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Jason Nielsen v. Trofholz Technologies

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 8, 2010

JASON NIELSEN,
PLAINTIFF,
v.
TROFHOLZ TECHNOLOGIES, INC., A CALIFORNIA CORPORATION, ANDREW PARKER, AN INDIVIDUAL, BRENNA PEDONE, AN INDIVIDUAL, YVONNE GLENN, AN INDIVIDUAL, TROY GLENN, AN INDIVIDUAL AND DOES 1-10, INCLUSIVE, DEFENDANTS.

ORDER RE: COSTS

On November 2, 2010, the court entered final judgment in this case in favor of defendants. (Docket No. 63.) Defendants submitted a cost bill totaling $6,434.19 (Docket No. 64), to which plaintiff has objected in part. (Docket No. 65.) Rule 54(d)(1) of the Federal Rules of Civil Procedure and Local Rule 292 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) ("Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party."); 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. 1996) (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.").

Plaintiff does not dispute the costs related to the transcripts of depositions of Troy Glenn, Brenna Pedone, Jon Rauer, Luanne Kelshiemer, Yvonne Glenn, and Andrew Parker, and the court finds those costs to be reasonable.*fn1 Defendants have withdrawn their request the for cost of condensed transcripts*fn2 and costs associated with the unsuccessful service on John Avila for $520.05. The costs that remain disputed are the video recording of plaintiff's deposition, the stenographic transcript of plaintiff's deposition, shipping fees associated with the other depositions, and witness fees for plaintiff's doctors.

Defendants claim $1,082.00 in costs for video recording of plaintiff's deposition. Section 1920(2) allows for recovery of "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Plaintiff 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 Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005); BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 419-20 (6th Cir. 2005); Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 464-65 (11th Cir. 1996). Defendants contend that the videotaped depositions were necessary because plaintiff was a crucial witness who would need to be impeached at trial. (Defs.' Reply in Supp. of Bill of Costs at 4:5-7.) This rationale fails to explain why both a videotaped and printed transcript were necessary, since a printed transcript alone could easily have been used to impeach plaintiff. Something beyond "convenience or duplication to ensure alternative methods for presenting materials at trial" is needed to tax costs for both a printed and videotaped deposition transcript. Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999). Accordingly, the court will disallow the video recording costs.

Defendants also seek to recover costs for the transcript and one copy of plaintiff's deposition for $1,816.55. The court finds that this cost is reasonably necessary and will allow it. See Alflex Corp., 914 F.2d at 177.

The court will allow shipping costs related to the transcripts, as they are associated with court reporters' fees and were necessarily incurred in order to obtain the transcripts. See Local R. 292(f)(3), (5).

Finally, the court will allow the witness fees. Plaintiff identified the three doctors as his medical care providers, and it was reasonable for defendants to obtain their records. (Defs.' Reply in Supp. of Bill of Costs at 5:15-19.)

After reviewing the bill, the court finds the following costs to be reasonable: Fees of Court Reporters for Transcripts: $2,621.70 Nielsen Stenographic Deposition: $1,816.55 Shipping Costs: $122.50 Fees for Witnesses: $164.00 Total $4,724.75

Accordingly, the cost of $4,724.75 will be allowed. IT IS SO ORDERED.


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