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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2109%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 812

## Text

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

el A)

Mad ni

bg cee = Ut

ae aio CC;

im

i
peedra a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2109%3A1. Public record. Not legal advice.