Redwind v. Western Union

Filing 202

OPINION and ORDER - Defendant's motion (Bill of Costs 190 ) is GRANTED in part and DENIED in part, and defendant is awarded $10,619.87 in costs. IT IS SO ORDERED. DATED this 16th day of September, 2016, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

SAGE RED WIND,

Civ. No. 3:14-cv-01699-AC
Plaintiff,

OPINION AND ORDER

v.
WESTERN UNION, LLC,
Defendants.

ACOSTA, Magistrate Judge:
Before the court is defendant Western Union's ("defendant") cost bill. (ECF No. 190.)
Plaintiff Sage Redwind ("plaintiff') filed this lawsuit on October 27, 2014, alleging defamation,
discrimination, harassment, retaliation, and discriminatory practices. (ECF No. 1.) On June 16,
2016, the court granted defendant Western Union's ("defendant") motion (ECF No. 95) for
summary judgment and dismissed plaintiffs complaint with prejudice.

(ECF No. 188.)

Defendant, as prevailing party, now seeks to recover $13,425.37 in costs. (ECF No 190, p. 1.)
Plaintiff objects to defendant's motion (ECF No. 195), arguing that none of defendant's costs are
recoverable because: (1) defendant is not the prevailing party, (2) deposition costs were not
1 - OPINION AND ORDER

necessary to the litigation; and (3) remaining costs are not recoverable or were not reasonably
necessary. For the reasons explained below, defendant's motion is GRANTED IN PART and
DENIED IN PART, and defendants are awarded $10,619.87 in costs.

Legal Standards
Costs generally are awarded to the prevailing party in a civil action as a matter of course
unless the court directs otherwise. FED. R. CIV. P. ("Rule") 54(d). Pursuant to 28 U.S.C. §
1920, the court may tax as costs the following specific items against a losing party:
A judge or clerk of any court of the United States may tax as costs the following:
(I) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic
transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for
use in the case;
·
( 5) Docket fees under section 1923 of this title;
(6) Compensation for court-appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation
services under § 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the
judgment or decree.
Costs "should be allowed to the prevailing patty." FED. R. CIV. P. 54(d)(l). The Rule
creates a presumption in favor of awarding costs to the prevailing party. Association of Mexican-

American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (en bane). The
district coutt need not specify reasons for its decision to abide the presumption and tax costs to
the losing party, but "need only find that the reasons for denying costs are not sufficiently
persuasive to overcome the presumption in favor of an award." Save Our Valley v. Sound
2 - OPINION AND ORDER

Transit, 335 F.3d 932, 945 (9th Cir. 2003). It is "incumbent upon the losing party to demonstrate
why the costs should not be awarded," Stanley v. Univ. of Southern California, 178 F.3d 1069,
1079 (9th Cir.1999), and the trial judge has wide discretion in awarding costs under Rule
54(d)(l). Arboireau v. Adidas Salomon AG, No. 01-105-ST, 2002 WL 31466564, at *4 (D. Or.
June 14, 2002). However, the comi must limit an award of costs to those defined in 28 U.S.C. §
1920 unless otherwise provided for by statute. Grove v. Wells Fargo Fin. Ca., Inc., 606 F.3d
577, 579-80 (9th Cir. 2010).
Discussion

1

Prevailing Party
As an initial matter, plaintiff argues that defendant is not the prevailing party in this

lawsuit and is therefore not entitled to an award of costs because the court's order granting
summary judgment was error, and is "nearly guaranteed" to be overturned by the Ninth Circuit.
(ECF No. 195, p. 2.) A "prevailing patty" for purposes of Rule 54 is a party in whose favor
judgment - including summary judgment - is rendered. d'Hedouville v. Pioneer Hotel Co., 552
F.2d 886, 896 (9th Cir. 1977); San Diego Police Officers' Ass 'n v. San Diego City Employees'
Ret. Sys., 568 FJd 725, 742 (9th Cir. 2009) (defendants that obtained summm·y judgment on all
of plaintiffs federal claims were "clearly the prevailing parties"). Even though plaintiff has filed
·an appeal, the court's order granting summm·y judgment neve1iheless is final, and defenda11t is
thus the prevailing party and entitled to an award for recoverable costs under Rule 54.
II.

Fees for Printed or Electronically Recorded Transcripts Necessarily Obtained for use in
the Case (28 U.S.C. § 1920(2)).
Defendant seeks to recover the costs associated with plaintiffs deposition, including

costs for court rep01iers, videographers, and ce1tified transcriptionists, as well as the costs of

3 - OPINION AND ORDER

transcripts of hearings in the case. (ECF No. 191, p. 2.) Specifically, defendant seeks these
amounts for hard-copy and video depositions:
1. Comt reporter fees and transcript of deposition of Plaintiff Sage Redwind
(Vol. 1): $1,519.75

2. Video Deposition of Plaintiff Sage Redwind (Vol. 1): $729.50
3. Court reporter fees and transcript of deposition of Plaintiff Sage Redwind
(Vol. 2): $1,795.50
4. Video Deposition of Plaintiff Sage Redwind (Vol. 2): $919.50
5. Court reporter fees and transcript of deposition of Plaintiff Sage Redwind
(Vol. 3): $1,812.50
6. Video Deposition of Plaintiff Sage Redwind (Vol. 3): $875.00
7. Comi repmter fees and transcript of deposition of Plaintiff Sage Redwind
(Vol. 4): $513.50
8. Video Deposition of Plaintiff Sage Redwind (Vol. 4): $281.25
TOTAL:

$8,446.50

The subtotal of costs associated with securing the deposition and printed transcripts is $5,641.00,
and the subtotal of costs associated with obtain a video version of plaintiffs deposition is
$2,805.25.
Defendant also seeks to recover these amounts associated with obtaining transcripts of
court proceedings in the case:
1. Transcript of hearings held Febrnary 20, 2015, and March 30, 2015: $805.10
2. E-transcript of hearings held February 20, 2015, March 30, 2015, May 1, 2015, June
22, 2015 and July 2, 2015: $215.10
3. Transcript of hearing held May 1, 2015: 184.30
4. Transcript of hearing held June 22, 2015: $150.35
5. Transcript of hearing held July 2, 2015: $252.20

4 - OPINION AND ORDER

6. Transcript and e-transcript of hearing held August 26, 2015: $362.15
7. Transcript and e-transcript of hearing held March 28, 2016: $238.55
8. Transcript of hearing held April 13, 2016: $121.25
9. Transcript and e-transcript of hearing held April 15, 2016: $51.00
TOTAL:

$2,380,00

A. Deposition Transcripts.

Defendant seeks costs incmTed to depose plaintiff and produce transcripts of her
deposition. Under 28 U.S.C. § 1920(2), a prevailing party may recover "(flees for printed or
electronically recorded transcripts necessarily obtained for use in the case[.]" "Fees of a court
reporter are specifically allowed under§ 1920." Sterling Sav. Bank v. Derek L. Brown & Assoc.,
Inc., No. 3:10-CV-00674-BR, 2013 WL 164424, at *5 (D. Or. Jan. 15, 2013). "The cost of a

deposition not used at trial still may be recovered if taking the deposition was reasonable as part
of the pretrial preparation of the case rather than merely discovery for the convenience of
counsel, or if the deposition was required for a dispositive motion." Pullela v. Intel Corp., No.
CV-08-1427, 2010 WL 3361089, at *2 (D. Or. Aug. 25, 2010), ajf'd, 467 F. App'x. 553 (9th Cir.
2012).
Plaintiff argues that none of these costs were reasonably necessary, because defendant
took her deposition "entirely for investigative purpose, to unnecessarily discover information,"
inflated its costs, and did not use her deposition in litigation. (ECF No. 195, p. 2.) She also
argues that it was not necessary to take her deposition because the case did not go to trial, and
because .defendants were in possession of her recitation of the facts as contained in the
complaint.

She contends that her deposition was "merely used as a discovery tool, for the

5 - OPINION AND ORDER

convenience of the counsel." (ECF No. 195, p. 5.) Plaintiff also argues that an electronic
transcript of the deposition was not necessary in addition to a printed copy.
Taking the opposing paity's deposition and obtaining copies of the transcript of that
deposition for use in the case, including use at trial, is reasonably calculated to properly prepare
for trial and within Rnle 54' s "necessity" requirement.

Here, defendant took plaintiffs

deposition at a time when trial before a jury was a possibility. (ECF No. 200, p. 1-2.) Although
this case did not go to trial, defendant also relied on plaintiffs deposition testimony in its motion
for summary judgment. (ECF No. 95.) Further, while plaintiff argues that defendants already
had access to her testimony through her pleadings and documents produced during discovery
(ECF No. 195, p. 7), plaintiffs complaint was not a sworn statement and, in any event, defendant
was entitled to obtain her deposition testimony to use as evidence in the case.

Plaintiffs

deposition and a copy of its transcript therefore were reasonably necessary. Accordingly, the
comt finds that plaintiffs deposition transcripts were necessarily obtained in this case, and
awards costs in the amount of $5,641.00.
B. Videotaped Depositions.

Defendant also seeks to recover the costs incurred in videotaping plaintiffs deposition, in
addition to the cost incurred to obtain the printed and electronic transcript of the deposition.
Defendant alleges that it was necessary to the litigation to videotape plaintiffs deposition for
purposes of showing her demeanor, which it alleges is an important issue in this case because of
its theory that plaintiffs claims arose not from discrimination, but from her disagreements with
her managers' assessments of her communication and interpersonal skills. (ECF No. 199, p. 5.)
Without more, however, defendants have failed to show how the written version of plaintiffs
deposition testimony or her testimony at trial could not serve the same purpose. See Pullela,

6 - OPINION AND ORDER

2010 WL 3361089, at *3 (denying request for costs of a videotaped deposition because
defendant "fail[ed] to explain how, in the context of th[ at] case, [plaintiffs] deposition demeanor
was such an important issue that the video version, in addition to the written version, of her
deposition was necessary). The court therefore denies defendant's request for the $2,805.25 in
videographer fees.
C. Transcripts of Court Proceedings.

The record demonstrates that these costs fall within the statute. In this case the court held
numerous lengthy discovery conferences and motion hearings, and orally issued its rnlings in
court. The transcript from each proceeding was necessary to understand and have a record of the
court's rulings. The rough draft versions of the deposition transcripts also were reasonably
necessary because plaintiffs deposition spanned multiple, non-sequential days, in part because
plaintiff asserted numerous objections and gave numerous non-responsive answers which
required the court's intervention. (See, e.g., ECF No. 200-1, p. 25 (transcript of comt's remarks
at plaintiffs deposition that plaintiffs "answers have not always been clear and direct and
sometimes [plaintiff has] raised concerns or objections that . . . weren't walTanted by the
questions asked").) Defendant's counsel reasonably concluded that rough draft and expedited
transcripts of plaintiffs deposition were necessary to promote efficiency and avoid redundancy
in subsequent deposition sessions. (ECF No. 200, p. 2.) Accordingly, the comt finds that rough
drafts and transcripts of comt proceedings were necessarily obtained in this case, and awards
costs in the amount of $2,380.00.
III.

Fees and Disbursements for Witnesses (28 U.S.C. § 1920(3)).
A prevailing party may recover witness fees, and a witness is entitled to a fee of $40.00

for each day the witness is testifying.

7 - OPINION AND ORDER

28 U.S.C. § 182l(b) ("A witness shall be paid an

attendance fee of $40 per day for each day's attendance."). See also First Nat. Mortg. Co. v.
Federal Realty Inv. Trust, 631F.3d1058, 1071 (9th Cir. 2011) (federal law allows recovery of

only "forty dollars per day per witness"). Defendant seeks to recover a $40 witness fee for each
of eight witnesses, for a total of $320.00. Plaintiff argues that these costs should be denied
because they are not covered by the statute and were not necessary to the litigation. Contrary to
plaintiffs allegations, however, the witness fees related to subpoenas duces tecum are all
covered under §1920 and Rule 54, and the court is satisfied that the costs were both reasonable
and necessary to the litigation.

Accordingly, the court awards costs in the full amount of

$320.00.
IV.

Fees and Disbursements for Printing (28 U.S.C. § 1920 (4)).
Defendant seeks reimbursement for exemplification and copying in the amount of

$2,258.87.

This amount includes the cost of copying fees for medical records, copying

documents produced by third parties, copying documents produced by plaintiff in discovery, and
copying documents produced by defendant in discovery. Exemplification and copies necessarily
obtained for use in a case are taxable as costs, under Section 1920(4). Maxwell v. Hapag Lloyd
Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988). 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 WL 5071679, at *11 (D. Or. Nov. 24, 2008); Arboireau, 2002 WL 31466564, at *6 (citing
Fressell v. AT & T Tech., 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 WL 31466564,
at *6 (citation omitted). Recoverable copying costs also do not include costs associated with in-

8 - OPINION AND ORDER

house photocopying for use by counsel. Frederick v. City of Portland, 162 F.R.D. 139, 144 (D.
Or. 1995). A patty's conclusory assertion that all copies were reasonably necessary to its case is,
by itself, insufficient. Kraft v. Arden, No. 07-487-PK, 2009 WL 73869, at *9 (D. Or. Jan. 8,
2009). See also Arboireau, 2002 WL 31466564, at *6 (same).
Local Rule 54-l(a)(l) describes the requirements for cost bills filed in this district:
Bill of Costs: Not later than fourteen (14) days after entry of judgment or receipt
and docketing of the appellate court's mandate, the prevailing party may file and
serve on all patties a Bill of Costs that provides detailed itemization of all claimed
costs. The prevailing party must file an affidavit and appropriate documentation.
This rule requires the prevailing patty to explain the nature of the photocopying so that the court
may determine which costs, if any, are properly awardable. Key Bank Nat'! Ass'n v. Van Noy,
598 F. Supp. 2d 1160, 1168 (D. Or. 2009); Robins v. Scholastic Book Fairs, 928 F. Supp. 1027,
1035 (D. Or. 1996).
In its supporting memorandum, Defendant provided a detailed explanation of its copy
costs, including that defendant is not seeking recovery of costs associated with internal copying
and for convenience of counsel (See ECF No. 191, pp. 6-7).

Defendant supported this

representation with testimony and exhibits that substantiate those costs. See Declaration of
Amanda C. Van Wieren (ECF No. 192) and exhibits thereto. The detail provided meets the
court's requirements. Accordingly, the court awards costs in the amount of $2,258.87.
V.

Docket Fees (28 U.S.C. § 1920(5))
A prevailing party may also recover a docket fee "under section 1923 of this title." 28

U.S.C. 1920(5). This cost is explicitly recoverable under the statute. Accordingly, the court
awards a docket fee of $20.

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9 - OPINION AND ORDER

Conclusion

Defendant's motion is GRANTED IN PART AND DENIED IN PART, and defendant is
awarded $10,619.87 in costs.
IT IS SO ORDERED.
DATED this

/6, ~of September, 2016.

.a

OHN V. ACOSTA
Unite States Magistrate Judge

10- OPINION AND ORDER