United States District Court, D. Hawaii
EMERSON M.F. JOU, M.D., Plaintiff,
GREGORY M. ADALIAN, Defendant.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART DEFENDANT GREGORY M. ADALIAN'S BILL OF
Kenneth J. Mansfield United States Magistrate Judge.
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
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.
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.
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.
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.
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.
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.
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.
“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).
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
28 U.S.C. § 1920.
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.
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, ...