Opposition Brief — Alflex Corp. v. Underwriters Laboratories, Inc.

| Supreme Court, U.S,

FILED,

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No. 90-1782 SEP 6 1991

OFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

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ALFLEX CORPORATION,

Petitioner,

Vv.

UNDERWRITERS LABORATORIES INC.,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Victor E. Grimm

(Counsel of Record)

JOHN R. Myers

BELL, BOYD & LLOYD

Three First National Plaza

70 West Madison Street

Chicago, Illinois 60602

(312) 372-1121

Dated: September 6, 1991

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED

Petitioner has misstated the question presented. Prop-

erly stated, the question is:

- Whether the taxation of costs for deposition transcript

copies and deposition subpoena service fees is authorized

by 28 U.S.C. § 1920?

‘i

TABLE OF CONTENTS

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BE OD cd: kar dea KKededoneesanwnan

Additional Relevant Legal Authority ..........

oo ere rere rer

Reasons for Denying the Writ ................

I.

Il.

ITI.

The Ninth Circuit Opinion Is Not In

Conflict With This-Court’s Decision In

Crawford Fitting Co. v. J.T. Gibbons,

Ine., 482 US. 487 (1967) ............

The Ninth Circuit’s Decision Is Consis-

tent With A Single National Standard

For Taxation Of Costs ...... ee.

The Lone Decision Relied On By Peti-

tioner On The Award Of Deposition Ser-

vice Fees Does Not Create A “Conflict

With Other Circuits” That Justifies Re-

WOOD cicocincds kseremaeekeee cine:

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Respondent’s IE, 6 ésdussVerdoenueeun as

TABLE OF AUTHORITIES

Cases

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

PAGE

ee a eek a saeceeue ee passim

Cross v. General Motors Corp., 563 F. Supp. 368

(E.D. Mo. 1982), aff'd, 721 F.2d 1152 (8th Cir.

1983), cert. denied, 466 U.S. 980 (1984) ....

Crues v. KFC Corp., 768 F.2d 230 (8th Cir. 1985) ..

Govas v. Chalmers, 1991 U.S. Dist. LEXIS 7563

gh

Harrington v. City of Portland, 1990 U.S. Dist.

LEXIS 15102 (D. Ore. November 7, 1990) ..

In re Howard, 1991 Bankr. LEXIS 695 (D. Md.

a

Hudson v. Nabisco Brands, Inc., 758 F.2d 1237

ee cc escceescbes

Independent Iron Works, Inc. v. United States

Steel Corp., 322 F.2d 656 (9th Cir.), cert. denied,

I I cob aes cecccccsceescss

Lockett v. Hellenic Sea Transports, Ltd., 60 F.R.D.

Eo bec cewcbiccdecccece

McCray v. New York, 461 U.S. 961 (1983) .....

Morrissey v. County Tower Corp., 568 F. Supp.

EE isc ohskbaaseecsne ress

Murphy v. Amoco Production Co., 588 F. Supp.

591 (D. N.D. 1983), aff'd, 729 F.2d 552 (8th Cir.

ne re

Nissho-Iwai Co., Ltd. v. Occidental Crude Sales,

Inc., 729 F.2d 1530 (5th Cir. 1984) ........

iv

PAGE

Northbrook Excess and Surplus Insurance Co. v.

Procter & Gamble Co., 924 F.2d 633 (7th Cir.

OO arsirg es” Benteicn por ae en 5

Principe v. McDonald’s Corp., 95 F.R.D. 34 (E.D.

Ea ran TOG bes k 5 Gh e546 KEREER A Gem « 5

Roberts v. Homelite Div. of Textron, Inc., 117

ee Se i ere ee eee 6

SCA Services, Inc. v. Lucky Stores, 579 F.2d 178

oR ee eae eee 5

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

852 F.2d 936 (7th Cir. 1988), cert. denied, 492

EE a ce wae es scaehwes o* 5

Tang How v. Edward J. Gerrits, Inc., 756 F. Supp.

8 Gd Brrr eee

United States v. Kolesar, 313 F.2d 835 (5th Cir.

ee ea he ue cs sg LEE Ci eas oe 4

Viacao Aerea Sao Paulo, S.A. v. International

Lease Finance Corp., 119 F.R.D. 485 (C.D. Cal.

SE Sas no's be Ces cia ckencs cccenseake cso 5, 7, 8

West Wind Africa Line, Ltd. v. Corpus Christi

Marine Services Co., 834 F.2d 1232 (5th Cir.

ANS ep ns ee, Ge ne 5

Statutes

ee ee OAs a weweus 4

nck vce eeu bankedewats unease passim

ee EE EE 3 650 GN 5.4 0 Ko tlns see cds 0-0¥s 6

Vv

Other Authorities

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ee ee ébeneoueees

4g Se a BEE ee

Justice Brennan, Some Thoughts on the Supreme

Court’s Workload, 66 JUDICATURE 230 (1983) ..

Justice Stevens, Some Thoughts on Judicial Re-

straint, 66 JUDICATURE 177 (1982) ..........

Local Rules of the United States District Court of

the Central District of California,

SE Crest dn Pak ak whe oeWs bas ee

Local Rules of the United States District Court of

the Eastern District of California, Rule 292(fX2) . .

Local Rules of the United States District Court of

the Northern District of Illinois, Rule 45(b) ...

Local Rules of the United States District Court of

the District of Columbia, Rule 214(dX6) ......

Local Rules of the United States District Court of

the Eastern District of Wisconsin, Rule 9.02(b) . .

Local Rules of the United States District Court of

the Eastern District of New York, Rule 11(cX2) ..

6 Moore’s Federal Practice § 54.77[4], at 54-417-418

ee ee aie uketvecedaceet

Standing Order (M-10-468) of the Board of Judges

of the Southern District of New York, Items

(2) and (10) dated April 20, 1990 ..........

5, 6

No. 90-1782

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

ALFLEX CORPORATION,

Petitioner,

Vv.

UNDERWRITERS LABORATORIES INC.,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondent Underwriters Laboratories Inc. (“UL”)!

respectfully requests that this Court deny the Petition for

Writ of Certiorari (‘‘Petition’”’) seeking review of the deci-

sion of the Ninth Circuit Court of Appeals (‘‘Opinion’’).?

1 Respondent Underwriters Laboratories Inc. has no parent com-

panies, subsidiaries or affiliates.

2 The opinion is reprinted in the Appendix to the Petition for

Certiorari (““A-___”’). The order of the district court, Order Re

Plaintiff's and Defendant’s Motions to Retax Costs, is reprinted

in the Appendix to this brief (““RA-___”’).

ao

ADDITIONAL RELEVANT

LEGAL AUTHORITY

Rules 4(c) and 45(c) of the Federal Rules of Civil Pro-

cedure and applicable sections of Rule 16.4 of the Local

Rules of the United States District Court of the Central

District of California are reprinted in the Appendix to this

Brief at RA-3-5.

STATEMENT OF THE CASE

Petitioner, Alflex Corporation (“Alflex”’), filed an action

against UL in the Central District of California for alleged

violations of the Lanham Act and related state law claims.

The district court granted summary judgment in favor of

UL, and the United States Court of Appeals for the Ninth

Circuit affirmed. Alflex filed a petition for writ of cer-

tiorari on the merits, which is Petition No. 90-1781.

The district court also awarded UL $49,090.15 in costs,

and Alflex filed an appeal, challenging $16,979.76 of the

costs award, $15,655.06 for copies of deposition transcripts

and $1,324.70 for deposition subpoena service fees. The

Ninth Circuit affirmed, and Alflex filed a petition for writ

of certiorari on these cost items to which UL responds

herein.

alien

REASONS FOR DENYING THE WRIT

we ae

Alflex fails to present an issue which merits review

because: (i) the Ninth Circuit opinion below is not in con-

flict with Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

U.S. 437 (1987); (ii) the Ninth Circuit’s reading of 28 U.S.C.

§ 1920 does not threaten a single national standard for

taxation of costs; and (iii) the fone decision cited by Alflex

as contrary to the Ninth Circuit’s approval of the award

of deposition subpoena service fees of $1,324.70 does not

create a “conflict with other circuits” that justifies this

Court’s review.

E.

The Ninth Circuit Opinion Is Not In Conflict

With This Court’s Decision In Crawford Fitting Co.

v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)

Alflex has mischaracterized this Court’s decision in Craw-

ford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)

in an effort to portray a conflict where none exists. In

Crawford, the Court rejected petitioners’ argument that

Rule 54(d), Fed. R. Civ. P., “is a separate source of power

to tax as costs expenses not enumerated in § 1920.” Id.

at 441. The Ninth Circuit, here, did not base its decision

on Rule 54(d) as a “separate source of power” in affirming

the cost award. Instead, consistent with Crawford, the

court relied on the provisions of §1920(1) and (2). A-11-12,

A-15-18.

Contrary to Alflex’s suggestion, Crawford does not hold

that § 1920 is to be given the narrowest possible reading.

Petition, pp. 5-6. In Crawford, the Court was addressing

an unambiguous thirty dollar per day restriction on wit-

illioi

ness fees. which petitioners sought to avoid under the

authority of Rule 54(d). Id. at 442; 28 U.S.C. §§ 1821, 1920.

While ruling that courts may not rely on Rule 54(d) as

authority to go beyond § 1920, the Court did not reject

the body of law that has developed in the lower courts

interpreting the language of § 1920 itself. Necessarily, the

lower courts have given a practical meaning to ‘‘Congress’

considered choice as to the kinds of expenses that a fed-

eral court may tax as costs.” Id. at 440.

Alflex admits that the “plain words” of § 1920(2), “Fees

of the court reporter for . . . the stenographic transcript,”

have been properly interpreted by this Court and by

other courts to include a deposition transcript even though

these ‘plain words” do not specifically mention deposi-

tions. Petition, p. 8; A-8-9 n.3; 6 Moore’s Federal Prac-

tice ¢ 54.774], at 54-417-418 (2d ed. 1990). Thus, the courts

have given § 1920 a natural reading in light of the realities

of modern litigation to include deposition as well as hear-

ing transcripts. Hudson v. Nabisco Brands, Inc., 758 F.2d

1237, 1242-43 (7th Cir. 1985).

Nevertheless, Alflex fixates on the singular form of the

noun, “transcript,” to argue that the statute cannot rea-

sonably be read to allow recovery of the costs of a copy

of a deposition transcript, that Congress could only have

intended “transcript” to mean the “original.” Petition,

p. 8. These were depositions taken by petitioner, of which

UL received only one copy. Alflex’s position that “deposi-

tion” may be read into § 1920(2), but “deposition copy”

may not, is inherently illogical and unreasonable. No sup-

port for such a half practical/half literal interpretation of

§ 1920 is found in Crawford.

For almost thirty years, courts have read § 1920(2) to

include deposition copies as a recoverable cost. United

States v. Kolesar, 313 F.2d 835, 838-39 (5th Cir. 1963);

odes

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

322 F.2d 656, 678 (9th Cir.), cert. denied, 375 U.S. 922

(1963); SCA Services, Inc. v. Lucky Stores, 599 F.2d 178,

181 (7th Cir. 1979).* This interpretation has been codified

in the local rules of numerous federal district courts, in-

cluding the district court below. See, e.g., Local Rules of

the United States District Court of: the Central District

of California, Rule 16.4.6(a); the Northern District of IIli-

nois, Rule 45(b); the District of Columbia, Rule 214(dX6);

the Eastern District of Wisconsin, Rule 9.02(b); the East-

ern District of New York, Rule 11(cX2); and Standing

Order (M-10-468) of the Board of Judges of the Southern

District of New York, Item (2), dated April 20, 1990.

The court below properly concluded that Crawford did

not overrule these cases, invalidate these local rules and

prohibit the award of costs for deposition copies under

§ 1920. A-10-12. Other circuit courts, awarding such costs

after Crawford, have arrived at the same conclusion. North-

brook Excess and Surplus Insurance Co. v. Procter &

Gamble Co., 924 F.2d 633, 642-643, 644 n.15 (7th Cir.

1991); SK Hand Tool Corp. v. Dresser Industries, Inc.,

852 F.2d 936, 944 (7th Cir. 1988), cert. denied, 492 U.S.

918 (1989); West Wind Africa Line, Ltd. v. Corpus Christi

Marine Services, Co., 834 F.2d 1232, 1237-88 (5th Cir.

1988). The only case cited by Alflex in support of its in-

terpretation of Crawford, Viacao Aerea Sao Paulo, S.A.

v. International Lease Finance Corp., 119 F.R.D. 435

3 See, e.g., Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc.,

729 F.2d 1530, 1553 (5th Cir. 1984) (recovery of costs of copies

of depositions called by successful party); Govas v. Chalmers, 1991

U.S. Dist. LEXIS 7653 at 2-4 (N.D. Ill. June 5, 1991); Morrissey

v. County Tower Corp., 568 F. Supp. 980, 983 (E.D. Mo. 1983);

Murphy v. Amoco Production Co., 558 F. Supp. 591, 594 (D. N.D.

1983), aff'd, 729 F.2d 552 (8th Cir. 1984); Principe v. McDonald’s

Corp., 95 F.R.D. 34, 37 (E.D. Va. 1982); Lockett v. Hellenic Sea

Transports, Ltd., 60 F.R.D. 469, 472 (E.D. Pa. 1973).

=

(C.D. Cal. 1988), was specifically overturned by the Ninth

Circuit in the opinion below. A-10; Petition, pp. 9-10.

Similarly, the award of deposition subpoena service fees

here falls within 28 U.S.C. § 1920(1), allowing for the tax-

ation of the fees of the marshal. The Ninth Circuit noted

that 28 U.S.C. § 1921 provides for the collection of fees

for serving subpoenas by the marshal and that Fed. R.

Civ. P. 4(c) and 45(c) have been amended to prohibit ser-

vice of subpoenas by the marshal in the circumstances

present in this case, but, alternatively, to allow service

by others. A-15-16. The court reasoned that ‘Congress

exhibited an intent to make service of process a taxable

item”’ and that, since “the Marshal is no longer involved

as often in the serving of summonses and subpoenas, the

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

1920(1).”” A-16-18 (footnote omitted).

Most courts that have addressed the issue have reached

the same conclusion. See Roberts v. Homelite Div. of Tex-

tron, Inc., 117 F.R.D. 637, 641 (N.D. Ind. 1987). See also

In re Howard, 1991 Bankr. LEXIS 695 at 6 (D. Md. April

30, 1991) (majority of courts allow fees of private process

servers as costs under § 1920(1)); Tang How v. Edward

J. Gerrits, Inc., 756 F. Supp. 1540, 1545 (S.D. Fla. 1991);

Harrington v. City of Portland, 1990 U.S. Dist. LEXIS

15102 at 10 (D. Ore. November 7, 1990); Cross v. General

Motors Corp., 563 F. Supp. 368, 370 (E.D. Mo. 1982), aff'd,

721 F.2d 1152 (8th Cir. 1983), cert. denied, 466 U.S. 980

(1984). This interpretation has also been codified by féderal

district courts in their local rules. See, e.g., the Local

Rules of the United States District Court of: the Central

District of California, Rule 16.4.2; the Eastern District of

California, Rule 292(f2); and Standing Order (M-10-468)

of the Board of Judges of the Southern District of New

York, Item (10), dated April 20, 1990.

=

Other than Viacao, overruled by the court below, Alflex

cites only one case purportedly holding a contrary view

on this issue: Crues v. KFC Corp., 768 F.2d 230, 234 (8th

Cir. 1985). Petition, p. 12. Crues, decided before Crawford,

offers no compelling rationale for denying such costs. In-

deed, the court in Crues does not indicate whether it even

considered the effect of the 1983 amendments to Fed. R.

Civ. P. which eliminated marshal service of subpoenas in

most cases. Jd. at 234. Further, KFC submitted a bill for

costs relating to a 1982 trial and a 1984 retrial in the case,

but it is not apparent from the opinion whether the mar-

shal was still available for service of process at the time

the costs at issue were incurred. Jd. at 232, 234-35. Given

these two critical distinctions, it is by no means apparent

that the Eighth Circuit would rule any differently than

the court below.

Alflex would have this Court completely eliminate re-

covery of subpoena service fees in most cases despite Con-

gress’ clear intent to the contrary. Alflex’s interpretation

would render § 1920 meaningless much as the petitioner’s

proposed interpretation would have done in Crawford, ex-

cept that, here, Alflex is attempting to delete rather than

add categories of taxable costs. Crawford, supra at 441-42.

Petition, p. 9. By contrast, the court below, with due con-

sideration for the concerns expressed in Crawford, allowed

recovery specifically for the ‘“‘kinds of expenses” enumer-

ated by Congress under § 1920. Jd. at 440. A-6-7, A-10-14.

IT.

The Ninth Circuit’s Decision Is

Consistent With A Single National Standard

For Taxation of Costs

Alfiex argues that the Ninth Circuit’s taxation of the

costs is based upon an “implied” rather than an “express”

=

meaning of 28 U.S.C. § 1920 and will therefore prevent

“national uniformity” in the taxation of costs by federal

courts. Petition, pp. 10-11. Yet, it is Alflex that attempts

to disturb the national standard that has been developed

by the courts interpreting §1920. As discussed above, the

courts that have addressed these issues, in case law or

local rules, have generally recognized that deposition copies

and private process service fees are recoverable costs un-

der the authority of § 1920. The result has been a con-

sistent interpretation of the provisions at issue, awarding

costs that Congress has clearly shown an intention to

allow.

On the other hand, Viacao Aerea, upon which Alflex

relies most heavily, was a maverick decision of a district

court judge, in contravention of the local court rules.

Viacao Aerea, supra at 438-39. The decision was never

followed or cited, even within the Central District of Cal-

ifornia, was ignored completely by the district court below

and was overruled by the Ninth Circuit. A-10. No other

court has adopted a similar view of § 1920 under the aus-

pices of this Court’s Crawford decision or under any other

authority. Thus, Viacao, not the Ninth Circuit’s opinion,

is the aberration. The Ninth Circuit has not overlooked

“‘a question of national importance,” as Alflex suggests.

Petition, p. 11.

Ill.

The Lone Decision Relied On By Petitioner

On The Award Of Deposition Service Fees Does

Not Create A ‘‘Conflict With

Other Circuits’’ That Justifies Review

Alflex implies that the opinion below affirming an award

of $1,324.70 for private process server fees “‘is in conflict

with other circuits’”’ which have adopted a “stricter view

ie

of Crawford.” Petition, pp. 11-12. However, Alflex cites

only one circuit court decision that actually denies this

item of costs: Crues v. KFC Corp., supra. Petition, p. 12.

In Crues, the Eighth Circuit instructed the district court

not to award “special process server” fees. Jd. at 234.

As discussed above, there is no evidence that the Eighth

Circuit considered the 1983 amendments to Fed. R. Civ.

P. 4(c) and 45(c) which effectively eliminated process ser-

vice by marshals. Nor is it clear whether the costs at

issue in Crues were incurred after these amendments

became effective, or, indeed, that the Eighth Circuit would

decide the case in the same manner today. See p. 7, supra.

Even if Crues were considered to be in conflict with

the decision below, such a conflict, between two circuits,

would be insufficient to merit review. Justice Brennan,

Some Thoughts on the Supreme Court’s Workload, 66

JUDICATURE 230, 233 (1983); Justice Stevens, Some

Thoughts on Judicial Restraint, 66 JUDICATURE 177, 183

(1982). See also McCray v. New York, 461 U.S. 961, 963

(1983) (Stevens, J.) (certiorari denied where issue requires

“further study” in lower courts “before it is addressed

by this Court’’).

—10—

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

Victor E. Grimm

(Counsel of Record)

JOHN R. Myers

BELL, BOYD & LLOYD

Three First National Plaza

70 West Madison Street

Chicago, Illinois 60602

(8312) 372-1121

Desra S. Rape

Underwriters Laboratories Inc.

333 Pfingsten Road

Northbrook, Illinois 60062

Attorneys for Respondent

Dated: September 6, 1991

RESPONDENT’S APPENDIX

RA-1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ALFLEX CORPORATION, a ) Case No. CV

California corporation, ) 87-3344 (JGD)

)

Plaintiff, ) ORDER RE

Vv. ) PLAINTIFF’S AND

) DEFENDANT'S

UNDERWRITERS LABORATORIES ) MOTIONS TO

INC., a Delaware corporation, ) RETAX COSTS

)

Defendant. )

The motions of defendant Underwriters Laboratories,

Inc. and plaintiff Alflex Corporation to retax costs came

on regularly for hearing on July 24, 1989, in the United

States District Court before the Honorable John G. Davies.

After full consideration of the moving and responding

papers, all supporting papers and exhibits, the file in this

case, and the oral argument of counsel, the Court ren-

dered its decision.

IT IS HEREBY ORDERED AND ADJUDGED as

follows:

1. Plaintiff's Motion to Retax Costs is denied in its

entirety;

2. Defendant’s Moticn to Retax Costs is granted in the

following respects:

(a) Service of process fees in the sum of $1,324.70

are awarded.

(b) Photocopying costs in the sum of $3,107.80,

minus $288.60 already awarded.

RA-2

(c) The claim for additional deposition costs in

the sum of $1,424.01 is also awarded.

3. Defendant’s request for expedited delivery costs for

transcription of depositions to computer disks is not

allowed.

Therefore, in conjunction with the previous findings of

the Clerk, defendant Underwriters Laboratories, Inc. is

entitled to recover the following costs from plaintiff Alflex

Corporation:

1. Deposition costs in the amount of $44,253.25 ($42,829.24

awarded by the Clerk plus an additional $1,424.01);

2. $693.00 in non-party witness fees and filing fees;

3. Service of process fees of $1,324.70;

4. Photocopying costs of $2,819.20 ($3,107.80 minus

$288.60 already awarded).

5. Total awarded: $49,090.15.

DATED: August 4, 1989

John G. Davies

United States District Judge

RA-3

FEDERAL RULES OF CIVIL PROCEDURE

Rule 4(c)

(1) Process, other than a subpoena or a summons and

complaint, shall be served by a US marshal or deputy

US marshal, or by a person specially appointed for the

purpose.

(2) (A) A summons and complaint shall, except as pro-

vided 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.

(B) A summons and complaint shall, at the request

of the party seeking service or such party’s attorney, be

served by a US marshal or deputy US marshal, or by

a person specially appointed by the court for that pur-

pose, 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 US marshal or deputy US marshal, or a

person specially appointed for that purpose, is required

to serve the summons and complaint in order that ser-

vice be properly effected in that particular action.

(C) A summons and complaint may be served upon

a defendant of any class referred to in paragraph (1) or

(3) of subdivision (d) of this rule—

(i) pursuant to the law of the State in which

the district court is held for the service of summons or

other like process upon such defendant in an action brought

in the courts of general jurisdiction of that State, or

(ii) by mailing a copy of the summons and of

the complaint (by first-class mail, postage prepaid) to the

RA-4

person to be served, together with two copies of a notice

and acknowledgment conforming substantially to form

18-A and a return envelope postage prepaid, addressed

to the sender. If no acknowledgment of service of this

subdivision of this rule is received by the sender within

20 days after the date of mailing, service of such sum-

mons and complaint shall be made under subparagraph

(A) or (B) of this paragrapi: in the manner prescribed by

subdivision (dX1) or (dX8).

(D) unless good cause is shown for not doing so the

court shall order the payment of the costs of personal ser-

vice by the person served if such person does not com-

plete and return within 20 days after mailing, the notice

and acknowledgment of receipt of summons.

(E) the notice and acknowledgment of receipt of

summons and complaint shall be executed under oath or

affirmation.

(3) the court shall freely make special appointments to

serve summonses and complaints under paragraph (2B)

of this subdivision of this rule and all other process under

paragraph (1) of this subdivision of this rule.

Rule 45(c) Service

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. Service of a subpoena

upon a person named therein shall be made by deliver-

ing a copy thereof to such person and by tendering to

that person the fees for one day’s attendance and the

mileage allowed by law. When the subpoena is issued on

behalf of the U.S. or an officer or agency thereof, fees

and mileage need not be tendered.

RA-5

LOCAL RULES FOR THE

UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF CALIFORNIA

16.4 Items taxable as costs. The following items are

taxable as costs:

16.4.2 Fees for service of process. Fees for service of

_—— (whether served by the United States

arshal or other persons authorized by FR Civ

P4).

16.4.6 Depositions. Costs incurred in connection with

taking depositions, including

(a) The cost of the original and one copy of all

depositions used for any purpose in connection with the

case.