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Gordon v. Prudential Financial Inc.

January 23, 2009

DENNIS GORDON, PLAINTIFF,
v.
PRUDENTIAL FINANCIAL INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING PLAINTIFF'S FIRST AMENDED MOTION TO RETAX COSTS [Doc. No. 113.]

Presently before the Court is plaintiff Dennis Gordon's First Amended Motion to Retax Costs. For the reasons stated herein, the Court DENIES the motion and finds defendants are entitled to recover $14, 874.67 in costs.

BACKGROUND

The parties are familiar with the facts and procedural history of this case and they need not be repeated at length herein. Plaintiff Dennis Gordon brought this action alleging age discrimination by his former employer Prudential Financial, Inc. ("Prudential") and his former supervisors John Greene and Matthew Voelker. Plaintiff brought his complaint in the Superior Court of California, County of San Diego on September 5, 2006, and defendants removed the case to this Court on October 16, 2006. (Doc. No. 1.) On July 24, 2008, the Court granted summary judgment in favor of defendants and closed the case. (Doc. No. 84.) Plaintiff filed an appeal on August 18, 2008. (Doc. No. 91.)

Defendants filed their Notice of Application for Bill of Costs on August 8, 2008. (Doc. No. 88.) The Clerk of Court entered an order taxing costs ("Costs Order") against plaintiff in the amount of $14,874.67 on September 10, 2008. (Doc. No. 104.) This amount included "Fees of the Clerk" in the amount of $960.00 and "Fees of the Court Reporter" totaling $13, 914.67, incurred in obtaining copies of the deposition transcripts of the following individuals: (1) Plaintiff Dennis Gordon (Volumes 1-3); (2) Sharon Taylor; (3) Cheryl Kern; (4) John W. Greene; (5) Matthew John Voelker (Volumes 1 & 2); and (6) Suzy Burnham.

Plaintiff filed a Motion to Retax Costs on September 15, 2008 (Doc. No. 105.) On November 4, 2008, the Court denied the motion because plaintiff did not specify the Clerk's rulings to which he objected, as required by Local Rule 54.1(h)(2). (Doc. No. 112.) The Court gave plaintiff leave to file an amended motion until November 24, 2008. (Id.) Plaintiff filed the present First Amended Motion to Retax Costs on November 21, 2008. (Doc. No. 113.) Defendants filed an opposition in December 8, 2008 (Doc. No. 115,) and plaintiff filed a reply on December 15, 2008. (Doc. No. 120.) The Court finds the matter fully briefed and appropriate for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1).

DISCUSSION

Plaintiff objects to the Clerk awarding certain deposition costs and "Fees of the Clerk" to defendants. The Court finds the Clerk properly taxed all of these costs in the Costs Order.

1. Legal Standard

Fed. R. Civ. P. 54(d) (2009) provides for the taxation of costs other than attorney's fees to the prevailing party in a civil matter.*fn1 This rule creates a presumption in favor of awarding costs to the prevailing party, which can only be overcome when the court exercises its discretion to disallow costs for specific reasons. Ass'n of Mexican-Am. Educators v. Cal., 231 F.3d 572, 591-93 (9th Cir. 2000); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987) (superceded by statute on other grounds as stated inDavis v. KGO-T.V., Inc., 50 Cal App. 4th 772, 779 (Cal. App. 1st Dist. 1996)) (holding §1920 is phrased permissively because "Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.").

Under Rule 54(d), trial courts do not have discretion to tax whatever costs seem appropriate. Courts may tax only costs defined in 28 U.S.C. § 1920, which "enumerates the expenses a federal court may tax as costs under the discretionary authority found in Rule 54(d)." Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 176 (9th Cir. 1990) (citing Crawford, 482 U.S. at 441-42). Section 1920 provides:

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 ...


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