Cp Anchorage Hotel 2, LLC v. Unite Here! Local 878

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2023
• Docket: 22-35318
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CP ANCHORAGE HOTEL 2, LLC, DBA No. 22-35318 Anchorage Hilton, D.C. No. 3:18-cv-00071-JMK Plaintiff-Appellant,

v. MEMORANDUM*

UNITE HERE! LOCAL 878; UNITE HERE!,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Submitted August 16, 2023** Anchorage, Alaska

Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.

CP Anchorage Hotel (“Anchorage Hilton”) sued UNITE HERE! 878 and the

UNITE HERE! parent organization (collectively, the “Union”) based on the

Union’s conduct arising out of a labor dispute between the parties. The district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court granted summary judgment to the Union. Anchorage Hilton appeals the

district court’s partial denial of its motion to review the district court clerk’s

taxation of costs. We have jurisdiction under 28 U.S.C. § 1291. Reviewing the

district court’s statutory authority for awarding costs de novo and its award of costs

for abuse of discretion, In re Online DVD-Rental Antitrust Litig., 779 F.3d 914,

924–25 (9th Cir. 2015), we affirm.

1. The district court did not abuse its discretion in awarding subpoena

service costs. Marshal fees for service of process are taxable under 28 U.S.C.

§ 1920(1) and D. Alaska Loc. Civ. R. 54.1(e)(1). Further, Fed. R. Civ. P. 54(d)

“creates a presumption in favor of awarding costs to prevailing parties, and it is

incumbent upon the losing party to demonstrate why the costs should not be

awarded.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).

Anchorage Hilton has not demonstrated that the costs awarded for service of

subpoenas were unreasonable or excessive.

2. The district court neither exceeded its statutory authority under 28 U.S.C.

§ 1920 nor abused its discretion by awarding deposition costs.

First, Anchorage Hilton argues that the district court exceeded its statutory

authority by awarding witness, storage, and hourly reporter fees associated with

“printed or electronically recorded transcripts.” 28 U.S.C. § 1920(2). However,

§ 1920(3) explicitly provides that “[f]ees and disbursements for . . . witnesses” are

2 taxable. And while storage and hourly reporter fees are not expressly enumerated

in § 1920, they are “encompassed” by § 1920(2). Alflex Corp. v. Underwriters

Lab’ys, Inc., 914 F.2d 175, 177 (9th Cir. 1990) (per curiam).

Second, Anchorage Hilton, interpreting § 1920(2) disjunctively, contends

that a district court may tax fees for either “printed or electronically recorded

transcripts,” but not both. 28 U.S.C. § 1920(2) (emphasis added). But both printed

and electronically recorded transcripts may be “necessarily obtained for use in [a]

case,” id., and nothing in the statute suggests that recovery is limited to only one

format when that requirement is met. See Stanley v. Cottrell, Inc., 784 F.3d 454,

465, 466–67 (8th Cir. 2015) (“Based on the language of the statute, the context in

which it uses the word ‘or,’ and its broader context, . . . § 1920(2) permits taxation

of costs for both printed and electronically recorded transcripts of the same

deposition as long as each transcript is necessarily obtained for use in a case.”).

The district court thus had authority to tax costs for both videotape and written

transcripts of the depositions of witnesses beyond its subpoena power.

Third, Anchorage Hilton argues that “necessarily obtained for use in the

case” under 28 U.S.C. § 1920(2) means “used at trial or to support a dispositive

motion.” Even assuming this is true, but see Haagen-Dazs Co. v. Double Rainbow

Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (per curiam)

(interpreting the same phrase in § 1920(4) and concluding that it “does not

3 specifically require that the copied document be introduced into the record to be an

allowable cost”), the Union introduced testimony from the depositions at issue into

the summary judgment record.

3. Anchorage Hilton argues that D. Alaska Loc. Civ. R. 54.1(e)(10), which

lists postage as a taxable cost, exceeds the limits of 28 U.S.C. § 1920. However,

while postage fees are not expressly enumerated in § 1920, they are

“encompassed” by § 1920’s subsections. Alflex Corp., 914 F.2d at 177. The

Union incurred postage costs for delivery of chambers copies to the court,

deposition exhibits to the court reporter, preparation materials to party witnesses,

and regular U.S. mail postage for correspondence to various parties. These fees

are encompassed by subsections (2), (3), and (4), which allow taxation of costs for

“transcripts,” “printing and witnesses,” and “making copies . . . necessarily

obtained for use in the case,” respectively. 28 U.S.C. §§ 1920(2)–(4).

Anchorage Hilton also argues that the Union did not show why “more

expensive” delivery services, such as United Parcel Service, were necessary and

reasonable. To the contrary, “it is incumbent” on Anchorage Hilton to overcome

the presumption in favor of awarding costs to the prevailing party. Univ. of S.

Cal., 178 F.3d at 1079. Anchorage Hilton presents no evidence that the postage

costs awarded were unnecessary or unreasonable.

AFFIRMED.