whether BANA’s expert report and transcript are taxable as costs.

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Fed. R. Civ. P. 54(d)(1) provides that unless a federal statute, the Federal Rules of Civil

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Procedure, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed

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to the prevailing party. The clerk may tax costs on 14 days’ notice. Local Rules of Practice (“LR”)

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54-1(d) provides that if an objection to the bill of costs is filed, once a response to the objection is

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filed or the deadline for doing so has passed, the clerk may prepare, sign, and enter an order disposing

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of a bill of costs, subject to a motion to re-tax under LR 54-12. The clerk’s taxation of costs is final,

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unless modified on review as provided in these rules. The U.S. Supreme Court clarified that the

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“unless the court otherwise directs” language contained in Fed. R. Civ. P. 54(d) vests discretion in

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the court as to allowing costs. Farmer v. Arabian American Oil Co., 379 U.S. 227, 232 (1964).

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However, the Court may not either reduce or increase the amount of the costs from those reasonably

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and actually incurred by the prevailing party. See Copper Liquor, Inc. v. Adolph Coors Co., 684

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F.2d 1087, 1101 (5th Cir. 1982).

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With respect to the transcript, 28 U.S.C. § 1920 provides that “[a] judge or clerk of any court

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of the United States may tax as costs,” among other things, “fees for printed or electronically

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recorded transcripts necessarily obtained for use in the case.” Defendant argues that Plaintiff’s claim
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for recovery of $530.00 for the Certified Copy of the Transcript of the deposition of Kelly Mitchell

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was not necessary and, thus, BANA should not be allowed to recover such costs under 28 U.S.C. §

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1920. ECF No. 75 at 4. This argument is not persuasive. Although the Court issued its Order (ECF

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No. 70) Granting BANA’s Motion for Partial Summary Judgment (ECF No. 56) based on factual

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similarity to the decision in Bank of America, N.A. v. Thomas Jessup, LLC Series VII, 435 P.3d 1217

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(Nev. 2019), BANA has sufficiently demonstrated the independent necessity of the expert witness’

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testimony. Plaintiff cited to the Mitchell deposition in its Motion for Partial Summary Judgment

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numerous times to demonstrate, among other things, that Mitchell’s testimony was substantively

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identical to the testimony the expert witness gave in the parallel state court case. 1 Therefore, the

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Court awards BANA its costs in obtaining printed or electronically recorded transcripts necessarily

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obtained for use in this case.

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With respect to the expert report, 28 U.S.C. § 1821 provides for the recovery of certain

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witness fees, including per diem and mileage costs, that are incurred during the course of

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proceedings. Defendant argues that Plaintiff’s claim for recovery of $400.00 for the Appraisal

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Report does not qualify as recoverable costs under 28 U.S.C. § 1821 and is, therefore, improper.

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Defendant distinguishes between allowable costs under this statute as related to costs a witness may

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incur in the course of attending court or a deposition, from non-allowable costs a plaintiff may incur

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in employing a witness to prepare materials such as appraisal reports. ECF No. 75 at 4. Again, this

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argument is not persuasive.

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The discretion to tax costs not specifically authorized by statute should be exercised

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sparingly. Miller-Wohl Co. v. Comm’r of Labor and Industry, 694 F.2d 203, n.2 (9th Cir. 1982).

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Notwithstanding, “the central concern in deciding whether to tax an expert witness’ fees as costs is

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the necessity of the expert’s testimony.” Heverly v. Lewis, 99 F.R.D. 135, 137-18 (D. Nev. 1983)

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(internal citation omitted). That is, an expert witness’ fees may be taxable only if the testimony is

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material to an issue tried and reasonably necessary to its disposition. Id. (internal quotations

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omitted). Here, BANA obtained an expert to provide a valuation of property. As BANA accurately

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ECF No. 56 at 5, 7-9, 11. BANA also attached the Mitchell deposition as a separate Exhibit. ECF
No. 56-7.

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points out, this expert report was used to “decide a critical element of this case—the property’s fair

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market value as compared to the foreclosure sale price—in determining whether the court should set

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aside the sale under the Nevada’s supreme court’s standard . . . .” ECF No. 76 at 2. Therefore, this

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Court awards BANA its costs in obtaining its expert report valuating the property in dispute.

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Accordingly,

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IT IS HEREBY ORDERED that $530.00 in fees obtaining printed or electronically recorded

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transcripts necessarily obtained for use in this case are taxed as costs.
IT IS FURTHER ORDERED that $400.00 in fees for Plaintiff’s expert report are taxed as

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costs.

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DATED THIS 9th day of September, 2019.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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