Opinion
3:23-CV-00172-HZ
12-29-2023
THOMAS DUNCAN, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
Michael R. Fuller Emily Templeton OlsenDaines Attorneys for Plaintiff Helen M. McFarland Heriberto Alvarez, Jr. Seyfarth Shaw LLP Attorneys for Defendant
Michael R. Fuller
Emily Templeton
OlsenDaines
Attorneys for Plaintiff
Helen M. McFarland
Heriberto Alvarez, Jr.
Seyfarth Shaw LLP
Attorneys for Defendant
OPINION & ORDER
MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Defendant Costco Wholesale Corporation's Bill of Costs, ECF 40. For the reasons that follow, the Court grants Defendant costs in the amount of $8,552.35.
BACKGROUND
Plaintiff filed a Complaint in this Court in which he alleged Defendant called the police to remove him from a Costco store in Roseburg, Oregon in violation of Oregon Revised Statute § 30.845(1).
On August 7, 2023, Defendant filed a Motion for Summary Judgment. On October 10, 2023, the Court issued an Opinion and Order in which it granted Defendant's Motion and entered a Judgment dismissing this matter with prejudice.
On October 25, 2023, Defendant filed a Bill of Costs seeking costs in the amount of $12,732.00. Plaintiff filed Objections, and in its Response Defendant amended its request for costs to $11,648.70. The Court took this matter under advisement on November 20, 2023.
STANDARDS
Federal Rule of Civil Procedure 54(d)(1) provides: “Unless a federal statute, these rules, or a court order provides otherwise, costs - other than attorney's fees - should be allowed to the prevailing party.” This rule creates a presumption in favor of awarding costs to a prevailing party and “the losing party must show why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003).
28 U.S.C. § 1920 allows a federal court to tax specific items as costs against a losing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Section 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;
(5)Docket fees under section 1923 of this title;
(6)Compensation for court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under § 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
The court must limit an award of costs to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Rimini St., Inc. v. Oracle USA, Inc., 139 S.Ct. 873, 877 (2019). The district court has discretion to refuse to award costs, but it must provide specific reasons for doing so. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247 (9th Cir. 2014) (citing Ass'n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 593 (9th Cir. 2000)).
DISCUSSION
Plaintiff does not object to specific costs requested by Defendant, but notes in his objection to the Cost Bill that Defendant failed to provide a detailed itemization of all claimed costs or a declaration supporting its request as required by Local Rule 54-1(a). In response Defendant provided the Declaration of Helen McFarland, a detailed itemization of costs, and invoices supporting its requested costs. The Court finds Defendant's evidence satisfies the requirements of Local Rule 54-1(a) and is sufficient for the Court to evaluate Defendant's requested costs.
I. Fees of the Clerk
Defendant requests $722 in various clerk fees, including $300 for attorney Heriberto Alvarez, Jr., to appear pro hac vice in this matter. The Ninth Circuit, however, has held that “§ 1920(1) does not allow for an award of pro hac vice fees as taxable costs.” Kalitta Air L.L.C. v. Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958 (9th Cir. 2013). The Court, therefore, declines to award Defendant these costs.
Defendant also requests $20 to obtain “the entire case file of a separate legal proceeding for which Plaintiff . . . was a party in California.” McFarland Decl. ¶ 4. The cost of obtaining the case file of a separate litigation, however, does not fall within the plain language of § 1920 and Defendant does not provide any legal authority indicating these costs are taxable under § 1920. The Court, therefore, declines to award Defendant these costs.
The Court, therefore, awards Defendant $402 in costs for fees of the clerk.
See Exhibit 1 to this Opinion and Order for the calculation of the award of costs.
II. Deposition Costs
Defendant seeks $10,926.70 in “deposition-related expenses” comprised of deposition transcripts, videography costs, and the cost of conference rooms.
A. Deposition Transcripts
Defendant seeks $8,150.35 for the cost of deposition transcripts for twelve depositions taken in this matter: those of Plaintiff and his wife taken by Defendant and those of ten of Defendant's employees taken by Plaintiff. “Deposition costs are taxable if they are reasonably necessary for trial.” Evanow v. M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998). See also U.S. v. W. Radio Servs. Co., Inc., 671 Fed.Appx. 460, 462 (9th Cir. 2016)(same). It is undisputed that the transcripts of these depositions were “reasonably necessary” for use by Defendant in this case. The Court, therefore, concludes these costs are allowed under § 1920 and awards Defendant $8,150.35 for deposition transcripts.
B. Videography Services
Defendant seeks $1,515.00 for “videography services” for the depositions of Plaintiff and his wife.
This Court has held that the party seeking costs for videography services “has the burden of demonstrating why the video deposition was needed and a written transcript would not suffice.” Brown v. Cascade Mgmt., Inc., No. 3:15-cv-01585-HZ, 2018 WL 4207097, at *11 (D. Or. Sept. 4, 2018)(citing Hunt v. City of Portland, No. CV 08-802-AC, 2011 WL 355572, at *7 (D. Or. Aug. 11, 2011)). Courts in this District have held that videographer's fees should not automatically convert “into a recoverable item of cost where a court reporter also attended and transcribed the deposition and the party seeking to recover the cost does not offer one or more reasons specific to the case to justify an award for both items.” Puella v. Intel Corp., No. 08-1472-AC, 2010 WL 3361089, at *3 (D. Or. Aug. 25, 2010)(cleaned up). The court in Puellaexplained that to “[r]outinely allow recovery of the cost incurred for both the court reporter's transcript and a separate videographic record of depositions duplicates deposition costs without purpose.” Id. See also Boquist v. Courtney, No. 6:19-CV-01163-MC, 2023 WL 7127676, at *2 (D. Or. Oct. 30, 2023)(disallowing videographer costs for depositions for which the party obtained written transcripts and did not offer a reason specific to the case to justify an award for both items). Defendant obtained transcripts of the deposition of both Plaintiff and his wife and Defendant does not offer any reason specific to this case to justify an award for both videography services and the transcripts of these depositions. The Court, therefore, declines to award Defendant the cost of videography services.
C. Conference Rooms
Defendant seeks $960 for the cost of conference rooms for three days to take the depositions of Plaintiff and his wife, Hutchinson, Richardson, and Hobson, as well as one day in which Defendant rented the conference room but Plaintiff postponed the deposition too late for Defendant to cancel and receive a refund of the conference room rental. Defendant states it reserved the conference rooms for the depositions of Defendant's employees because “Plaintiff provided no physical location for Costco witnesses to sit for deposition and meet with counsel to prepare.” Defendant also asserts it reserved the conference room for the depositions of Plaintiff and his wife so that it could conduct the depositions in person.
Defendant cites a Sixth Circuit case to support its request for these costs. Courts in the Ninth Circuit, however, have denied the cost of conference rooms for depositions finding these are, in fact, out-of-pocket expenses. See, e.g., Self v. FCA U.S. LLC, No. 1:17-CV-01107- SKO, 2019 WL 1994459, at *15 (E.D. Cal. May 6, 2019) (denying the plaintiff's request for the costs of, among other things, conferences rooms for depositions as unpermitted under § 1920); Carr v. Tadin, Inc., 51 F.Supp.3d 970, 985 (S.D. Cal. 2014) (finding these kinds of costs are not taxable under § 1920 because they are “in fact out-of-pocket expenses”.); Celestine v. FCA U.S. LLC, No. 2:17-CV-0597 - JLT, 2019 WL 4274092, at *16 (E.D. Cal. Sept. 10, 2019) (denying the request for the cost of a conference room rental); J.R . Simplot Co. v. Nestle USA, Inc ., No. CV 06 adopts it here. The Court, therefore, denies Defendant's request for the cost of renting conference rooms.
CONCLUSION
The Court GRANTS IN PART Defendant's Bill of Costs, ECF 40, and awards costs to Defendants in the amount of $8,552.35.
IT IS SO ORDERED.
Cost Bill
| requested | disallowed | total | |
| Fees of the Clerk | |||
| removal | $ 402.00 $ | - | $ 4 02.00 |
| pro hac vice admission | $ 300.00 $ | 300.00 | $ - |
| CA file cost | $ 20.00 $ | 20.00 | $ - |
| $ 402.00 total |
Depostion-Related Expenses
| Transcripts | |||
| Plaintiff & wife | $ 2,480.00 $ | - | $ 2,480.00 |
| Hutchinson | $ 224.60 $ | - | $ 2 24.60 |
| Richardson & Hobson | $ 842.25 $ | - | $ 8 42.25 |
| Wright, Mack & Weynandt | $ 2,046.50 $ | - | $ 2,046.50 |
| Reynolds & Richardson | $ 1,700.95 $ | - | $ 1,700.95 |
| Willis | $ 540.00 $ | - | $ 5 40.00 |
| 30(b)(6) | $ 316.05 $ | - | $ 3 16.05 |
| $ 8,150.35 total |
Videography
| Plaintiff & wife | $ 1,515.00 $ | 1,515.00 | $ - total |
Conference Rooms
| Plaintiff & wife | $ 240.00 $ | 240.00 | $ - |
| Hutchinson | $ 240.00 $ | 240.00 | $ - |
| Richardson & Hobson | $ 240.00 $ | 240.00 | $ - |
| postponed depos | $ 240.00 $ | 240.00 | $ - |
| $ - total |
Total Expenses Allowed $ 8,552.35
Exhibit 1