United States District Court, N.D. California
September 20, 2005.
TRUCK-RAIL HANDLING INC., and QUALITY TRANSPORT, INC. Plaintiffs,
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant.
The opinion of the court was delivered by: JEFFREY S. WHITE, District Judge
ORDER RE BILLS OF COSTS
On March 8, 2005, this Court entered an Order granting in part
and denying in part the motion for partial summary judgment filed
by Plaintiffs Truck Rail Handling, Inc. and Quality Transport,
Inc. (collectively, "TRH") and granting the motion for summary
judgment filed by Defendant Burlington Northern and Santa Fe
Railway Company ("BNSF").
On July 11, 2005, the Court entered an order granting
Defendant's motion for summary judgment on TRH's conspiracy to
monopolize claim under Section 2 of the Sherman Act. On that same
date, the Court entered judgment in favor of BNSF on TRH's claims
and entered judgment in favor of TRH on BNSF's counterclaim for
On July 25, 2005, each party submitted bills of costs. BNSF
opposes TRH's request for costs on the ground that it is not the
prevailing party and also objects to the amount of costs sought
by TRH. TRH, in turn, objects to the amount of costs sought by
BNSF. In addition, although TRH did not initially oppose BNSF's
request for costs on this basis, in its reply to BNSF's objections, TRH claims the Court can exercise its
discretion and deny costs to both parties.
A. BNSF Is The "Prevailing Party."
Pursuant to Federal Rule of Civil Procedure 54(d), "costs other
than attorney's fees shall be allowed as of course to the
prevailing party unless the court otherwise directs."
Fed.R.Civ.P. 54(d)(1). TRH is correct that the Court granted judgment
in its favor on BNSF's counterclaim for trespass. However, the
majority of the claims in this action were asserted by TRH
against BNSF. Specifically, TRH contended that BNSF violated
Sections 1 and 2 of the Sherman Act, tortiously interfered with
TRH's contracts, and misappropriated TRH's trade secrets. BNSF
prevailed on summary judgment on the first three of these causes
of action, and the last cause of action was dismissed because TRH
abandoned it. Considering the multitude of legal theories on
which TRH relied upon to support its antitrust claims and
considering the fact that TRH's claims against BNSF predominated
in the litigation, the Court finds that BNSF is the prevailing
party, notwithstanding the Court's ruling in favor of TRH on
BNSF's counterclaim. See Cornwell Quality Tools Co. v. C.T.S.
Co., 446 F.2d 825, 833 (9th Cir. 1971) (noting that a court has
"broad discretion" in apportioning or taxing costs if neither
side completely prevails); see also Roberts v. Madigan,
921 F.2d 1047, 1058 (10th Cir. 1990) (upholding award of costs to
party who prevailed on "majority of claims and the central claims
at issue") (citing, inter alia, K-2 Ski Co. v. Head Ski Co.,
506 F.2d 471, 477 (9th Cir. 1974)).
Accordingly, TRH's request for costs is DENIED.
B. BNSF's Requested Costs.
TRH objects to BNSF's claim for costs in the following
categories: clerk fees, court transcripts, photocopying charges,
deposition transcripts, and deposition exhibits. The Court
overrules the objections to BNSF's requested costs for
exemplification. The Court finds that BNSF has adequately
demonstrated that it seeks costs to which it is entitled in this
category, and the Court further finds that the costs of
exemplification are reasonable in light of the record in this
case. The Court, however, sustains the objections to BNSF's request
for fees of the clerk, sustains in part the request for
transcript fees, and sustains in part the objections to BNSF's
fees for depositions.
1. Fees of the Clerk
BNSF has claimed $210.00 in fees to the clerk for "appearances
and pro hac vice appearances." There is a split of authority as
to whether a prevailing party can recover the fees incurred for
pro hac vice appearances. Compare Sheffer v. Experian Info.
Solutions, Inc., 290 F. Supp. 2d 538, 552 (E.D. Pa. 2003)
(viewing cost of pro hac vice application as "expense of
counsel for the privilege of practicing law in" the court)
(quoting Romero v. United States, 865 F. Supp. 585, 594 (E.D.
Mo. 1994); Eagle Ins. Co. v. Johnson, 982 F. Supp. 1456,
1458-60 (M.D. Ala. 1997) with Davis v. Puritan-Bennett Corp.,
923 F. Supp. 179, 181 (D. Kan. 1996) (reasoning that because
plaintiff selected forum and compelled defendant to defend in
that forum, pro hac vice fees were awardable as costs).
Northern District Local Rule 54-3(a) does not include fees for
applications to appear pro hac vice as awardable costs.
Although the Court recognizes that TRH chose the forum, in light
of Local Rule 54-3(a) and the reasoning that a pro hac vice fee
normally is an expense of counsel for the privilege of litigating
in a court, the Court declines to award these fees to BNSF.
Local Rule 54-3(b) permits recovery of costs for transcripts
that are necessarily obtained for an appeal or that are a
statement by a judge from the bench, when counsel is directed to
prepare the formal order. N.D. Civ. L.R. 54-3(b)(1), (2). "The
cost of other transcripts is not normally allowable unless,
before it is incurred, it is approved by a Judge or stipulated to
be recoverable by counsel." Id., 54-3(b)(3). Of the three
transcripts identified in BNSF's bill of costs, the Court
concludes that only the request for the transcript of the hearing
on the motion for summary judgment is recoverable under this
rule. Further, the Court concludes that BNSF has not adequately
demonstrated that the other two transcripts were "necessarily"
obtained for use in the case. Accordingly, the Court shall not
award BNSF the costs for the transcripts of March 4, 2003 or
October 20, 2003. 3. Depositions
BNSF seeks $28,184.35 in costs associated with depositions
taken in the case. Pursuant to Northern District Local Rule
54-3(c)(1), a prevailing party is entitled to the costs "of an
original and one copy of any deposition taken for any purpose in
connection with the case." Cf. Alfex Corp. v. Underwriters
Laboratories, 914 F.2d 175, 176 (9th Cir. 1990) (allowing
prevailing party costs for copies of depositions). A review of
the invoices submitted by BNSF in support of its bill of costs
suggests that BNSF seeks costs for an original and more than one
copy for many of the depositions taken, including those taken by
videotape. It is unclear to the Court, however, exactly how many
additional copies are included within BNSF's requested costs.
The Court shall allow BNSF the cost of an original deposition,
including any costs associated with videotaping a deposition, one
additional copy, and fees charged for delivery or attendance of
the court reporter.
The Court will not award costs for compressed transcripts,
e-mail delivery, litigation support packages, or unedited ASCII
transcripts, as the Court views these expenses to have been
incurred for the convenience of counsel. In addition, should BNSF
wish to recover costs associated with the depositions of Marc
Troy Savage or Joseph Lefferdink, it should submit the invoices
associated with those depositions and only seek those categories
of costs covered by this Order.
Accordingly, BNSF is HEREBY ORDERED to submit an amended bill
of costs in accordance with this Order by October 3, 2005,
including supporting documentation. The Clerk is directed to
award such costs to BNSF upon receipt of the amended bill of
IT IS SO ORDERED.
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