Opinion
CV 00-1400-BR.
July 2, 2002
PHILLIP M. LEBENBAUM, Hollander, Lebenbaum Gannicott, Portland, Oregon, Attorneys for Plaintiffs.
COURTNEY W. WISWALL, Stoel Rives, LLP, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Bill of Costs (#116).
Plaintiffs brought this action against Defendant for age discrimination under the Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 621-34. On November 1, 2001, during oral argument on Defendant's Motion for Summary Judgment, Plaintiffs Charles Craig and Rick Easley voluntarily dismissed their claims in their entirety. The Court entered final judgment against Plaintiffs Craig and Easley on February 20, 2002. The Court also memorialized an agreement among the parties that Defendant would not seek costs as to these two parties until a final decision was rendered as to the remaining Plaintiffs. After a trial on the merits, the jury found in favor of Defendant on the ADEA claims of Plaintiffs Dennis Hartung, Michael Leach, John Harvey, and Richard Harvey.
On April 22, 2002, Defendant submitted a Bill of Costs to the Court. Plaintiffs filed an Objection to Defendant's Bill of Costs on the ground that certain categories of Defendant's costs are not recoverable under federal law. Plaintiffs Easley and Craig also filed an Objection to the taxation of costs against them for costs incurred by Defendant after they conceded their claims.
For the reasons that follow, the Court OVERRULES Plaintiffs' Objection to the validity of certain categories of costs and SUSTAINS the Objection of Plaintiffs Easley and Craig to the taxation of costs against them for costs incurred by Defendant after they conceded their claims.
FACTUAL BACKGROUND
The facts underlying Plaintiffs' claims are set forth in the Court's Opinion and Order issued January 14, 2002, and will not be repeated here.
STANDARDS
Costs generally are awarded to the prevailing party in a civil action as a matter of course unless the Court directs otherwise. Fed.R.Civ.P. 54(d). The Court must limit an award of costs to those defined in 28 U.S.C. § 1920. Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)). Expenses that may be taxed as costs are enumerated in 28 U.S.C. § 1920 as follows:
1) Fees of the clerk and marshal;
2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3) Fees and disbursements for printing and witnesses;
4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
5) Docket fees under section 1923 of this title;
6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Courts may construe the meaning and scope of the items enumerated as taxable costs under § 1920. Frederick v. City of Portland, 162 F.R.D. 139, 142 (D.Or. 1995) (citations omitted).
DISCUSSION
Defendant seeks $2,716.92 as costs. Plaintiffs object to Defendant's request for the cost of deposition transcripts of the following witnesses: Kenneth Sonner, $108.80; Robert Atkinson, $96.80; and Gary Pease, $225.80. Plaintiffs also object to Defendant's request for $186.00 as reimbursement for the cost of preparing a demonstrative trial exhibit. Finally, Plaintiffs Craig and Easley object to the taxing of trial costs against them because they voluntarily dismissed their claims during summary judgment proceedings.
Costs are allowable for "all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). If a deposition was taken for discovery purposes and was reasonably necessary when taken, the costs of that deposition may be taxed even though it was not introduced at trial. Frederick, 162 F.R.D. at 143.
Each of the three named deponents is an employee of Defendant. Plaintiffs cannot argue taking the depositions of these witnesses was unnecessary and unreasonable because Plaintiffs chose to depose these witnesses. Defendant reasonably requested a copy of these witnesses' sworn statements in order to prepare for trial and for the anticipated cross-examination of these witnesses by Plaintiffs' counsel. The Court concludes, therefore, Defendant reasonably and necessarily incurred the costs of obtaining these deposition transcripts "for use in the case." Accordingly, the Court grants Defendant the cost of the transcripts.
In addition, the costs of demonstrative exhibits, including visual aids used at trial, are permitted as "fees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920(4). See also Maxwell v. Hapag-Loyd Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988). The exhibit at issue was an enlargement of age data for all of Defendant's employees that was used to show Defendant's reduction in force did not result, in fact, in a younger work force as Plaintiffs contended. The exhibit directly controverted Plaintiffs' statistical charts, which were attached to their summary judgment response and instrumental in the Court's denial of Defendant's Motion for Summary Judgment. The Court finds Defendant reasonably obtained the exhibit for use in this case and, therefore, grants Defendant the costs of producing the exhibit.
Plaintiffs Easley and Craig object to the taxation of trial costs to them because they conceded their claims during oral argument on Defendant's Motion for Summary Judgment. Plaintiffs Easley and Craig, however, have not identified the amount of costs Defendant incurred before those concessions. Defendant agrees Plaintiffs Easley and Craig should each be liable for only one-sixth of the costs Defendant incurred before the Court ordered final judgment against them. Defendant, however, appears to argue the Court should tax the full amount of costs against each of the Plaintiffs jointly and severally, and the appropriate division of the costs should be left to Plaintiffs.
Pursuant to § 1920, district courts have equitable discretion to apportion costs between prevailing and nonprevailing parties. In re Paoli Railroad Yard PCB Litigation, 221 F.3d 449, 469 (3d Cir. 2000). This equitable power also includes the power to divide costs among the losing and winning parties in a case involving multiple plaintiffs or multiple defendants. Id. When dividing the costs among multiple parties on one side of the bar, the court may choose to impose costs jointly and severally or to apportion the costs to each of them individually. Id. The default rule, however, is imposition of the full amount of costs jointly and severally among the non-prevailing parties. Id. Thus, the burden is on the nonprevailing parties to show the costs should be apportioned among them. Id.
Because the claims of Plaintiffs Easley and Craig were resolved on summary judgment, the Court finds it would be inequitable to hold them liable for any of Defendant's costs incurred in preparation for the trial of their co-Plaintiffs' claims. See id. at 471 n. 10 (it is inequitable to charge one plaintiff with costs that were incurred by the defendant in defense of the remaining plaintiffs' claims after that plaintiff voluntarily dismissed his action). Plaintiffs Easley and Craig, however, should be held liable for that portion of Defendant's costs incurred before their claims were dismissed, including costs incurred by Defendant in connection with its Motion for Summary Judgment.
Although the Court finds Plaintiffs' argument in favor of apportionment of costs persuasive, Plaintiffs have failed to propose how the costs should be apportioned. The Court, therefore, declines to apportion the costs among Plaintiffs at this time.
CONCLUSION
For these reasons, the Court OVERRULES Plaintiffs' Objection to Defendant's Bill of Costs on the ground that certain costs are not recoverable under federal law. The Court, however, SUSTAINS the Objection of Plaintiffs Easley and Craig to the taxation of costs against them for costs incurred by Defendant after the Court dismissed their claims.
The Court further directs the parties to confer regarding the appropriate apportionment of costs among Plaintiffs. Plaintiffs must file by July 10, 2002, a Proposed Apportionment of Costs that indicates in the first paragraph whether the parties reached an agreement. That pleading shall identify the amounts that Plaintiffs believe the Court should tax to each of them and indicate whether those amounts should be taxed jointly and severally or individually. If the parties do not reach an agreement, Plaintiffs' Proposed Apportionment shall include any evidence and argument in support of their Proposed Apportionment. Defendant may file a response to Plaintiffs' Proposed Apportionment of Costs by July 17, 2002.
IT IS SO ORDERED.