Free Objection - District Court of Arizona - Arizona

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Rick N. Bryson (Arizona Bar No. 010568) Brett M. Hager (Arizona Bar No. 018793) SANDERS & PARKS 3030 North Third Street Suite 1300 Phoenix, AZ 85102-3099 Telephone: (602) 532-5600 Facsimile: (602) 230-5014 Elizabeth H. Cohen Michael A. Grow Janine A. Carlan ARENT FOX LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 Telephone: 202.857.6000 Facsimile: 202.857.6395 Attorneys for Plaintiff CENTURY 21 REAL ESTATE LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

CENTURY 21 REAL ESTATE LLC, Plaintiff, v. CENTURY SURETY CO., Defendant.

Case No. CIV 03-0053-PHX-SMM Objection to Bill of Costs

Century 21 Real Estate LLC ("Century 21") hereby objects to the Bill of Costs of Defendant Century Surety Co. ("Century Surety") because certain of the costs contained therein are not properly recoverable under the relevant statutes and rules. A. Relevant Law and Rules Federal Rule of Civil Procedure ("FRCP") 54(d) provides that a court may tax certain costs to a prevailing party. However, FRCP 54(d) does not give a court `unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur ... [I]tems proposed by winning parties as costs should always be given careful scrutiny.' Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964). Recoverable costs are limited to
OBJECTION TO BILL OF COSTS CIV 03-0053-PHX-SMM

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those listed in U.S. statutes and include: fees of the clerk and marshals; fees for transcripts necessarily obtained for use in the case; fees for printing and witnesses; fees for copies of papers necessarily obtained for use in the case; docket fees; and, court appointed experts and interpreters. 28 U.S.C. §§ 1920-23. These costs are further limited and applied by Local Rule of Civil Procedure 54.1. Certain of the costs claimed by Century Surety are not permitted under the relevant law. B. Fees for Witnesses of $14,349.36 Should be Reduced to $ 160.00. Century Surety seeks costs for $14,349.36 for expert witness fees. Bill of Costs at 1 and 2. However, Local Rule 54.1(e)(4) specifically states that "Fees for expert witnesses are not taxable in a greater amount than that statutorily allowable for ordinary witnesses." The amount statutorily available for ordinary witnesses is $40 per day. 28 U.S.C. § 1821(b) ("a witness shall be paid an attendance fee of $40 per day for each day's attendance"). The Supreme Court has held that except where a witness is court appointed (not applicable here), a federal court is "bound by the limit of § 1821(b)" and a court may not tax expert witness fees in excess of the $40 per day limit. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), superseded on other grounds, 42 U.S.C. § 1988(c) (1991). Accordingly, the Court is not permitted to tax as costs the expert witnesses fees sought by Century Surety, and must limit any amount to $40 per witness for the four witnesses, or $160.00.1 C. Fees for Copies of $21,039.36 Should Be Denied or Reduced. Century Surety seeks to claim $21,039.36 for "Fees for exemplification and copies of papers necessarily obtained for use in the case." Bill of Costs at 1. Century Surety does not provide an exact calculation of the costs claimed. Rather, it makes an estimate based on the costs of (1) all the documents produced in discovery by both parties, (2) three sets of exhibits for the witnesses deposed by Century Surety, and (3) four sets of all motions, memoranda and exhibits filed. Declaration of David E. Rogers in Support of Taxable Costs at ¶ 5 and Ex. 1. Century Surety provides no explanation for why this estimate is appropriate.

1 Century Surety has not sought taxable costs for any other witness fees, such as travel, mileage, etc., and has not provided any invoices demonstrating or itemizing those costs.

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Moreover, certain of these items are not properly included in taxable costs. The Local Rule specifically identifies the types of copies of papers that are permitted to be taxed as costs, and those that are not. Copies of papers necessarily obtained from third-party record custodians and documentary exhibits "admitted into evidence at hearing or trial . . . including the provision of additional copies for the Court an opposing parties" are permitted. LR Civ. 54.1(e)(5). "All other copy costs are not taxable except by prior

order of the Court." Id. Accordingly, the first category of copying costs ­ the cost for
copying the parties' document productions (which Century Surety claims total about 53,307 pages) ­ are not recoverable at all. In the third category of copying costs, Century Surety includes the cost for copying all the motions and memoranda, as well as exhibits. However, only the "documentary exhibits admitted into evidence" are permitted to be included, and the copying charges for motions and memoranda are not taxable as costs. From the documentation provided by Century Surety it is not possible to parse out the motions and memoranda it included in its calculation as that information is not provided. It is Century Surety's burden to state its costs with reasonable specificity. LR Civ. 54.1(a) ("the bill of costs "shall include a memorandum of the costs and necessary disbursements, so itemized that the nature of each can be readily understood, and, where available, documentation of requested costs in all categories must be attached."). On this ground alone, the entire copying charge of $21,039.36 should be disallowed because it cannot be parsed due to lack of documentation. However, in the alternative, the Court may choose to reduce the amount taxed as costs for copying. In that case, the amount to be deducted is $ 9,963.18, which equals the cost of copying the 53,307 pages of discovery and four sets of the approximately 511 pages comprising the motions and memoranda,2 at $0.18 per page. Rogers Decl. ¶ 5.

2

Century 21 believes that the total number of pages for all motions and memoranda (excluding exhibits and declarations) filed by Century Surety is approximately 511 pages. See Declaration of Angela Shearin, filed herewith, ¶¶ 1-4.
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D.

Conclusion Accordingly, for all these reasons, the witness fees claimed must be reduced to

$160.00 and copying costs disallowed in their entirety, resulting in total taxable costs of $18,659.56 ($53,888.53 - $14,349.61 + $160.00 - $21,039.36). In the alternative, the Court may reduce the witness fee to $160 and the copying charges by $9,963.18, resulting in a total of $49,342.10 ($53,888.53 - $14,349.61 + $160.00 - $9,963.18). Dated: March 8, 2007 Respectfully submitted,

By:

/s/ Rick N. Bryson Rick N. Bryson (Arizona Bar No. 010568) Brett M. Hager (Arizona Bar No. 018793) SANDERS & PARKS 3030 North Third Street Suite 1300 Phoenix, AZ 85102-3099 Telephone: (602) 532-5600 Facsimile: (602) 230-5014 -andElizabeth H. Cohen Michael A. Grow Janine A. Carlan ARENT FOX LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 Telephone: 202.857.6000 Facsimile: 202.857.6395 Attorneys for Plaintiff CENTURY 21 REAL ESTATE LLC

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CERTIFICATE OF SERVICE I hereby certify that on March 6, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal to the following CM/ECF registrants: Donald A. Wall, Esq. [email protected] David E. Rogers, Esq. [email protected] Squire, Sanders & Dempsey LLP 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004-4498 Telephone: (602) 528-4122 Facsimile: (602) 253-8129

/s/ Kimberly A. Hensinger

[INSERT PLEADING TITLE HERE] CIV 03-0053-PHX-SMM

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