The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present motions, Plaintiff John O'Quinn ("Plaintiff") seeks attorney's fees and litigation expenses as a result of a favorable judgment rendered by this Court on September 28, 2007 on his claims under Title VII and state law. Plaintiff's motions document the following: $53,614.79 for fees incurred for trial preparation and trial work, $3,061.47 in costs and litigation expenses, and $15,105.00 in fees and costs for appeal for a total of $71,676.26.
Defendant Raley's ("Defendant") opposes Plaintiff's requests, claiming that the fees, expenses, and costs sought are unwarranted, unreasonable, and, or, excessive.*fn1
Plaintiff sued Defendant claiming disparate treatment employment discrimination under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12940, et seq. This case was tried by a jury on the issue of liability from August 27 to August 30, 2007. On August 31, 2007, the jury rendered a verdict in favor of Plaintiff in the amount of $455,500. The Court then ordered the jury and the parties to return on September 28, 2007 for the punitive damages phase of the trial. In the interim, Defendant moved to vacate the second phase of trial based on the Title VII cap on damages and on grounds of state procedural law. The Court denied that motion. Subsequently, the jury assessed punitive damages against Defendant in the amount of $950,000. Accordingly, judgment was entered against Defendant in the amount of $1,405,500. Plaintiff, as the prevailing party in this litigation, has now filed both a Bill of Costs and a Motion for Attorneys Fees. Defendant opposes both.
Under Federal Rule of Civil Procedure 54(d), the prevailing party in a lawsuit may recover its costs "unless the court otherwise directs." The ultimate decision on whether to award costs is a matter within the trial court's discretion. Ass'n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 591-92 (9th Cir. 2000). Pursuant to Local Rule 54-292(a), costs are to be awarded in conformity with the provisions of 28 U.S.C. § 1920, and such other provisions of law as may be applicable. Section 1920 provides for the recovery of costs necessarily incurred for use in the case. In addition, Local Rule 54-292(f)(11) allows the Court to tax other items it believes should be compensable "in the interest of justice." If the court declines to award costs as requested by the prevailing party it should specify its reasons for doing so. Berkla v. Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002).
Of the $3,061.47 requested in costs, Defendant contests the following: $25.73 for court reporter fees; $476.50 of the $609.50 of the subpoena costs; the $2,033.63 for deposition transcripts (including $34.00 for shipping and $50.35 for late fees); and the $74.30 cost for exhibits for Plaintiff's deposition. In response, Plaintiff withdraws his request for $25.73 for court reporter fees, the $34.00 for shipping, and the $50.35 for late fees.
Defendant objects to $476.50 of the $609.50 Plaintiff requests for subpoena costs because, of the thirteen subpoenas issued, ten witnesses did not testify and two were not successfully served. The mere fact that witnesses do not testify does not render them unnecessary. Nor does the fact that they were not served render the attempts unnecessary. Accordingly, these costs shall not be reduced.
Defendant also objects to the costs related to deposition transcripts of several witnesses, including Plaintiff. The basis of Defendant's argument is that because the transcripts were not used in trial, they were not necessarily obtained for use in the case. Defendant's argument lacks merit. The transcripts obtained were reasonable under the circumstances of this case, and the costs incurred are appropriate.
Finally, Defendant objects to exhibit costs in the amount of $74.30 for exhibits used in depositions. These costs represent the amount charged by the reporting service to copy the exhibits used in the depositions. Accordingly, these costs are recoverable.
Given the foregoing, costs are taxed in favor of Plaintiff as stated in his Bill of Costs, except that: (1) court reporter fees are disallowed in the amount of $25.73; (2) deposition fees are reduced by $84.35. ...