Free Response to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S WITNESS FEES AND COSTS

Plaintiff, Alexander Jung, hereby responds to Defendant's Objection to Plaintiff's
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Witness Fees and Costs.
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Defendants have waived their right to object to Plaintiff`s witness fees and costs.
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On July 15, 2008 Plaintiff timely filed his Bill of Costs as required pursuant to LRCiv 54.1 (a). Deputy Chief Clerk Michael O'Brien reviewed Plaintiffs' bill of costs and on July 28, 2008 it was ordered that all costs be awarded to Plaintiff and made part of the judgment. Pursuant to LRCiv 54.1(b) Defendant had ten (10) days after the service of the bill of costs to object to any cost item. Defendant was required to file an objection to costs by August 1, 2008. Instead Defendant file their objection on August 4, 2008 thus waiving their right to object.
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Document 225

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Without waiving Plaintiff's defense above, Plaintiff responds as follows to Defendants objections. Defendant objects to the award of costs for Dr. Jensen's witness fees in the amount of $ 446.50 because that cost is not allowable under 28 U.S.C. § 1920(c) as a witness fee. Defendant asserts that Dr. Jensen was not an expert witness in this case, and did not even testify at trial. While it is true that Dr. Jensen was not able to testify at trial, Dr. Jensen was subpoenaed as Plaintiff's treating physician and not as an expert witness. The costs incurred by Plaintiff regarding Dr. Jensen were incurred as reimbursement to Dr. Jensen for the time expended in interviews with Plaintiff's attorney to go over medical records, diagnoses as well as the time Dr. Jensen spent reviewing exhibits and preparing for his testimony. Plaintiff decision not to call Dr., Jensen was made on the last day of Plaintiff's presentation of his case in chief. However, Dr. Jensen still remained available for consultation and testimony.

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Defendant further requests that Plaintiff provide additional documentation and
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support for his claims for reimbursement for "fee and disbursement for printing," in the
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amount of $2,133.00 and "other costs" in the amount of $1017.49 pursuant to FRCP 54
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(d). According to 28 U.S.C. §1920 a judge or clerk of the court may tax fees for
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exemplification and copies of papers necessarily obtained for use in the case. The lawsuit was filed in March of 2004, more than four (4) years ago. The cost of $2,133.00 for "copies of papers necessarily obtained for use in the case" is not unreasonable. As to the "other costs", they include money expended by faxing (Plaintiff's office suite charges for outgoing and incoming faxes), postage, parking fees, mileage, electronic research fees, fees to obtain medical records and monies expended on meals during trial which was listed on a spreadsheet filed as Exhibit 4 in Plaintiff's Bill of Costs. In closing as Defendant's motion was not timely filed they have waived their objection. However, after a review of the above Plaintiff is clearly entitled to his costs as

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the prevailing party. Plaintiff requests this court deny Defendant's objection to Plaintiff's bill of costs, and award Plaintiff his requested cost. Respectfully submitted this 21st day of August, 2008.

s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on the 21st of August, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: Suzanne M Chynoweth at [email protected] A copy of this document was provided by mailed to:

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The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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