Hughes v. City of Stockton

Full title: JAIME HUGHES, MARY CORONADO, AUDREY MILLS, VIRGINIA CARDOZA, KAREN…

Court: United States District Court, E.D. California

Date published: Nov 2, 2005

No. Civ. S 03-0166 MCE DAD (E.D. Cal. Nov. 2, 2005)

Opinion

No. Civ. S 03-0166 MCE DAD.

November 2, 2005

MEMORANDUM AND ORDER

MORRISON ENGLAND JR., District JudgePage 2

Defendant City of Stockton ("City") has submitted a Bill of Costs¹ in the above-referenced matter, pursuant to 28 U.S.C. § 1920, following a jury verdict in favor of the City reached on July 8, 2005. While Plaintiffs do not dispute the City's entitlement to costs as the prevailing party in this litigation, they do take issue with certain categories of costs claimed by the City, arguing that those items are unreasonable and/or unnecessary and should consequently not be allowed. The Court has now reviewed the City's Bill of Costs, along with the documentation submitted in support thereof, and has further reviewed Plaintiff's objections. Costs are awarded to the City as set forth below.

1 The City's initial Bill of Costs was filed on July 18, 2005. That costs bill was superseded by an Amended Bill of Costs filed on July 20, 2005.

STANDARD

Under Federal Rule of Civil Procedure 54(d), the prevailing party in a lawsuit may recover its costs "unless the court otherwise directs". As this language suggests, the ultimate decision on whether to award costs is a matter within the court's discretion. Association of Mexican-American Educators v. State of Calif., 231 F.3d 572, 591-92 (9^th Cir. 2000). If the Court declines to award costs as requested by the prevailing party, however, it should specify its reasons for doing so.Berkla v. Corel Corp., 302 F.3d 909. 921 (9^th Cir. 2002). Claims for cost items not properly documented will generally not be allowed.English v. Colorado Dept. Of Corrections, 248 F.3d 1002, 1013 (10^th Cir. 2001).

ANALYSIS

Turning to the specific items of costs claimed by the City, Plaintiffs first take issue with the costs incurred by the City in obtaining the transcripts of depositions taken in this case. According to Plaintiffs, it was not necessary for the City to have deposed all twenty Plaintiffs in this action. Plaintiffs therefore contend that the transcript costs for those depositions are unreasonable. Plaintiffs further argue that costs associated with the provision of ASCII disks, as well as rough edit disks, should not be allowed. Plaintiffs' objections in this regard lack merit. The depositions obtained were reasonable under the circumstances of this case, and the costs incurred are appropriate. Court reporter/transcript costs for the depositions will be awarded as requested in the amount of $11,816.30.

The next major item of claimed costs pertains to witness expenses, both with respect to the service of subpoenas for witness attendance at trial and per diem fees and other expense payable for such attendance. The arguments advanced by Plaintiffs in contesting those expenses are also without merit. First, although Plaintiffs correctly point out that witness fees and expenses cannot be claimed by prevailing parties themselves for appearing at trial, the authority advanced by Plaintiffs does not pertain to such fees/expenses payable to an adverse party for testifying at the prevailing party's behest. In Evanow v. M/V Neptune, 163 F.3d 1108 (9^th Cir. 1998), for example, the witness fees claimed were for expenses by various prevailing parties. In the present case, on the other hand, the expenses relate to the City's need to subpoena several of the plaintiffs as adverse parties. Second, the fact that some of the witnesses subpoenaed were not ultimately called to testify at trial does not mean that the expenses so incurred were unnecessary. Such witnesses are entitled to compensation for their readiness to testify, and costs are recoverable on that basis. See Haroco, Inc. v. American National Bank and Trust Co. Of Chicago, 38 F.3d 1429, 1442 (7^th Cir. 1994).

Although Plaintiffs' substantive arguments against the award of witness fees/costs in this matter are unavailing,² certain of the costs claimed have nonetheless not been substantiated through any documentation provided by the City and will consequently be disallowed. In its itemization of witness fees on the reverse of the Amended Bill for Costs, for example, witness fees are sought for Wally Storm and for George Bist, although no documentation of such expense was provided.³ In addition, the documentation provided appears to be at odds with the apportionment between subpoena fees and witness fees and costs reflected in the Amended Bill of Costs itself. The amounts documented are for $940.20 for service of subpoenas and $633.35 for witness expenses. Those amounts are awarded.

2 Another argument advanced by Plaintiffs is that certain of the subpoena fees were in excess of the amount that would have been charged for service by the United States Marshall (at $125.64, including mileage and driving time to Stockton) and should be disallowed on that basis. Examination of the service fees in question, however, for subpoenaing Plaintiffs Audrey Mills and Suzanne Henning) show that advanced witness fees in the amount of $63.52 for included in both invoices (for $179.87 each). Since the witness fees themselves are separately recoverable, the net amount of the invoices in question for subpoening Ms. Mills and Ms. Henning is less than the $125.64 figure in any event. Consequently, Plaintiffs' objection to those costs is ill-taken.

3 The City's Amended Memorandum of Costs (as opposed to the Amended Bill of Costs), however, does not include witness fees for Storm or Bist so they may have been inadvertently included in the costs bill itself.

The final, and most significant, area of disagreement pertaining to awardable costs pertains to fees for exemplification and copies of papers necessarily obtained for use in this case. While such fees are unquestionably proper under 28 U.S.C. § 1920(4), Plaintiffs argue for a narrow reading of that section, claiming that costs incurred for tabs, binders, and exhibit blow-ups cannot be incorporated within "exemplification and copies of papers." The Ninth Circuit, however, in Maxwell v. Hapag-Lloyd Aktiengesellschaft, Hamburg, 862 F.2d 767, 770 (9^th Cir. 2003), has adopted a broad construction of the term "exemplification" that includes all types of demonstrative evidence, including photographs and graphic aids, that are necessarily obtained for use in the case.

In this case, the Court required that tabs and binders be provided in organizing the extensive proposed exhibits in this case. As such, those costs are recoverable. In addition, fees incurred in preparing the exhibits for trial, such as re-binds and numbering devices, are also proper.

Although the Ninth Circuit's Maxwell decision indicates that photographic blow-ups and graphic aids are at least potentially recoverable, Plaintiffs argue that extensive blow-ups were unnecessary in this case due to courtroom equipment and technology permitting the projection of large-scale images without physically amplifying the size of the original materials. In addition, Plaintiffs contend that the City used only three actual blow-ups in any event, and then only during closing argument.

These arguments are well taken. Given the courtroom configuration, it was not reasonably necessary to incur expense in the amount of $3,407.50 for some 28 exhibit enlargements to poster size. Moreover, and as stated above, those exhibits were largely unused in any event. The expenses incurred for preparing those blow-ups are disallowed.

In addition, the City seeks reimbursement for 41.75 hours of "computer illustration" at $175.00 per hour. The City provides no explanation whatsoever as to just what that entails, and without such detail the Court cannot determine that such expenses were reasonable and necessarily incurred in presenting the City's case. Even were the proper explanation provided, this Court has grave concerns about whether hourly expenses of this magnitude may properly be regarded as a recoverable cost under Section 1920, as opposed to fees incurred in simply preparing the case for trial, which are akin to attorneys' fees and would not be allowable as costs under the statute. Consequently, the City's claimed costs of $7,306.25 for "computer illustration" will not be permitted.

CONCLUSION

Based on the foregoing, costs in this matter are taxed in favor of the City as follows:

Fees for Service of Subpoenas $ 940.20 Court Reporter/Transcript Fees $ 11,816.30 Printing/Exemplification Costs $ 9,225.09 Witness Fees/Costs $ 633.35 ___________ TOTAL: $ 22,614.94

IT IS SO ORDERED.