Free Reply in Support of Motion - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' REPLY IN SUPPORT OF THEIR OBJECTION TO DEFENDANTS' BILL OF COSTS AND MOTION TO STRIKE AFFIDAVIT OF JENNIFER L. HOLSMAN

Defendants' attempt to "cure" the deficiencies in their Bill of Costs through their
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reply and response is inadequate and therefore should be disregarded.
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A.
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The

Invoices

Cannot

Be

Considered

Because

They

Lack

Foundation.
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Defendants responded to Plaintiffs' objection regarding the lack of supporting documentation by submitting a set of invoices and bills with their Reply in Support of Bill of Costs and Response to Plaintiffs' Motion to Strike Affidavit of Jennifer L. Holsman. Defendants failed to provide an affidavit identifying and attesting to the documents, leaving only the unsworn reply and response. Since a bill of costs is required to be properly supported by an affidavit, 28 U.S.C. § 1924, the supporting documents cannot be considered. B. Defendants are Not Automatically Entitled to Reimbursement of Every Cost. Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964), cited in Plaintiffs' objection, clearly establishes that a "winning litigant" is not necessarily entitled to reimbursement "for every expense he has seen fit to incur in the conduct of his case." Costs associated with delivery or other

services designed to make using the depositions more convenient for the attorney are not taxable. Fields v. General Motors Corp., 171 F.R.D. 234, 236 (N.D.Ill. 1997). Such disallowed costs include computer disks, condensed copies and special delivery. Id. at 236-37. Moreover, the deposition charges include charges for Defendants do not need "alternative formats" of the

videotaping and transcripts.

depositions. The Court's reasoning in Cherry v. Champion Int'l Corp., 186 F.3d 442, 448-49 (4th Cir. 1999) applies: even if incurring the deposition costs was reasonable, Defendants are entitled to only the cost of the transcript, not the cost of the transcript and video-taping. See also Pehr v. Rubbermaid, Inc., 196 F.R.D. 404 (D.Kan. 2000) (disallowing costs for microfilm reproduction). Most of the court reporter invoices include these costs and they clearly should be deducted from the bill of costs ("The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials at trial." Cherry at 449, citation omitted).

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Defendants chose to videotape depositions of collateral and marginal witnesses who were not present at the events that constitute the basis of Plaintiffs' claims. Their choice does not justify the incurrence of such significant expenses for relatively unimportant witnesses. Defendants admit that the testimony of the Drapers and Chernicky related to "background information regarding the August family, Mark August's previous contact with the police and his aggressive nature." Under

Defendants' analysis, a well-funded party could deliberately choose to videotape every single witness, including the marginal witnesses, with the concomitant implied threat of significant costs, regardless of the need or reasonableness of the expense. Clearly, this is exactly the scenario that concerned the court in Farmer. Not only was videotaping the superfluous depositions overkill, but, for information gathering purposes, interviews would have sufficed. Defendants have also failed to provide proper documentation of deposition costs by providing invoices with illegible information regarding the deponent's name, services and charges for the depositions. Without the proper supporting

documentation for the charges, they must be disallowed. See Summit Technology, Inc. v. Nidek Co., Ltd., 435 F.3d 1371, 1380-81 (Fed.Cir. 2006). Finally, the copying cost invoices include charges for "SDT Order," "Fees Paid" and "Rush Service," both of which are for the convenience of the attorneys and therefore not taxable. C. Defendants Cite No Case Law Supporting Their Contention That They are Entitled to Costs That Also Relate to Defense of Issues Unaffected by a Rule 54(b) Final Judgment.

Defendants claim they are the prevailing party and therefore, entitled to all costs, including the fee for removal. The removal fee also relates to Teresa August's claims which are still pending before this Court, and the testimony of the officers that

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arrested/assaulted Teresa August clearly did not relate just to Mark August's claim. Defendants are even including the costs related to Plaintiff Teresa August's deposition, and she is still a party in this matter. Defendants have cited no authority regarding the allocation of costs when only part of a case has reached final judgment and the party claiming costs has not prevailed in the entire matter. In fact,

Defendants are not seeking some pro rata or other proportionate allocation of the costs, but are boldly asking for all costs (with the exception of Commander Hynes deposition, which even the overreaching defendants concede has absolutely nothing to do with Mark August's claims). Should Teresa August prevail, Defendants would then be liable for Mrs. August's taxable costs and they would no longer be the prevailing party; they would not then be entitled to the subsidy they now seek from Mark August. Therefore, Defendants are not entitled to any costs related to the

defense of Mrs. August's claims, whether they are deposition, service or other costs. D. Mark August Lacks Financial Resources.

Mark August is a teacher and the son of a teacher. His lack of resources is obvious. E. Plaintiffs' Calculation of Disallowed Costs.

In the event that the Court decides to award Defendants some costs, Mark August asks the Court to disallow the following requested costs based on the following calculations1: Fee for removal to federal court (applies to both Plaintiffs)............... $150.00 Pamela Hickey deposition fees (not a percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then)..................$470.15

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Complete costs per deponent or item are charted in Plaintiffs' objection.

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Dakotah August (percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then)...............................................$35.40 Invoice no. 32612 (deponent's name and some services illegible).......$838.65 Invoice no. 32655 (deponent's name and some services illegible)........$931.90 Sam Hickey (percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then).............................................................$839.00 Mark August (percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then).............................................................$640.00 Invoice 12083..............................................................................$84.00 Invoice 12469..............................................................................$92.88 Josie Chernicky (not percipient witness, marginal, question of admissibility of testimony, should be disallowed entirely, but if not entirely,

then)...................$300.00 David Draper (not percipient witness, marginal, question of admissibility of testimony, should be disallowed entirely, but if not entirely, then)....................$51.00 Geraldine Draper (not percipient witness, marginal, question of admissibility of testimony, should be disallowed entirely, but if not entirely,

then)...................$465.00 Toby Dunn (percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then)...............................................................$35.00 Lyle Monson (percipient witness, relates to both Plaintiffs, should be disallowed entirely, but if not entirely, then)...............................................................$35.00 Jeffeory Hynes (Defendants' expert regarding excessive force, should be disallowed entirely)

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Subtotal, not including total disallowal of costs related to a number of depositions......................................................................................$4,967.9 8 Although Mark August believes that all the costs identified in his objection/motion to strike and shown on Defendants' bill of costs, Plaintiff believes that the above reductions to the taxable costs are the minimum to which he is entitled under the case law. // F. Conclusion

Defendants' reply and response ignores their clear obligation to substantiate reasonable costs. The supporting affidavit is improper and does not validate the latesubmitted invoices. Defendants seek reimbursement for unreasonable expenses and expenses that are clearly not allowed under the law, and seek reimbursement for nearly all their costs, ignoring the fact that most of the litigation has related to the viable claims of Teresa August. Although they might arguably be entitled to a proportional reimbursement, Defendants have made no attempt to quantify that proportion. Since Defendants precipitated the final judgment on only part of the

claims in this matter, the problems are of Defendants' own creation and they are not, therefore, entitled to a speculative taxation of costs. RESPECTFULLY SUBMITTED this 15th day of November, 2006. By: s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE

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I hereby certify that on November 15, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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