Christian v. Umpqua Bank
Filing
71
Opinion and Order. The Court AWARDS costs to Defendant in the amount of $7,690.81 and directs the Clerk to tax these costs against Plaintiff. IT IS SO ORDERED. Signed on 7/10/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
JENNIFER CHRISTIAN, formerly
known as JENNIFER HAVEMAN,
Plaintiff,
3:16-cv-01938-BR
OPINION AND ORDER
v.
UMPQUA BANK, an Oregon for
profit banking institution,
Defendant.
CRYSTAL M. LEWIS
March, Higgins, Beaty & Hatch, P.C.
1112 Daniels St., Suite 200
P.O. Box 54
Vancouver, WA 98666
(360) 695-7909
Attorneys for Plaintiff
LEAH C. LIVELY
WM. BRENT HAMILTON, JR.
Davis Wright Tremaine, LLP
1300 S.W. Fifth Ave, Suite 2400
Portland, OR 97201
(503) 241-2400
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Defendant Umpqua
1 - OPINION AND ORDER
Bank’s Bill of Costs (#65).
For the reasons that follow, the Court AWARDS costs to
Defendant in the amount of $7,670.81.
BACKGROUND
On August 20, 2016, Plaintiff Jennifer Christian filed
a civil action in Oregon state court against Defendant and
alleged federal and Washington state-law claims of sexual
harassment/discrimination and retaliation.
On October 4, 2016, Defendant removed the state-court action
to this Court.
On March 20, 2018, Defendant filed a Motion (#49) for
Summary Judgment as to each of Plaintiff’s claims.
On May 22, 2018, the Court issued an Opinion and Order (#63)
in which it granted Defendant’s Motion and entered Judgment (#64)
dismissing Plaintiff’s Complaint with prejudice.
On June 5, 2018, Defendant filed a Bill of Costs (#65)
seeking costs in the amount of $17,107.91.
On June 19, 2018, Plaintiff filed Objections (#67) to
Defendant’s Bill of Costs.
STANDARDS
Federal Rule of Civil Procedure 54(d)(1) provides:
“Unless
a federal statute, these rules, or a court order provides
otherwise, costs—other than attorney's fees—should be allowed to
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the prevailing party.”
Rule 54(d) creates a presumption in favor
of awarding costs to a prevailing party; i.e., “the losing party
must show why costs should not be awarded” in any particular
case.
Save Our Valley v. Sound Transit, 335 F.3d 932, 944–45
(9th Cir. 2003).
28 U.S.C. § 1920 allows a federal court to tax specific
items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54(d)(1).
Section 1920 provides:
A judge or clerk of any court of the United States
may tax as costs the following:
(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 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 for court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under section 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
The court 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.
3 - OPINION AND ORDER
2010).
The discretion of the court to tax costs under Rule
54(d), however, is not “a separate source of power to tax as
costs expenses not enumerated in § 1920” and does not create “a
presumption of statutory construction in favor of the broadest
possible reading of the costs enumerated in § 1920.”
Taniguchi
v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 565, 572 (2012).
DISCUSSION
As noted, Defendant seeks recovery of $17,107.91 in costs as
the prevailing party in this case.
Defendant requests, inter
alia, the $300.00 pro hac vice application fee for admission of
out-of-state counsel, $8,190.85 for depositions taken in the
case, $6,480.98 for “exemplification and photocopies,” and $43.08
in mileage reimbursement for travel by defense counsel.
Although Plaintiff objects only to Defendant’s request for
$2,631.90 in costs for rough drafts of transcripts and video
recordings associated with her deposition and the depositions of
Ed Denny and Walt Lierman, the Court may award only those costs
enumerated in § 1920 unless otherwise provided.
See Grove, 606
F.3d at 579.
I.
Pro Hac Vice Application Fee
The Ninth Circuit has explicitly held § 1920 does not allow
recovery of pro hac vice application fees as taxable costs.
Kalitta Air L.L.C. v. Cent. Tex. Airborne Sys., Inc., 741 F.3d
955, 957-58 (9th Cir. 2013).
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Accordingly, the Court denies Defendant’s request for
reimbursement of the $300.00 pro hac vice application fee for
out-of-state defense counsel.
II.
Fees for Printed or Electronically Recorded Transcripts
Defendant seeks recovery of $8,190.85 for expenses incurred
related to depositions.
As noted, Plaintiff objects only to
$2,631.90 for rough draft transcripts and for video recordings of
the depositions, and Defendant concedes Plaintiff’s objection.
Accordingly, the Court awards Defendant only $5,558.95 for
printed or electronically recorded transcripts.
III. Fees for Exemplification and Costs of Making Copies
Defendant seeks recovery of $6,480.98 for copying costs.
Defendant contends these costs are for “copying and uploading
documents to an electronic discovery review platform” as well as
obtaining Plaintiff’s unemployment records from the Washington
Employment Security Department and Plaintiff’s medical records.
Defendant contends the electronic discovery costs “relate to only
copying/uploading/processing of documents and do not include
other costs, such as reviewing documents or crafting search
terms.”
Plaintiff did not object to these costs.
Defendant’s supporting documentation for these costs,
however, reflect the actual cost of obtaining Plaintiff’s
unemployment and medical records was $38.86.
The remainder of
the requested costs are associated with the creation of an “eDiscovery workspace” by an outside document-production service
for “copying/uploading” client documents; quality control checks
5 - OPINION AND ORDER
of the e-Discovery workspace; sending data to a vendor for
copying, loading, processing, and file creation; and
loading/copying data obtained from third-parties and opposing
counsel.
The Ninth Circuit has held electronic discovery costs may be
properly taxed as costs of making copies of material when “the
copies are necessarily obtained for use in the case” pursuant to
§ 1920(4).
In re Online DVD-Rental Antitrust Litig., 779 F.3d
914, 926 (9th Cir. 2015).
The Ninth Circuit noted
§ 1920(4) restricts the award of costs to those
incurred for copies necessarily obtained for use in the
case is not, in itself, a justification permitting the
award of costs for any task necessary to the
prosecution or defense of a case. . . .
The proper application of a narrowly construed
§ 1920(4) requires that the tasks and services for
which an award of costs is being considered must be
described and established with sufficient specificity,
particularity, and clarity as to permit a determination
that costs are awarded for making copies.
Id. at 928.
Here the Court concludes the majority of the expenses sought
by Defendant for copying costs do not relate to “making copies”
of documents for use in the litigation, but instead to the
creation and maintenance of an electronic database for the
storage and use of documents in the production process.
These
costs, therefore, are not recoverable under § 1920.
Accordingly, the Court awards Defendant costs of $38.86 for
exemplification fees and the costs of making copies.
IV.
Mileage Reimbursement For Defense Counsel’s Travel
Defendant seeks mileage reimbursement of $43.08 for travel
6 - OPINION AND ORDER
to Vancouver, Washington, by defense counsel for depositions.
Defendant, however, has not cited any Ninth Circuit authority to
support recovery of such costs under § 1920.
See Hells Canyon
Preservation Council v. U.S. Forest Serv., No. 3:00-cv-755, 2004
WL 1853134, at *14 (D. Or. Aug. 18, 2004)(fees for mileage and
parking are not recoverable under § 1920).
Accordingly, the Court does not award Defendant the $43.08
mileage costs incurred by Defendant’s counsel for travel for
depositions.
V.
Other Items
Pursuant to 28 U.S.C. § 1920 the Court awards Defendant
recovery of the following items in Defendant’s Bill of Costs:
$400.00 for fees of the Clerk; $168.00 for fees for services of
summons and subpoena; $1,505.00 for fees for witnesses; and
$20.00 for docket fees for a total of $2,093.00.
CONCLUSION
For these reasons, the Court AWARDS costs to Defendant in
the amount of $7,690.81 and directs the Clerk to tax these costs
against Plaintiff.
IT IS SO ORDERED.
DATED this 10th day of July, 2018.
Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
7 - OPINION AND ORDER
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