The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 BRIAN BROWN, No. 2:22-cv-02128 WBS DB
13 Plaintiff,
14 v. ORDER RE: BILL OF COSTS
15 CEMEX, INC.; CEMEX CONSTRUCTION
MATERIALS PACIFIC, LLC; and DOES
16 1 to 10,
17 Defendants.
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20 On July 10, 2024, the court entered summary judgment in
21 favor of defendant on all five claims –- three federal claims
22 asserted under the Americans with Disabilities Act (“ADA”), 42
23 U.S.C. § 12101 et seq., and two state claims asserted under the
24 Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900
25 et seq., all of which relate to disability discrimination.
26 (Docket No. 47.) On July 19, defendant submitted a Bill of Costs
27 pursuant to Local Rule 292(b). (Docket No. 49.) Defendant
28 claims costs of $672.00 for service and subpoena fees, $10,872.72
1 for transcripts, $55.00 for witnesses, and $57.70 for making
2 copies of necessary documents, for a total of $11,657.42. (Id.)
3 I. Legal Standard
4 Federal Rule of Civil Procedure 54(d)(1) governs the
5 taxation of costs and provides that “costs –– other than
6 attorney’s fees –– should be allowed to the prevailing party.”
7 Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 enumerates which
8 costs are taxable and allows for the recovery of “[f]ees for
9 printed or electronically recorded transcripts necessarily
10 obtained for use in the case,” id. § 1920(2); “[f]ees and
11 disbursements for printing and witnesses,” id. § 1920(3); and
12 “the costs of making copies of any materials where the copies are
13 necessarily obtained for use in the case,” id. § 1920(4). “The
14 cost of deposition copies is ‘encompassed’ by section 1920(2),
15 and is therefore properly taxed” under 28 U.S.C. § 1920. Alflex
16 Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir.
17 1990). “[28 U.S.C.] section 1920(4) enables a court to award
18 copying costs for any document ‘necessarily obtained for use in
19 the case’ and does not specifically require that the copied
20 document be introduced into the record to be an allowable cost.”
21 Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920
22 F.2d 587, 588 (9th Cir. 1990).
23 II. Discussion
24 Plaintiff raises various objections to the bill of
25 costs, which the court addresses by turn. (Opp’n (Docket No.
26 50).)
27 A. First and Second Objections: Prevailing Defendant in
28 FEHA Case
1 Plaintiff first invokes Williams v. Chino Valley Indep.
2 Fire Dist., where the California Supreme Court held that “an
3 unsuccessful FEHA plaintiff should not be ordered to pay the
4 defendant’s fees or costs unless the plaintiff brought or
5 continued litigating the action without an objective basis for
6 believing it had potential merit.” 61 Cal. 4th 97, 99-100 (2015).
7 See also Cal. Gov. Code § 12965(c)(6) (codifying frivolity
8 requirement for award of costs for prevailing FEHA defendant).
9 On the other hand, Fed. R. Civ. P. 54(d) states that costs should
10 be allowed to the prevailing party “[u]nless a federal statute,
11 these rules, or a court order provides otherwise.”
12 Plaintiff argues that, pursuant to the Erie doctrine,
13 Williams is a state substantive rule and should therefore
14 supersede any application of Rule 54(d). However, reimbursement
15 of costs is generally considered a procedural matter and federal
16 law therefore controls. See Clausen v. M/V New Carissa, 339 F.3d
17 1049, 1064 (9th Cir. 2003) (quoting Aceves v. Allstate Ins. Co.,
18 68 F.3d 1160, 1167–68 (9th Cir. 1995)); see also Duran v. Stock
19 Bldg. Supply W., LLC, 672 F. App’x 777, 779 (9th Cir. 2017)
20 (“[plaintiff] incorrectly asserts that [Williams] rendered the
21 award of costs ‘substantive’ for purposes of [Erie]”).
22 Accordingly, defendant need not show that plaintiff’s
23 claims were frivolous, and the court will not deny any portion of
24 defendant’s bill of costs on this basis.
25 II. Third Objection: Witness Fee
26 Plaintiff next argues that the $40 witness fee lacks a
27 receipt, and that defendant is double-billing plaintiff. The
28 court finds no evidence in support of these contentions. First,
1 defendant includes an invoice that clearly documents the expert
2 witness fee; the court cannot discern why this does not suffice
3 to substantiate the requested fee. (Docket No. 49 at 13.)
4 Second, it appears from the invoice itself that the process
5 server from Nationwide Legal advanced defendant $40, not
6 plaintiff. As plaintiff can point to no instance where he has
7 previously been charged $40 for Dr. Grewal’s deposition, the
8 court will not remove this item from the bill of costs.
9 III. Fourth Objection: Duplicate Service Fee Charges
10 Plaintiff next alleges that defendant’s subpoena
11 charges are vague and duplicative. Specifically, plaintiff takes
12 issue with charges for both “Basic Fee” and “Service Fee” line
13 items for identical amounts that appear on each service and
14 subpoena invoice. However, defendant correctly points out that
15 every instance of the “Basic Fee” line item was excluded from
16 defendant’s calculation of its total service fees. (Docket No.
17 49 at 4, 7-12.)
18 Accordingly, the court will not exclude these costs
19 from the final bill.
20 IV. Fifth, Sixth, and Seventh Objections: Unreasonable
21 Deposition Charges
22 A. Plaintiff’s Deposition
23 Plaintiff next argues that defendant’s invoice for
24 plaintiff’s deposition includes unreasonable line items -– namely,
25 condensed and electronic transcript copies; video recording
26 services; and a “media package,” all totaling $1,208.75. (Docket
27 Nos. 50 at 6; 49 at 14.) Defendant correctly argues that 28
28 U.S.C. § 1920(2) explicitly allows for recovery of “[f]ees for
1 printed or electronically recorded transcripts necessarily
2 obtained for use in the case.” Further, a prevailing party may
3 recover costs for both printed and electronically recorded
4 transcripts relating to necessary depositions. See CP Anchorage
5 Hotel 2, LLC v. UNITE HERE! Loc. 878, No. 22-35318, 2023 WL
6 5319245, at *1 (9th Cir. Aug. 18, 2023) (“[B]oth printed and
7 electronically recorded transcripts may be ‘necessarily obtained
8 for use in [a] case,’ 28 U.S.C. 1920(2), and nothing in the
9 statute suggests that recovery is limited to only one format when
10 that requirement is met”) (citing Stanley v. Cottrell, Inc., 784
11 F.3d 454, 465, 466–67 (8th Cir. 2015)). The same goes for video
12 recordings of depositions, especially those of named parties in
13 discrimination cases. See, e.g., Grasty v. San Juan USD, No.
14 2:18-CV-3242-KJN-PS, 2020 WL 1689720, at *1 (E.D. Cal. Apr. 7,
15 2020) (finding costs relating to videorecording the plaintiff’s
16 deposition awardable when the plaintiff asserted discrimination
17 claims and the defendant recorded the deposition in order to have
18 the opportunity to “analyze plaintiff’s credibility, demeanor,
19 and ability as a witness”).
20 B. Dr. Sharnjit Grewal’s Deposition
21 Plaintiff challenges similar line items on the invoice
22 for the deposition of his own expert witness, Dr. Sharnjit Grewal.
23 (Docket Nos. 50 at 7; 49 at 21.) Here, the court agrees with
24 plaintiff that the following charges do not appear to be
25 necessary for the case: $117.00 for “Transcript – Supplemental
26 Surcharges;” $116.00 for “Premium Litigation Package
27 (SBF,PTZ,LEF,PTX);” and $110.00 for “Smart Summary – Over 100
28 Transcript Pages.” (Docket No. 49 at 21.) The court disagrees
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1 with plaintiff otherwise for the same reasons that apply to the
2 challenged line items from plaintiff’s deposition invoice.
3 Accordingly, the court will adjust downward defendant's
4 claimed transcript costs of $10,872.72 by ($117.00 + $116.00 +
5 $110.00 = ) $343.00, resulting in an adjusted amount of
6 | $10,529.72.
7 IIT. Total Costs
8 In total, costs of $11,314.42 will be allowed for
9 defendant and are taxed against plaintiff as follows:
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13 Fees for printed or electronically recorded | $10,529.72
14 transcripts necessarily obtained for use in | (adjusted downward
15 || the case from $10,872.72)
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17 Fees for exemplification and the costs of $57.70
18 || making copies of any materials where the
19 copies are necessarily obtained for use in
20 the case
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22 IT IS SO ORDERED.
23 |} Dated: August 9, 2024 .
21 aithw A
WILLIAM B. SHUBB
29 UNITED STATES DISTRICT JUDGE
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