Free Objection - District Court of Arizona - Arizona

D398
JOSEPH J. PEPQRONE, ESQ.
BENNETT, GIULIANO, McDONNELL & PERROW, LLP
225 West 34th Street, Suite 402
New York, New York l0l22
Tel.: (646) .328-0t20
JODY BUZICKY, ESQ,
POLE & BAQLL, PLC.
Suite 500
2999 N. 44th Street
Phoenix, AZ 85018
Tel.: (602) 840~l400
Attorneys for Plaintiff
Arainarlt Leisure Services, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ARAMARK LEISURE SERVICES, INC., ) Docket No.: 0.3-CV-l599(PHX)(F.Il\/I)
)
riamisrr, )
)
— against — g
) MOTION TO REVIEW CLERICS
CANYON DREAMER, INC., ELWIN E. ) T AX ATION OF COSTS
COONTS, AND MARKEL AMERICAN )
INSURANCE COMPANY, )
)
Defenants. g
Plaintiff ARAIVIARK LEISURE SERVICES, INCN objects to the taxation bythe clerk of
this court of the following items in the bill of costs filed in the above—entitled action by
detendants/counter-claimants CANYON DREAMER, INC., et al. (hereinafter "det`endants") on
November I0, 2005, as follows:
I. Although the court is authorized to award costs to the prevailing party under the
provisions of Fed. R. Civ. P, 54(ci) (1), defendant is not entitled to recoup all expenses as costs,
Defeiidants may recover oniy those expenses that may be taxed pursuant to 28 U .S.C. §l920 as
Case 2:03-cv-01599—FJIVI Document 41 Filed 11/21/2005 Page 1 of 4

an incident ofthe judgment in the action. Cranford Fitting Co. v, JT. Gibbons, Inc., 482 U.S.
437 (l987).
2. 28 U.S.C. § 1920 provides, inter alia, fees ofthe clerk are taxable as costs.
Pursuant to 28 U.S.C. §19l4, clerk fees include the tiling fee charged bythe clerk in every civil
action, as well as additional fees only as prescribed bythe Judicial Conference ofthe United
States. 28 U.S.C. §19l4 (a)—(b); 10-54 Moore’s Federal Practice -»— Civil §54.103. As Plaintiff
paid all ofthe filing fees in connection with bringing the action, it disputes that defendants are
entitled to recover the sum of $25.00 for tiling fees paid on November 12, 2004, as listed on
defendants’ Invoice #6l87 dated January 1 1, 2005 which have no support. lt further disputes the
$50.00 expended as pro liao vice application fees paid on October 7, 2003, are not recoverable as
taxable costs under 28 U.S.C. §1914.
3. While 28 U.S.C. §1920 permits taxation ofthe costs associated with fees for service
of summons and subpoena, defendants may only recover costs that defendants necessarily expended.
Arflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175 (9th Cir. 1990) citing, Crawford
Fitting Cc. v. J T Gibbons, Inc., 482 U.S. 437 (1987)). Federal Rule of`Civil Procedure 26 provides
that a party may obtain the deposition of an adverse party witness without service of a subpoena.
Therefore, since defendants’ expenditures associated with the service of subpoenas for the
depositions of party witnesses, which includes Joseph Li gon, Bob Songster and Mark Suttie were
completely unnecessary, the Clerk of this Court; should disallow the award of $1724.86 as fees for
the service of subpoenas.
4. Defendants were awarded the amount of $466.40 as fees for exemplification and
copies of papers necessarily obtained for use in this case. As per 28 U.S.C. §l920(4), defendants
may only recover fees for exemplitication and copies of papers necessarily obtained for use in
2
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this case. See Wright, Miller & Kane, 10 Federal Practice & Procedure § 2677 at 364; J. Moore,
Taggart & Wicker, 6 Federal Practice para. 54.77(6) (1977), Aylex Corp. v. (bzderwriters Lab.,
914 F.2d 175 (9th Cir. Cal. 1990). However, defendants failed to provide a proper description of
what papers were photocopied and how the photocopied papers were relevant to the instant
action. Thus the Clerk of this Court should modify and/or disallow the award of fees for
exemplitieation and copies of papers necessarily obtained for use in this case.
5. Plaintiff preserved its objections to these improper elements of costs by timely
filing objections to the Bill of Costs within the time allowed by Federal Rules of Civil Procedure
54(ci) and 6(e) and by making this motion for review of the C1eri<’s action in a timely fashion.
6. For all the reasons stated, plaintiff requests that this motion to review some of the
costs taxed by the Clerk ofthe Court in this case be granted.
Dated: Phoenix, Arizona
November 17, 2005
Respectfully submitted,
Poli & Bail, P.L.C,
" .t·· /
By: K -;:,,2 ” ,4/
p_//Jo·dy Bitzi hy; Esq.»
__.. Suite gi /,/
- *‘'i 2 999 N,,44tlr Street
V ,/{ Phoeniir, Arizona 85018
l¤// (602) 840-1400
Attorneys for Plaintiff
and
Joseph J. Perrone (JP—6832)
Bennett, Giuliano, McDonnell & Perrone, LLP
225 West 34th Street, Suite 402
New York, New York 10122
(646) 328-0120
Our File: D398
Attorneys for Plaintiff
3
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T O :
Sans Lerner
12400 Wilshire Blvd., Suite 1300
Los Angeles, CA 90025
Attention: Jared Washkowitz, Esq.
Z:\Documc:nis\Ai§ Filc:s\D398 Arumark\Lcgais\r1oLicc oi objection 1 E 1605 kbg doc
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