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Yeager v. Bowlin

February 25, 2010

GENERAL CHARLES "CHUCK" YEAGER, (RET.), AND GENERAL CHUCK YEAGER FOUNDATION, PLAINTIFFS,
v.
RE: COSTS CONNIE BOWLIN, ED BOWLIN, DAVID MCFARLAND, AVIATION AUTOGRAPHS, A NON-INCORPORATED GEORGIA BUSINESS ENTITY, BOWLIN & ASSOCIATES, INC., A GEORGIA CORPORATION, INTERNATIONAL ASSOCIATION OF EAGLES, INC., AN ALABAMA CORPORATION, SPALDING SERVICES, INC., AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



ORDER

On January 6, 2010, the court entered final judgment in this case in favor of defendants pursuant to the court's January 6, 2010 Order. Defendants Connie Bowlin, Ed Bowlin, Bowlin & Associates, Inc., and Aviation Autographs submitted a cost bill totaling $8,131.65 on January 19, 2010. (Docket No. 137.) On January 29, 2010, the court issued an Order allowing defendants' costs, noting that plaintiffs did not object. (Docket No. 139.) Plaintiff Charles Yeager ("Yeager") submitted objections to defendants' bill of costs on February 1, 2010. (Docket No. 140.) The court then vacated and set aside its January 29, 2010 Order to consider Yeager's objections the costs bill, giving defendants an opportunity to respond. (Docket No. 147.) Presently before the court are Yeager's objections to defendants' bill of costs.

Rule 54(d)(1) of the Federal Rules of Civil Procedure and Local Rule 292(f) govern the taxation of costs to losing parties, which are generally subject to limits set under 28 U.S.C. § 1920. See 28 U.S.C. § 1920 (enumerating taxable costs); Fed. R. Civ. P. 54(d)(1) ("[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ."); Local R. 292(f); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987) (limiting taxable costs to those enumerated in § 1920).

The court exercises its discretion in determining whether to allow certain costs. See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997) (holding that the district court has discretion to determine what constitutes a taxable cost within the meaning of § 1920); Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir. 1990) (same). The losing party has the burden of overcoming the presumption in favor of awarding costs to the prevailing party. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998) (noting that the presumption "may only be overcome by pointing to some impropriety on the part of the prevailing party"); Amarel, 102 F.3d at 1523; see also Local R. 292(d) ("If no objection is filed, the Clerk shall proceed to tax and enter costs.").

I. Objections to Fees for Service

Defendants claim costs of $235.49 for service of subpoenas. Yeager objects to $179.99 of these costs on the ground that no provision of 28 U.S.C. § 1920 provides for the recovery of postage or costs of overnight mail. However, defendants may recover for the costs in the private serving of summonses or subpoenas under § 1920(1). See Alfex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 178 (9th Cir. 1990) ("Now that the Marshal is no longer involved as often in the serving of summonses and subpoenas, the cost of private process servers should be taxable under 28 U.S.C. § 1920(1)."). Fees for service by private parties are taxable "to the extent they do not exceed the amount allowable for the same service by the Marshal." Local R. 292(f)(2).

The Marshal's Office charges $8.00 per item for service by mail and $55.00 per hour for personal service. See 28 C.F.R. §§ 0.114(2)-(3). Defendants' costs of $165.59 for postage for service of thirty subpoenas averages approximately $5.52 per item, well below the amount charged by the Marshal. Accordingly, these costs will be allowed. However, defendants' use of Federal Express for service of a subpoena on Victoria Yeager cost $14.40, which is above the amount the Marshal's Office charges for service by mail. Accordingly, the court will only allow defendant to recover $8.00 worth of the costs of this instance of service by mail, and disallow the additional cost.

II. Fees of Court Reporters for Transcripts Obtained for Use in the Case

Defendants claim costs of $5,891.64 for fees of court reporters for transcripts obtained for use in the case. Yeager objects to these costs on the grounds that: (1) defendants provide no facts indicating these costs were necessarily obtained for use in the case, (2) the court reporter's invoice does not specify the services performed for the depositions of Yeager and Victoria Yeager ("the Yeagers"), and (3) the video recording of depositions was not necessary.

A. "Necessarily Obtained for Use in the Case"

The depositions taken of the Yeagers and defendants Connie and Ed Bowlin were necessarily obtained for use in this case. The Yeagers were critical witnesses and defendants relied heavily on these depositions in their motion for summary judgment. Accordingly, the court will not disallow the costs of the depositions on this ground.

B. Specification of Services Performed in the Yeagers Depositions

Yeager contends that it is impossible to determine if the costs for the Yeagers' depositions are reasonable because the invoices for the depositions supplied with the bill of costs do not contain an itemized assessment of the services performed at the depositions. However, defendants provided plaintiffs with such an itemized invoice on January 26, 2010, and the invoice was provided by Yeager's counsel in his objections. (See Docket No. 140, Pl.'s Objections Ex. A.) Accordingly, the court will not disallow these costs.

C. Video Recording

Defendants claim $2,407.50 in costs for video recording of the depositions of Victoria and Charles Yeager. § 1920(2) allows for recovery of "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." Yeager objects to defendants' use of both stenographic transcripts and video transcripts, arguing that defendants have not shown why the use of both mediums was necessary. Courts have awarded costs for both a videotaped and stenographic transcript of a deposition when both were reasonably necessary for the litigation. See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 464-65 (11th Cir. 1996); Beamon v. Marshall & Ilsley ...


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