Witt v. Department of the Air Force et al

Filing 178

RESPONSE, by Defendants Department of the Air Force, Donald H Rumsfeld, Mary L Walker, Michael W Wynne, to 176 MOTION FOR BILL OF COSTS. (Attachments: # 1 Exhibit)(Buckingham, Stephen)

Witt v. Department of the Air Force et al

Doc. 178

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Judge Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. C06-5195 RBL OPPOSITION TO PLAINTIFF'S MOTION FOR COSTS

INTRODUCTION Plaintiff has moved for taxation of costs pursuant to Local Rule 54(d) and Federal Rule of Civil Procedure 54(d)(1) as the "prevailing party" in this action. Defendants respectfully request the Court hold plaintiff's motion for costs in abeyance pending final resolution of this matter. Defendants' time for noticing an appeal of the Court's September 24, 2010 decision does not expire until November 23, 2010, and, accordingly, this matter has not been finally resolved in plaintiff's favor. Should the Clerk decide plaintiff's motion for costs prior to the final resolution of this case, the Clerk should reduce the amount of costs sought by plaintiff by $2,959.77 for the reasons stated below.

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 1

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PROCEDURAL HISTORY Plaintiff filed her complaint in this case on April 12, 2006, alleging that defendants violated her procedural due process, substantive due process, equal protection, and first amendment rights. Compl. ¶¶ 32-33 (Docket No. 1). Plaintiff sought, inter alia, a preliminary injunction preventing her discharge from the U.S. Air Force Reserve. On July 26, 2006, this Court granted defendants' Motion to Dismiss this action in its entirety. Order of July 26, 2006 (Docket No. 35). Plaintiff appealed that decision and, on May 21, 2008, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of plaintiff's equal protection claim and vacated and remanded this Court's judgment with regard to plaintiff's substantive and procedural due process claims.1 Witt v. Dep't of Air Force, 527 F.3d 806, 822 (9th Cir. 2008). On remand, following a full trial on the merits, this Court rejected plaintiff's procedural due process claim and granted plaintiff's request for relief with respect to her substantive due process claim. See Mem. Op. dated Sept. 24, 2010 (Docket No. 163). Defendants have 60 days to appeal the Court's decision. See Fed. R. App. P. 4(a)(1)(B). ARGUMENT I. The Court Should Hold Plaintiff's Motion for Costs in Abeyance Pending Final Resolution of this Case. Federal Rule of Civil Procedure 54(d)(1) provides for the awarding of costs other than attorney's fees to the "prevailing party." Typically, a prevailing party is one who has received some relief from the court on the merits of one or more claim. See Jordan v. U.S. Dep't of Labor, No. CV-07-5011-EFS, 2007 WL 2743482, at *4 (E.D. Wash. Sept. 17, 2007). Here, defendants' time for noticing an appeal of the Court's September 24, 2010 decision has not yet expired. Thus, although plaintiff received relief from the Court pursuant to her substantive due

Plaintiff made no First Amendment argument before the Ninth Circuit, and thus abandoned that claim. See generally Brief of Appellant, Witt v. Dep't of Air Force, No. 06-35644 (9th Cir. Oct. 16, 2006).
(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 2
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

process claim, this matter has not been finally resolved in plaintiff's favor. "[A] determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage in the litigation but should be made when the controversy is finally decided." 10 Wright, Miller & Kane, Federal Practice and Procedure § 2667 (3d ed. 1998). Accordingly, defendants request that plaintiff's motion for costs be held in abeyance until this action has been finally resolved II. Plaintiff Is Not Entitled to the Full Amount of Costs Sought. Federal Rule of Civil Procedure 54(d)(1) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs­other than attorney's fees­should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law." Section 1920 of Title 28 of the United States Code identifies allowable costs as follows: 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 the 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 of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 28 U.S.C.A. § 1920. Plaintiff is not entitled to the full amount of costs she seeks under subsections (2) and (4) of section 1920. Defendants request the Clerk reduce the total taxable costs in the amount of $2,959.77. A. Fees Sought Pursuant to 28 U.S.C. § 1920(2).

Defendants should not be taxed the cost plaintiff incurred by obtaining a video-taped copy of the deposition of Anthony Loverde. Subsection 1920(2) allows for the taxation of costs only for transcripts "necessarily obtained" for use in the litigation. Plaintiff seeks to recover costs associated with 14 depositions. See Kung Decl., Ex. C (Docket No. 177-1 at 7). With respect to one of those depositions­the Loverde deposition­plaintiff seeks to be reimbursed for
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the cost of both the original written transcript of the deposition as well as the video-taped recording of the deposition. Id. at 20. Plaintiff's request is contrary to case law acknowledging that video-recorded depositions are unnecessary where a deposition has already been stenographically recorded. For instance, a court has held that "allowing recovery of the cost incurred for both the court reporter's transcript and a separate videographic record of depositions duplicates deposition costs without purpose." Pullela v. Intel Corp., No. CV 08-1427-AC, 2010 WL 3361089, *3 (D. Or. Aug. 25, 2010). Here, the Court specifically acknowledged that the video-tape of the Loverde deposition was not necessary for the Court's consideration of the issues at trial. Rough Draft Transcript of Proceedings2 at 154:6-9 (Sept. 14, 2010) (stating that the playing of the video-tape "is not necessary" and "[t]o be sure, you don't need to do this at all") (attached at Ex. A). Indeed, after the opening portion of the video-tape had been played, the Court questioned plaintiff's counsel as to whether playing the remaining portion of the video-tape was necessary, to which plaintiff's counsel responded, "The video, I confidencely [sic] say no we don't need to do that." Rough Draft Transcript of Proceedings at 179:18-21 (Sept. 20, 2010) (attached as Ex. A). Accordingly, defendants request that the amount plaintiff seeks pursuant to subsection 1920(2) be reduced by $622.00, the cost of video-taping the Loverde deposition. See Kung Decl., Ex. C (Docket No. 177-1 at 20). B. Fees Sought Pursuant to 28 U.S.C. § 1920(4).

Defendants should not be taxed the costs plaintiff incurred by obtaining excess copies of plaintiff's exhibit binders, nor should defendants be taxed the costs plaintiff incurred in enlarging certain exhibits. Subsection 1920(4) allows for the taxation of costs for exemplification and copying of only those materials that are "necessarily obtained" for use in the litigation. Because six total sets of trial exhibits binders and enlargements of two separate photographs were The court reporter has not completed the final certified copy of the trial proceedings at the time of the filing of this document. Accordingly, defendants have cited to the Rough Draft Transcript where necessary.
2

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 4

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

unnecessary, plaintiff's request should be reduced. With respect to the copying of exhibits, plaintiff admits that only 2 sets of her exhibit binders­the Judge's own set and a court copy­were "absolutely necessary." Pl.'s Mot. for Costs at 7 (Docket No. 176). Plaintiff, however, attempts to tax defendants for the cost of six total sets of exhibit binders, at a cost of $579.69 per set. Plaintiff's recovery should be limited to the two sets of exhibit binders that were necessary for the litigation. Accordingly, plaintiff's copying fees should be reduced by $2,318.76, the cost of the extraneous four sets of exhibit binders. Plaintiff's enlargement of two photographs­one of plaintiff in uniform and another of a picture plaintiff received at a co-worker's retirement party­was also unnecessary. These exhibits were included in the exhibit binders available to the court, and nothing in the litigation required that they be displayed in an enlarged format. Accordingly, the Clerk should further reduce the amount of costs sought by $19.01, the amount incurred by plaintiff in enlarging these exhibits. See King v. Kalama School Dist. No. 402, No. C05-5675RBL, 2008 WL 110518, at *2 (W.D. Wash. Jan. 7, 2008) (finding blow-up exhibits to be unnecessary). CONCLUSION For the forgoing reasons, the Clerk should hold plaintiff's motion for costs in abeyance pending final resolution of this matter, or, in the alternative, should reduce plaintiff's request for costs by $2,959.77.

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 5

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dated: October 25, 2010

Respectfully submitted, TONY WEST Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director

Of Counsel: LT. COL. TODI CARNES AFLOA/JACL Military Personnel Litigation 1501 Wilson Blvd, 7th Floor Rosslyn, VA 22209-2403 [phone]

/s/ Stephen J. Buckingham PETER J. PHIPPS BRYAN R. DIEDERICH STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch Tel: [phone] Fax: [phone] E-mail: [e-mail] Mailing Address: Post Office Box 883, Ben Franklin Station Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Attorneys for Defendants

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA CERTIFICATE OF SERVICE I hereby certify that on October 25, 2010, I electronically filed the foregoing Defendants' Opposition to Plaintiff's Motion for Costs with the Clerk of the Court using the CM/ECF system which I understand will send notification of such filing to the following persons:

James E. Lobsenz Carney Badley Spellman, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Tel: [phone] Fax: [phone] E-mail: [e-mail] Sher S. Kung American Civil Liberties Union of Washington 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel: [phone] E-mail: [e-mail]

Sarah A. Dunne American Civil Liberties Union of Washington 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel: [phone] E-mail: [e-mail]

/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Ben Franklin Station Washington, DC 20044 Tel: [phone] Fax: [phone] E-mail: [e-mail] Attorney for Defendants

(C06-5195) DEFS' OPP'N TO PL'S MOT. FOR COSTS- 7

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]