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Jou v. Adalian

United States District Court, D. Hawaii

June 15, 2018

EMERSON M.F. JOU, M.D., Plaintiff,
v.
GREGORY M. ADALIAN, Defendant.

          FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT GREGORY M. ADALIAN'S BILL OF COSTS

          Kenneth J. Mansfield United States Magistrate Judge.

         On May 9, 2018, Defendant Gregory M. Adalian (“Defendant”) filed a Bill of Costs. ECF No. 252. On May 11, 2018, Defendant filed an Errata to Exhibit “A” to Affidavit of Stephen M. Tannenbaum [DKT. 252-3] Filed in Support of Defendant's Bill of Costs. ECF No. 254. On May 15, 2018, Plaintiff Emerson M.F. Jou, M.D. (“Plaintiff”) filed a Memorandum Objecting to Defendant's Bill of Costs (“Objection”). ECF No. 255.

         The Court elected to decide the Bill of Costs without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). After careful consideration of the Bill of Costs, the parties' memoranda, and the record established in this action, the Court FINDS AND RECOMMENDS that the district court GRANT IN PART AND DENY IN PART Defendant's Bill of Costs.

         BACKGROUND

         This case arises out of long-running dispute between Plaintiff and Defendant that dates back to at least May 2009. See ECF No. 67 at 2. The Court and the parties are familiar with the background of this case. The Court thus recites only those facts relevant to disposition of the Bill of Costs.

         On September 22, 2016, Plaintiff filed a Second Amended Complaint, asserting a single claim for spoliation of evidence. ECF No. 68. On October 7, 2016, Plaintiff filed a “Motion for Certification of Questions to Hawaii Supreme Court” (“Motion for Certification”). ECF No. 71. In the Motion for Certification, Plaintiff asked the district court to certify questions to the Hawai'i Supreme Court regarding Plaintiff's spoliation of evidence claim. See ECF No. 71-1 at 4.

         On October 11, 2016, the district court issued an entering order regarding the Motion for Certification (“10/11/2016 EO”). ECF No. 73. In the 10/11/2016 EO, the district court found that the Motion for Certification was premature, and thus dismissed it without prejudice. Id. The parties then proceeded to litigate Plaintiff's spoliation claim, conducting discovery and filing various motions.

         On August 17, 2017, Defendant filed a Motion for Judgment on the Pleadings as to the Second Amended Complaint (“MJOP”). ECF No. 194. On April 25, 2018, the district court granted Defendant's MJOP and dismissed the Second Amended Complaint with prejudice. See ECF No. 249 at 29. The Clerk of Court subsequently entered judgment in favor of Defendant on April 25, 2018. ECF No. 250.

         Defendant timely filed a Bill of Costs on May 9, 2018. ECF No. 252. The Bill of Costs includes a supporting affidavit from Defendant's counsel, Stephen M. Tannenbaum, Esq. (“Tannenbaum Affidavit”). ECF No. 252-2.

         DISCUSSION

         Defendant requests $6, 834.88 in costs pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure (“FRCP”). See ECF No. 252 at 2-4. FRCP Rule 54(d)(1) states that, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” Thus, pursuant to FRCP Rule 54(d), courts have discretion to award costs to the prevailing party. See Yasui v. Maui Elec. Co., 78 F.Supp.2d 1124, 1126 (D. Haw. 1999).

         Indeed, “Rule 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.” Id. “The presumption itself provides all the reason a court needs for awarding costs, and when a district court states no reason for awarding costs, [the appellate court] will assume it acted based on that presumption.” Quan v. Comput. Scis. Corp., 623 F.3d 870, 888 (9th Cir. 2010) (brackets added) (citations omitted). “To overcome this presumption, a losing party must establish a reason to deny costs.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).

         While courts have discretion to award costs pursuant to Rule 54(d), “courts may only tax those costs defined in 28 U.S.C. § 1920.” Yasui, 78 F.Supp.2d at 1126 (other citations omitted) (citing Aflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 176 (9th Cir. 1990) (providing that § 1920 enumerates expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d)). Section 1920 enumerates costs taxable to the prevailing party:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

         Defendant's Bill of Costs seeks to recover costs for transcripts, service of subpoenas, witness attendance, and copying. The Court addresses Defendant's specific requests and Plaintiff's objection to such requests in turn.

         A. Transcript Costs

         Section 1921(2) allows recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1921(2). Defendant seeks $4, 421.67 in reimbursement for costs of transcripts costs. Of this amount, Defendant requests $4, ...


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