394 d obj bill of costs

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Case 1:07-cv-00026-OWW-DLB Document 394 Filed 07/14/2009 Page 1 of 12

1 Mark A. Wasser CA SB #060160LA W OFFICES OF MARK A. WASSER

2 400 Capitol Mall, Suite 2640Sacramento, California 95814

3 Phone: (916) 444-6400Fax: (916) 444-6405

4 E-mail: [email protected]

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Attorney for Defendant County of Kern

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

11 DAVID F. JADWIN, D.O.12 PlaintitI,

13 vs.

Case No.: 1:07-cv-00026-0WW-DLB

DEFENDANT'S OBJECTIONS TOPLAINTIFF'S BILL OF COSTS

Date Action Filed: January 6, 2007Trial Date: May 14, 2009

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Hearing RequestedLocal Rule 54-292(d)

Defendant.

14 COUNTY OF KERN,

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19 INTRODUCTION

20 Pursuant to Local Rule 54-292(c), Defendant County of Kern ("County") submits these

21 objections to Plaintiffs Bill of Costs, filed on June 29, 2009. Pursuant to Local Rule 54-292(d),

22 the County requests a hearing.

23 Summary

24 Plaintiffs cost bill is premature because final judgment has no t yet been entered. Local

25 Rule 54-292(b); Federal Rule of Civil Procedure Rule 54(b). Only partial judgment has been

26 entered. See Document 389, Partial Judgment on Verdicts of Trial Jury. Plaintiffs submission

27 of this cost bill should bar recovery of an y additional costs incurred after its submission.

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DEFENDANT'S OBJECTIONS TO PLAINTIFF'S BILL OF COSTS


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1 The County requests the following expenses be disallowed from Plaintiffs Bill o f Costs:

2 $320.00 in witness fees for witnesses who did not appear at trial, $3,559.89 in mileage expenses

3 for witnesses who did not appear at trial, $525.00 in service fees for subpoenas that were not

4 served, $1,590.00 in "rush service" fees for witnesses who did not appear, $125,000.00 in

5 excessive expert witness fees, $16,164.52 in deposition costs for depositions taken without

6 justification or good cause, $1,208.96 in unauthorized DME transcription costs, $3,628.00 in fee

7 for background investigation o f witnesses, $23,228.25 in attorney travel and accommodation

8 expenses, $2,495.60 for unauthorized trial transcripts, $247.12 in costs for extra copies of court

9 filings, $31.50 in telephonic appearance costs, $2,051.50 in excessive jury consultant costs,

10 $9,272.38 in unallowable postage, telephone and copying charges, $12.95 for Plaintiff's

11 investigation of himself, and $1,118.19 for medical records copying. These items total

12 $190,453.86 and Plaintiffs Bill of Costs should be reduced by that amount.

13 Defendant's specific objections are set forth below.

14 General Standard for Costs

15 Rule 54 o f the Federal Rule of Civil Procedure authorizes the award of costs. The

16 specific costs which can be awarded are enumerated in 28 U.S.C. 1920 and the amount that can

17 be awarded in reimbursement for witnesses is specified in 28 U.S.C. 1821. Local Rule 54-

18 292(f) lists as taxable items: (a) clerk's fees, (b) service of process fees, (c) court reporter's fees,

19 (d) docket fees, (e) fees for enlargements, exhibits, and photocopies, (h) witness fees, mileage

20 and subsistence, (i) compensation o f court-appointed experts, court-appointed interpreters, and

21 others, and (k) other items allowed by any statute or rule or by the Court in the interest of justice.

22 Fees and costs may be recovered only for expenses that were necessary and reasonable to

23 the prosecution o f a case. Farrar v. Hobby, 506 U.S. 103 (1992); Farmer v. Arabian American

24 Oil Co., 379 U.S. 227 (1964). A prevailing party is not given a blank check to assess the other

25 party whatever costs it wants to collect. Farmer, 379 U.S. at 235. The Court has the power to

26 reduce excessive fees. American Atheists, Inc. v. City o f Starke, 509 F.Supp.2d 1221 (2007 M.D.

27 Fla.).

28 Plaintiff's costs are excessive and are not recoverable.

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1 Witness Fees

2 Witness fees and travel reimbursement are allowable costs under 28 U.S.C. 1920 with

3 the amount of $40 per day set by 28 U.S.C. 1821. It is not necessary that a witness testify in

4 order to be eligible for reimbursement for witness fees and trave!. Gordon v. Castle Oldsmobile

5 & Honda, 157 F.R.D. 438 (1994 N.D. II!.); International Wood Processors v. Power Dry, Inc.,

6 598 F.Supp.299 (1984 D.C. SC). However, witness fees are not recoverable for witnesses who

7 were never called to testify. Linneman Construction, Inc. v. Montana-Dakota Utilities, 504 F.2d

8 1365 (1974 8th Cir.). Witnesses who were not called are not "witnesses." The Court determines

9 the reasonableness of witness fees. Quy v. Air America, Inc., 667 F.2d 1059 (1981 App. D.C.).

10 Plaintiffs cost bill requests witness fees for the following individuals who were not

11 called as witnesses: Linda Wilkinson, Dr. Etesham, Dr. Fahmy, Dr. Naidu, Dr. Leonard Perez,12 Dr. Baldwin, Dr. Jose Perez, and Dr. Taylor. The County does not even know who many of

13 these "witnesses" are.

14 Defendant requests that the $320 (8 X $40 = $320) in witness fees for those witnesses be

15 stricken.

16 Mileage costs

17 These costs are objectionable on at least two grounds. First, Plaintiffrequests

18 reimbursement for mileage costs without indicating whether those amounts have actually been

19 paid. Second, the claimed expenses are not reasonable.

20 Travel expenses are not required to be paid at the time of service o f the trial subpoena.

21 28 U.S.C. 1821. There is authority that reimbursement for witness travel is notto be paid until

22 the witness appears. NLRB v. Frazier, 144 F.R.D. 650 (1992 D.C. NJ).

23 Plaintiffclaims travel expenses for several witnesses who did not appear and,

24 consequently, incurred no travel expense. Dr. Jose Perez lives in Houston, Texas (Document

25 392-5, page 119). Dr. Perez was not called as a witness and did not appear at tria!' Yet, Plaintiff

26 claims $2,160.22 for mileage of6,001 miles. Plaintiffmakes similar claims for Linda Wilkinson

27 ($137.10), Dr. Etesham ($144.36), Dr. Fahmy ($139.52), Dr. Naidu ($213.33), Dr. Leonard

28 Perez ($132.26), Dr. Baldwin ($275.04), Dr. Alkhouri ($74.18), Dr. Taylor ($143.15) and Sandr

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1 Chester ($140.73). Ms. Chester did appear at trial but the County produced her and she made no

2 request for travel reimbursement. Defendant requests that $3,559.89 in travel fees for these

3 individuals be stricken.

4 Service of Process

5 The County objects to the following fees for service of process:

6 1. Non-service. Document 392-3, pages 2-3, claims reimbursement for 21 trial

7 subpoenas at $25 each. Those are all charges for the service of trial subpoenas for which

8 Plaintiff changed his mind and canceled the service assignment before the process server

9 attempted service. The County should not have to pay charges incurred by Plaintiff for service

10 that was not effected. $525 should be stricken from Plaintiffs cost bill.

11 2. Rush Fees. Invoices from Plaintiffs process server are reproduced in Document 392-12 5, pages 87-125. "Rush fees" were billed for service to the following individuals:

13 a. Dr. Etesham, served on 5/3/2009 but never called as a witness

14 b. Dr. Fahmy, served on 5/4/2009 but never called as a witness

15 c. Yolanda Figueroa, served on 5/3/2009 but offered to be produced by County

16 d. Dr. Hoang, never served and never called as a witness

17 e. Ana Moreno, never served and never called as a witness

18 f. Dr. Leonard Perez, served on 4/30/2009 but never called as a witness

19 g. Dr. Sproul, never served and never called as a witness

20 h. Linda Wilkinson, served on 4/29/2009 but never called as a witness

21 i. Dr. Naidu, served on 4/29/2009 but never called as a witness

22 j. Dr. Jose Perez, served on 5/512009 but never called as a witness

23 k. Gilbert Martinez, never served and never called as a witness

24 I. Dr. Taylor, served on 5116/2009 but never called as a witness

25 There is no basis for collecting "rush" service of process fees for witnesses who were

26 never called. Defendant requests that these "rush charges," totaling $1,590.00, be stricken from

27 Plainti ffs costs because they are ffi1 unnecessary expense, either because the witness was never

28 called at trial or because the trial subpoena was served in sufficient time for the witness to

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appear, without a rush order being put on the subpoena.

Expert Witness Fees

Plaintiffrequests $132,182.20 in fees for his 4 expert witnesses. The breakdown between

the four experts is as follows:

1. Lawrence Weiss billed 100 hours for his expert report, trial preparation and trial time.

His total billing was $32,213.50. His invoices are at Document 392-4, pages 70-73.

2. Regina Levison billed for her husband Michael Levison's time, in addition to her own,

even though he is not an expert witness in this case. Her total billing was $30,654.85 for

approximately 67.50 hours, including her husband's time of$6,093.76. Her invoices are at

Document 392-4, pages 27-35.

3. Stephanie Rizzardi's total billing was $15,432.50. Her total hours are approximately64Yz; her invoices are at Document 392-4, pages 61-69.

4. Dr. Reading's total billing was for $53,881.35. He does not provide any indication of

the number of hours he worked or his rate per hour. His records are at Document 392-4, pages

37-60. Services listed on his invoices include "deposition preparation," "court preparation" and

"records review".

In considering costs of this type, the U.S. Supreme Court has held that a trial court "is

bound by the limit of[28 U.S.C.] 1821(b), absent contract or explicit statutory authority to the

contrary." Crawford Fitting Co. v. J T Gibbons, Inc., 482 U.S. 437, 439 (1987).

The majority of federal courts interpreting the provision for witness fees in 28 U.S.C.

1920 have found that recovery of expert witness fees is limited to the statutory costs specified

in 28 U.S.C. 1821 ($40 per day of testimony plus mileage and subsistence). Murphy v.

International Union o f Operating Eng'rs, LocalI8, 774 F.2d 114,134 (6th Cir. 1985). The

Murphy court surveyed the caselaw in other circuits and it found that, even when a court allows

an award of expert fees, the recovery is restricted to that testimony that was "crucial to the

resolution of the case." Id. citing Paschall v. Kansas City Star Co., 695 F.2d 322, 338 (1982 8th

Cir.).

The trial court has discretion in considering an award of costs for expert witness fees.

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1 Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1292 (1988 10th Circuit Colo).

2 Whether Plaintiff is reimbursed for his expert witnesses' trial time at $40 per day plus

3 travel, or at their hourly rate for the time they actually spent in trial, his authorized reimbursable

4 expert witness expense are a small fraction of what he had requested. The authorized fees range

5 from a low of $160, plus travel, per expert pursuant to 28 U.S.C. 1821, to a high of about

6 $2,000 each, depending on the expert's hourly rate and time in trial.

7 Defendant requests that the Court reduce Plaintiff s claimed costs for expert witnesses by

8 $125,000.00.

9 Deposition Costs

10 When a court considers what deposition costs were necessary, it must consider what was

11 necessary at the time of the taking of the depositions, not what was necessary at the time of trial.12 George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp.985 (1982 N.D. Ga.); Alonso v.

13 Union Oil Co., 71 F.R.D. 523 (1976 S.D. NY). Even with this additional leeway, Defendant

14 believes many of Plaintiffs depositions costs were unnecessary and should not be reimbursed.

15 Plaintiff took depositions of 40 witnesses, well in excess of the number of depositions allowed

16 by law. See Federal Rules of Civil Procedure, Rule 30(a)(2)(A)(i). Plaintifflists his deposition

17 costs in Document 392-3, pages 3-5 o f 13. Defendant objects to the following deposition costs:

18 1. Patricia Perez: Defendant objects to the costs of this deposition on the grounds that

19 there was no reasonable basis to depose Ms. Perez. She is a clerical employee with no

20 management responsibilities. All her testimony was duplicative of the testimony o f Steve

21 O'Connor and Renita Nunn. Plaintiff commenced her deposition, unilaterally adjourned it over

22 Defendant's objection, obtained an order from Magistrate Goldner that the deposition could be

23 resumed and then never completed it. The deposition was not reasonably calculated to lead to

24 the discovery of admissible evidence, did not lead to any admissible evidence and Ms. Perez was

25 not called as a witness. This deposition cost is $529.40.

26 2. Dr. Savita Shertukde. Defendant objects to the costs o f this deposition on the grounds

27 that there was no reasonable basis to depose Dr. Shertukde. Her deposition testimony was

28 duplicative of the testimony o f Dr. Dutt. Her deposition was not reasonably calculated to lead to

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1 the discovery of admissible evidence, did not lead to any admissible evidence and she was not

2 called as a witness. Her deposition cost was $1,794.56.

3 3. Dr. Marvin Kolb. Defendant objects to the costs of this deposition on grounds that

4 there was no reasonable basis to depose Dr. Kolb. His deposition was not reasonably calculated

5 to lead to the discovery o f admissible evidence, did not lead to any admissible evidence and he

6 was not called as a witness. Plaintiffunilaterally adjourned Dr. Kolb's deposition over

7 Defendant's objection and never completed it. The cost ofthis deposition was $1,054.60.

8 4. Dr. Charles Wrobel. Defendant objects to the costs of this deposition on the grounds

9 that there was no reasonable basis to depose Dr. Wrobel. Plaintiff deposed Dr. Wrobel in the

10 context of Plaintiffs whistleblowing claims but there was no legal basis for those claims because

11 the statute in effect at the time did not recognize the claims Plaintiffhad filed. Plaintiffs12 deposition of Dr. Wrobel was not reasonably calculated to lead to the discovery of admissible

13 evidence, did not lead to any admissible evidence and he was not called as a witness. The cost 0

14 this deposition was $249.60.

15 5. Dr. Naderi. Defendant objects to the costs of this deposition on the grounds that there

16 was no reasonable basis to depose Dr. Naderi. Plaintiff deposed Dr. Naderi in the context of

17 Plaintiffs FMLA and CFRA claims because Dr. Naderi had, once upon a time, taken time away

18 from Kern Medical Center for a personal emergency. However, Dr. Naderi was not an employee

19 ofthe County at the time, so he was not covered by either FMLA or CFRA. Discovery other

20 than a deposition would have uncovered this basic fact. Plaintiffs deposition of Dr. Naderi was

21 not reasonably calculated to lead to the discovery of admissible evidence, did not lead to any

22 admissible evidence and he was not called as a witness. This deposition cost was $843.30.

23 6. Dr. Patel. Defendant objects to the costs of this deposition on the grounds that there

24 was no reasonable basis to depose Dr. Patel. His deposition was redundant and unnecessary.

25 Everything Plaintiff elicited from Dr. Patel in his deposition testimony was independently

26 available from other deponents and from documents that had been previously produced.

27 Pla intiffs deposition o f Dr. Patel was not reasonably calculated to lead to the discovery of

28 admissible evidence, did not lead to any admissible evidence and he was not called as a witness.

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1 The cost of this deposition was $545.90.

2 7. Dr. Taylor. Defendant objects to the costs of this deposition on the grounds that there

3 was no reasonable basis to depose Dr. Taylor. Everything Plaintiff elicited from Dr. Taylor in

4 his deposition testimony was independently elicited from other deponents and from documents

5 that had been previously produced. Dr. Taylor's deposition was redundant and unnecessary. His

6 deposition was not reasonably calculated to lead to the discovery of admissible evidence, did not

7 lead to any admissible evidence and he was not called as a witness. His two depositions cost

8 $1,230.10.

9 8. Tracy Lindsey. Defendant objects to the costs of this deposition on the grounds that

10 there was no reasonable basis to depose Ms. Lindsey. Her deposition was not reasonably

11 calculated to lead to the discovery of admissible evidence, did not lead to any admissible12 evidence and she was not called as a witness. The cost of this deposition was $531.80.

13 9. Ms. Lopez. Defendant objects to the costs of this deposition on the grounds that there

14 was no reasonable basis to depose Ms. Lopez. Her deposition was not reasonably calculated to

15 lead to the discovery of admissible evidence, did not lead to any admissible evidence and she

16 was not called as a witness. This deposition cost was $262.60.

17 10. Dr. George A1khouri. Defendant objects to the costs of this deposition on the

18 grounds that there was no reasonable basis to depose Dr. Alkhouri. His deposition was not

19 reasonably calculated to lead to the discovery of admissible evidence and did not lead to any

20 admissible evidence. The deposition testimony Plaintiffread at trial was not relevant to any

21 Issue. This deposition cost was $665.00.

22 11. Gilbert Martinez. Defendant objects to the costs of this deposition on the grounds

23 that there was no reasonable basis to depose Mr. Martinez. Plaintiff deposed Mr. Martinez in

24 support of Plaintiffs whistleblowing claims but, as there was no legal basis for those claims, this

25 deposition was unnecessary. His deposition was not reasonably calculated to lead to the

26 discovery of admissible evidence, did not lead to any admissible evidence and he was not called

27 as a witness. The cost o f this deposition was $741.30.

28 12. Dr. Royce Johnson. Defendant objects to the costs of this deposition on the grounds

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1 This expense is described in Item #12 (Document 392-2, pg. 8) but no amount is given.

2 Defendant assumes invoices in Document 392-5, pages 29-39, from Richard Sheldon Barr

3 Investigations relate to this expense. The invoices total $3,628.00 and Defendant requests this

4 amount be stricken from Plaintiffs cost bill.

5 Attorney travel expenses are generally not allowed. Wahl v. Carrier Mfg. Co., 511 F.2d

6 209 (1975 7th Cir. Ind.); Harkins v, Riverboat Svcs., 286 F.Supp.2d 976 (2003 N.D. IlL). Item

7 #11 (Document 392-2, page 7) states that hotel room charges of$21,121.65 and airfare costs of

8 $2,106.60 were "necessary because neither Plaintiff nor I were able to secure local counsel to

9 prosecute this action." There is no authority to support recovery of these costs, which total

10 $23,228.25, and they should be stricken from the cost bill.

I I Transcripts o f court proceedings that were not ordered by the court are not allowable12 expenses under 28 U.S.C. 1920. See also Farmer, supra, 379 U.S. at 233-234. Document 392

13 3 contains three such expenses on page 4 of 13 and page 5 of 13. There are two entries on page

14 4, for $683.25 and $71.40, for transcripts of court proceedings before Magistrate Goldner of a

15 Motion to Compel responses to Request for Production of Docwnents. On page 5 is an expense

16 of$I,740.95 for transcripts of the trial testimony of the Plaintiff, Dr. Harris and Peter Bryan.

17 Defendant requests that these expenses, totaling $2,495.60, be disallowed.

18 There is no authority for the recovery of fees for documents electronically filed with the

19 court. The Court's e-mail notification system provides a link through which all filed documents

20 can be printed for free. Plaintiffapparently re-printed some documents because there are five

21 PACER charges totaling $247.12 (Document 392-3, page 6 of 13, $35.60; page 7 of 13, $98.24

22 and $45.04; page 8 o f 13, $32.64 and $35.60). There is no authority for collecting these charges

23 in a cost bill and Defendant requests the sum of $247.12 be stricken.

24 Plaintiffalso requests that he be reimbursed for the cost of appearing at a court

25 proceeding by telephone. There is no authority for recovering this cost. Defendant requests that

26 the $31.50 cost be stricken.

27 Costs for the investigation of jurors are not allowable expenses under 28 U.S.C. 1920.

28 Plaintiffs jury consultant expense is described in Item #13 of Document 392-2, page 8. The

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expense is $12,252.07. Plaintiffoffers no explanation as to why his jury consultant's post-trial

work was either reasonable or necessary. (Document 392-5, page 22 for $690.00). Similarly, he

offers no explanation for the reasonableness of the jury consultant's work in 2006 - which was a

year before the complaint was filed. (Document 392-5, page 24 for $1,361.50). Defendant

requests that these expenses, totaling $2,051.50, not be allowed.

Postage, telephone, and photocopying charges, except for trial exhibits, are not allowable

expenses under 28 U.S.C. 1920. Whereas Plaintiff is entitled to recover costs for preparing

some trial exhibits, his claim of$I,030.00 (Document 392-5, page 42) for specialty drafting of

discovery responses for trial is not authorized. In addition, there is no authority for his item #9

(Document 392-2, page 7) in the amount of $8,242.38 for copying other documents. Defendant

requests that these two costs, totaling $9,272.38, be disallowed.Plaintiff seeks recovery of the cost of a background check he conducted on himselfin the

amount of $12.95. (Document 392-3, page 8 of 13, third item from top, dated 6/19/2006). There

is no authority for this item and it should be stricken.

Plaintiff requests that he be reimbursed for the cost of reproducing copies of his medical

records from his various medical providers. This expense is distinct from the cost of producing

those records as exhibits and is not an allowable expense. This expense is listed as seven

different line items in Document 392-3, pages 6-7 of 13, and totals $1,118.19. It should be

stricken.

Summary

In summary, the County requests that the following items be stricken from Plaintiffs Bill

of Costs:

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Witness fees fo r witnesses who did no t appear

Mileage expenses fo r witnesses who did not appear

Service fees for subpoenas that were no t served

"Rush service" fees fo r witnesses who did not appear

Excess expert witness fees

Depositions taken without justification or good cause

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$320.00

3,559.89

525.00

1,590.00

125,000.00

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Unauthorized DME transcription costs

Background investigations of witnesses

Attorney travel and accommodation expenses

Unauthorized trial transcripts

Extra copies of Court files

Telephone appearance fee for Plaintiff's counsel

Pre-filing an d post-trial consultations with jury consultant

Misc. postage, telephone and photocopy charges

Plaintiff's self-investigation fee

Cost of photocopying Plaintiff's misc. medical records

Total disputed costs

1,208.96

3,628.00

23,228.25

2,495.60

247.12

31.50

2,051.50

9,272.38

12.95

1,118.19

$190,453.86

15 Respectfully submitted,

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Dated: July 14, 2009 LAW OFFICES OF MARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendant, County of Kern

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394 d obj bill of costs

Documents