Petition for Writ of Certiorari — Alflex Corp. v. Underwriters Laboratories, Inc.

l } ! ee

FILED

90-1782 MAR 20 1991

OFFICE OF THE CLERK

N

IN THE SUPREME COURT OF

UNITED STATES

OCTOBER TERM, 1991

ALFLEX CORPORATION

Petitioner,

V.

UNDERWRITERS LABORATORIES, INC.

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSSELL J. FRACKMAN

Counsel of Record

MITCHELL, SILBERBERG & KNUPP

11377 West Olympic Boulevard

Los Angeles, California 90064

Telephone: (213) 312-2000

DANIEL M. PETROCELL]

THOMAS M. HINES

MITCHELL, SILBERBERG & KNUPP

Attorneys for Petitioner

Alflex Corporation

sAAX

Statement Pursuant to Rule 29.1

Petitioner Alflex Corporation has

the following parent company: ADF,

Inc. ADF, Inc. is owned by two entities:

AEA Investors and Prudential Bache.

Petitioner Alflex Corporation

has no subsidiaries.

QUESTIONS PRESENTED FOR REVIEW

1.

Whether the courts of the United States

are allowed to interpret 28 U.S.C.

§ 1920, which authorizes only the

taxation of specifically enumerated costs

by the federal courts, in order to tax

categories of costs not explicitly

enumerated by Congress.

Il.

TABLE OF CONTENTS

Page

I ga 5 065.06 6 6486008 v8 we 1

EES 1

Constitutional Provisions and Statutes

TERUG GMa AGS ce ctacaceneecs 2

EE eee 2

How the Federal Questions Arose Below .. 3

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s Opinion Is In

Conflict With The Decision Of The U.S.

Supreme Court In Crawford Fitting Co.

v. J.T. Gibbons, Inc., 42 U.S. 437 (1987) ..... 4

The Ninth Circuit’s Opinion Is In

Conflict With Crawford’s Requirement

Of A Single National Standard In

MI BAS cheek esc cscs rec cccee 10

The Ninth Circuit’s Opinion Is In

Conflict With Other Circuits Which

Have Held That Crawford Strictly

Limits Taxable Costs, And Does Not

Allow Private Service of Process Fees .... 11

EEE Sch U NG ees deerecccencccccs 13

TABLE OF AUTHORITIES

Page(s)

Cases

ex Vv. ite es, Inc.

914 F2d 175 (9th Cir. 1990) ............ 1

ine i . v. Wilderness ie

SPEED. wvcceescéccenssece 8

Crawford Fitting Co. v. ].T. Gibbons, Inc.,

Sb a 3, 4, 5, 6, 7, 8, 9

Crues v. KFC Corp.,

768 F.2d 230 (8th Cir. 1985) ........... 8,9

v. Westfie l

880 F.2d 1465 (ist Cir. 1989) .......... 8,9

Ind t Wi . v. United States Steel

322 F2d 656 (9th Cir.), cert. denied,

jf SS fo Ne ere 4,5

xwell v. -

862 F2d 767 (9th Cir. 1988) ............ 4

‘. .

852 E2d 936 (7th Cir. 1988), cert. denied,

me Fs eee 6

iv

Viacao Aerea Sao Paulo v. Int’] Leasing Finance

Corp.,

119 ER.D. 435 (C.D. Cal. 1988) ......... 7

Wi i i ine v t arine

Services Co.,

834 F2d 1232 (5th Cir. 1988) ........... 6

tatutes

ID cs voc can becac¥ekaabansa 1

EE 0 5 A kk ode ee ness bas kuun 3

5 a eee 1, 2, 3, 4, 5, 6, 7, 8,9

Miscellaneous

Lanham Act (15 U.S.C. § 1121)

I. OPINION BELOW

The opinion of the United States Court of

Appeals for the Ninth Circuit allowing the taxation

of the costs of deposition copies and private service

of process fees is reported at Alflex Corp. v.

Underwriters Laboratories, Inc., 914 F2d 175 (9th Cir.

1990) (per curiam). It is reprinted at p. 1 of the

Appendix ("A-1").

Il. JURISDICTION

The Court of Appeals for the Ninth Circuit

entered its opinion allowing deposition copies and

private service of process fees to be taxed on

September 13, 1990. On September 27, 1990, Alflex

filed a timely "Petition for Rehearing and Suggestion

for Rehearing En Banc." On December 20, 1990, the

United States Court of Appeals for the Ninth Circuit

ere ee EY ae ee Ie eet Cot

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Mad ni

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im

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2

entered an order denying the "Petition for Rehearing

and Suggestion for Rehearing En Banc." This order

is reprinted in the Appendix at p. A-19. The

jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

III. CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The principal statute involved is 28 U.S.C.

§ 1920, reprinted in the Appendix at A-21.

IV. STATEMENT OF THE CASE

Alflex Corporation (“Alflex") is a manufacturer

of electrical conduit. On May 26, 1987, Alflex

brought suit against Underwriters Laboratories, Inc.

("UL") the Nation’s largest certification company,

seeking damages and injunctive relief for violation of

the Lanham Act, breach of contract, negligence,

unfair competition, and other claims. The District

Court entered summary judgment on April 10, 1989,

dismissing Alfex’s claims. On May 16, 1989, the

Clerk of the Court reviewed UUs Bill of Costs and

awarded less than half of the $90,349.28 requested.

Alflex then served arid filed a Motion to Retax Costs,

which was denied in its entirety. UL also made a

Motion to Retax Costs which was granted, in part,

and a total of $49,090.15 was taxed against Alflex.

Included in this amount were $15,655.06 for copies of

deposition transcripts, and $1,324.70 for private

service of process fees. Judgment was entered on

August 4, 1989.

Vv. HOW THE FEDERAL QUESTION AROSE

BELOW

The jurisdiction of the District Court was

invoked under Section 43(a) of the Lanham Act

(15 U.S.C. § 1121), and under 28 U.S.C. § 1332

4

because of diversity of citizenship, the plaintiff being

a citizen of California and the defendant a citizen of

Delaware.

The District Court taxed costs against

petitioner pursuant to 28 U.S.C. § 1920.

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s Opinion Is In

Conflict With The Decision Of The

U.S. Supreme Court In Crawford

Fitting Co. v. J.T. Gibbons, Inc., 42 U.S.

437 (1987).

te the U.S. Supreme Court has made

absolutely clear, "without plain evidence of

Congressional intent," federal courts are not

empowered "to exceed the limitations explicitly set

out in [28 U.S.C. §] 1920... ." Crawford Fitting Co.

v. |.T. Gibbons, Inc., 42 U.S. 437, 445 (1987). This

holding was specifically recognized by the Ninth

Circuit in Maxwell v. Hapag-Lloyd

Aktiengesellschaft, 862 E2d 767, 770 (9th Cir. 1988),

which held that "Crawford strictly limits

reimbursable costs to those enumerated in

Section 1920." (emphasis added).

As Crawford made clear, the sole discretion

available to the judiciary is to decline the taxpayer's

costs expressly authorized by Congress. No

discretion exists to permit the taxing of

unenumerated costs. Crawford, supra, 482 U.S. at

441-42; see also Maxwell, supra, 682 F.2d at 770.

In its Opinion, however, the Ninth Circuit

diverges from Crawford and Maxwell, and returns to

a view enunciated in Independent Iron Works, Inc. v.

United States Stee] Corp., 322 F2d 656 (9th Cir), cert.

denied, 375 U.S. 922 (1963) which held that § 1920

grants "implicit" authority for the federal courts to

interpret those costs which may properly be taxed —

a view subsequently rejected by Crawford and

axwell.

In its Opinion, the Ninth Circuit held that:

"[O]ur interpretation in Independent

_ Tron Works, that section 1920(2)

encompasses the cost of a deposition

copy, is still good law, because, even

after Crawford, we may interpret the

meaning of the items enumerated as

taxable costs in Section 1920(2)."

See Oppinion at A-12.

Yet, by allowing the costs of deposition copies

and private service of process fees to be taxed, the

Ninth Circuit did more than simply interpret the

meaning of enumerated items; instead it created two

entirely new categories of costs never contemplated

by Congress. This becomes abundantly clear by

examining the language of the statute, and

comparing Crawford with the Opinion of the Ninth

Circuit.

As 28 U.S.C. § 1920 states, in relevant

part:

"A juage or clerk of any court of the

United States may tax as costs the

following:

(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;

(4) Fees for exemplification and

copies of papers “ee ed obtained

for use in the case .

A comparison of the plain words of § 1920(4) and

§ 1920(2) makes it clear that Congress considered

originals and copies to be separate and distinct items;

§ 1920(4) explicitly mentions copies, while § 1920(2)

8

mentions only the original transcript. It is also clear

that when Congress intended copies to be taxed; it

expressly used that very word.

In its Opinion, however, the Ninth Circuit

relies on a recent decision from the Fifth Circuit

which held that, although Crawford “limits judicial

discretion with regard to the kind of expenses that

may be recovered as costs; it does not prevent courts

from interpreting the meaning of the phrases used in

Section 1920." Westwind Africa Line v. Corpus

Christy Marine Services Co., 834 F2d 1232, 1238 (Sth

Cir. 1988). See also SK Hand Tool Corp. v. Dresser

Industries, Inc., 852 E2d 936, 944 (7th Cir. 1988), cert.

denied, 106 L. Ed. 2d 589 (1989). Yet, although this

Court (and many others) have interpreted the word

"transcript" to include the transcript of a deposition,

no interpretation of the noun can logically include

both the original and a copy thereof. Likewise, to

———

ay. _

interpret the phrase "fees . . . of the marshal" to

encompass any fees, whether generated by the

marshal or anyone else, is to create an entirely new

category of costs never explicitly authorized by

Congress.

As Crawford noted, Section 1920 "embodies

Congress’ considered choice as to the kinds of

expenses that a federal court may tax its costs against

a losing party ...." Crawford, supra, 482 U.S. at

440. In its Opinion, however, the Ninth Circuit

ignores this considered choice and interprets

"transcript" to mean "transcript plus copy” and

"marshal" to mean "any authorized process server."

Such an interpretation is directly at odds with

Crawford’s holding that the sole authority to create

categories of taxable costs rests with Congress, not

with the courts. See, e.g., Viacao Aerea Sao Paulo v.

Int’] Leasing Finance Corp., 119 ER.D. 435, 439 (C.D.

10

Cal. 1988) ("Crawford . . . precluded costs other than

those expressly authorized by statute").

II.

The Ninth Circuit’s Opinion Is In Conflict With

Crawford’s Requirement Of A Single National

Standard In Taxing Costs

Absolute Congressional control over the

taxation of costs insures fairness to all litigants by

standardizing categories of taxable costs throughout

the United States. See, e.g., Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240, 250-52 (1975).

For this reason, Crawford held that the express,

literal words of Congress are the single guideline to

be followed by the federal courts in taxing costs.

Because the Ninth Circuit’s Opinion does not track

the express, literal language of 28 U.S.C. § 1920, the

single nation standard described in Alyeska and

upheld by Crawford falls by the way side.

) 11

: Furthermore, in applying 28 U.S.C. § 1920 as it

has, and by returning a measure of interpretative

leeway to the district courts, it is inevitable that

national uniformity will become impossible. Indeed,

this has already happened. Compare Opinion with

Denny v. Westfield College, 880 F2d 1465, 1472 (1st

Cir. 1989) and Crues v. KFC Corp., 768 F.2d 230, 234

(8th Cir. 1985). If the power of tax costs is "implied"

rather than "express" no single standard is possible.

This is a question of exceptional importance

overlooked in the Ninth Circuit’s Opinion.

III.

The Ninth Circuit’s Opinion Is In Conflict With

Other Circuits Which Have Held That Crawford

Strictly Limits Taxable Costs, And Does Not Allow

Private Service Of Process Fees

Decisions in other circuits reveal a much

stricter view of Crawford than that evidence by the

Ninth Circuit Opinion. As the First Circuit noted in

I steiner

ee

12

considering expert witness fees, "Crawford warns us

. in unmistakable language not to try our hand at

rewriting the statutory scheme according to our own

notions of equity." Denny v. Westfield State College,

supra, 880 F2d at 1472. This view has also been

expressed by the Eighth Circuit which has

specifically held that private service of process fees

RO See ete eM taney 2 tas iat wean

do not fall under 28 U.S.C. § 1920(1) in light of

Crawford. Crues v. KFC Corp., supra, 768 F.2d at

234. The Ninth Circuit's belief that "Congress

| exhibited an intent to make service of process a

| taxable item" (See Opinion at A-16), therefore, is

) directly at odds with the Eighth Circuit. Such a

"belief" also diverges from Crawford’s requirement

that the courts should not interpret Congress’

intentions, but instead should follow the express

language of the statute.

CONCLUSION

For the above-stated reasons, a Petition for Writ of

Certiorari should be granted.

Dated: March 20, 1991

TMH_P014.TMH

Respectfully submitted

RUSSELL J. FRACKMAN

Counsel of Record

MITCHELL, SILBERBERG & KNUPP

11377 West Olympic Boulevard

Los Angeles, California 90064

DANIEL J. PETROCELLI

THOMAS M. HINES

MITCHELL, SILBERBERG & KNUPP

11377 West Olympic Boulevard

Los Angeles, California 90064-1683

By: uo

Russell J. Frackman

Attorneys for Petitioner

Alflex Corporation

APPENDIX

Defendant- ee.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFLEX CORPORATION, )

) No. 89-56008

Plaintiff-Appellant, )

) D.C. No.

v. ) CV 87-3344 JGD

7 )

UNDERWRITERS LABORATO- ) OPINION

RIES, INC., )

)

)

)

Appeal from the United States District Court

for the Central District of California

John G. Davies, District Judge, Presiding

Argued and Submitted

June 6, 1990 — Pasadena, California

Filed September 13, 1990

Before: James R. Browning and Harry Pregerson,

a and Thomas J. MacBride, District Judge’

Per Curiam

' "The Honorable Thomas J. MacBride, United States District judge for the Easters

District of California. sitting by designation

I sternal

a eel em Be ee es ee pee

A-2

SUMMARY

Courts and Procedure

Affirming a district court grant of summary

judgment, the court of appeals held that the taxing

of costs for copies of depositions and private service

of process fees was proper.

The district court granted summary judgment

against appellant Alflex Corporation. On appeal,

that judgment was affirmed in an unpublished

opinion. Alflex now challenges the district court’s

award of costs to Underwriters Laboratories, Inc. for

the expenses it incurred in obtaining a copy of the

transcript of each deposition taken by Alfex, and in

hiring private process servers to serve deposition

subpoenas.

[1] Fees for deposition copies and private

service of process are properly taxed against. the

non-prevailing party. [2] Taxing costs for copies of

depositions was proper since Alflex did not challenge

the district court’s finding that the deposition copies

were necessarily obtained. [3] Private process

servers’ fees are also properly taxed as costs. [4] In

making Marshal’s fees taxable as costs, Congress

exhibited an intent to make service of process a

taxable item. Now that the Marshal is no longer

involved as often in the serving of summonses and

subpoenas, the cost of private process serves should

be taxable under the statute in question.

A-4

COUNSEL

Thomas Hines, Mitchell, Silberberg & Knupp, Los

Angeles, California, for the plaintiff-appellant.

John R. Myers, Bell, Boyd and Lloyd, Chicago,

Illinois, for the defendant-appellee.

OPINION

PER CURIAM:

The district court granted summary judgment

in favor of respondent Underwriters Laboratories

(UL) in a suit brought by appellant Alflex

Corporation (Alflex). We affirmed the summary

judgment in an unpublished disposition.

.

Q

;

A-5

In this appeal, Alflex challenges the district

court’s award of costs to UL for the expenses UL

incurred in obtaining a copy of the transcript of each

deposition taken by Alflex and in hiring private

process servers to serve deposition subpoenas. Alflex

contends that these items are not properly taxable as

costs in light of the Supreme Court’s decision in

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437

(1987).

We review the district judge’s award of costs

for abuse of discretion. Maxwell v. Hapag-Lloyd

Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988).

We affirm the district court and hold that the taxing

of costs for copies of depositions and private service

of process fees was proper.

7

A-6

In Crawford, 482 U.S. 437 (1987), the Supreme

Court held that courts do not have discretion under

Fed. R. Civ. P. 54(d)’ to tax whatever costs seem

appropriate; rather, courts may tax only costs defined

in 28 U.S.C. § 1920.2 "Section 1920 enumerates

' Rule 54(d) states that "Except when express

provision therefor is made either in a statute of the

United States or in these rules, costs shall be allowed

as of course to the — party unless the court

otherwise directs .

. 28 U.S.C. § 1920 provides:

A judge or clerk of any court of the

United States may tax as costs the following:

(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;

(continued...)

A-7

expenses that a federal court may tax as a cost under

the discretionary authority found in Rule 54(d)." 482

U.S. at 441-42.

In this case, the district court taxed the cost of

deposition copies and of private service of process

pursuant to the Local Rules of the United States

District Court for the Central District of California

("Local Rules"). Local Rule 16.4.6(a) permits taxing

"[t]he cost of the original and one copy of all

depositions used for any purpose in connection with

the case." Local Rule 16.4.2 permits taxing as costs

"[f]ees for service of process (whether served by the

2(...continued)

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts,

compensations of interpreters, and salaries,

fees, expenses, and costs of special

interpretation services under section 1828 of

this title.

| |

A-8

“2 toe sa in alee

United States Marshal or other persons authorized by

Fed. R. Civ. P. 4).

Appellant Alflex argues that, in light of

Crawford, these local rules should not be followed

because they permit costs to be taxed that are not

explicitly enumerated in section 1920.

For support, Alflex cites Viacao Aerea Sao Paulo

v. Int'l Lease Finance Corp., 119 ER.D. 435 (C.D. Cal.

1988). In Viacao, the district court held that although

deposition costs fall within the scope of § 1920(2),”

. Section 1920(2) allows for "Fees of the court

reporter for all or any part of the stenographic

transcript necessarily obtained for use in the case."

See supra note 2.

Alflex does not argue that the cost of the

original deposition transcript is not within the scope

of this section. Indeed, there is much support for the

proposition that section 1920(2) covers the costs of

deposition transcripts, as well as trial transcripts. In

(continued...)

A-9

id. at 438, costs for copies of depositions do not. /d. at

439. The court determined that although this circuit,

before Crawford, held that authorization to award

costs of deposition copies was implied by

setae 1920(2), see Independent Iron Works, 322 F.2d at

678, such costs could no longer be taxed because

"Crawford ... precluded costs other than those

expressly authorized by statute." Viacao, 119 ER.D. at

3(...continued)

Independent Iron Works, Inc. v. United States Steel Corp.,

322, F2d 656 (9th Cir.), cert. denied, 375 U.S. 922 (1963),

this court held that the language of that section

"evidences an intent . . . to include within the items

of cost the expenses of copies of transcripts of

pretrial as well as trial proceedings." 322 F2d at 677

n.26. In Hudson v. Nabisco Brands, 758 F.2d 1237 (7th

Cir. 1985), the Fifth Circuit held that section 1920(2)

provides the statutory basis for awarding costs for

obtaining an original deposition transcript. The

court held that a deposition transcript is included in

the term "stenographic transcript," and that the term

“court reporter” in section 1920(2) applies to

stenographers other than and in addition to the

official court reporters assigned to a particular

courtroom. Id. at 1242. See also United States v.

Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963).

A-10

| 439. The district court in Viacao also excluded costs

attributed to “subpoena serving fee[s]" "because

§ 1920 does not allow such costs to be taxed." Id.

[1] We disagree with the analysis in Viacao

and hold that fees for deposition copies and private

| service of process are properly taxed under

section 1920. In Maxwell v. Hapag-Lloyd

Aktiengesellschaft, 862 F.2d 767 (9th Cir. 1988), which

was decided after Crawford, we allowed the costs of

photographic materials used at the trial to be taxed

even though, as the appellant argued in that case,

such materials are not specifically or explicitly

contained in section 1920. In Maxwell, we held that

costs of photographic materials used at the trial "are

encompassed by" the statute’s allowance under

section 1920(4) for "[fjees for exemplification and

copies of papers necessarily obtained for use in the

|

1

Thins MK LE tt NE

Soa alla enh RRA inl AEN wh reid RN neni et

A-11

case." Maxwell, 862 F.2d at 770. We stated: "We

recognize that Crawford strictly limits reimbursable

costs to those enumerated in § 1920. We hold only

that the common meaning of the phrase

‘exemplification and copies of papers’ may under

certain circumstances encompass illustrative materials

if ‘necessarily obtained for use in the case,’ as § 1920

requires.” Jd. (emphasis in original).

[2] The cost of deposition copies is

“encompassed” by section 1920(2), and is therefore

properly taxed under the Crawford and Maxwell

holdings. In Independent Iron Works, 322 F.2d at 678,

we held that the power to tax the expense of copies

of depositions is "implicit in 28 U.S.C.A. § 1920(2),”"

(quoting Perlman v. Feldmann, 116 F. Supp. 102, 109

(D. Conn. 1953)), "qualified only by the requirement

of that statute that the various copies by ‘necessarily

th acca A AB pe, Sem

A-12

obtained for use in the case.” Id. We held that

obtaining copies of depositions taken by the

opposing party may be considered necessary in

certain instances. Id. at 678-679. We now hold that

our interpretation in Independent Iron Works, that

section 1920(2) encompasses the cost of a deposition

copy, is still good law, because, even after Crawford,

we may interpret the meaning of the items

enumerated as taxable costs in section 1920(2). Thus,

here, taxing costs for copies of depositions was

proper since Alflex does not challenge the district

court's finding that the deposition copies were

necessarily obtained.

_ Our holding is supported by recent decisions

from the Fifth and the Seventh Circuits that have

held that courts are free to interpret what constitutes

taxable costs after Crawford. In West Wind Africa Line

as

a. ea

AeA! walt

PANG TIN Ae Mitel No oti Sel ag Cc AB OAL BE. we

A-13

v. Corpus Christi Marine S., 834 F.2d 1232 (5th Cir.

1988), the Fifth Circuit held that although

section 1920 does not specifically mention

depositions, courts have interpreted sections 1920(2)

and 1920(4) to authorize taxing the costs of

deposition originals and deposition copies if

necessarily obtained for the case. Id. at 1237-38. The

court stated that Crawford “limits judicial discretion

with regard to the kind of expenses that may be

recovered as costs; it does not, however, prevent

courts from interpreting the meaning of the phrases

used in § 1920." Id. at 1238.

In SK Hand Tool Corp. v. Dresser Industries, Inc.,

852 E2d 936 (7th Cir. 1988), cert. denied, 109 S. Ct.

3241 (1989), the Seventh Circuit held that the

Supreme Court's decision in Crawford did not

overrule the circuit's interpretation of section 1920(2)

A-14

as including deposition transcripts. Id. at 943-44.

ee

The court stated:

Even though section 1920 does not

specifically mention depositions, we do

not think that Crawford Fitting

necessarily precludes courts from

finding that deposition transcripts are

authorized by that statute. We agree

with the Fifth Circuit that the Supreme

RE Nat ae a ee Se ieee il ttle tiles o

Court did not "prevent courts from

interpreting the meaning of the phrases

used in § 1920."

Id. at 944 (quoting West Wind, 834 F.2d at 1238).

Although the court did not specifically discuss

whether the cost of a copy of a deposition transcript

falls within the statute, it implicitly held that it does

ial

A-15

when it recognized the validity of a local rule that

Se ebm S

provided:

Except as otherwise ordered by the

court, only the cost of the original of

such transcript or deposition together

with the cost of one copy each where

needed by counsel . . . shall be allowed.

Id. at 944 & n.10.

[3] We also hold that private process servers’

fees are properly taxed as costs. Section 1920(1)

allows "“[fJees of the clerk and marshal" to be taxed as

costs. Mo vtshal’s fees are governed by 28 U.S.C.

§ 1921 which provides, inter alia, for the collection of

fees for serving a subpoena or summons. Local

A-16

Rule 16.4.2 permits taxing as costs fees for service of

process by any person authorized by Fed. R. Civ. P 4.

[4] In making Marshal’s fees taxable as costs

in section 1920(1), we believe Congress exhibited an

intent to make service of process a taxable item.

Since the enactment of section 1920(1), the method of

serving civil summonses and subpoenas has

changed. The U.S. Marshal no longer has that

responsibility in most cases, but rather a private

party must be employed as process server. See Fed.

R. Civ. P. 4(c)* and 45(c).2 Now that the Marshal is

' Rule 4(c)(2)(A) provides:

A summons and complaint shall, except

as provided in subparagraphs (B) and

(C) of this paragraph, be served by any

person who is not a party and is not

less than 18 years of age.

Rule 4(c)(2)(B) provides:

(continued...)

A-17

‘(...continued)

A summons and complaint shall,

at the request of the party seeking

service or such party’s attorney, be

served by a United States marshal or

deputy United States marshal, or by a

person specially appointed by the court

for that purpose only —

(i) on behalf of a party

authorized to proceed in forma

pauperis pursuant to Title 28,

U.S.C. § 1915, or of a seaman

authorized to proceed under Title 28,

U.S.C. § 1916,

(ii) on behalf of the United States

or an officer or agency of the United

States, or

(iii) pursuant to an order issued by the

court stating that a United States marshal of

deputy United States marshal, or a person

specially appointed for that purpose, is

required to serve the summons and complaint

in order that service be properly effected in

_ that particular action.

Fed. R. Civ. P. 4(c)(2)(B) (emphasis added)

, Rule 45(c) provides in pertinent part:

(continued...)

A ne aa,

A-18

no longer involved as often in the serving of

summonses and subpoenas, the cost of private

process servers should be taxable under 28 U.S.C.

§ 1920(1).°

AFFIRMED.

°(...continued)

A subpoena may be served by

_the marshal, by a deputy marshal, or by

any other person who is not a party

and is not less than 18 years of age...

. We recognize that the Eighth Circuit held

differently in Crues v. KFC Corp., 768 F2d 230 (8th

Cir. 1985). There, the court held that the prevailing

party could not recover costs for use of a special

process server because "28 U.S.C. § 1920 (1982)

contains no provision for such expenses.” Id. at 234.

However, we find the reasoning in Roberts v.

Homelite Div. of Textron, Inc., 117 ER.D. 637 (N.D. Ind.

1987) more persuasive. In Roberts the district court

held that "[dJue to the substitution of private process

servers for the U.S. Marshal Service in recent years, it

is appropriate to allow private process fees as costs."

Id. at 641.

A-19

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFLEX CORPORATION,

)

)

Plaintiff-Appellant, ) No. 89-56008

)

v. ) ORDER

)

UNDERWRITERS LABORATO-_ )

RIES, INC., )

)

Defendant-Appellee. )

)

Before: BROWNING, PREGERSON, Circuit

Judges, and MACBRIDE, District

Judge’

The panel as constituted above voted to deny

the petition for rehearing and to reject the

suggestion for rehearing en banc.

; The Honorable Thomas J. MacBride, United

States District Judge for the Eastern District of

California, sitting by designation.

A-20

The full court has been advised of the

suggestion for rehearing en banc, and no judge of

the court has requested a vote on the suggestion for

rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the

suggestion for rehearing en banc is rejected.

A-21

28 U.S.C. § 1920

§ 1920. Taxation of costs

A judge or clerk of any court of the United

States may tax as costs the following:

(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,

compensations of interpreters, and salaries, fees,

expenses, and costs of special interpretation services

under section 1828 of this title.