CleanCut v. Rug Doctor et al

Filing 229

MEMORANDUM DECISION AND ORDER denying 226 Motion for Review/Reversal of Clerks Taxation of Costs. Signed by Magistrate Judge Paul M. Warner on 9/22/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION

CLEANCUT, LLC, an Arizona entity,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:08cv836

RUG DOCTOR, a Delaware entity dba
Nature’s Finest Candles; NATURE’S
FINEST CANDLES, a Texas entity,

District Judge Tena Campbell
Magistrate Judge Paul M. Warner

Defendants.

Before the court is Rug Doctor and Nature’s Finest Candles (collectively, “Defendants”)
Motion for Court to Review Clerk’s Taxation of Costs.1 CleanCut, LLC (“Plaintiff”) filed its
Bill of Costs on December 15, 2014. Defendants filed an objection and Plaintiff replied. On
February 13, 2015, the Clerk of Court assessed costs in the amount of $3651.00 for Plaintiff
against Defendants. On February 20, 2015, Defendants filed the instant motion seeking review
and reversal of the Clerk’s Taxation of Costs.
Under 28 U.S.C. § 1920 and rule 54(d)(1) of the Federal Rules of Civil Procedure, the
Clerk of Court can tax various costs associated with litigation against the losing party. Under
DUCivR 54-2, the losing party can move the court to review the taxation of costs by filing a
motion within seven days of the entry of the Clerk’s action on the docket, which Defendants
timely did.
1

See docket no. 226.

Defendants argue that Plaintiff is not entitled to any recovery of costs. In particular,
Defendants assert that the Bill of Costs is (1) untimely, (2) violates local civil rule 54-2 and is
procedurally deficient, (3) improperly seeks recovery of costs for a private process server, (4)
requests recovery of improper transcript fees, and (5) seeks recovery of improper copying costs.
The court will address each argument in turn.
(1) Timeliness
Defendants argue that Plaintiff’s Bill of Costs is untimely because final judgment was
deemed entered on July 5, 2013. Specifically, Defendants contend that under Rule 58 of the
Federal Rules of Civil Procedure, the February 5, 2013 order denying without prejudice
Plaintiff’s motion for a permanent injunction operates as a final judgment in this case. Rule 58
requires that every judgment be set out in a separate document. See Fed. R. Civ. P. 58(a).
Although a judgment is not considered entered until the district court has set it out in a separate
document, a judgment is deemed entered 150 days after an order disposing of the case is filed on
the docket. See Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1170-71 (10th Cir. 2013); see
also Fed. R. Civ. P. 58(c)(2). Thus, Defendants conclude, final judgment was deemed entered on
July 5, 2013, and Plaintiff’s Bill of Costs was untimely as it was not filed until December 15,
2014. See DUCivR 54-2(a) (“Within fourteen (14) days after entry of final judgment, the party
entitled to recover costs must file a bill of costs . . . “).
The court’s February 5, 2013 order denied without prejudice Plaintiff’s motion for
permanent injunction, thereby allowing Plaintiff to renew the request for a permanent injunction.
In that order, the court further instructed counsel to submit a proposed judgment form to the
court. On March 31, 2014, Plaintiff filed a motion for entry of judgment and renewed its request

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for a permanent injunction.2 The court granted Plaintiff’s motion on October 1, 2014, and
entered judgment and a permanent injunction on December 1, 2014.3 Accordingly, this court
concludes that Plaintiff’s Bill of Costs was timely, as it was filed fourteen days after entry of
final judgment.
(2) Local Rule 54-2(a)
Defendants argue that Plaintiff’s Bill of Costs violates local civil rule 54-2(a) by failing
to “include copies of applicable invoices, receipts, and disbursement instruments.” DUCivR 542(a). Defendants contend that the single internal report of from counsel is insufficient to allow
proper review of Plaintiff’s costs. However, as noted by the Clerk of Court, Plaintiff provided
additional documentation in its reply brief in support of its Bill of Costs. This court agrees and
concludes that Plaintiff’s Bill of Costs and supplementation is sufficient to meet the requirements
of local rule 54-2.
(3) Private Process Server
Defendants assert that Plaintiff improperly seeks to recover its fees for the use of a
private process server. Defendants contend that 28 U.S.C. § 1920 allows taxation of the costs of
service of process only if service is effectuated by the United States Marshal Service (“USMS”),
not when performed by a private process server. The Clerk of Court noted that the District of
Utah does not interpret the statute so narrowly and allows taxation of reasonable process fees of
private process servers.

2

See docket no. 209.

3

See docket no. 214.

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Courts generally allow service fees to private process servers as taxable up to the amount
that would have been incurred if the USMS had effected service. See, e.g., Collins v. Gorman,
96 F.3d 1057, 1060 (7th Cir. 1996). The fee for personal service required by the USMS was $45
per hour plus travel costs and other out-of-pocket expenses at the time the complaint was filed
and served. See 28 CFR 0.114(a). In the Bill of Costs, Plaintiff seeks to recover $185.00 for
service of the summons and complaint. This amount appears to be reasonable and
commensurate with the amount that the USMS would have charged had it effected service.
(4) Transcript Fees
Defendants argue that because Plaintiff did not provide sufficient evidence that the
transcript fee charges were “necessarily obtained for use in the case,” they should not be
allowed. 28 U.S.C. § 1920(2). Plaintiff seeks costs in the amount of $1,887.00 for transcripts of
the trial and for post verdict motions. While Defendants note that, in general, daily or expedited
transcript fees are not properly taxable, this court’s review of the docket in this matter
demonstrates that the transcripts sought by Plaintiff were not daily or expedited transcripts. As
such, this court concludes that the transcripts were reasonably necessary to the litigation of this
case and are therefore proper. See U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223,
1245 (10th Cir. 1988).
(5) Printing and Copies
Defendants contend that some of the copy costs were merely for convenience of counsel
and not taxable as “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The Clerk
found the number of copies reasonable, sufficiently itemized and verified. This court agrees and
likewise finds that the costs associated with Plaintiff’s copies to be reasonable given the

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protracted nature of this case. Accordingly, the court finds no basis for altering the Clerk’s
award of copying costs to Plaintiff.
Based on the foregoing, this court concludes that the Clerk’s Taxation of Costs in the
amount of $3,651.00 is reasonable and proper. Accordingly, Defendants’ motion seeking
reversal of the clerk’s taxation of costs is DENIED.
IT IS SO ORDERED.
DATED this 22nd day of September, 2015.
BY THE COURT:

________________________________
PAUL M. WARNER
United States Magistrate Judge

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