Jonassen v. Port of Seattle

Filing 115

ORDER by Judge Richard A Jones granting in part and denying in part 110 Motion to Retax Costs. (VE)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TRACY JONASSEN,

CASE NO. C11-00034RAJ

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Plaintiff,

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ORDER

v.
PORT OF SEATTLE, a municipal
corporation,

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Defendant.

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I. INTRODUCTION

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This matter comes before the court on defendant the Port of Seattle’s (“the Port”)
motion to retax costs. Dkt. # 110. The motion is GRANTED IN PART.

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II. BACKGROUND

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Plaintiff Tracy Jonassen (“Mr. Jonassen”) alleged two claims for relief in his

25 Second Amended Complaint: (1) retaliation in violation of the False Claims Act, 31
26 U.S.C. § 3730(h) and (2) breach of the anti-retaliation and harassment policies contained
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ORDER- 1

1 in his employee handbook. Dkt. # 23. The court granted the Port’s first motion for
2 summary judgment as to both claims. Dkt. # 65. The Ninth Circuit affirmed this court’s
3 order as to the first claim (False Claims Act), but reversed and remanded as to the second
4 claim (breach of employee handbook policies). Dkt. ## 78, 79. The Port then filed a
5 second motion for summary judgment as to the remaining claim. Dkt. # 89. The court
6 granted the Port’s second motion for summary judgment. Dkt. # 96. Accordingly, the
7 Port is the “prevailing party” in this action.
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After the court entered judgment, the Port moved for costs in the amount of

9 $33,611.98. Dkt. # 102. The clerk awarded $13,050.10, allowing only costs directly
10 incurred in connection with the two motions for summary judgment. Dkt. # 109.
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III. ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure 54(d)(1) provides that “costs—other than
attorneys’ fees—should be allowed to the prevailing party.” Accordingly, “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, 94445 (9th Cir. 2003) (citing Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir.
1999)). The Court “need not give affirmative reasons for awarding costs; instead, it need
only find that the reasons for denying costs are not sufficiently persuasive to overcome
the presumption in favor of an award.” Id. at 945.
28 U.S.C. section 1920 “enumerates expenses that a federal court may tax as a
cost under the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441–42 (1987). Those expenses include:

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(1) Fees of the clerk and marshal;

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(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;

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ORDER- 2

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(3) Fees and disbursements for printing and witnesses;

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(4) Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained
for use in the case;

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(5) Docket fees under section 1923 of this title;

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(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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On a proper and timely motion, the court may review the clerk’s taxation of costs.
See Fed. R. Civ. P. 54(d)(1).

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B. Deposition Costs
The district court may tax costs related to deposition transcripts, even if the
transcripts were not ultimately used in connection with summary judgment or trial. See
Sea Coast Foods, Inc. v. Lu-Mar Lobster & Shrimp, Inc., 260 F.3d 1054, 1061 (9th Cir.
2001) (“[The court] can, in its discretion, tax those costs even if the items in question
were not used at trial.”); see also Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice
Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (acknowledging that court’s taxation of
costs is not limited to documents offered into evidence at a hearing or trial). In
exercising its discretion, the court considers whether the transcripts were “necessarily
obtained for use in the case.” 28 U.S.C. § 1920(2). Depositions are “necessarily
obtained” when they are or will be used in connection with trial or summary judgment,
for impeachment, or to show damages. See Independent Iron Works, Inc. v. U.S. Steel
Corp., 322 F.2d 656, 678 (9th Cir. 1963). Depositions which are merely useful for
discovery are not taxable. Id. Additionally, the Ninth Circuit has expressed some doubt
as to whether copies of a party’s own deposition taken by an adversary should be taxable.

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ORDER- 3

1 Id. at 678-69. Arguably, such transcripts are not “necessarily obtained” because the
2 witnesses are available to the party.
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The Port appeals the clerk’s denial of costs relating to the depositions of William

4 Brandt, Gary Namie, Mario Alinea, George and Delphine Blair, Doug Sinclair, John
5 Christianson and three of the Port’s Rule 30(b)(6) representatives. Dkt. # 110, p. 9.
6 Plaintiff identified all of these individuals as trial witnesses. Dkt. # 114-1. The clerk
7 granted $10,234.61 in deposition transcript costs and disallowed $4,857.80. Dkt. # 109.
8 The Port seeks the disallowed amount in this motion.
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Mr. Brandt was plaintiff’s damages expert, Mr. Namie was plaintiff’s workplace

10 retaliation and harassment expert, and Mr. Alinea was one of plaintiff’s medical experts.
11 Dkt. # 114-1, pp. 14, 16. The Blairs are plaintiff’s mother and stepfather. Dkt. # 114-1,
12 pp. 2, 3. The Port argues that the testimony of these witnesses was integral to plaintiff’s
13 request for several million in damages and claims that it would have used these
14 depositions for impeachment purposes had the case proceeded to trial. Plaintiff does not
15 respond to this argument, but instead urges the court to limit taxable costs to those
16 incurred solely in connection with summary judgment. Dkt. # 112, p. 4. Unfortunately,
17 that is not the law in the Ninth Circuit. Sea Coast Foods, 260 F.3d at 1061; Independent
18 Iron Works, 322 F.2d at 678. The court finds that the Port has adequately explained why
19 these depositions were necessarily obtained for use in the case and taxes these costs
20 against Mr. Jonassen.
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With respect to the deposition transcripts of Doug Sinclair, John Christianson and

22 the three Rule 30(b)(6) representatives, the court finds that these transcripts were
23 obtained merely for the convenience of the Port’s counsel. These witnesses are Port
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ORDER- 4

1 employees and the Port could have obtained their testimony by other means, including
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2 affidavits. Thus, the court will not tax these costs against Mr. Jonassen.

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Accordingly, Mr. Jonassen will be responsible for an additional $4,339.00 in

4 deposition transcript costs, for a total of $14,573.61.
5 C. Witness Costs
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The Port appeals the clerk’s denial of costs relating to the witness costs of William

7 Brandt, Gary Namie, Mario Alinea, George and Delphine Blair, Doug Sinclair, and Brian
8 Tingley. Dkt. # 110, p. 9. The clerk granted $275.49 in witness costs and disallowed
9 $401.86. Dkt. # 109. The Port seeks the disallowed amount in this motion.
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Based upon the reasoning above, the court finds that the witness costs related to

11 Mr. Brandt, Mr. Namie, Mr. Alinea and George and Delphine Blair were necessarily
12 incurred. See LCR 54(d)(1). Thus, the court will tax those costs against Mr. Jonassen.
13 The costs related to Mr. Sinclair were not necessarily incurred for the reasons previously
14 stated and the Port fails to adequately explain the costs related to Mr. Tingley. Although
15 the Port lists Mr. Tingley’s witness fee in its chart of requested costs, it also states in a
16 footnote that the clerk already taxed that cost against Mr. Jonassen. See Dkt. # 110, p.
17 11, n. 3. Absent additional explanation regarding the amounts sought for Mr. Tingley’s
18 appearance, the court will not tax those costs against the plaintiff.
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Accordingly, Mr. Jonassen will be responsible for an additional $344.36 in witness

20 costs, for a total of $619.85.
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Although the court notes that this finding may be applicable to deposition transcripts
already taxed as costs by the clerk, plaintiff failed to make a timely motion objecting to such
25 costs. See, e.g., Fowler v. Cal. Highway Patrol, 2014 WL 3965027, at * 6 (N.D. Cal. Aug. 13,
26 2014) (“Plaintiff, however, failed to file a motion seeking review of the Clerk’s taxation of
costs” and “such a motion cannot be made in an opposition” to opposing party’s motion to
27 retax); see also LCR 54(d)(4) (requiring appeal within 7 days after costs have been taxed).

ORDER- 5

1 D. Service of Process Costs
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The Port appeals the clerk’s denial of service of process costs relating to

3 subpoenas for Mr. Jonassen’s medical records. The clerk granted $520.00 in service
4 costs and disallowed $2,165.00. Dkt. # 109. The Port seeks the disallowed amount in
5 this motion.
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Fees for service of process are properly taxed under section 1920. Alflex Corp. v.

7 Underwriters Laboratories, Inc., 914 F.2d 175, 177 (9th Cir. 1990). However, the court
8 declines to tax any of these costs against Mr. Jonassen because the Port has failed to
9 specifically explain why they were necessarily incurred. See LCR 54(d)(1). Although
10 the court can hypothesize as to why Mr. Jonassen’s medical records were needed by the
11 Port, the court declines to do so. The burden is on the party seeking to tax costs and the
12 Port has not satisfied that burden. Id.
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Accordingly, Mr. Jonassen will not be responsible for any additional service of

14 process costs.
15 E. Copy Costs
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The Port appeals the clerk’s denial of copy costs. The clerk granted $2,000.00 in

17 copy costs and disallowed $13,137.22. Dkt. # 109. The Port seeks the disallowed
18 amount in this motion.
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Copy costs are recoverable for any materials “necessarily obtained for use in the

20 case.” 28 U.S.C. § 1920(4). The court has reviewed the documentation provided by the
21 Port and finds that the description of each category of copy costs is insufficient. The
22 categories identified by the Port do not clearly show that the copies were “necessarily
23 obtained” for use in the case. For example, the Port seeks to recover costs related to
24 “requests for documents to Jonassen’s medical providers; invoices from third party
25 medical providers for copies of Jonassen’s medical records.” Dkt. # 111-7, p. 2. The
26 Port fails, however, to explain why these copy costs were necessary and/or how these
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ORDER- 6

1 documents were used in the case. The same is true with respect to the majority of the
2 remaining categories. Again, the court can hypothesize as to why these copies were
3 necessary, but declines to do so.
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The court has identified certain categories which were clearly necessary for use in

5 the case and require no additional explanation. The court has listed those categories
6 below and will tax those costs against Mr. Jonassen. The court has also reduced the
7 amount requested by half because the court feels that $0.10 per page is a reasonable cost,
8 rather than the $0.20 per page sought by the Port.
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Basis for Reimbursement

Amount Taxed by Court

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Copy of Jonassen’s personnel file for

$15.10

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anticipated production

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Copies of documents for potential use as

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trial exhibits; copying of exhibits

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identified as exhibits by Jonassen.

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Copies of summary judgment papers

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submitted to the Court.

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Copies of documents for summary

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judgment papers submitted to the Court;

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delivery of summary judgment papers to

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Court.

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Total

$ 209.10

$86.10

$140.60

$450.90

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Accordingly, Mr. Jonassen will be responsible for an additional $450.90 in copy

25 costs, for a total of $2,450.90.
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ORDER- 7

1 F. Plaintiff’s Defense Based Upon the False Claims Act
Finally, the court will address plaintiff’s argument regarding the False Claims Act

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3 and the possibility that an award of any additional costs may have a “chilling” effect on
4 future civil rights litigants. It is true that the court may refuse to award costs to a
5 prevailing party on several recognized grounds including, the losing party’s limited
6 financial resources; misconduct on the part of the prevailing party; the importance and
7 complexity of the issues; the merit of the plaintiff’s case; and the chilling effect on future
8 civil rights litigants of imposing high costs. Stanley v. Univ. of S. Cal., 178 F.3d 1069,
9 1079 (9th Cir. 1999).
Plaintiff cites no case in the Ninth Circuit holding that a False Claims Act case

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11 qualifies under the above standard and other courts that have considered the issue have
12 held that it does not. See, Luckey v. Baxter Healthcare Corp., 183 F.3d 730, 733-34 (7th
13 Cir. 1999) (affirming cost award against False Claims Act plaintiff). In any case, the
14 court does not believe that the costs award in this case is so significant that it would have
15 a “chilling effect.”
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IV. CONCLUSION

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For all the foregoing reasons, the court GRANTS IN PART defendant’s motion to

18 retax costs. Dkt. # 110. The court taxes the following costs against plaintiff:
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1. Deposition Costs: $14,573.61

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2. Witness Costs: $619.85

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3. Service of process Costs: $520.00

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4. Copy Costs: $2,450.90

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Total: $18,164.36
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ORDER- 8

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Dated this 31st day of March, 2015.

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A

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The Honorable Richard A. Jones
United States District Judge

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