Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tucker v. Cascade General, Inc.

United States District Court, D. Oregon, Portland Division

May 5, 2015

PHILLIP TUCKER, Plaintiff,
v.
CASCADE GENERAL, INC., an Oregon corporation, and UNITED STATES OF AMERICA, Defendants.

OPINION AND ORDER

JOHN V. ACOSTA, Magistrate Judge.

On March 2, 2015, this Court entered Judgment (ECF No. 370) in favor of Philip Tucker ("Tucker") on the Second Claim for Relief (Negligence against the United States) in his Third Amended Complaint, and awarded damages in the amount of $5, 038, 593.50; post-judgment interest at the rate of 4% per annum from the date of Judgment until satisfied; and costs pursuant to FED R. CIV. P. 54. Tucker filed a Bill of Costs (ECF No. 378) seeking $21, 823.87 in costs as the prevailing party in this action. The United States filed Objections to Tucker's request for costs. For the reasons set forth below, the Court grants, in part, and denies, in part, Tucker's Bill of Costs.

Legal Standard

Rule 54(d)(1) provides "costs - other than attorney's fees - should be allowed to the prevailing party." FED R. CIV. P. 54(d)(1). The specific items a prevailing party may recover as costs are listed in 28 U.S.C. § 1920.[1] In the Ninth Circuit, this rule creates a presumption in favor of awarding costs to a prevailing party; if a district court departs from that presumption, it must provide an explanation so the appellate court can determine whether the district court abused its discretion. See, e.g., Association of Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) ( en banc ) (If disallowing costs, the district court should "explain why a case is not ordinary' and why, in the circumstances, it would be inappropriate or inequitable to award costs."); see also Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (district court "need only find that the reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of an award"). The trial court has wide discretion in awarding costs under FED R. CIV. P. 54(d) and is "free to construe the meaning and scope of the items enumerated as taxable costs...." Kelley v. Sears, Roebuck, and Co., No. 01-cv-1423-ST, 2004 WL 1824121, *3 (D. Or. Aug. 10, 2004).

Pursuant to Local Rule 54.1(a)(1), the prevailing party must provide a "detailed itemization of all claimed costs" and "appropriate documentation." In addition, LR 54.1(a)(2) states the cost bill must be verified as required by 28 U.S.C. § 1924, which requires an affidavit that the items within the cost bill are correct, have been necessarily incurred in the case, and the services for which fees have been charged were actually and necessarily performed. Simply filing a list of charges without supporting documentation is not "appropriate documentation." See, e.g., Primerica Life Ins. Co. v. Ross, No. 06-cv-763-PK, 2006 WL 3170044, *3 n.2 (Nov. 1, 2006) (statement of total amount of costs unaccompanied by information that would allow court to exercise discretion to determine reasonableness of costs not sufficient documentation).

Analysis

Tucker submitted a Bill of Costs seeking $21, 823.87 for the following fees: service of summons or subpoena ($110), printed or electronically recorded transcripts ($17, 419.40), disbursements for printing ($1, 408.63), witnesses ($1, 729.84), compensation for court-appointed experts ($300), and "other costs" ($856).[2] (Pl.'s Bill of Costs.) In support of his request for reimbursement of costs, Tucker provided an itemization, including the total amount sought for each requested category of expense, a breakdown of the expenses that comprised a particular category, and the date the costs were incurred. (Gordon T. Carey Decl. Exs. II-V and X-XI, April 2, 2015.) Additionally, in his Declaration filed with the Court, Carey, who was sworn on oath, stated: "I make this affidavit in support of plaintiff's Bill of Costs. The following is true to the best of my knowledge, information and belief." (Carey Decl. ¶ 1.) The Court is satisfied Tucker properly verified the Bill of Costs in accordance with the requirements of LR 54.1, and now turns to the specific items sought and the United States' Objections to certain requested amounts.

I. Cost Items

A. Fees of the Clerk and Marshal - 28 U.S.C. § 1920(1)

Tucker seeks reimbursement of $110 as money paid for service of summons and subpoena, specifically, a $45 fee for service of the Summons and Complaint on the United States; and a $65 fee paid for service of a subpoena upon Steven Ross Cinkowsky. (Carey Decl. ¶ 3; Ex. II.) The United States does not object to this cost item.

A prevailing party may recover "[f]ees of the clerk and marshall[.]" 28 U.S.C. § 1920(1). The evidence establishes Tucker was invoiced $110 "for service of summons and subpoenas" incurred in serving the Complaint and Summons on the United States and serving a subpoena on Cinkowsky. The government does not object to this claimed cost. Tucker's payment for service of summons and subpoena was necessary and is a recoverable item under Rule 54(d)(1). Accordingly, this cost is allowed in the amount of $110.

B. Fees for Printed or Electronically Recorded Transcripts Necessarily Obtained for use in the Case - 28 U.S.C. § 1920(2)

Tucker requests reimbursement of $17, 419.40 in fees paid for printed or electronically recorded transcripts, perpetuation depositions, and trial transcripts. (Carey Decl. ¶ 4; Ex. III.) Under 28 U.S.C. § 1920(2), a prevailing party may recover "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case[.]" See also FED. R. CIV. P. 54(d)(1) ("costs... should be allowed to the prevailing party").

The United States objects only to amounts that are unsupported by the evidence. Specifically, the government seeks a reduction of: (1) $59.75 from the $272.50 fee requested for Josh Economides's transcript because the supporting invoice shows that transcript billed at $212.75 (Carey Decl. Ex. III, at 34); (2) $59.80 from the $325 fee requested for Toni Hotten's transcript because the supporting invoice shows that transcript billed at $265.20 (Carey Decl. Ex. III, at 35); (3) $59.80 from the $356.45 fee requested for Michael Medcalf's transcript because the supporting invoice shows that transcript billed at $296.65 (Carey Decl. Ex. III, at 34); (4) $90 from the $650.75 fee requested for David Spencer's transcript because the supporting invoice shows that transcript billed at $560.75 (Carey Decl. Ex. III, at 63); (5) $60 from the $616.80 fee requested for John Sullivan's transcript because the supporting invoice shows that transcript billed at $556.80 (Carey Decl. Ex. III, at 34); and (6) $41.30 from the $298 fee requested for Philip Tucker's transcript ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.