Chang et al v. Virgin Mobile USA LLC et al

Filing 73

RESPONSE in Opposition filed by Virgin Mobile PTY LTD to 71 Plaintiff's Objection to Defendant's Bill of Costs (Meyerhoff, Lisa) Modified on 2/2/2009 (skt).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SUSAN CHANG, AS NEXT FRIEND OF
ALISON CHANG, A MINOR, AND
JUSTIN HO-WEE WONG,
Plaintiffs,
V.
VIRGIN MOBILE PTY LTD.,
Defendant.

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CA No. 3:07-cv-1767

DEFENDANT VIRGIN MOBILE (AUSTRALIA) PTY LTD.'S OPPOSITION TO
PLAINTIFFS’ MOTION OBJECTING TO DEFENDANT’S BILL OF COSTS
Defendant Virgin Mobile (Australia) Pty Ltd. (“Virgin Australia”) files this Opposition
to Plaintiffs Susan Chang, as next of friend of A.C. and Justin Ho-Wee Wong’s (collectively
“Plaintiffs”) Motion objecting to Defendant’s Bill of Costs. The Court should deny Plaintiffs’
Motion for the following reasons:
I.

PROCEDURAL ISSUES.
The Court disposed of this lawsuit via a dismissal on January 16, 2009, and awarded

costs to Defendant. Within the 14 days proscribed by Local Rule 54.1, Defendant timely filed its
Bill of Costs.1 On January 29, 2009, Plaintiffs filed their Motion objecting to Defendant’s Bill of
Costs. In the Motion, Plaintiffs included a certificate of conference advising the Court that
Plaintiffs’ counsel had conferred with Defendant’s counsel about the Motion. No conference by
the parties’ counsel regarding Plaintiffs’ Motion ever took place, and certainly not on the date
that Plaintiffs represented - which predates Defendant’s filing by almost a year.2

1

As the Court’s docket shows, Defendant did not file its Bill of Costs on January 28, 2008, as Plaintiffs
represented.
2
February 1, 2008.
HOUDMS/244410.1

II.

DEFENDANT’S TAXABLE COSTS ARE FEW AND JUSTIFIED.
The sum total of Defendant’s taxable costs is $5,006.94. This total is comprised of two

oral/video depositions ($3,276.24), and the cost of the U.S. – Australia video link during the
deposition ($1,730.70).

See copies of the invoices documenting these costs (APP 3-4).

Defendant bore those costs as a direct result of Plaintiffs’ oral deposition notice, which
demanded both stenographic and video recording. See Plaintiffs’ oral deposition notice (APP 57).
The video link was required for Defendant’s corporate depositions because Plaintiffs’
counsel declined to travel to Australia to depose multiple witnesses, or propose telephonic
depositions of these witnesses to which Defendant would have agreed.

Moreover, while

Plaintiffs offered to pay for the Defendant’s two witnesses to travel to the United States3 for
depositions (at a cost well in excess of $4,000 for two airplane tickets, hotel room, meals and cab
fare), neither witness lived in Texas and/or regularly conducted business in Texas.4 Therefore, to
accommodate Plaintiffs’ request, a video link was established at Defendant’s counsel’s Houston
and Sydney offices at a fraction of the cost of the witnesses' air travel, room and board
($1,730.70 v. greater than $4,000.00). Plaintiffs, however, now expect Defendant only to bear
that expense.
III.

ARGUMENT AND AUTHORITIES.
In Migis v. Pearle Vision, Inc., the Fifth Circuit confirmed that the district court has

broad discretion in taxing costs, that will not be reversed other than for an abuse of discretion.
135 F. 3d 1041, 1049 (5th Cir. 1998). In this case, Plaintiffs saved thousands of dollars by not

3

See Plaintiffs’ counsel’s letter acknowledging their offer to pay for transportation, and demand to have “at
least 2, if not 3” cameras present during the depositions (APP 8-9).
4
Plaintiffs’ attorney’s county of residence (Harris County) would also never have served as a correct
deposition venue. Again, however, Defendant’s counsel facilitated the video deposition, and obtained a discount for
the video link for the benefit of Plaintiffs.
HOUDMS/244410.1

2

having to pay for the Defendant’s witnesses’ travel expenses to the United States. Further, the
gratuitously discounted video link of $1,730.70 was less than one-third of the travel costs that
Plaintiffs were already willing to pay for the Defendant's witnesses' depositions. Finally, out of
the $3,276.24 cost for the two depositions, the DVD copies were $595.00, which the Court may
or may not tax as it sees fit.
IV.

CONCLUSION.
Virgin Australia requests the award of taxable costs in the amount of $5,006.94, or

whatever amount the Court deems just, and for other and further equitable and/or legal relief that
the Court deems appropriate.
Respectfully submitted,
BAKER & McKENZIE LLP
/s/ Lisa H. Meyerhoff
Lisa H. Meyerhoff
Texas Bar No. 14000255
Email:[e-mail]
BAKER & McKENZIE LLP
2300 Trammell Crow Tower
2001 Ross Avenue
Dallas, TX 75201
Telephone: [phone]
Facsimile: 214 978 3099

HOUDMS/244410.1

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Myall S. Hawkins
Texas Bar No. 09250320
Email: [e-mail]
Todd Y. Brandt
Texas Bar No. 24027051
Email: [e-mail]
Tan Pham
Texas Bar No. 24046628
Email: [e-mail]
BAKER & McKENZIE LLP
711 Louisiana, Suite 3400
Houston, Texas 77002
Telephone: [phone]
Facsimile: 713 427 5099
ATTORNEYS FOR DEFENDANT
VIRGIN MOBILE (AUSTRALIA) PTY, LTD.

CERTIFICATE OF SERVICE
I hereby certify that, on the 30th day of January 2009, I electronically filed the foregoing
“Defendant Virgin Mobile (Australia) Pty, Ltd.’s Opposition to Plaintiff’s Motion Objecting to
Defendant’s Bill of Costs” with the Clerk of Court for the U.S. District Court, Northern District
of Texas, using the electronic case filing system of the Court. The electronic case filing system
sent a "Notice of Electronic Filing" to the following attorneys of record who have consented in
writing to accept this Notice as service of this document by electronic means:
Bryant A. Fitts
Ryan H. Zehl
Fitts Zehl LLP
5065 Westheimer Rd., Suite 700
Houston, Texas 77056
Email: [e-mail]
/s/ Lisa H. Meyerhoff

HOUDMS/244410.1

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