Lo v. United States of America et al

Filing 186

ORDER granting in part Plaintiff's 182 Motion for the Court to Review of Taxation of Costs. The award of costs to the Government is reduced to a revised total of $3,205.51. Signed by Judge Tana Lin. (LH)

Case 2:17-cv-01202-TL Document 186 Filed 05/16/23 Page 1 of 5

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CASE NO. 2:17-cv-01202-TL

KA WAI JIMMY LO,
v.

Plaintiff(s),

ORDER

UNITED STATES OF AMERICA,

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Defendant(s).

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This is a Federal Tort Claims Act action against the United States (the “Government”)

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arising out of a U.S. Postal Service truck accident. This matter comes before the Court on

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Plaintiff Jimmy Ka Wai Lo’s motion for the Court’s review of the Clerk’s taxation of costs. Dkt.

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No. 182. Having reviewed the Parties’ briefing and the relevant record, the Court GRANTS the

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motion in part and reduces the bill of costs to $3,205.51.

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Following a six-day bench trial, the Court awarded Plaintiff damages in the amount of

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$204,296.20 and entered judgment against the Government. Dkt. Nos. 174, 175. The

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Government did not contest liability. Dkt. No. 141 at 2 (pretrial order). Following the trial, the

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Case 2:17-cv-01202-TL Document 186 Filed 05/16/23 Page 2 of 5

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Government moved for an award of costs, representing that it had offered Plaintiff $250,000 to

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settle the case prior to trial and that Plaintiff had not accepted the offer. Dkt. No. 176 at 1. The

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Government sought to recover costs incurred after the offer was made in the amount of

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$5,117.91, representing the total cost of trial transcripts, costs for experts testifying at trial, and

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printing and copying fees. Id. at 2.

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The Clerk of the Court granted the Government’s motion in full. Dkt. No. 181. Plaintiff

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now moves to seek review of the Clerk’s taxation of costs, conceding that the Government is

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entitled to recover costs but seeking a reduction in the total cost awarded. Dkt. Nos. 182, 185.

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The Government opposes. Dkt. No. 184.

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“Motions for costs shall be considered by the clerk . . . [and] shall be final, unless

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modified on appeal to the district court judge . . . .” LCR 54(d)(3), (4). Federal Rule of Civil

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Procedure 68 provides that a party defending against a claim or a party whose liability has been

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determined (though the extent of the liability is not) may make an offer of judgment. “If the

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judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the

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offeree must pay the costs incurred after the offer was made.” Fed. R. Civ. P. 68(d).

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28 U.S.C. § 1920 also provides that a judge or clerk may tax as costs the following
categories (among others):

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

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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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(emphases added).

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Case 2:17-cv-01202-TL Document 186 Filed 05/16/23 Page 3 of 5

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Plaintiff primarily objects to (1) the cost of trial transcripts, arguing that all but 55 pages

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of the transcripts were unnecessary because the testimony reflected evidence already in the

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record, and (2) the cost of printing trial exhibits for use by the Government’s expert witnesses,

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counsel, and staff during trial, arguing that these costs were incurred as a “convenience,” rather

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than a necessity. Dkt. No. 182 at 3.

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As Defendants point out, the Court ordered post-trial briefing and the inclusion of

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citations to the trial record in the Parties’ post-trial proposed findings of fact and conclusions of

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law. See Dkt. No. 147 (order for revised proposed findings and briefing). In short, the Parties

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were required to access and reference the trial transcript in this litigation, and the transcripts were

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therefore “necessarily obtained for use in the case.” See 28 U.S.C. § 1920(2); see also Denton v.

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DaimlerChrysler Corp., 645 F. Supp. 2d 1215, 1228 (N.D. Ga. 2009) (finding trial transcripts

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necessary to engage in post-trial briefing). That much of the trial testimony was previewed in

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prior depositions and expert reports does not affect this analysis. 1 The Government’s requested

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amount of $2,492.60 represents its share of the Parties’ joint order for a 14-day delivery of trial

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transcripts. Dkt. No. 177-3 at 4. The Court finds that the Government’s requested amount for the

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cost of trial transcripts is reasonable. Cf. Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233–34

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(1964) (affirming denial of costs for overnight trial transcripts where the trial “was not a

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complicated . . . trial where lawyers were required to submit briefs and proposed findings”).

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As for the trial exhibits printed for the Government’s use (including their experts) during

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trial, the Government argues—and the Court agrees—that the requested printing and copying

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costs were necessary “to the extent the Court and/or a witness referred to/utilized the paper

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copies.” Dkt. No. 184 at 3 (emphases added); see also 28 U.S.C. § 1920(4). However, the

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The Court also adopts the Government’s points as to why this argument cannot succeed. See Dkt. No. 184 at 3.

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Case 2:17-cv-01202-TL Document 186 Filed 05/16/23 Page 4 of 5

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Government appears to exclude from its response the exhibits printed solely for the

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Government’s use during trial, which the Court takes as a concession that such copies were for

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the Government’s convenience and not necessary for the case. 2 See, e.g., Voight v. Subaru–Isuzu

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Automotive, Inc., 141 F.R.D. 99, 103 (N.D. Ind. 1992) (“[E]xtra copies of filed papers and

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correspondence . . . are not necessary but are for the convenience of the attorneys and are

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therefore not taxable.”).

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The Court also finds that, while the Government used the copy cost rate of this District

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for “copies of original documents or microfiche/microfilm reproductions of original records,” at

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$0.50 per page, the more appropriate copy cost rate is for copies “printed from computers in

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public area,” at $0.10 per page, as the printed material in this matter appear to be largely print-

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outs of electronic files. See Dkt. No. 177 at 2; United States District Court, Schedule of Fees,

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https://www.wawd.uscourts.gov/sites/wawd/files/FeeSchedule.pdf (last revised June 7, 2021).

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While the Government represents that the $0.50 rate is “commensurate with or less than what is

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generally accepted and charged in this District” in other FTCA matters, it cites to no such

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examples. See Dkt. No. 177 at 2.

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The Court therefore finds it appropriate to award the Government its requested amount

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for printing and copies, except that: (1) the amount is reduced by the $754.00 attributable to

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copies printed for the Government’s trial team; and (2) the remaining printing and copies fees are

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reduced by 80 percent, to reflect the revised copy cost rate, for a new subtotal for printing costs

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of $289.60. See Dkt. No. 176 at 2 (breakdown of requested costs award).

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To the extent that the printing and copying fees also may constitute “[f]ees and disbursements for printing . . . ,”
which do not have to have been “necessarily obtained for use in the case,” see 28 U.S.C. § 1920(3), the Court
nonetheless declines to award the $754 based on its observation that counsel for both Parties ably relied on
electronic exhibits throughout trial.
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Case 2:17-cv-01202-TL Document 186 Filed 05/16/23 Page 5 of 5

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Accordingly, Plaintiff’s motion for the Court’s review of the Clerk’s taxation of costs

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(Dkt. No. 182) is GRANTED in part, and the award of costs to the Government is reduced to a

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revised total of $3,205.51.

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Dated this 16th day of May 2023.

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A

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Tana Lin
United States District Judge

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ORDER - 5