Brubaker et al v. Tucson, City of et al, No. 4:2010cv00649 - Document 333 (D. Ariz. 2022)
Court Description: ORDER granting in part and denying in part Plaintiff's Motion for Review of Judgment on Taxation of Costs (Doc. 329 ). Defendants are awarded $1681.05 in taxable costs. This order modifies the Taxation Judgment (Doc. 327 ) entered on September 21, 2022. Signed by Senior Judge Stephen M McNamee on 10/31/2022. (LFIG)
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Brubaker et al v. Tucson, City of et al 1 Doc. 333 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Brubaker, et al., Plaintiffs, 10 11 v. 12 City of Tucson, et al., 13 No. CV-10-00649-TUC-SMM ORDER Defendants. 14 Pending before the Court is Plaintiff’s Motion for Review of Judgment on Taxation 15 16 of Costs. (Doc. 329). 17 I. Background 18 On March 6, 2020, on the final day of a four-day jury trial, the Court granted 19 Defendants’ Motion for Judgment as a Matter of Law, whereupon the Clerk entered 20 judgment in Defendants’ favor. (Doc. 197). On March 27, 2020, Plaintiff appealed the case 21 to the Ninth Circuit. (Doc. 200). On July 16, 2020, with Plaintiff’s appeal pending, the 22 Clerk of the Court awarded Defendants $4,282.65 in taxable costs. (Doc. 217). On 23 November 3, 2020, upon review, the Court reduced Defendants’ taxable costs to $3,674.35. 24 (Doc. 226). 25 On August 19, 2021, the Ninth Circuit reversed in part and affirmed in part the 26 Court’s grant of judgment as a matter of law in favor of Defendants, remanding the case 27 back to the District Court. (Doc. 230). This Court held a jury trial from August 15, 2022, 28 to August 18, 2022. Dockets.Justia.com 1 Following the 2022 trial, Defendants presented a Bill of Costs (Doc. 322) and 2 accompanying Affidavit (Doc. 323), this time seeking $5,007.18. Plaintiff filed an 3 Opposition to Defendants’ Affidavit of Taxable Costs (Doc. 324) and Defendants 4 responded to this Objection. (Doc. 326). On September 21, 2022, the Clerk of the Court 5 awarded Defendants taxable costs of $4,172.68. (Doc. 327). On September 23, 2022, 6 Plaintiff filed a Motion for Review of Judgment on Taxation of Costs. (Doc 329). 7 Defendants have filed their Response (Doc. 330) and Plaintiff has filed his reply. (Doc. 8 331). 9 II. Legal Standard 10 28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax costs. Fed. 11 R. Civ. P. 54(d)(1) creates a presumption that favors the prevailing party's recovery of 12 authorized costs. It is incumbent upon the party opposing the recovery of costs to overcome 13 that presumption. See Stanley v. Univ. S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Upon 14 motion for review of a clerk's taxation of costs, a district court reviews de novo the clerk's 15 judgment. United States ex rel. Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1412 16 n.13 (9th Cir. 1995). “The general rule on the taxation of costs is that the district court has 17 discretion to fix the costs.” Johnson v. Pac. Lighting Land Co., 878 F.2d 297, 298 (9th Cir. 18 1989). Such discretion, however, does not allow a court to tax costs beyond those 19 authorized by statute. Id. 20 The Court's taxation of costs must also comport with the Local Rules. Importantly, 21 Local Rule 54.1(e) specifies the items that the prevailing party may receive as taxable costs. 22 A party seeking the taxation of costs must provide “a memorandum of the costs and 23 necessary disbursements, so itemized that the nature of each can be readily understood, 24 and, where available, documentation of requested costs in all categories must be attached.” 25 LRCiv. 54.1(a). The Local Rules provide an exhaustive list of taxable costs, although items 26 outside of this list may be taxed with prior court approval. Id. 27 28 Relevant here, LRCiv 54.1(e)(5) allows the prevailing party to recover costs for “exemplifications and copies of papers” as follows: -2- 1 The reasonable cost of copies of papers necessarily obtained 2 from third-party records custodians is taxable. The reasonable 3 cost of documentary exhibits admitted into evidence at hearing 4 or trial is also taxable, including the provision of additional 5 copies for the Court and opposing parties. The cost of copies 6 submitted in lieu of originals because of the convenience of 7 offering counsel or client are not taxable. All other copy costs 8 are not taxable except by prior order of the Court. 9 III. Discussion 10 As a preliminary matter, Plaintiff argues that the Ninth Circuit’s vacatur of judgment 11 also vacated the costs awarded following the 2020 trial. (Doc. 329 at 2). Defendants do not 12 dispute this. (Doc. 330 at 2). Instead, Defendants insist that vacatur of the award of costs 13 did not vacate the Court’s ruling as to what those costs consisted of. (Id.) Defendants point 14 out that Plaintiff did not raise any objection to the award of taxable costs on appeal and 15 consider the matter waived. (Id.) Neither side cites caselaw to support their position and 16 the Court is unable to locate any opinions within the Ninth Circuit that deal with this precise 17 scenario. 18 The Court rejects Defendants’ argument that Plaintiff waived any objection to the 19 Court’s award of costs by not raising the issue on appeal to the Ninth Circuit. Plaintiff 20 appealed the District Court’s judgment before taxable costs were awarded. As such, 21 Plaintiff was unable to raise the issue on appeal and cannot be considered to have waived 22 the issue. Further, neither Defendants nor the Clerk have treated the 2020 award of taxable 23 costs as unmodifiable. In its recent 2022 award of taxable costs, the Clerk noted that 24 “[D]efendants have…conceded that $620.80 previously awarded [for taking and 25 transcribing statements from various Tucson police officers] is not properly taxable.” 26 Regardless, and as previously stated, a court may review a clerk’s taxation of costs 27 de novo. Defendant will be awarded those costs granted by the Clerk that Plaintiff has not 28 challenged. For those costs that Plaintiff has challenged, covering both trials, this Court -3- 1 will review de novo the Clerk’s taxation of costs. 2 A. 3 First, Plaintiff challenges Defendants’ request for $595.00 to procure TV news clips 4 as a records expense. (Doc. 329 at 2-3) Plaintiff argues that this expense was not taxable 5 pursuant to either 28 U.S.C. § 1920 or LRCiv 54.1(e). (Id.) Defendants do not address any 6 of Plaintiff’s arguments as to this cost. In their 2020 Reply in Support of Defendants’ 7 Motion for Attorneys’ Fees and Taxable Costs, however, Defendants argued that this cost 8 was taxable under § 1920 because it went toward obtaining news coverage of the case, 9 which Plaintiff had “specifically fought to introduce into evidence” and, as such, was 10 TV News Clips “plainly obtained for use in this case.” (Doc. 206 at 6-7). 11 Of course, this cost must be taxable under LRCiv 54.1 in addition to § 1920. Under 12 Local Rule 54.1(e), Defendants have two routes to recover this expense. First, if they can 13 demonstrate that the expense was for “documentary evidence admitted into evidence.” 14 Here, these new clips were not admitted into evidence. That leaves the second route—for 15 “copies of papers necessarily obtained from third-party records custodians.” Here, the clips 16 were obtained from a third-party records custodian—News Exposure—and were 17 necessarily obtained for trial, as news coverage of the case was relevant at the time the 18 clips were procured. However, these clips were not “papers.” As a result, these expenses 19 do not fall under any category provided by the Local Rules and are not taxable. 20 B. 21 Second, Plaintiff challenges Defendants’ request for $1366.90 for investigation 22 expenses relating to Donald Deal. (Doc. 329 at 2-3). Plaintiff argues that Deal was not 23 called to testify and that investigative costs such as these may not recovered under § 1920 24 or LRCic 54.1(e). (Id.) As Plaintiff points out, Defendants have themselves conceded in 25 the past that investigative expenses are not recoverable. (Doc. 206 at 7). Defendants’ 26 Response does not address Plaintiff’s argument as to this cost. (Docs. 326 and 330). 27 28 Investigation Expenses The Court accepts Plaintiff’s argument and determines these investigative expenses to be nontaxable. -4- 1 C. 2 Third, Plaintiff challenges Defendants’ three separate expenses (of $331.68, $17.25, 3 and $241.00) for color copies of photos and exhibits used during the 2020 trial. (Doc. 329 4 at 3-4). Plaintiff argues that Defendant is not entitled to recovery of costs for the 5 photographs because such recovery is only possible for photographs that were admitted 6 into evidence and Defendants have failed to identify which of these photographs were 7 introduced into evidence. (Id.) Trial Exhibits for 2020 Trial 8 The Court finds that Defendants’ affidavit and receipts sufficiently identify the 9 exhibits to which they correspond. In the 2020 trial, Defendants admitted five exhibits of 10 photos and one seven-page transcript. (Doc. 196). The costs documented in the attached 11 receipts appear reasonable for the acquisition of these exhibits, including for “copies for 12 the Court and opposing parties.” These costs are therefore taxable. 13 D. 14 Finally, Plaintiff challenges Defendants’ request for $529.73 for preparing exhibits 15 for the second trial. (Doc. 329 at 4). Defendants should not be awarded these costs, Plaintiff 16 argues, because they did not identify which exhibits were admitted. (Id.) In response, 17 Defendants assert that these costs meet the relevant standard under LRCiv 54.1(e)(5). (Doc. 18 330 at 2-3). Trial Exhibits for 2022 Trial 19 Defendants’ affidavit simply describes this cost as “Trial Exhibits.” (Doc. 323 at 3). 20 Unlike the trial exhibit costs for the 2020 trial which were described as photographs, 21 Defendants’ costs for the 2022 trial do not specify what type(s) of media the costs consist 22 of. (Id.) Defendants’ affidavit does not specify to which admitted exhibits these costs 23 correspond. (Id.) Neither does the receipt attached to the affidavit. (Doc. 321-1 at 22). The 24 receipt indicates that Defendants ordered three copies of an 1118-page document printed 25 on bond paper and 3 copies of a 3-page document printed on a more expensive paper. 26 Defendants’ affidavit and receipt do not provide enough information for the Court 27 to determine to which exhibits these costs correspond. Defendants admitted into evidence 28 only two printed exhibits. (Docs. 312 and 316). First, a seven-page transcript of Sergeant -5- 1 Wakefield’s interview of Deal. (Id.) Second, the transcript of Officer Pelton’s phone call 2 with the magistrate judge, which is presumably seven pages long, as it was when it was 3 admitted into evidence during the 2020 trial. (Id.; Doc. 196). Neither of these exhibits 4 clearly correspond with the receipt attached to Defendant’s affidavit. As such, Defendants 5 have failed to provide “a memorandum of the costs and necessary disbursements, so 6 itemized that the nature of each can be readily understood.” These costs are therefore not 7 taxable. 8 For the foregoing reasons, 9 IT IS HEREBY ORDERED granting in part and denying in part Plaintiff’s 10 Motion for Review of Judgment on Taxation of Costs (Doc. 329). Defendants are awarded 11 $1681.05 in taxable costs. This order modifies the Taxation Judgment (Doc. 327) entered 12 on September 21, 2022. 13 Dated this 31st day of October, 2022. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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