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Fowler v. California Highway Patrol

United States District Court, N.D. California

August 13, 2014




Now before the Court is Defendants' motion to review the Clerk's taxation of prevailing party costs against Plaintiff. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument, and hereby VACATES the hearing previously scheduled for August 25, 2014. For the reasons discussed below, the Court GRANTS review of and REVISES the Clerk's taxation of costs consistent with this order.


Following a jury verdict in Defendants' favor, the Court entered judgment against Plaintiff on June 3, 2014. On June 16, 2014, Defendants timely filed and served their bill of costs on Plaintiff, along with the required supporting affidavit. See Civ. L.R. 54-1(a) (providing that no later than 14 days after entry of judgment, a prevailing party claiming taxable costs must file and serve a bill of costs, along with a supporting affidavit attesting that the costs are correctly stated, were necessarily incurred, and are allowable by law). The bill of costs sought $32, 464.27. See Docket No. 116. On June 25, 2014, Plaintiff timely filed and served objections to Defendants' bill of costs. See Civ. L.R. 54-2(a) (providing that within 14 days after service of the bill of costs, the party against whom costs are claimed must serve and file any specific objections to any item of cost claimed in the bill). Plaintiff's objections did not contain the required representation that counsel met and conferred to resolve the disagreement about taxable costs claimed in the bill, or that the objecting party otherwise made a good faith effort to arrange such a conference. See Civ. L.R. 54-2(b) (imposing these requirements). On July 1, 2014, counsel for Defendants submitted a supplemental declaration in support of Defendants' bill of costs, in which counsel argued that certain costs objected to by Plaintiff were necessary and allowable, and that Plaintiff's counsel violated Civil Local Rule 54-2(b) by failing to meet and confer before filing the objections. On July 8, 2014, the Clerk taxed costs in the amount of $10, 960.41 against Plaintiff. The Clerk's taxation reduced the fees sought for transcripts obtained in the case from $10, 414.82 to $5, 426.05, reduced the fees for witnesses from $3, 380.03 to $2, 547.32, and also reduced the fees for "exemplification" from $15, 833.78 to $151.40 where Defendants had sought reimbursement for exemplification costs associated with presenting audio and video evidence at trial.

On July 15, 2014, Defendants timely filed the instant motion for review of the Clerk's taxation of costs, arguing that the Clerk improperly disallowed the transcript and exemplification fees originally sought in their bill of costs. See Fed.R.Civ.P. 54(d)(1) ("The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action."). Plaintiff did not file a motion seeking review of the Clerk's taxation of costs. Plaintiff, however, filed an opposition brief to Defendants' motion for review, wherein she renewed many of the arguments she made in her original opposition to Defendants' initial bill of costs. Compare Docket No. 123 with Docket No. 117.


Federal Rule of Civil Procedure 54(d)(1) provides that "costs - other than attorneys' fees - should be allowed to the prevailing party." Accordingly, "Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show why costs should not be awarded." Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003) (citing Stanley v. Univ. of Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999)). The Court "need not give affirmative reasons for awarding costs; instead, it need only find that the reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of an award." Id. at 945. The Court may refuse to award costs to a prevailing party on several recognized grounds, including: the losing party's limited financial resources; misconduct on the part of the prevailing party; the importance and complexity of the issues; the merit of the plaintiff's case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of imposing high costs. See id. (internal citations omitted).

28 U.S.C. section 1920 ("ยง 1920") "enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Civil Local Rule 54-3 provides additional "standards for interpreting the costs allowed by section 1920." Intermedics v. Ventritex, Co., No. C-90-20233, 1993 WL 515879, at * 1 (N.D. Cal. Dec. 2, 1993).

On a proper and timely motion, the Court may review the Clerk's taxation of costs. See Fed.R.Civ.P. 54(d)(1). A district court reviews the Clerk's taxation of costs de novo. See Lopez v. San Francisco Unified Sch. Dist., 385 F.Supp.2d 981, 1000-1001 (N.D. Cal. 2005); Escriba v. Foster Poultry Farms, No. CV-09-1878 LJO-MJS, 2012 WL 174847, at *1 (E. D. Cal. Jan. 20, 2012). "A district court may reduce costs which are unreasonably large or which are not supported by adequate documentation. The Court also has discretion to award partial costs or to require the parties to pay their own costs." Shum v. Intel Corp., 682 F.Supp.2d 992, 998 (N.D. Cal. 2009) aff'd, 629 F.3d 1360 (Fed. Cir. 2010) (internal citations omitted). "With regard to individual itemized costs, the burden is on the party seeking costs... to establish the amount of compensable costs and expenses to which it is entitled.'" City of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. C 08-4575 SI, 2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) (quoting Allison v. Bank One-Denver, 289 F.3d 1223, 1248-49 (10th Cir. 2002)).


Defendants move the Court to review and tax two discrete costs disallowed by the Clerk: (1) exemplification costs related to video presentations used at trial and (2) fees for deposition transcripts. Based on a de novo review of these challenged categories of costs, the Clerk shall tax costs consistent with the following discussion.

I. Reproduction and Exemplification Costs

Defendants claimed $15, 833.78 in costs for "fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." See Docket No. 116 & Osgood Decl. at 5-6, Docket No. 116-1. The Clerk disallowed $15, 682.38 as outside of the ambit of allowable costs for reproduction and exemplification. See Docket No. 119. Defendants seek review of this disallowance. Upon de novo review of costs sought for reproduction and exemplification, the Court finds as follows.

Defendants' request for $406.00 in copying fees for records and documents produced in response to discovery requests are allowable reproduction and exemplification costs. ...

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