United States District Court, E.D. California
ROBERT E. LEVY, Plaintiff,
COUNTY OF ALPINE, et al., Defendants.
ORDER TAXING COSTS
H. WHALEY, Senior United States District Judge
above-captioned matter began in trial on April 17, 2017. Upon
conclusion of the Plaintiff's case-in-chief, the Court
directed a verdict in favor of Defendant on April 20, 2017.
An order directing verdict was issued on April 25, 2017, ECF
No. 150, and judgment was entered on the same day in favor of
Defendant, ECF No. 151. On May 9, 2017, Defendant filed a
Bill of Costs requesting a total of $25, 106.13. ECF No. 152.
Plaintiff filed his Objections on May 16, 2017. ECF No. 153.
Defendant filed a Response to Plaintiff's Objections on
May 19, 2017. ECF No. 155. The Court is now fully informed,
adjusts the Bill of Costs, and directs tax against Plaintiff
in the amount of $23, 934.74.
Civ. P. 54(d)(1) provides that costs, other than
attorney's fees, should be awarded to the prevailing
party following entry of judgment. While this creates a
presumption of award to the prevailing party, the district
court has discretion to refuse costs. Ass'n of
Mexican-American Educators v. Cal., 231 F.3d 572, 591
(9th Cir. 2003). This discretion is not unlimited, and a
district court must specify reasons for refusing costs.
Id. at 592 (citing Subscription Television, Inc.
v. Southern Cal. Theatre Owners Ass'n, 576 F.2d 230,
234 (9th Cir. 1978)). Courts have refused to award costs
based on the losing party's limited financial resources,
misconduct by the prevailing party, and “the chilling
effect of imposing such high costs on future civil rights
litigants.” Id. The burden is on the losing
party to show why the costs shouldn't be awarded.
Save Our Valley v. Sound Transit, 335 F.3d 932,
944-45 (9th Cir. 2003).
Objections to Bill of Costs
Fees for service of summons and subpoena
requests $2, 068.50 for summons and subpoena costs. ECF No.
152 at 1. Plaintiff argues this is “grossly
inappropriate.” ECF No. 153 at 2. Plaintiff notes that
Alpine County is California's smallest county, and
therefore Defendant should have had “easy access to all
or nearly all” of the witnesses. Id. Plaintiff
asserts the reasonable amount for service should be $438.50.
Id. He arrives at this number by disallowing $835.00
for service to six witnesses and $795.00 for service to eight
additional witnesses. Id.
provides no explanation as to why the costs to these specific
witnesses should be disallowed or why service would be
cheaper simply because of the small population of the County.
ECF NO. 155 at 2. The Court previously took judicial notice
that Alpine County is 738.33 square miles in land area with a
population density of 1.6 people per square mile, as of 2010.
ECF No. 114 at Ex. B. Plaintiff fails to explain how, despite
being a particularly rural county with low population
density, Alpine County's small population makes it easier
to service easier. If anything, the low population density
and mountainous terrain likely makes service more
complicated. Because Plaintiff has not advance a meaningful
argument, the Court DENIES Plaintiff's
request to lower costs for service.
Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case
U.S.C. § 1920(2) provides for taxation of costs for
printed or electronically recorded transcripts
“necessarily obtained for use in the case.” This
is echoed in the Eastern District of California's Local
Rule 292(f)(5). Deposition transcripts may be among costs
considered by district courts under this rule.
Alflex Corp. v. Underwriters Laboratories,
Inc., 914 F.2d 175 (9th Cir. 1990). Documents need not
be actually used at trial and made part of the record to
receive costs in this category. See Haagen-Dazs, Inc. v.
Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587,
588 (9th Cir. 1990).
requests $16, 960.86 for fees for printed or electronically
recorded transcripts. ECF No. 152 at 1. $15, 238.86 of the
amount in this category is for deposition transcripts.
Id. at 3. Plaintiff argues that $5, 043.80 of the
deposition transcript costs should be disallowed because
these costs were “unreasonably incurred and not needed
for defense of Plaintiff's claims.” ECF No. 153 at
2. Specifically, Plaintiff cites to depositions by Kris
Hartnett, Buck McClelland, Sharon Warkentin, Valerie Bolton,
Martin Fine, Randall Gibson, Doug Rublaitus, James Holdridge,
Jared Zwickey, and Nancy Thornburg. Id. Plaintiff
asserts that none of these witnesses testified at trial, nor
were their depositions needed for mediation, settlement
conference, or trial preparation. Id. at 2-3.
argument does not support the majority of his claims. Several
of the challenged depositions were formally lodged with the
Court: Kris Hartnett, Sharon Warkentin, Valerie Bolton,
Martin Fine, Randall Gibson, and James Holdridge. ECF No. 82.
Further, Kris Hartnett's deposition was actually read in
part during trial as Plaintiff's witness. ECF No. 141.
Likewise, Defendant filed notice that portions of Nancy
Thornburg's deposition were intended to be read at trial,
ECF No. 124, James Holdridge and Jared Zwickey, the
County's expert, were scheduled to testify. Defense was
prepared to proceed with the deposition and live testimony if
not for the directed verdict.
Court agrees with Plaintiff on two depositions, however. Buck
McClelland and Doug Rublaitus neither appear on the witness
lists nor in the lodged deposition transcripts. Mr.
McClelland is an Alpine County citizen who allegedly would
have supported Plaintiff's run for sheriff, ECF No. 155
at 2-3, but this was not the only individual who offered such
testimony, nor does it appear that either party needed or
intended to use his statements at trial. Doug Rublaitus was
among the individuals alleged by Plaintiff to have been a
victim of age discrimination during employment with Alpine
County. ECF No. 155 at 2-3. Again, Mr. Rublaitus was not the
only witness to provide information on age discrimination,
which also was not the basis for the remaining claim at trial
and thus limited in testimony, and it does not appear his
testimony was to be considered in trial preparation.
Accordingly, the Court finds these deposition transcripts
were not necessarily obtained for use in the case.
is complicated because of the records provided by Defendant
in the Bill of Cost. The actual costs billed by the reporter
for Buck McClelland's deposition are $415.15. ECF No.
152, Ex. A at 1. However, some costs on the invoice are
shared with Kris Hartnett's deposition costs,
id., and in the interest of fairness, the Court
shall divide evenly. Half of the shared costs is $83.43,
which added to $415.15 is $498.58. Likewise, the actual costs
billed by the reporter for Doug Rublaitus' deposition are
$255.75. Id. at 4. The invoice is shared by
deposition costs of five other individuals. Id.
One-sixth of the shared costs is ...