----oo0oo---- BRIAN BROWN, No. 2:22-cv-02128 WBS DB Plaintiff, v. ORDER RE: BILL OF COSTS CEMEX, INC.; CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC; and DOES 1 to 10, Defendants. ----oo0oo---- On July 10, 2024, the court entered summary judgment in favor of defendant on all five claims –- three federal claims asserted under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and two state claims asserted under the Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq., all of which relate to disability discrimination. (Docket No. 47.) On July 19, defendant submitted a Bill of Costs pursuant to Local Rule 292(b). (Docket No. 49.) Defendant claims costs of $672.00 for service and subpoena fees, $10,872.72 for transcripts, $55.00 for witnesses, and $57.70 for making copies of necessary documents, for a total of $11,657.42. (Id.) I. Legal Standard Federal Rule of Civil Procedure 54(d)(1) governs the taxation of costs and provides that “costs –– other than attorney’s fees –– should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 enumerates which costs are taxable and allows for the recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case,” id. § 1920(2); “[f]ees and disbursements for printing and witnesses,” id. § 1920(3); and “the costs of making copies of any materials where the copies are necessarily obtained for use in the case,” id. § 1920(4). “The cost of deposition copies is ‘encompassed’ by section 1920(2), and is therefore properly taxed” under 28 U.S.C. § 1920. Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir. 1990). “[28 U.S.C.] section 1920(4) enables a court to award copying costs for any document ‘necessarily obtained for use in the case’ and does not specifically require that the copied document be introduced into the record to be an allowable cost.” Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990). II. Discussion Plaintiff raises various objections to the bill of costs, which the court addresses by turn. (Opp’n (Docket No. 50).) A. First and Second Objections: Prevailing Defendant in FEHA Case Plaintiff first invokes Williams v. Chino Valley Indep. Fire Dist., where the California Supreme Court held that “an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” 61 Cal. 4th 97, 99-100 (2015). See also Cal. Gov. Code § 12965(c)(6) (codifying frivolity requirement for award of costs for prevailing FEHA defendant). On the other hand, Fed. R. Civ. P. 54(d) states that costs should be allowed to the prevailing party “[u]nless a federal statute, these rules, or a court order provides otherwise.” Plaintiff argues that, pursuant to the Erie doctrine, Williams is a state substantive rule and should therefore supersede any application of Rule 54(d). However, reimbursement of costs is generally considered a procedural matter and federal law therefore controls. See Clausen v. M/V New Carissa, 339 F.3d 1049, 1064 (9th Cir. 2003) (quoting Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1167–68 (9th Cir. 1995)); see also Duran v. Stock Bldg. Supply W., LLC, 672 F. App’x 777, 779 (9th Cir. 2017) (“[plaintiff] incorrectly asserts that [Williams] rendered the award of costs ‘substantive’ for purposes of [Erie]”). Accordingly, defendant need not show that plaintiff’s claims were frivolous, and the court will not deny any portion of defendant’s bill of costs on this basis. II. Third Objection: Witness Fee Plaintiff next argues that the $40 witness fee lacks a receipt, and that defendant is double-billing plaintiff. The court finds no evidence in support of these contentions. First, defendant includes an invoice that clearly documents the expert witness fee; the court cannot discern why this does not suffice to substantiate the requested fee. (Docket No. 49 at 13.) Second, it appears from the invoice itself that the process server from Nationwide Legal advanced defendant $40, not plaintiff. As plaintiff can point to no instance where he has previously been charged $40 for Dr. Grewal’s deposition, the court will not remove this item from the bill of costs. III. Fourth Objection: Duplicate Service Fee Charges Plaintiff next alleges that defendant’s subpoena charges are vague and duplicative. Specifically, plaintiff takes issue with charges for both “Basic Fee” and “Service Fee” line items for identical amounts that appear on each service and subpoena invoice. However, defendant correctly points out that every instance of the “Basic Fee” line item was excluded from defendant’s calculation of its total service fees. (Docket No. 49 at 4, 7-12.) Accordingly, the court will not exclude these costs from the final bill. IV. Fifth, Sixth, and Seventh Objections: Unreasonable Deposition Charges A. Plaintiff’s Deposition Plaintiff next argues that defendant’s invoice for plaintiff’s deposition includes unreasonable line items -– namely, condensed and electronic transcript copies; video recording services; and a “media package,” all totaling $1,208.75. (Docket Nos. 50 at 6; 49 at 14.) Defendant correctly argues that 28 U.S.C. § 1920(2) explicitly allows for recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” Further, a prevailing party may recover costs for both printed and electronically recorded transcripts relating to necessary depositions. See CP Anchorage Hotel 2, LLC v. UNITE HERE! Loc. 878, No. 22-35318, 2023 WL 5319245, at *1 (9th Cir. Aug. 18, 2023) (“[B]oth printed and electronically recorded transcripts may be ‘necessarily obtained for use in [a] case,’ 28 U.S.C. 1920(2), and nothing in the statute suggests that recovery is limited to only one format when that requirement is met”) (citing Stanley v. Cottrell, Inc., 784 F.3d 454, 465, 466–67 (8th Cir. 2015)). The same goes for video recordings of depositions, especially those of named parties in discrimination cases. See, e.g., Grasty v. San Juan USD, No. 2:18-CV-3242-KJN-PS, 2020 WL 1689720, at *1 (E.D. Cal. Apr. 7, 2020) (finding costs relating to videorecording the plaintiff’s deposition awardable when the plaintiff asserted discrimination claims and the defendant recorded the deposition in order to have the opportunity to “analyze plaintiff’s credibility, demeanor, and ability as a witness”). B. Dr. Sharnjit Grewal’s Deposition Plaintiff challenges similar line items on the invoice for the deposition of his own expert witness, Dr. Sharnjit Grewal. (Docket Nos. 50 at 7; 49 at 21.) Here, the court agrees wit
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----oo0oo---- BRIAN BROWN, No. 2:22-cv-02128 WBS DB Plaintiff, v. ORDER RE: BILL OF COSTS CEMEX, INC.; CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC; and DOES 1 to 10, Defendants. ----oo0oo---- On July 10, 2024, the court entered summary judgment in favor of defendant on all five claims –- three federal claims asserted under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and two state claims asserted under the Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq., all of which relate to disability discrimination. (Docket No. 47.) On July 19, defendant submitted a Bill of Costs pursuant to Local Rule 292(b). (Docket No. 49.) Defendant claims costs of $672.00 for service and subpoena fees, $10,872.72 for transcripts, $55.00 for witnesses, and $57.70 for making copies of necessary documents, for a total of $11,657.42. (Id.) I. Legal Standard Federal Rule of Civil Procedure 54(d)(1) governs the taxation of costs and provides that “costs –– other than attorney’s fees –– should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 enumerates which costs are taxable and allows for the recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case,” id. § 1920(2); “[f]ees and disbursements for printing and witnesses,” id. § 1920(3); and “the costs of making copies of any materials where the copies are necessarily obtained for use in the case,” id. § 1920(4). “The cost of deposition copies is ‘encompassed’ by section 1920(2), and is therefore properly taxed” under 28 U.S.C. § 1920. Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir. 1990). “[28 U.S.C.] section 1920(4) enables a court to award copying costs for any document ‘necessarily obtained for use in the case’ and does not specifically require that the copied document be introduced into the record to be an allowable cost.” Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990). II. Discussion Plaintiff raises various objections to the bill of costs, which the court addresses by turn. (Opp’n (Docket No. 50).) A. First and Second Objections: Prevailing Defendant in FEHA Case Plaintiff first invokes Williams v. Chino Valley Indep. Fire Dist., where the California Supreme Court held that “an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” 61 Cal. 4th 97, 99-100 (2015). See also Cal. Gov. Code § 12965(c)(6) (codifying frivolity requirement for award of costs for prevailing FEHA defendant). On the other hand, Fed. R. Civ. P. 54(d) states that costs should be allowed to the prevailing party “[u]nless a federal statute, these rules, or a court order provides otherwise.” Plaintiff argues that, pursuant to the Erie doctrine, Williams is a state substantive rule and should therefore supersede any application of Rule 54(d). However, reimbursement of costs is generally considered a procedural matter and federal law therefore controls. See Clausen v. M/V New Carissa, 339 F.3d 1049, 1064 (9th Cir. 2003) (quoting Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1167–68 (9th Cir. 1995)); see also Duran v. Stock Bldg. Supply W., LLC, 672 F. App’x 777, 779 (9th Cir. 2017) (“[plaintiff] incorrectly asserts that [Williams] rendered the award of costs ‘substantive’ for purposes of [Erie]”). Accordingly, defendant need not show that plaintiff’s claims were frivolous, and the court will not deny any portion of defendant’s bill of costs on this basis. II. Third Objection: Witness Fee Plaintiff next argues that the $40 witness fee lacks a receipt, and that defendant is double-billing plaintiff. The court finds no evidence in support of these contentions. First, defendant includes an invoice that clearly documents the expert witness fee; the court cannot discern why this does not suffice to substantiate the requested fee. (Docket No. 49 at 13.) Second, it appears from the invoice itself that the process server from Nationwide Legal advanced defendant $40, not plaintiff. As plaintiff can point to no instance where he has previously been charged $40 for Dr. Grewal’s deposition, the court will not remove this item from the bill of costs. III. Fourth Objection: Duplicate Service Fee Charges Plaintiff next alleges that defendant’s subpoena charges are vague and duplicative. Specifically, plaintiff takes issue with charges for both “Basic Fee” and “Service Fee” line items for identical amounts that appear on each service and subpoena invoice. However, defendant correctly points out that every instance of the “Basic Fee” line item was excluded from defendant’s calculation of its total service fees. (Docket No. 49 at 4, 7-12.) Accordingly, the court will not exclude these costs from the final bill. IV. Fifth, Sixth, and Seventh Objections: Unreasonable Deposition Charges A. Plaintiff’s Deposition Plaintiff next argues that defendant’s invoice for plaintiff’s deposition includes unreasonable line items -– namely, condensed and electronic transcript copies; video recording services; and a “media package,” all totaling $1,208.75. (Docket Nos. 50 at 6; 49 at 14.) Defendant correctly argues that 28 U.S.C. § 1920(2) explicitly allows for recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” Further, a prevailing party may recover costs for both printed and electronically recorded transcripts relating to necessary depositions. See CP Anchorage Hotel 2, LLC v. UNITE HERE! Loc. 878, No. 22-35318, 2023 WL 5319245, at *1 (9th Cir. Aug. 18, 2023) (“[B]oth printed and electronically recorded transcripts may be ‘necessarily obtained for use in [a] case,’ 28 U.S.C. 1920(2), and nothing in the statute suggests that recovery is limited to only one format when that requirement is met”) (citing Stanley v. Cottrell, Inc., 784 F.3d 454, 465, 466–67 (8th Cir. 2015)). The same goes for video recordings of depositions, especially those of named parties in discrimination cases. See, e.g., Grasty v. San Juan USD, No. 2:18-CV-3242-KJN-PS, 2020 WL 1689720, at *1 (E.D. Cal. Apr. 7, 2020) (finding costs relating to videorecording the plaintiff’s deposition awardable when the plaintiff asserted discrimination claims and the defendant recorded the deposition in order to have the opportunity to “analyze plaintiff’s credibility, demeanor, and ability as a witness”). B. Dr. Sharnjit Grewal’s Deposition Plaintiff challenges similar line items on the invoice for the deposition of his own expert witness, Dr. Sharnjit Grewal. (Docket Nos. 50 at 7; 49 at 21.) Here, the court agrees with plaintiff that the following charges do not appear to be necessary for the case: $117.00 for “Transcript – Supplemental Surcharges;” $116.00 for “Premium Litigation Package (SBF,PTZ,LEF,PTX);” and $110.00 for “Smart Summary – Over 100 Transcript Pages.” (Docket No. 49 at 21.) The court disagrees nnn nnn nnn enn EINE IIR OIE IIE EID IID EO
with plaintiff otherwise for the same reasons that apply to the challenged line items from plaintiff’s deposition invoice. Accordingly, the court will adjust downward defendant's claimed transcript costs of $10,872.72 by ($117.00 + $116.00 + $110.00 = ) $343.00, resulting in an adjusted amount of $10,529.72. IIT. Total Costs In total, costs of $11,314.42 will be allowed for defendant and are taxed against plaintiff as follows:
Fees for printed or electronically recorded | $10,529.72 transcripts necessarily obtained for use in | (adjusted downward the case from $10,872.72) Fees for exemplification and the costs of $57.70 making copies of any materials where the copies are necessarily obtained for use in the case } Dated: August 9, 2024 . aithw A WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE