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

| Supreme Court, >. | 4

FILED

SEP 25 1991

No. 90-1782

OFFICE OF THE Cait

IN THE SUPREME COURT OTHE

UNITED STATES

OCTOBER TERM, 1991

ALFLEX CORPORATION,

Petitioner,

V.

UNDERWRITERS LABORATORIES, INC.,

Respondent.

PETITIONER’S REPLY TO

RESPONDENT'S OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSSELL J. FRACKMAN

Counsel of Record

DANIEL M. PETROCELLI

THOMAS M. HINES

MITCHELL, SILBERBERG & KNUPP

11377 West Olympic Boulevard

Los Angeles, California 90064

Telephone: (213) 312-2000

Attorneys for Petitioner

Alflex Corporation

a

TABLE OF CONTENTS

Page

Sees GO PEED 6-8 vv ccc cccceseceees li

I. SPUR TURE oo 6 ns waeaaséeonwaree 1

Il. RESPONDENT IGNORES THE CONFLICT

BETWEEN THE NINTH CIRCUIT OPINION

AND THIS COURT’S MANDATE IN

REE wavs sos bh ennes sh se ebe'es 2

I. |THE OPINION BELOW CREATES

CONFLICTS AMONG THE CIRCUITS AND

DEFEATS THE PURPOSE OF

2 ere 9

EEE Bs Khoo cE cas secrsseasdsecess 15

TABLE OF AUTHORITIES

Page(s)

CASES

erea S a S.A. v. International Lease

i . 119 ER.D. 435

CE cc kei s bees c ee sevecs 4,9

ex . v. Underwriters Laboratories, Inc.

rr 2

Alves ipeline Service Co. v. Wilderness Socie

EID sec cc cee sees ssecesees 10

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

ss rr 2, 4, 5, 6, 7,

8,9, 11, 14

Crues v. :

ya eae ee eet Gir, 1985) 0. ww eee 9,12

Denny v. Westfield College,

880 F2d 1465 (Ist Cir. 1989) ................ Q

Govas v. Chalmers,

1991 U.S. Dist. LEXIS 7653 (N.D. Ill. 1991) ..... 6

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

Rue? SIPEUEE CEP. GOED, 19P1) 2. wee eee ee 6

In re Howard, 1991 Bankr. LEXIS 695

GGG CaS sec h cece eceses 6

Hudson v. Nabisco Brands, Inc.,

758 F.2d 1237 (7th Cir. 1985) ............... 5

Independent Iron Works, Inc. v. United States

Steel Corp., 322 F2d 656 (9th Cir.),

cert. denied, 375 U.S. 922 (1963) ........... 5

Leroy v. City of Houston,

831 E2d 576 (Sth Cir. 1987), cert. denied

eee 10

Lockett v. Hellenic Sea Transports, Ltd.

60 ER.D. 469 (E.D. Pa. 1973) ............45. 5

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) .... 5

Morrissey v. County Tower Corp.,

568 F Supp. 980 (E.D. Mo. 1983) ............ 5

Murphy v. Amoco Production Co., 558 F Supp. 591

(D.N.D. 1983), aff’d, 729 F2d 552

SE EWU ewe W Ne wes eb care sence. 5

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

oer we]. Le @ RRR 5

Patterson v. Lamb, 329 U.S. 539 (1947) .......... 11

Principe v. McDonald’s Corp.,

ek 5

SCA Services, Inc. v. Lucky Stores,

og a fo le 5

United States v. Doe, 465 U.S. 605 (1984) ......... 5

United States v. Kolesar,

ee | a 5

United Steelworkers of erica v. Use

CEE wibriyc bade csacerccs see 11

West Virginia Hospitals v. Casey,

a Aes Bees es Ok GF (2991)... 3

West Virginia University Hospitals, Inc. v. Casey,

885 F.2d 11 (3rd Cir. 1989), aff’d,

__ US. ___, 113 L. Ed. 2d 68 (1991) ....... 9

STATUTES

eee 3, 4,5, 6, 7, 8, 9

NS ca isnncescensccecceves 4

OTHER AUTHORITIES

Local Rules of the United States District Court of

the District of Idaho, Rule 54.1(b)(3) ...... 13

Local Rules of the United States District Court of

the Northern Mariana Islands, Rule 125(3)(b) 13

Local Rules of the United States District Court of

the District of Nevada, Rule 205(4) ....... 13

Local Rules of the United States District Court of

the Middle District of North Carolina,

Rule 209%(c)(1)(ii) .... 20. e eee eee eee eee 13

Local Rules of the United States District Court of

the District of the Southern District of

eS ee 13

Local Rules of the United States District Court of

the District of Montana, Rule 265 ........

Local Rules of the United States District Court of

the District of South Carolina,

FP eT ree ee Tee eT TET eT

Local Rules of the United States District Court of

the District of Arizona, Rule 49(e)(3) ......

Local Rules of the United States District Court of

the Eastern District of Washington,

NN REPS ARS ee

Local Rules of the United States District Court of

the District of Delaware,

Se eee ee Tee eee

Local Rules of the United States District Court of

the District of Alaska, Rule 21(B)(3) ......

I.

INTRODUCTION

Petitioner, Alflex Corporation ("Alflex" or "Peti-

tioner"), is a manufacturer of flexible electrical conduit.

On May 26, 1987, Petitioner brought suit against Res-

pondent, Underwriters Laboratories, Inc. ("UL" or

"Respondent"), the nation’s premier certification

company. Petitioner sought damages and injunctive

relief for violations of the Lanham Act, unfair competi-

tion, and other claims, arising out of UUs listing of a

third-party’s competitive product when that product

failed to and was not required by UL to meet the same

standards required of Petitioner and other manufactur-

ers of flexible electrical conduits.

The District Court entered summary judgment

on April 10, 1989, dismissing Alflex’s claims. On

May 16, 1989, the Clerk of the Court reviewed UL's

Bill of Costs and awarded less than half of the

$90,349.28 requested.. Alflex then served and filed a

Motion to Retax Costs, which was denied in its entire-

2

ty. 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. Alflex appealed this

award insofar as it included categories of costs not

explicitly authorized by Congress and, therefore, not

properly taxable under Crawford Fitting Co. v. J.T.

Gibbins, Inc., 482 U.S. 437 (1987). The Ninth Circuit

affirmed the District Court’s award of costs in Alflex

Corp. v. Underwriters Laboratories, Inc., 914 E2d 175

(9th Cir. 1990) (per curiam).

Il.

RESPONDENT IGNORES THE CONFLICT

BETWEEN THE NINTH CIRCUIT OPINION

AND THIS COURT’S MANDATE IN CRAWFORD

In Crawford Fitting Co. v. ].T. Gibbins, Inc., 482

U.S. 437 (1987) (hereinafter Crawford), this Court re-

3

viewed the statutory authority of the federal courts to

tax costs and concluded that, "without plain evidence

of Congressional intent," federal courts simply are not

empowered "to exceed the limitations explicitly set out

in [28 U.S.C. §] 1920." Id. at 445. As this Court went

on to explain, the sole discretion available to the judi-

ciary under the Federal Rules of Civil Procedure is the

option of declining to tax costs; and no discretion

exists to tax costs not expressly authorized by Con-

gress. Id. at 441-42. In short, this Court held that §

1920 "embodies Congress’ considered choice as to the

kinds of expenses that a federal court may tax as costs

against a losing party...." Id. at 440. No other costs

may properly be taxed.’

Rather than accept this clear mandate, however,

the Ninth Circuit upheld the taxation of two categories

1 This clear directive was recently reaffirmed in West

Virginia Hospitals v. Casey, ___U.S. ____, 113 L. Ed 2d 67, 75-

76 (1991) (§ 1920 is "an express limitation on the types of

costs, which, absent other authority, may be shifted by the

federal courts”).

of costs never enumerated by statute, relying - not

upon any express statutory authority -- but upon an

"implicit" authority to award costs.* As the Opinion

states:

"[E]ven after Crawford, we may interpret

the meaning of the items enumerated as

taxable costs in section 1920(2)."

Opinion at A-11, A-12.

Clearly the Ninth Circuit Opinion is in appar-

ent conflict with the ruling in Crawford, which reject-

ed such "implicit" authority; as such, strong grounds

exist for granting a writ of certiorari.”

In so doing, the Ninth Circuit also overruled Aerea Sao

Paulo, S.A. v. International Lease Finance Corp., 119 ER.D.

435 (C.D. Cal 1988), which expressly held that the costs of

deposition copies and private service of process fees could no

properly be taxed pursuant to § 1920 because "Crawford ...

precluded costs other than those expressly authorized by

statute. Id. at 439.

3 In addition, the Ninth Circuit failed to examine Local

Rules 16.4.6(a) and 16.4.2 of the Central District of California

in light of Crawford and 28 U.S.C. § 1920. These rules vio-

late 28 U.S.C. § 2071(a), which dictates that Local Rules must

"be consistent with Acts of Congress.”

5

See, e.g., United States v. Doe, 465 U.S. 605, 610 (1984);

Lugar v. Edmonson Oil Co., 457 U.S. 922, 926 (1982).

Respondent argues that Crawford "did not re-

ject the body of law that has developed in the lower

courts interpreting the language of § 1920 itself" or

that "the courts have given § 1920 a natural reading”

in light of "the realities of modern litigation" (Opposi-

tion at 4, emphasis added). Such malleabie standards,

however, are utterly antithetical to the clear directives

of Crawford.‘ In the name of "interpretation," Respon-

* Improbably, Respondent buttresses this argument with a

host of cases decided prior to Crawford, all of which rely

upon the now-rejected view that § 1920 grants “implicit”

authority to interpret which categories of costs may be

taxed. See, e.g., Independent Iron Works, Inc. v. United

States Steel Corp., 322 F2d 656 (9th Cir), cert. denied, 375

U.S. 922 (1963); United States v. Kolesar, 313 F2d 835 (5th

Cir. 1963); Hudson v. Nabisco Brands, Inc., 758 F2d 1237

(7th Cir. 1985); SCA Services, Inc. v. Lucky Stores, 599 F.2d

178 (7th Cir. 1979); Nissho-Iwai Co., v. Occidental Crude

Sales, Inc., 729 F.2d 1530 (Sth Cir. 1984); Morrissey v. County

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

Amoco Production Co., 558 F. Supp. 591 (D.N.D. 1983), aff’d,

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

95 ER.D. 34 (E.D. Va. 1982); Lockett v. Hellenic Sea Trans-

ports, Ltd., 60 ER.D. 469 (E.D. Pa. 1973).

(continued...)

6

dent would simply evade all limitations on the power

to tax costs.” Yet, as this Court held in Crawford:

"Any argument that a federal court is

empowered to exceed the limitations

explicitly set out in §§ 1920 and 1821°

without plain evidence of congressional

intent to supersede those sections ignores

our long-standing practice of construing

statutes in pari materia."

‘(.. continued)

With the exception of Harrington v. City of Portland, 1990

U.S. Dist. LEXIS 15102 (D. Ore. 1991) (which itself relies

upon Independent Iron Works and its extra-statutory auth-

ority), Respondent's post-Crawford authority do not even

mention Crawford. See, e.g., Govas v. Chalmers, 1991 U.S.

Dist. LEXIS 7653 (N.D. Ill. 1991); In re Howard, 1991 Bank.

LEXIS 695 (D. Md. 1991).

> The weakness of Respondent's argument is made clear by

taking it to its logical extreme. Under Respondent's reason-

ing, no limits are placed upon a court’s power to "interpret"

the statute; logically, a "natural" reading of § 1920 could

include the costs of two, three, or even ten copies of deposi-

_tion transcripts, given the “realities of modern litigation.”

Respondent does not identify precisely where such "interpre-

tation” should end.

® 28 U.S.C. § 1821 governs witness fees. No such costs are

at issue in this case.

~

+ 2s 6

a?

_—

Crawford, supra, 482 U.S. at 445 (citations omitted,

emphasis added).

Unable to show any plain evidence that Con-

gress has authorized the taxation of the cost of deposi-

tion copies or private service of process fees in the

express, literal words of the statute, Respondent falls

back upon tradition.’ "For over thirty years," Respon-

? Respondent argues that because the phrase “stenographic

transcript" as used in § 1920 includes deposition transcripts,

the phrase must also include copies of such a transcript.

This is utterly illogical. Congress specifically authorized

taxing the "fees of the court reporter for all or part of the

stenographic transcript," whether that transcript be taken in

the courtroom or at a deposition. Because no ambiguity

exists in the statute, no "interpretation" is required.

Yet only the most bizarre reading of the noun "transcript"

can lead to the conclusion that the word means both the

thing itself and other things as well. (Following this argu-

ment, one eventually concludes that there is no need for the

word “copy” in the language.) It is clear from the very face

of the statute that when Congress intended to authorize the

costs of copies, it did so in just so many words. See, e.g., §

1920(4) (authorizing taxing fees for "copies of papers"). Not

surprisingly, when it did not intend to authorize such fees, it

did not mention them.

Similarly, the phrase "fees . . . of the marshal" means exact-

ly that. Had Congress wished to include “any authorized

process server,” it would have used those very words. Res-

pondent argues that, because the Federal Rules of Civil

Procedure changed in 1983 (eliminating service by the mar-

shals in many instances), this implies that intent of Congress

(continued...)

ea Seg aati EN LR Bt ARR RS

dent argues, courts have "read" the statute to include

deposition copies. (Opposition at 4.) This view has

been codified in the local rules of "numerous" federal

district courts.* (Opposition at 5.) Tradition, how-

ever, is not the standard; the standard is the express,

literal words of Congress.

Because the Opinion is clearly at in conflict

with this Court’s decision in Crawford, certiorari is

appropriate.

7(...continued)

must have changed as well. Yet this is the exact reverse of

the statutory scheme. As Crawford explains, the authority

to tax costs originates with Congress, not with the judiciary;

as a result, § 1920 controls over the Federal Rules, not vice

versa. Of course, should Congress wish to take the amend-

ments to the Federal Rules into account, it may do so; as of

the present time, however, it has not chosen to do so.

8 A substantial number of Local Rules do not allow for

copies of depositions and are silent on the issue of private

service of process fees. See Section III, infra.

nes

Ii.

THE OPINION BELOW CREATES CONFLICTS

AMONG THE CIRCUITS AND DEFEATS

THE PURPOSE OF 28 U.S.C. § 1920

By ignoring Crawford and overruling Viacao

Area Sao Paulo, S.A. v. International Lease Finance

Corp., 119 ER.D 435 (C.D. Cal. 1988), the Opinion

below has returned a large measure of interpretive

leeway to the district courts in the Ninth Circuit. This

creates a clear conflict among the Circuits over both

the proper scope of § 1920, as well as the proper role

of the judiciary in the fee taxing realm. Compare

Opinion (allowing private service of process fees) with

Crues v. KFC Corp., 768 F2d 230, 234 (8th Cir. 1985)

(disallowing same). Compare also Opinion (courts

may interpret § 1920) and Denny v. Westfield College,

880 E2d 1465, 1472 (1st Cir. 1989) ("Crawford warns us

in unmistakable language not to try our hand at re-

writing the statutory scheme according to our own

notions of equity"); West Virginia University Hospi-

ee ee

10

tals, Inc. v. Casey, 885 F2d 11, 34 (3rd Cir. 1989), aff’d,

__US.__, 113 L. Ed. 2d 68, 76-76 (1991) ("We are

constrained by the language of Crawford. .. we must

defer to legislative fiat"); accord Leroy v. City of

Houston, 831 E2d 576, 584 (5th Cir. 1987), cert. denied,

486 U.S. 1008 (1988). Because of these conflicts |

between the First, Third, Fifth, Eighth, and Ninth

Circuits, review is appropriate.

But review is necessary for another reason as

well. A single Congressional standard over the tax-

ation of costs is crucial because it insures fairness to all

litigants by standardizing categories of taxable costs

throughout the nation. See, e.g., Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240, 250-52

(1975). Instead of uniformity, however, there is incon-

sistency. The Opinion below not only stands as a

prime example of this, it also adds to the disarray.

Taxing costs is part and parcel of virtually every

case in the federal system; as such, the statute touches

11

every litigant in the nation. Yet, although the statu-

tory scheme is designed to treat each litigant fairly and

equally, it is clear that parties are taxed different

amounts for entirely different categories of costs de-

pending upon the precedent and rules of the particu-

lar District in which they litigate. Because the

Opinion misinterprets the construction of an important

federal statute - one affecting virtually all parties in

all parts of the nation — review by this Court is criti-

cal. See, e.g., Patterson v. Lamb, 329 U.S. 539 (1947);

United Steelworkers of America v. Usery, 429 U.S. 305,

307 n.3 (1977).

Respondent agrees that a single national stan-

dard is crucial, but, in a display of reverse logic,

argues that following Crawford will "prevent" national

uniformity because so many courts have declined to

follow Crawford thus far. (Opposition at 7-8.)

Because courts have "generally recognized” that pri-

vate service of process fees and deposition copies are

recoverable costs, Respondent argues, a "consistent

interpretation” already exists. (Opposition at 8.) The

result, claims Respondent, is that courts award costs

"that Congress has clearly shown an intention to

allow." (Opposition at 8.)

If this were true, of course, there would be no

conflicting decisions. Yet, as Petitioner has clearly

demonstrated, the purported uniformity evident to

Respondent is illusory. Conflicts already exist among

various courts. Compare, e.g., Opinion and Crues v.

KFC Corp., supra, 768 F2d at 234 (refusing to tax

private service of process fees). Moreover, these

reported cases do not begin to tell the entire story.

One need only examine the Local Rules around the

nation (all of which are supposed to be consistent) to

see that the taxation of deposition copying costs is in

utter disarray. Compare, e.g., the six Local Rules cited

by Respondent (allowing the cost of deposition copies

to be taxed) with the Local Rules of the following

13

United States District Courts (which do not allow these

costs to be taxed): Alaska, Rule 21(B)(3) (original

only); Arizona, Rule 49(e)(3) (original only); the

Southern District of California, Rule 265 (original

only); Delaware, Rule 6.1B(3) (original only); Idaho,

Rule 54.1(b)(3) (original only); Montana, Rule 265

(original only); Nevada, Rule 205(4) (original only);

the Middle District of North Carolina, Rule 209(c)(1)(ii)

(original only); the Northern Mariana Islands, Rule

125(3)(b) (original only); South Carolina, Rule 28.08

(original only); the Eastern District of Washington,

Rule 54(f)(2) (original only).’

The existence of so many contradictory rules

and decisions results in unfairness to litigants and

makes national uniformity impossible. This state of

affairs will simply continue if courts are allowed to

" The situation is just as uncertain with regard to the

taxation of private service of process fees. For example,

while the Central and Northern Districts of California speci-

fically allow such costs, the Southern District merely speaks

to fees of the U.S. Marshal.

iti canis ME LIK

Dial we 6 Cll C5 Dae AD A, Vb A I wp et

14

ignore Crawford as the Ninth Circuit has done, and

"interpret" the intent of Congress rather than follow its

express, literal meaning.”

In short, both because the Opinion below is in

conflict with decisions of other Circuits, and because

the application of an important federal statutory issue

is involved, certiorari is appropriate. ©

10 Respondent's suggestion that these conflicts will work

themselves out in the lower courts is nothing more than

wishful thinking. (Opposition at 9.) Clearly, allowing each

district court to decide for itself what Congress means with-

out reference to a single standard has not, and will not,

bring about the desired uniformity.

15

CONCLUSION

For the foregoing reasons, the Petition for Writ

of Certiorari should be granted.

Dated: September 24, 1991

Respectfully submitted,

RUSSELL J. FRACKMAN

Counsel of Record

DANIEL M. PETROCELLI

THOMAS M. HINES

MITCHELL, SILBERBERG & KNUPP

11377 West Olympic Boulevard

Los Angeles, California

Attorneys for Petitioner

Alflex Corporation

Russell J. Fracgman

Attorneys for Petitioner

Alflex Corporation

APPENDIX

ee

A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Defendant-Appellee.

ALFLEX CORPORATION, )

) No. 89-56008

Plaintiff-Appellant, )

) B.C No.

v. ) CV 87-3344 JGD

: )

UNDERWRITERS LABORATO- ) OPINION

RIES, INC., )

)

)

)

Appeal from the United States District Court

for the Central District of California

John G. Davies, District Judge, Presiding

and Submitted

June 6, 1990 — Pasadena, California

Filed September 13, 1990

Before: James R. Browning and Harry Pregerson,

ag yi MacBride, District Judge’

Per Curiam

: The Honorable Thomes J. MacBride, United States District Judge for the Eastern

District of Calttemia, sting by éasignation

Pianists acre sono habe sol ihe

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

" i a le

A-3

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. |

teh ida 0A CeO

ada ote

Pe eae

Fee le aon Bi ak” So

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.

ee

ct ae eR tine

stew tie nn a AO >

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.? “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 prevailing party unless the court

otherwise directs . . .”

2

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

"[flees for service of process (whether served by the

*(_..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.

naa ty amc laliar Aa a

A

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 al] 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...)

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

439. The court determined that although this circuit,

before Crawford, held that authorization to award

costs of deposition copies was implied by

section 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 F.R.D. at

3(...continued)

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

322 F.2d 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 F.2d 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 (Sth 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.” /d.

[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 "[flees for exemplification and

copies of papers necessarily obtained for use in the

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." Id. (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

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

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A-13

v. Corpus Christi Marine S., 834 F2d 1232 (Sth Cir.

1968), 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 F.2d 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.

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

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

A-15

when it recognized the validity of a local rule that

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 "[flees of the clerk and marshal” to be taxed as

costs. Marshal'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

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).5 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 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-18

no longer involved as Often in the serving of

summonses and subpoenas, the cost of Private

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

§ 1920(1).¢

AFFIRMED.

*(...continued)

° We recognize that the Eighth Circuit held

68 F.

Piowever, we find the reasoning in Roberts v

Homelite Div. of Textron, | » 117 ER.D. 637 (NLD. Ind.

1987) more persuasive. In Roberts the district court

serves 1, ldlue to the substitution of private process

iS appre the US. Marshal Service in recent bean i

1a. propriate to allow private process fees ns en

Id. at 641.