1 2 3 4 5 6 7 10 11 IAN MERRITT, Case No.: 3:23-cv-1031-CAB-KSC
12 Plaintiff, ORDER GRANTING IN PART 13 v. MOTION TO RE-TAX
[Doc. No. 163] 15 Defendant. 16 17 Plaintiff has filed a motion to re-tax costs. [Doc. No. 163.] Based on LR 54.1(h), 18 that motion is timely. The Court grants the motion in part and denies it in part. 20 Plaintiff submitted for costs which the Clerk’s office rejected for procedural defects. 21 Among these defects were a complete lack of documentation, invoices, or even an 22 explanation of the claimed costs as required by LR 54.1. [Doc. No. 161 at 2.] Plaintiff’s 23 counsel admits that the filing was “incomplete, lacking full supporting documentation such 24 as detailed invoices and receipts.” [Doc. No. 163-1 at 2.] Although Plaintiff complains 25 that he has been denied his right to costs due to these “procedural issues,” it is entirely 26 Plaintiff’s responsibility to follow the rules of this District. 27 Plaintiff claims that a recent office relocation change and change in case 28 management system contributed to counsel’s errors relating to the first bill of costs (which 1 the Clerk of the Court rightfully rejected). But that office relocation happened months 2 before Plaintiff filed for costs. [Doc. No. 171-1 at 2.] Plaintiff does not provide much to 3 help the Court to understand how the change in the firm’s case management system 4 contributed to the procedural shortcomings. 5 Plaintiff nevertheless states that he “genuinely believed that the Initial Bill of Costs 6 could be cured after the deadline,” [Doc. No. 163 at 5], but fails to provide an acceptable 7 basis for this belief. As Plaintiff points out, ignorance of the law is not an excuse. See, 8 e.g., Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 819 F.3d 476, 480 9 (D.C. Cir. 2016) (affirming denial of Rule 6 relief where attorney’s misreading of the case 10 docket did not constitute excusable neglect). 11 At this juncture, Plaintiff has submitted three separate cost bills. On February 12, 12 2025, he claimed $257,159.58 in costs. [Doc. No. 145.] Next, Plaintiff increased his 13 request to $267,248.85 “in an effort to provide a more comprehensive accounting.” [Doc. 14 No. 163 at 15.] Then, “Plaintiff discovered additional bills that had not been previously 15 accounted for,” and on April 4, 2025, submitted a bill for $278,411.61. [Id.] 16 The Court agrees that Defendant has been prejudiced. Plaintiff continues to request 17 additional costs past the imposed deadline all while Defendant is repeatedly forced to 18 formulate a response to each. The Court will not infer bad faith from Plaintiff’s actions— 19 but also will not give him the benefit of his delay. Thus, the Court will consider only the 20 first bill of costs filed by Plaintiff, as detailed in the table below: 21 22 Fees for service of summons and $7,995.00 23 subpoenas 24 Fees for printed or electronically recorded $42,545.83 25 transcripts 26 Fees and disbursements for printing $6,418.62 27 Witness Fees $5,000.00 28 1 Other Costs – Itemized $7,628.94 2 Other Costs – Court-Appointed Experts $165,499.44 3 II. LEGAL STANDARD 4 The district court has discretion to award costs to a prevailing party. Crawford 5 Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). That discretionary power is 6 found in Fed. R. Civ. P. 54 (d). Id. 28 U.S.C. § 1920 outlines the costs that may be taxed 7 against a losing party. The Local Rules provide greater detail on taxable costs, which the 8 Court discusses as relevant below. 9 The Court notes that much of Plaintiff’s response is to justify why his motion for re- 10 tax should be considered in the first place. [See generally, Doc. No. 175.] Plaintiff devotes 11 little effort to contest Defendant’s line-by-line refutation of the requested costs. 12 III. ANALYSIS 13 A. Fees for Subpoena Service 14 Plaintiff requests $7,995.00 for fees relating to the service of subpoenas. $246.75 of 15 that amount is related to “Same Day Rush” service. Under Local Rule 54.1(b)(1), “fees 16 for expedited service are allowable only if the Court ordered service to be affected on an 17 expedited basis.” As the Court did not order any expedited service, the amount for same 18 day rush service is not recoverable. 19 The Court disagrees with Defendant that costs should only be awarded to individuals 20 who testified at trial. The text of the local rule contains no such limitation. Nevertheless, 21 exercising its discretion, the Court limits costs only to those witnesses identified in 22 Plaintiff’s most recently filed witness list. [Doc. No. 54.] 23 Defendant argues that the expenses associated with the subpoena against Dr. Fox 24 should not be taxed against Defendants since he resided more than 100 miles from the 25 federal courthouse. The same appears to be true for Messrs. Nourian and Patel (neither of 26 whom testified at trial). The Court agrees. Defendant is also correct that All City Invoice 27 #13268 dated March 25, 2024 is duplicative of the subpoena issued to Kira Merritt. 28 1 The Court awards a total of $1,475.00 in costs for the following subpoenas: 2 Officer Dalton Abernathy $165.00 3 Officer Daniel Ellis $165.00 4 Sierra Peralta $165.00 5 Kira Merritt $165.00 6 Andrew Fox, M.D. $155.00 7 Daniel Hunter $165.00 8 Benjamin Attias $165.00 9 William T. Kent, M.D. $165.00 10 Nassey Kouame $165.00 11 Total $1,475.00 12
13 B. Fees for Printed or Electronically Recorded Transcripts 14 Plaintiff requests $42,545.83 in fees for deposition transcripts. First, the Court 15 agrees with Defendant that he should not have to pay any late payment fees on transcripts 16 ordered by Plaintiff. The Court also denies Plaintiff’s request for fees related to a “rough” 17 transcript of the deposition of Daniel Simaceck. 18 As for the video depositions, LR 54.1(b)(3) allows recovery for both video and 19 stenographic depositions if the video deposition is used at trial. The only video used at 20 trial was that of Officer Abernathy. The Court also agrees that costs for “synchronized 21 media files” and “original media files” for non-testifying witnesses are not taxable. 22 With respect to Steno Agency, Inc., the invoices lump together costs for expedited 23 transcripts. The Court will not grant recovery for expedited transcripts. Moreover, Invoice 24 No. 1423417, totaling $992.15, does not have a deponent, and the Court cannot tax costs 25 for that invoice without additional clarifying information. 26 The Court further agrees with Defendant regarding shipping and handling costs for 27 delivery of transcripts of Kira Merritt and Sierra Peralta to counsel, see LR 54.1(b)(3)(d), 28 1 the depositions of Leslie Ann Herfindahl, Nassey Kouame, Scott Allen DeFoe, and Officer 2 Larrison are not taxable as there is no basis to say that these depositions were taken for 3 “mere discovery” pursuant to LR 54.1(b(3)(a). Plaintiff shall receive the following 4 amounts: 5 Deponent Item Amount 6 Ian Merritt Certified Transcript $469.50 7 Okorie Okoracha Certified Transcript $604.15 8 Officer Abernathy Certified Transcript $631.90 9 Jon Landerville Certified Transcript $1,317.71 10 Officer Abernathy Media File (Video) $253.75 11 Jessica Thackaberry, M.D. Certified Transcript $452.00 12 Detective Ybanez Certified Transcript $ $654.50 13 Raymond Vance, M.D.
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1 2 3 4 5 6 7 10 11 IAN MERRITT, Case No.: 3:23-cv-1031-CAB-KSC
12 Plaintiff, ORDER GRANTING IN PART 13 v. MOTION TO RE-TAX
[Doc. No. 163] 15 Defendant. 16 17 Plaintiff has filed a motion to re-tax costs. [Doc. No. 163.] Based on LR 54.1(h), 18 that motion is timely. The Court grants the motion in part and denies it in part. 20 Plaintiff submitted for costs which the Clerk’s office rejected for procedural defects. 21 Among these defects were a complete lack of documentation, invoices, or even an 22 explanation of the claimed costs as required by LR 54.1. [Doc. No. 161 at 2.] Plaintiff’s 23 counsel admits that the filing was “incomplete, lacking full supporting documentation such 24 as detailed invoices and receipts.” [Doc. No. 163-1 at 2.] Although Plaintiff complains 25 that he has been denied his right to costs due to these “procedural issues,” it is entirely 26 Plaintiff’s responsibility to follow the rules of this District. 27 Plaintiff claims that a recent office relocation change and change in case 28 management system contributed to counsel’s errors relating to the first bill of costs (which 1 the Clerk of the Court rightfully rejected). But that office relocation happened months 2 before Plaintiff filed for costs. [Doc. No. 171-1 at 2.] Plaintiff does not provide much to 3 help the Court to understand how the change in the firm’s case management system 4 contributed to the procedural shortcomings. 5 Plaintiff nevertheless states that he “genuinely believed that the Initial Bill of Costs 6 could be cured after the deadline,” [Doc. No. 163 at 5], but fails to provide an acceptable 7 basis for this belief. As Plaintiff points out, ignorance of the law is not an excuse. See, 8 e.g., Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 819 F.3d 476, 480 9 (D.C. Cir. 2016) (affirming denial of Rule 6 relief where attorney’s misreading of the case 10 docket did not constitute excusable neglect). 11 At this juncture, Plaintiff has submitted three separate cost bills. On February 12, 12 2025, he claimed $257,159.58 in costs. [Doc. No. 145.] Next, Plaintiff increased his 13 request to $267,248.85 “in an effort to provide a more comprehensive accounting.” [Doc. 14 No. 163 at 15.] Then, “Plaintiff discovered additional bills that had not been previously 15 accounted for,” and on April 4, 2025, submitted a bill for $278,411.61. [Id.] 16 The Court agrees that Defendant has been prejudiced. Plaintiff continues to request 17 additional costs past the imposed deadline all while Defendant is repeatedly forced to 18 formulate a response to each. The Court will not infer bad faith from Plaintiff’s actions— 19 but also will not give him the benefit of his delay. Thus, the Court will consider only the 20 first bill of costs filed by Plaintiff, as detailed in the table below: 21 22 Fees for service of summons and $7,995.00 23 subpoenas 24 Fees for printed or electronically recorded $42,545.83 25 transcripts 26 Fees and disbursements for printing $6,418.62 27 Witness Fees $5,000.00 28 1 Other Costs – Itemized $7,628.94 2 Other Costs – Court-Appointed Experts $165,499.44 3 II. LEGAL STANDARD 4 The district court has discretion to award costs to a prevailing party. Crawford 5 Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). That discretionary power is 6 found in Fed. R. Civ. P. 54 (d). Id. 28 U.S.C. § 1920 outlines the costs that may be taxed 7 against a losing party. The Local Rules provide greater detail on taxable costs, which the 8 Court discusses as relevant below. 9 The Court notes that much of Plaintiff’s response is to justify why his motion for re- 10 tax should be considered in the first place. [See generally, Doc. No. 175.] Plaintiff devotes 11 little effort to contest Defendant’s line-by-line refutation of the requested costs. 12 III. ANALYSIS 13 A. Fees for Subpoena Service 14 Plaintiff requests $7,995.00 for fees relating to the service of subpoenas. $246.75 of 15 that amount is related to “Same Day Rush” service. Under Local Rule 54.1(b)(1), “fees 16 for expedited service are allowable only if the Court ordered service to be affected on an 17 expedited basis.” As the Court did not order any expedited service, the amount for same 18 day rush service is not recoverable. 19 The Court disagrees with Defendant that costs should only be awarded to individuals 20 who testified at trial. The text of the local rule contains no such limitation. Nevertheless, 21 exercising its discretion, the Court limits costs only to those witnesses identified in 22 Plaintiff’s most recently filed witness list. [Doc. No. 54.] 23 Defendant argues that the expenses associated with the subpoena against Dr. Fox 24 should not be taxed against Defendants since he resided more than 100 miles from the 25 federal courthouse. The same appears to be true for Messrs. Nourian and Patel (neither of 26 whom testified at trial). The Court agrees. Defendant is also correct that All City Invoice 27 #13268 dated March 25, 2024 is duplicative of the subpoena issued to Kira Merritt. 28 1 The Court awards a total of $1,475.00 in costs for the following subpoenas: 2 Officer Dalton Abernathy $165.00 3 Officer Daniel Ellis $165.00 4 Sierra Peralta $165.00 5 Kira Merritt $165.00 6 Andrew Fox, M.D. $155.00 7 Daniel Hunter $165.00 8 Benjamin Attias $165.00 9 William T. Kent, M.D. $165.00 10 Nassey Kouame $165.00 11 Total $1,475.00 12
13 B. Fees for Printed or Electronically Recorded Transcripts 14 Plaintiff requests $42,545.83 in fees for deposition transcripts. First, the Court 15 agrees with Defendant that he should not have to pay any late payment fees on transcripts 16 ordered by Plaintiff. The Court also denies Plaintiff’s request for fees related to a “rough” 17 transcript of the deposition of Daniel Simaceck. 18 As for the video depositions, LR 54.1(b)(3) allows recovery for both video and 19 stenographic depositions if the video deposition is used at trial. The only video used at 20 trial was that of Officer Abernathy. The Court also agrees that costs for “synchronized 21 media files” and “original media files” for non-testifying witnesses are not taxable. 22 With respect to Steno Agency, Inc., the invoices lump together costs for expedited 23 transcripts. The Court will not grant recovery for expedited transcripts. Moreover, Invoice 24 No. 1423417, totaling $992.15, does not have a deponent, and the Court cannot tax costs 25 for that invoice without additional clarifying information. 26 The Court further agrees with Defendant regarding shipping and handling costs for 27 delivery of transcripts of Kira Merritt and Sierra Peralta to counsel, see LR 54.1(b)(3)(d), 28 1 the depositions of Leslie Ann Herfindahl, Nassey Kouame, Scott Allen DeFoe, and Officer 2 Larrison are not taxable as there is no basis to say that these depositions were taken for 3 “mere discovery” pursuant to LR 54.1(b(3)(a). Plaintiff shall receive the following 4 amounts: 5 Deponent Item Amount 6 Ian Merritt Certified Transcript $469.50 7 Okorie Okoracha Certified Transcript $604.15 8 Officer Abernathy Certified Transcript $631.90 9 Jon Landerville Certified Transcript $1,317.71 10 Officer Abernathy Media File (Video) $253.75 11 Jessica Thackaberry, M.D. Certified Transcript $452.00 12 Detective Ybanez Certified Transcript $ $654.50 13 Raymond Vance, M.D. Court Reporting $1,813.50 14 Tyler Shaw Court Reporting $1,920.10 15 Howard Tung, M.D Court Reporting $1,589.40 16 Ed Barley Court Reporting $1,397.00 17 Leslie Ann Herfindahl Certified Transcript $469.50 18 Nassey Kouame Certified Transcript $235.00 19 Scott Allen DeFoe Certified Transcript $516.25 20 Officer Larrison Certified Transcript $400.00 21 TOTAL -- $12,724.26 22 C. Fees and Disbursements for Printing 23 LR 54.1(b)(6)(c) requires a litigant to present documentary evidence in the form of 24 affidavits providing key details related to printing. Plaintiff has not provided any of those 25 details. In the absence of the required specific showing, “recovery must be denied.” LR 26 54.1(b)(6)(c). Moreover, there are numerous other problems with Plaintiff’s request, 27 including that Plaintiff seeks recovery for items (USB drives, data transfers/extraction) that 28 1 are not taxable under the rules. Because of these numerous shortfalls, the Court does not 2 award costs for this category. 3 D. Fees for Witnesses 4 The Court agrees that fees charged by expert witnesses above the standard daily 5 attendance fee are not taxable costs. Plaintiff appears to be seeking some sort of expert 6 witness fees for Dr. Kent, Mr. Brault, Mr. Morris, and Dr. Fox. [See Doc. No. 163-5 at 4.] 7 The only amount Plaintiff may recover for these expert witnesses is $40.00 per day, for 8 attendance because none of these witnesses were court appointed. 28 U.S.C. § 1821(b). 9 The total amount recoverable is $160.00. 10 E. Court-Appointed Experts 11 Plaintiff cannot recover $165,499.44 for expert witness fees. Those fees are 12 recoverable if an expert is appointed by the Court, see LR 54.1(b)(5), but the Court did not 13 appoint a single expert. 14 F. Certified Trial Court Transcripts 15 Plaintiff seeks $7,628.94 in trial court transcripts. LR 54.1(b)(2) provides that 16 “except as provided . . . the cost of transcripts is not normally allowable unless, before it 17 is incurred, it is approved by a judge or stipulated to be recoverable by counsel.” None of 18 the exceptions apply here. LR 54.1(b)(2)(b) does not apply since the transcripts were not 19 “necessarily” ordered for appeal. 20 /// 21 /// 22 /// 23 24 25 26 27 28 I IV. CONCLUSION 2 The Court amends the Clerk’s Order Taxing Costs, [Doc. No. 161], to the following 3 || amounts: 4 ||| Fees for service of summons and $1,475.00 6 ||| Fees for printed or electronically recorded $12,724.26 ime : :
13 14 15 é 16 17 ll pated: May 28, 2025 □□ Cathy Ann Bencivengo , nited States District Judge 18 19 20 21 22 23 24 25 26 27 28