Michaels v. Taco Bell Corporation
Filing
248
OPINION and ORDER - The court hereby awards $5,704.12, in costs pursuant to Michael's Bill of Costs 243 . The Bill of Costs is GRANTED in part and DENIED in part. IT IS SO ORDERED. DATED this 13th day of September 2013, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Civ. No. 3:10-cv-1051-AC
JEANNE MICHAELS, an individual,
OPINION AND
ORDER
Plaintiff,
v.
TACO BELL CORPORATION, a
California corporation,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Plaintiff Jeanne Michaels (“Michaels”) prevailed at trial against Defendant Taco Bell
Corporation (“Taco Bell”). See Judgment (#234) (ordering judgment “[f]or recoverable costs in
favor of plaintiff Jeanne Michaels, such costs to be determined upon Michaels’s filing of her cost
bill.”). Michaels seeks an award of $13,201.20 in costs as the prevailing party. Taco Bell opposes
the motion in part, arguing that certain of the claimed costs are not recoverable. For the reasons
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stated below, Michaels’s cost bill is granted in part and denied in part.
Legal Standard
Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these rules,
or a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the
prevailing party.” FED. R. CIV. P 54(d) (2013). Under Local Rule 54, a party seeking costs in this
district must provide a “detailed itemization of all claimed costs. The prevailing party must file an
affidavit and appropriate documentation.” Local Rules of Civil Procedure, District of Oregon, Rule
54-1(a)(1).
“Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party
must show why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932,
944-945 (9th Cir. 2003). “By its terms, the rule creates a presumption in favor of awarding costs
to a prevailing party, but vests in the district court discretion to refuse to award costs.” Association
of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (citing National
Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir. 1995)). The district court must give
specific reasons for rejecting claimed costs. Id. at 591-592 (citing Subscription Television, Inc. v.
Southern Cal. Theater Owners Assoc., 576 F.2d 230, 234 (9th Cir. 1978)).
The United States Code identifies six categories of recoverable costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
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28 U.S.C. § 1920 (2013) (“section 1920”). A court may not award costs beyond the scope of those
authorized by section 1920. Kraft v. Arden, CV. 07-487-PK, 2009 U.S. Dist. LEXIS 1527, at *7-8
(D. Or. Jan. 8, 2009) (citations omitted). “Courts, however, are free to construe the meaning and
scope of the items enumerated as taxable costs in § 1920.” Id. at *8. Ultimately, it is “incumbent
upon the losing party to demonstrate why the costs should not be awarded.” Stanley v. Univ. of S.
California, 178 F.3d 1069, 1079 (9th Cir. 1999).
Discussion
Michaels seeks costs for the following litigation-related expenses: (1) a filing fee of
$399.00; (2) fees for service of summons and subpoenas of $795.00; (3) transcript fees of $3,616,30;
(4) printing fees of $7,466.42; (5) witness fees of $415.00; (6) exemplification fees of $467.00; and
(7) docket fees of $42.50. These fees total $13,201.20. The court will address each category in turn.
I.
Filing Fee
Michaels seeks to recover $399.00 in filing fees paid to the clerk under subsection 1 of
section 1920. Taco Bell does not object to this cost. Reimbursement of the filing fee is authorized
under section 1920 and the court hereby grants the requested amount of $399.00.
II.
Service Fees
Michaels seeks $65.00 for service of the summons and complaint on Taco Bell and $730.00
in fees for service of fifteen subpoenas. Taco Bell objects to costs of $265.00 for five subpoenas
associated with the first trial date because the trial was set over by the court’s motion. According
to Taco Bell, those fees do not relate to an issue tried and were thus not reasonable and necessary
to disposition of any such issue. This includes the subpoenas of Krysta McAllister, Munera Nura,
Azeb Halefom, Tham Lam, and Mike Singhose.
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The court agrees that the costs for these subpoenas should not be awarded to Michaels. First,
the trial was reset because Michaels was not medically stable and she sought to introduce medical
records at trial that had not been timely disclosed to Taco Bell. Similarly, the court concluded that
Michaels should not be forced to trial when the full extent of her medical care had not yet been
ascertained. Second, Michaels also requested leave to amend her complaint on the eve of trial. The
court notes that Michaels could have retrieved the subpoena fee checks from the witnesses or
reached an agreement that the subpoena fee was applicable to the subpoena subsequently issued for
the April 2013 trial. Accordingly, costs in the amount of $265 for the five identified subpoenas are
denied.
Taco Bell also objects to costs of $90 for subpoenas of two witnesses that did not appear at
trial, Anne Wehrli (“Wehrli”) and Randy Wrede (“Wrede”). Taco Bell cites this court’s decision
in Kyei v. Oregon Department of Transportation, Case No. CV 07-1607-AC, 2010 U.S. Dist. LEXIS
24661 (D. Or. Mar. 11, 2010), wherein the court ruled that the party’s choice not to call six
witnesses at trial prevented it from recovering costs associated with those witnesses. In Kyei, the
prevailing defendant sought witness fees for eleven of the witnesses it listed for trial. The plaintiff
objected to fees for those witnesses that did not actually testify at trial. The court agreed with the
plaintiff and declined to award costs for the non-testifying witnesses: “ODOT chose not to call each
of these six witnesses at trial, which choice reflects ODOT’s conclusion that none of the six
ultimately were needed at trial to address a material issue. In light of this undisputed fact, ODOT
has not demonstrated how these six witnesses’ testimony were necessary to a material issue at trial
even though none of them were called to testify at trial.” Id. at *10-11.
In this case, the List of Exhibits and Witnesses (#231) does not list either Wehrli or Wrede
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as witnesses and, consistent with its earlier decision, the court denies the $90 in costs sought for
subpoenaing these two witnesses.
Accordingly, the court awards costs for subpoenas in the amount of $440.00.
III.
Transcript Fees
Taco Bell objects to costs associated with the deposition transcripts of two witnesses, Carlos
Azalde (“Azalde”) and John Brault (“Brault”), as not obtained for use in the case but rather for
convenience of counsel. Taco Bell points out that neither witness appeared at trial, nor did they
appear on the witness list for either trial setting. Furthermore, Taco Bell argues, neither Azalde nor
Brault’s testimony was referenced in a dispositive motion or was otherwise relevant to an issue
ultimately resolved at trial.
Azalde was the Taco Bell representative designated to give deposition testimony regarding
the type of tile installed in Taco Bell Stores pursuant to Rule 30(b)(6). After Michaels withdrew her
allegation of negligence stemming from the type of tile used at the Taco Bell stores, and the court
ruled that evidence regarding the slip resistance of the tiles was excluded from presentation at trial,
Azalde was omitted from Plaintiff’s witness lists and did not testify at trial. Taco Bell named Brault
as an expert witness to rebut the testimony of Michaels’s expert, David Karlin (“Karlin”). The court
excluded Karlin’s testimony and Brault was thus not called to testify at trial. Accordingly, Taco Bell
argues that costs associated with his deposition transcript are not recoverable by Michaels.
Again, the witness list from the trial does not list either Azalde or Brault as testifying
witnesses and they are similarly absent from Michaels’s witness list (#181). However, a deposition
need not be introduced into evidence to be necessary for use in the case. “The cost of a deposition
not used at trial may be taxed if taking the deposition was reasonable as part of the pretrial
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preparation of the case, rather than merely discovery for the convenience of counsel, or if the
deposition was required for a dispositive motion.” Arboireau v. Adidas Salomon AG, CV-01-105ST, 2002 U.S. Dist. LEXIS 20342, at *14 (D. Or. June 14, 2002) (citations omitted). Thus, “[a]
deposition need not be absolutely indispensable to justify an award of costs; rather, it must only be
reasonably necessary at the time it was taken, without regard to later developments that may
eventually render the deposition unneeded at the time of trial or summary disposition.” Frederick
v. City of Portland, 162 F.R.D. 139, 143 (D. Or. 1995) (citations omitted). In Frederick, the court
distinguished qualifying depositions from those that are “purely investigative or merely for the
convenience of [] counsel.” Id. See also Ryther v. KARE 11, 864 F. Supp. 1525, 1534 (9th Cir. )
(holding similarly that a deposition that “appeared reasonably necessary to the parties at the time
it was taken” is taxable as a cost, though “[d]epositions that merely assist discovery or are
investigatory in nature” are generally not taxable).
Accordingly, the court must consider whether the depositions testimony of Azalde and Brault
appeared reasonably necessary at the time Michaels requested deposition transcripts. In Azalde’s
case, he was the corporate representative offered for deposition regarding the slip resistance of the
floor tiles. Azalde’s testimony was both relevant to the negligence claim and reasonably necessary
for use in the case. Taco Bell provides no analysis to explain why the deposition was not reasonably
necessary as case preparation other than that the claim was dismissed before trial and the testimony
was not ultimately offered into evidence. Accordingly, the cost for this deposition is taxable to Taco
Bell. The same is true for the deposition of Brault, whose testimony was offered to rebut that of
Michaels’s expert. At the time, expert testimony was relevant to a claim plaintiff alleged and sought
to make at trial, and the deposition transcript was reasonably necessary to prepare for trial. Taco
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Bell presents no evidence or analysis that the transcript was sought by Michaels when it was no
longer necessary to prosecute her case. Accordingly, the fees associated with Brault’s deposition
are taxable to Taco Bell.
For the reasons stated, Michaels’s request for transcript costs of $3,616.30 is granted in its
entirety.
IV.
Exemplification and Copying Fees
A.
Copying Fees
A prevailing party may recover “[f]ees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4)
(2012). Copying costs for documents produced to opposing parties in discovery, submitted to the
court for consideration of motions, and used as exhibits at trial are recoverable. Teicher v. Regence
Health and Life Ins. Co., No 06-1821-BR, 2008 U.S. Dist. LEXIS 96268, at *31 (D. Or. Nov. 24,
2008); Arboireau, 2002 U.S. Dist. LEXIS 20342, at *17-18 (citing Fressell v. AT & T Technologies,
Inc., 103 F.R.D. 111, 115-16 (N.D. Ga. 1984)). However, recoverable copying costs “do ‘not
include extra copies of filed papers, correspondence, and copies of cases since these are prepared
for the convenience of the attorneys.’” Arboireau, 2002 U.S. Dist. LEXIS 20342, at *18 (citation
omitted).
Recoverable copying costs also do not include costs associated with in-house
photocopying for use by counsel. Frederick, 162 F.R.D. at 144. A party’s conclusory assertion that
all copies were reasonable necessary to its case is, by itself, insufficient. Kraft, 2009 U.S. Dist.
LEXIS 1527, at *9.
Michaels seek $7,466.42 in costs for in-house copying charges and third-party vendor
copying charges. She submits a list of these costs as Exhibit D to the Cost Bill. The list contains
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detail regarding the date of the copying, the client for whom the copies were made, and the number
of copies made. The exhibit also includes receipts from the outside vendors, some of which contain
additional detail regarding the nature of the documents reproduced. Taco Bell argues that the
$7,466.42 sought by Michaels for printing costs is both unreasonable and not adequately
documented. Rather, it asserts, Michaels’s explanation is conclusory and does not permit the court
to conduct a meaningful review of the costs sought. Furthermore, Taco Bell argues, the price per
page is well above that charged by a third-party copier and the consistently round number of pages
claimed reflect an inexact documentation process, at best. For these reasons, Taco Bell urges the
court to reject the request in its entirety.
The court agrees that the information provided about the in-house copying charges is
insufficient to justify an award of costs as it does not permit the court to evaluate whether the copies
were necessary for use in the case. This information is a prerequisite for the court awarding
photocopying costs and, accordingly, these costs are denied. The third-party vendor copying costs
are sufficiently documented, however. Two invoices specify they were for the reproduction of
medical records and indicate that they were for use in this case. These invoices are from Documart
and Diversified Business Services, and are for $127.94 and $496.80, respectively. (Exhibit D at 11,
12.) A third invoice, in the amount of $199.08, states that it was for reproduction of the exhibits for
a bench copy. (Exhibit D at 15.) The court can reasonably conclude that these third-party copying
charges were incurred for use in the case and awards them in their entirety, in the amount of
$823.82.
B.
Witness Fees
Michaels seeks $415.00 in costs for witnesses who appeared at trial pursuant to federal
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statutes that authorize a witness fee of $40 per day for each day of attendance and $5 for
transportation costs. See 28 U.S.C. § 1821(b) and (c) (authorizing the payment of witness fees for
attendance and travel). As such, Michaels seeks $45 per day in witness costs for nine witnesses.
The cost bill itself incorrectly lists the fee for two of the witnesses as $50 per day, an error that Taco
Bell notes in its objections. Taco Bell does not otherwise object to the payment of those fees and
the court sees no reason to reduce the award, except to correct the mathematical error. Accordingly,
it awards the total amount sought for witness fees, corrected to the accurate amount of $405.00.
C.
Exemplification of Exhibits
Michaels seeks $467.00 for the exemplification of exhibits, including the enlargement of
exhibits and white boards for use at trial. She asserts that these expenditures were necessary for the
presentation of evidence at trial. Taco Bell objects to costs associated with enlarged versions of
exhibits used as trial as not necessarily obtained for use in the case. According to Taco Bell,
awarding such costs would impermissibly shift the cost of enlarging exhibits to the opposing party
where the exhibits in their original size were admitted and may be displayed using the court’s
electronic evidence system.
In Teicher, the prevailing party requested almost $2,000 for “designing and creating largescale demonstrative exhibits.” Id. at *32. This included over $800 for “litigation consultation
regarding the design of one of the exhibits.” Id. The court declined to award the requested costs.
The Teicher decision was cited by this court in Williamson v. Munsen Paving, LLC, Case No. CV
09-736-AC, 2011 U.S. Dist. LEXIS 18254 (D. Or. Feb. 23, 2011). The court noted that the
conclusion in Teicher “is consistent with the well-established case law disallowing costs of copies
made for counsel’s convenience: enlarged versions of already admitted standard-size exhibits are
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purely for counsel’s convenience.” Id. at *17.
The court agrees with Taco Bell that the amount expended to enlarge exhibits for trial is not
taxable to Taco Bell. Therefore, the charges for enlarging exhibits are disallowed in the amount of
$406.00. Michaels also seeks reimbursement for white boards purchased for use at trial. Again, the
court declines to award the cost of purchasing white boards for use at trial, as the court’s evidence
system is competent to display standard-size exhibits on a larger scale, and such enlargements are
merely for the convenience of counsel. As the court wrote in Williamson, “Convenience, not
necessity, is the dominant factor here: enlarged exhibits of this type are unnecessary because of the
availability to counsel of the court’s electronic evidence system.” Id. Based on the evidence before
it, the court concludes that the whiteboard charges were merely for the convenience of counsel and,
similarly, cannot be taxed against Taco Bell. Accordingly, the court disallows all claimed charges
for exemplification of exhibits.
V.
Docket Fees
Under section 1920, docket fees may also be taxed as costs, as specified under 28 U.S.C.
§ 1923 (“section 1923”). Section 1923 states specifically that a party may recover docket fees of
“$20 on trial or final hearing” and “$2.50 for each deposition admitted into evidence.” 28 U.S.C.
§ 1923(a). Michaels seeks $20 in costs associated with the trial and $22.50 for nine depositions
entered into evidence. Taco Bell does not oppose the request for docket fees for the trial, but objects
to the docket fees sought for depositions admitted into evidence. According to Taco Bell, Michaels
did not enter any depositions into evidence and should therefore be denied all costs claimed
therefrom. Michaels identifies the depositions of former Taco Bell employees Azalde, Brault,
Helfom, Lam, McAllister, Nura, Singhose, Burns, and Wong as those admitted into evidence for
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which she seeks costs. Michaels provides no additional analysis regarding her entitlement to these
fees.
In Oregon Azaleas, Inc. v. Western Farm Service, Inc., Civil No. 00-1348-KI, 2002 U.S.
Dist. LEXIS 470 (D. Or. Jan. 9, 20002), the plaintiff sought docket fees for depositions admitted into
evidence. In awarding the requested costs, the court considered only those depositions that were
admitted into evidence at trial: “I do not interpret this docket fee as applying to evidence in a
summary judgment motion. I will allow $2.50 in docket fees for the videotaped deposition admitted
into evidence during the trial.” Id. at *3. Here, the parties did not file dispositive motions, so the
court need not consider whether the fee extends to submission for purposes of motion practice.
According to the witness and exhibit list from trial, the only deposition testimony admitted was that
of Michaels herself. Michaels does not seek the $2.50 fee for that deposition and, accordingly, the
court denies the request for docket fees for depositions. Accordingly, the court awards only $20 in
docket fees for the trial itself.
Conclusion
The court awards costs in the following amounts:
Cost Category
Amount Requested
Amount Awarded
Filing Fee
$399.00
$399.00
Subpoena Fees
$795.00
$440.00
Transcript Fees
$3,616.30
$3,616.30
Witness Fees
$415.00
$405.00
Copying Costs
$7,466.42
$823.82
Exemplification Costs
$467.00
$0
Docket Fees
$42.50
$20.00
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TOTAL
$5,704.12
The court hereby awards $5,704.12, in costs pursuant to Michaels’s Bill of Costs (#243).
The Bill of Costs is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
DATED this 13th day of September, 2013.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
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