Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants The City of Phoenix, et al UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' REPLY IN SUPPORT OF BILL OF COSTS AND RESPONSE TO PLAINTIFFS' MOTION TO STRIKE AFFIDAVIT OF JENNIFER L. HOLSMAN

Defendants City of Phoenix, Griffin, Lynde, Monson and Dunn, through counsel, submit this Reply in Support of their Bill for Costs. Defendants respectfully request that their Bill of Costs be granted because: (1) Defendants are entitled to recover the deposition and videotape deposition costs for the necessary depositions taken in this matter; (2) Defendants have submitted invoices (to further support the billing statement attached to the original Bill of Costs filed in this matter); (3) Defendants are entitled to the copying costs for Mark August's employment records; (4) Defendants are entitled to the

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service fee of a subpoena for Josie Chernicky's deposition; and (5) Defendants are entitled to the filing fee associated with the removal of Plaintiffs' Complaint. This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND. Plaintiff Mark August filed a Complaint against the Defendants on June 9, 2003 in Arizona Superior Court, asserting the following claims: (1) negligence under state law; (2) violation of civil rights under 42 U.S.C. § 1983; and (3) gross negligence under state law. Plaintiffs seek damages for "injury, insult, embarrassment, financial damages, permanent injury and disfigurement, loss of income and emotional injuries."1 During this litigation, and to defend against Mark August's claims, the Defendants engaged in reasonable and necessary discovery. First, Defendants took the depositions of Theresa August (Plaintiff), Mark August (Plaintiff), Marcus Dakotah August (former Plaintiff), Pam Hickey, each of whom were at the scene on June 10, 2002. In addition, Plaintiffs took the depositions of each Defendant Officer and Sam Hickey, during which each were asked questions regarding the facts and circumstances of the June 10, 2002 incident, during which Mr. August was arrested. Finally, Defendants took the depositions of Geraldine Draper, David Draper and Josie Chernicky, each of whom provided testimony regarding the August family, Mr. August's employment history, Mr.
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See page 6 of Plaintiffs' Complaint.
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August's previous arrests and his aggressive nature. These depositions were necessary to obtain background information on Mr. August (including prior contact with the police, arrests, aggressive nature, etc.) and defend against Mr. August's alleged injuries as a result of his June 10, 2002 arrest. On April 15, 2005, Defendants filed a Motion for Summary Judgment regarding both Theresa and Mark August's claims. On September 20, 2006, the Court granted Defendants' Motion for Summary Judgment on Mr. August's claims, making the Defendants the "prevailing party" under FED. R. CIV. P. 54(b). On October 4, 2006, Defendants filed their Bill of Costs as the "prevailing party." In support of their Bill of Costs, Defendants attached an Affidavit of Jennifer L. Holsman and a "billing statement" identifying each of the costs associated with defending against Mark August's claims. II. LEGAL ARGUMENT. A. Taxable Costs.

Title 28 U.S.C. § 1920 provides that a federal court may tax specified items, including clerk and service fees, deposition costs, witness fees, exemplification and copies of papers and docket and removal fees, as costs against the losing party.2 Defendants' request for taxable costs as the "prevailing party" against Mr. August complies with the requirements of section 1920 and Rule 54(d). Accordingly, Defendants' Bill of Costs must be granted.
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See FED. R. CIV. P. 54(d); see also LRCIV. 54.1.
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B.

Discovery on Mark August Claims.

Plaintiffs assert that 95% of the discovery completed in this case related to the claims of Theresa August. As a result, Plaintiffs argue that Defendants are unable to recover the taxable costs associated with discovery on Mr. August's claims. Yet, in Plaintiffs' Motion for Reconsideration of Rule 54(b) filed on October 31, 2006, Plaintiffs assert that "Mark August's claims are factually intertwined with Plaintiff Teresa August's claims, both arising from the continuum of actions by Defendants during the same brief time frame and at the same location."3 This admission of "intertwined discovery"

supports Defendants argument that the discovery taken in this case was reasonable and necessary to defend against Mr. August's claims. Further, in each referenced deposition, Mr. August's claims against the Defendants were discussed as well as the facts and circumstances surrounding his arrest on June 10, 2002. Thus, the depositions taken by Defendants were necessary to

"discover" the extent of Mr. August's claims against the Defendants, to establish Mr. August's prior history and background of aggressiveness and to determine the extent of his alleged injuries: · Theresa August was asked questions regarding the facts and circumstances related to Mr. August's arrest on June 10, 2002, her observations and contact with Mr. August at the scene, Mr. August's background and Mr. August's claims against the Defendants. · Mark August was asked about the facts and circumstances related to his arrest on June 10, 2002 and his claims against the Defendants. See Page 2 of Plaintiff's Motion for Reconsideration.
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· Pam Hickey was asked questions about the facts and circumstances related to the incidents on June 10, 2002, her observations of the scene and the contact made between Mr. August and Sam Hickey. · Sam Hickey was asked questions regarding the facts and circumstances of June 10, 2002 and his observations and contact with Mr. August at the scene. Mr. Hickey's deposition was noticed by the Plaintiff. · Marcus Dakotah August was asked questions regarding the facts and circumstances of June 10, 2002 and his observations and contact with Mr. August at the scene. · Geraldine Draper was previously married to Mark August and was deposed to provide background information regarding the August family, Mark August's previous contact with the police and his aggressive nature. · David Draper was previously assaulted by Mark August and was deposed to provide background information regarding the August family, Mark August's previous contact with the police and his aggressive nature. · Josie Chernicky was previously married to Mark August and was deposed to provide background information regarding the August family, Mark August's previous contact with the police and his aggressive nature.4 In addition, Plaintiffs' counsel took the depositions of each individually named Defendant Officer and asked each of them questions regarding their interaction with Mr. August. 1. Deposition Costs Are Recoverable.

Plaintiffs assert that Defendants are not entitled to recover deposition costs See Defendants' Disclosure Statements regarding the identified witnesses, attached hereto as Exhibit 1.
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for any testimony not included in Defendants' Motion for Summary Judgment. Plaintiffs allege that the "superfluous witnesses were not included in Defendants' Motion for Summary Judgment because they are not percipient witnesses, that is, they were not present during any of the events relevant to this witness."5 Under Local Rule, 54.1(3)(3), "the reporter's charge for the original deposition and copy is taxable whether or not the same is actually received into evidence, or whether or not it is taken solely for the discovery." The cost of obtaining a copy of a deposition by parties in the case other than the one taking the deposition is also taxable."6 In addition, videotaped deposition costs are similarly recoverable.7 In this case, the depositions taken by Defendants were a necessary cost associated with defending against Mr. August's claims. Further, Defendants were forced to attend the depositions (and order transcripts) of the depositions Plaintiffs took in order to prepare for the dispositive motion and trial stages of this litigation. Finally, the videotaped depositions were reasonable and necessary because it was Defendants' Plaintiffs try to explain away the need for the witnesses Defendants deposed by pointing the Court to their Disclosure Statements. Defendants disclosed the witnesses in question and determined that their depositions were necessary in order to defend against Mr. August's claims. See Exhibit 1. 6 Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190 (10th Cir. 2000) (recovery permitted for depositions costs that are reasonably th necessary to litigation); Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7 Cir. 1998) (inquiry is whether deposition was reasonably necessary at the time it was taken, not whether the deposition was used in a motion or at a court proceedings); Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993) (transcript need only be "reasonably necessary"). 7 BDT Prds., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 419-20 (6th Cir. 2005); Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477-79 (10th Cir. 1997); Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993); Garonzik v. Whitman Diner, 910 F.Supp. 167, 17071 (D.N.J. 1995) (allowing costs for videotape depositions).
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intention to utilize the videotaped deposition testimony of the Drapers, Pam Hickey and Josie Chernicky in place of their in person testimony at trial. In addition, Defendants videotaped the deposition testimony of Theresa August, Marcus Dakotah August and Sam Hickey in further preparation of trial (to show the jury any potential changes in demeanor or testimony). Finally, the Defendants used a clip from the videotaped deposition of Mark August to support their claims in Defendants' Motion for Summary Judgment. As Courts throughout the country have articulated, the inquiry regarding recovery of deposition costs is whether the deposition was reasonably necessary at the time it was taken, not whether the deposition was used in a motion or at a court proceedings. Regardless, the depositions take in this case were necessary to defend against Mark August's claims. Without obtaining the identified deposition testimony, Defendants would have been unable to prepare for the dispositive motion or trial stage of this litigation. 2. Commander Hynes Deposition.

Defendants concede that the deposition of Commander Hynes did not relate to Mark August's claims. Accordingly, Defendants respectfully request that the cost of Commander Hynes' deposition be removed from the Bill of Costs ($685.75). C. Invoices.

Plaintiffs assert that Defendants have the burden of proving entitlement to

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reimbursement.8 Although Defendants could not find any case law, statutory or other legal requirement mandating the inclusion of invoices for each item listed on the "billing statement" and filed with the Bill of Costs, Defendants have attached the invoice for each deposition or other requested reimbursable cost for the courts review.9 D. Defendants' Copying Costs Relate to Mark August's Claims.

Despite Plaintiffs' claims to the contrary, the: "(1) medical records; from AZ Dept. of Education; ProDox, LLC; and (2) medical records; from Paradise Valley H.S.; ProDox, LLC" were incurred in the gathering of discovery items to refute Mark August's claims that he had been "injured" by his arrest on June 10, 2002. During the course of this litigation, Mr. August maintained that had his employer found out about his arrest, he would have been penalized. Defendants obtained Mr. August's employment records from Paradise Valley High School and the Department of Education to establish that not only had Mr. August not been penalized for the June 10, 2002 arrest, but he had been arrested previously (and on campus) with no penalty. Although the "bill" for these records states that they were for "medical records," that was an inaccurate description used by the billing department. Defendants have attached the invoice for these records, each showing that the records requested

See Hensley v. Eckerhart, 461 U.S. 424, 103 D.Ct. 1933, 1939 (1983) (this case is distinguishable as it relates to entry of attorneys' fees, not disputed costs). 9 See invoices, attached collectively hereto as Exhibit 2.
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related to Mark August's employment and personnel records.10 E. Defendants' Are Entitled to Messenger Service Fee.

In Alflex Corp. v. Underwriters Laboratories, Inc., the Court held that private process servers' fees are a taxable cost.11 As held in Alflex, in "making Marshal's fees taxable as costs in section 1920(1), we believe Congress exhibited an intent to make service of process a taxable item. Since the enactment of section 1920(1), the method of serving civil summonses and subpoenas has changed. The U.S. Marshal no longer has that responsibility in most cases, but rather a private party must be employed as process service. See also Fed. R. Civ. P. 4(c) and 45(c). Not that the Marshal is no longer involved as often in the serving of summonses and subpoenas, the cost of private process servers should be taxable under 28 U.S.C. § 1920(1). Plaintiffs dispute the "messenger service" cost from 12/21/04 to Josie Chernicky in Casa Grande.12 The cost associated with the December 21, 2004, service of process to Josie Chernicky relates to the service of a subpoena to appear for her deposition.13 F. Defendants are Entitled to Filing Fee.

Under 28 U.S.C. § 1920, the filing fees paid to the clerk either for an original filing or for removal shall be taxable.
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See Exhibit 2.
914 F.2d 175 (9th Cir. 1990).

See page 9, of Plaintiffs' Opposition. See invoice included in Exhibit 2.
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In this case, Mr. August asserted both state and federal claims against the Defendants in his Complaint. As a result of Plaintiffs' federal claims against Defendants, removal of this action was necessary. Even with Theresa August's claims remaining, Defendants are entitled to the removal and filing fee to the United States District Court. Had Mr. August only asserted state law claims, Plaintiffs' argument that the removal fee was inappropriate may have merit. Because Mr. August asserted federal claims,

Defendants are entitled to recover the filing fees associated with the removal. G. Lack of Financial Resources is Unsupported by Evidence.

Plaintiffs' Motion repeatedly accuses Defendants of not supporting their Bill of Costs with the appropriate documentation. Notably absent from Plaintiffs' Motion, however, is any financial information regarding Mr. August's alleged inability to "shoulder the burden" of taxable costs. Because the Court has not been provided any evidence of Mark August's "financial resources," Plaintiffs' claim fails. III. CONCLUSION. Based on the foregoing, Defendants are entitled to the costs identified in their previously filed Bill of Costs. DATED this 6th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C. By /s/ Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant The City of Phoenix, et al
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ORIGINAL of the foregoing Electronically filed this 6th day of November, 2006. COPY of the foregoing sent electronically to all parties on ECF filing list. COPY of the foregoing mailed this 6th day of November, 2006, to: The Hon. Morton Silver Judge, United States District Court District of Arizona 401 W. Washington Phoenix, AZ 85003

Peggy Sue Trakes
1709111.1

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