Opinion
Civil No. 00-1348-KI
January 9, 2002
J. Rion Bourgeois, Tigard, Oregon, Attorney for Plaintiff.
Michael D. Williams, Angela M. Stewart, Williams Fredrickson, LLC, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
Oregon Azaleas, Inc., prevailed on its breach of express warranty claim in a jury trial against Western Farm Service, Inc. ("Western Farm") Before the court is Oregon Azaleas' bill of costs(#107) seeking $4,460.40.
LEGAL STANDARDS
Fed.R.Civ.P. 54(d)(l) provides, in part: "Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." This rule is not read "as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case." Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964). Expenses which may be taxed as costs against a losing party are enumerated in 28 U.S.C. § 1920:
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, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
However, the discretion to grant costs does not include the authority to tax costs beyond those authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Thus, the discretion granted under Rule 54(d) allows a court to decline to tax costs, but does not authorize a court to award excess costs in the absence of a "specific congressional command." Id. at 442.
DISCUSSION
Western Farm does not object to the costs of $150 for fees of the clerk, $28.50 for service fees, or $20.00 for docket fees. Those costs are awarded.
Western Farm objects to $25 in docket fees that Oregon Azaleas seeks for ten depositions filed in support of its motion for summary judgment. Deposition costs paid to court reporters will be discussed below. 28 U.S.C. § 1923(a) allows a $20 docket fee for a trial and $2.50 for each deposition admitted in evidence. I do not interpret this docket fee as applying to evidence in a summary judgment motion. I will allow $2.50 in docket fees for the videotaped deposition admitted into evidence during the trial.
Oregon Azaleas seeks $4,236.90 in court reporter fees for depositions of: (1) seven of Western Farm's employees, filed in support of Oregon Azaleas' motion for summary judgment which successfully established that an express warranty was breached; (2) Bill Kenny, Oregon Azaleas' president, filed in support of the motion for summary judgment; (3) Francisco Siquina-Sanchez, a videotaped deposition of Oregon Azaleas' employee played during trial; (4) Jim Fournier, a nurseryman testifying on behalf of Oregon Azaleas; and (5) Olga Elizondo, an Oregon Azaleas employee listed as a defense witness who Western Farm did not call at trial.
Western Farm does not object to the cost for its employees depositions, in the amount of $2,582. This cost will be awarded. Western Farm objects to costs for the Kenny, Siquina-Sanchez, Fournier, and Elizondo depositions because they are employees and an expert witness for Oregon Azaleas. Thus, Western Farm contends that Oregon Azaleas could have obtained relevant evidence through declarations. Moreover, Western Farm contends that none of these four except for Kenny provided testimony relevant to the breach of express warranty claim which prevailed in summary judgment. Thus, it contends that these four depositions are not "necessary" and costs should not be awarded.
In Alflex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990), cert. denied, 502 U.S. 812 (1991), the Ninth Circuit held that the costs of obtaining depositions and copies of deposition transcripts were allowable under 28 U.S.C. § 1920 when the transcripts were reasonably necessary to the defendant's motion for summary judgment. Pretrial transcripts are especially necessary when the case is unusually involved and complex. Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678 (9th Cir.), cert. denied, 375 U.S. 922 (1963). Depositions which were merely useful for discovery are not taxable items. Id.
The fact that items are neither introduced into evidence nor otherwise become part of the official court record does not determine whether that item was necessarily obtained for use in the case. Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (per curiam) (allowing costs for reproducing documents even though documents were not introduced as evidence to support summary judgment motion). This is also true for depositions. Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985), overruled on other grounds by Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989).
A deposition need not be absolutely indispensable to justify an award of costs. It must only be reasonably necessary at the time it was taken, without regard to later developments that may eventually render the deposition unneeded at the time of trial or summary disposition. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993). Disallowing costs for depositions not used at trial, however, is within the court's discretion. Wash. State Dept. of Transp. v. Natural Gas Co., 59 F.3d 793, 806 (9th Cir. 1995).
In my discretion after considering what was reasonably necessary, I will award the costs of the Kenny and Siquina-Sanchez depositions, but not the costs of the Fournier or Elizondo depositions. The total for the two depositions is $1,425.90.
CONCLUSION
Oregon Azaleas' bill of costs(#107) is allowed in the amount of $4,208.90.
IT IS SO ORDERED.