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Robert A. Politte, Joan M. Politte and v. United States of America

October 10, 2012

ROBERT A. POLITTE, JOAN M. POLITTE AND TRKSS, LLC,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING IN PART AND DENYING IN PART ) MOTION TO RE-TAX COSTS [Doc. No. 362-1]

Plaintiffs, Robert and Joan Politte,*fn1 proceeding pro se, move the Court to re-tax costs pursuant to Fed. R. Civ. P. 54(d)(1) and Local Civil Rule 54.1.h. In particular, Plaintiffs object to the following portions of the Clerk's July 27, 2012 order: (1) the decision to award $630 in costs related to service of summons and subpoenas; (2) the decision to award $12,957.11 in costs related to depositions; and (3) the decision to award $8,283 in copy costs to Defendant. (Doc. No. 362--1, p. 2:12--15.) Defendant filed an opposition to the motion to re-tax costs and Plaintiffs filed a reply. On September 14, 2012, the Court ordered supplemental briefing, Doc. No. 366, which the Defendant, Doc. No. 367, and Plaintiffs', Doc. No. 368, subsequently filed. The hearing set for October 12, 2012 at 1:30 p.m. is hereby VACATED as the Court finds this motions appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the motion to re-tax costs is GRANTED IN PART and DENIED IN PART.

Background

Plaintiffs' Third Amended Complaint asserted a third-party statutory claim under 26 U.S.C. §7426(a)(4) seeking a determination that the United States' interest in Plaintiffs' property (in respect of which the Internal Revenue Service ("IRS") issued Certificates of Discharge of Federal Tax Lien under 26 U.S.C. § 6325 (b)(4)) was zero; and requested an order directing the United States to refund all money taken by IRS from Plaintiffs as a condition precedent to issuing the Subject Certificates of Discharge.

By order filed March 21, 2012, the Court found that the United States had established by a preponderance of the evidence, that Plaintiffs were the nominees/alter-egos of RAJMP. As such, the Plaintiffs' claim for refund under § 7426(a)(4) was denied. The Plaintiffs' motion, (Doc. No. 321), for judgment as a matter of law pursuant to Fed. R. Civ. P. 52(c) as to Defendant's alter-ego determination was also denied.

Thereafter, the Clerk issued an order taxing costs in favor of Defendant and against Plaintiffs in the total amount of $21,870.48. Plaintiffs timely filed this motion to re-tax costs pursuant to Fed. R. Civ. P. 54(d) (Rule 54) and Local Civil Rule 54.1(h) (Local Rule 54.1).*fn2

Legal Standard

Under Rule 54(d), this Court has broad discretion to vacate or amend the Clerk's decision to tax costs. Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006). In exercising this discretion, the Court is mindful that a losing party bears the burden of establishing a reason to avoid taxation of costs. Save Our Valley v. Sound Transit, 335 F.3d 932, 944--45 (9th Cir. 2003). Although a district court must "specify reasons" for its refusal to tax costs to the losing party, the Court need not "specify reasons for its decision to abide the presumption and tax costs to the losing party." Assoc. of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000); Save Our Valley, 335 F.3d at 945.

Under Rule 54(d), trial courts do not have discretion to tax whatever costs seem appropriate. Courts are limited by 28 U.S.C. § 1920 in which costs they can tax. Section 1920 "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 Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). 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 obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. While courts are limited to the items enumerated as taxable costs under § 1920, they are free to interpret the meaning and scope of such items. Alflex, 914 F.2d at 177. Once it has been established that a certain item falls within the scope of § 1920, the power to tax such costs is qualified only by the requirement that they be necessarily obtained for use in the case. Id.

Discussion

A. Costs Associated with Service of Summons and Subpoenas

Plaintiffs request that this Court allow no more than $630 in costs associated with service of summons and subpoenas. (Doc. No. 362--1, p. 2:14.) However, $630 was the amount taxed to the Plaintiffs in the initial order taxing costs on July 27, 2012. Since Plaintiffs have failed to request an alternative sum, and given that Defendant does not object to the $630 figure, this fee does not appear to be in dispute. Accordingly, the entry of $630.00 in fees related to service of summons and subpoenas is upheld.

B. Costs Associated with Depositions

Plaintiffs contend that the costs relating to depositions were improperly ...


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