Free Bill of Costs - Obj/Ans/Resp - District Court of Arizona - Arizona

1 SHELTON L. FREEMAN (AZ #009687) 2 MICHAEL A. CORDIER (AZ #014378)
LISA ANNE SMITH (AZ# 16762)

3 DECONCINI MCDONALD YETWIN & LACY, P.C. 4 5 6 7
7310 NORTH SIXTEENTH STREET, SUITE 330 PHOENIX, ARIZONA 85020 _____________ Ph: (602) 282-0500 Fax: (602) 282-0520 E-mail: [email protected]
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8 Attorneys for Defendants

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North Sixteenth Street, Suite 330 Phoenix, Arizona 85020

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Nicholas Alozie, a single man, Plaintiff, v. Case No. CIV 02 2639 PHX SRB DEFENDANTS' OBJECTION TO PLAINTIFF NICHOLAS ALOZIE'S STATEMENT OF COSTS AND APPLICATION FOR TAXATION OF COSTS (Assigned to the Honorable Susan R. Bolton)

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The Mills Corporation, a foreign 15 corporation; Mills Services Corp., a 16 foreign corporation; and Arizona Mills, L.L.C., a foreign corporation, 17 Defendants. 18 19 20

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Defendants The Mills Corporation, Mills Services Corp., and Arizona Mills,

21 L.L.C. (collectively, "Defendants"), by and through undersigned counsel, hereby 22 object, pursuant to Local Rule of Civil Procedure 54.1(b), and request that the 23 identified costs be disallowed as not properly taxable. 24 This Motion is supported by the attached Memorandum of Points and

25 Authorities, and the entire record in this case. 26 / / /

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MEMORANDUM OF POINTS AND AUTHORITIES Background On September 6, 2005, following a jury verdict in this action, Plaintiff submitted his Statement of Costs and Application for Taxation of Costs to the Clerk. The Application sought an order taxing costs in the amount of $6,753.29. Included in his Application, Plaintiff seeks to tax costs related to both the transcription and videotaping of the depositions of Dan Jones, Clair Griffith and Pam Posten. In addition, Plaintiff also seeks to tax as a cost, a partial trial

DECONCINI MCDONALD YETWIN & LACY, P.C.

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10 transcript obtained by Plaintiff during the trial of this matter. As set forth below,
Sixteenth Street, Suite 330 Phoenix, Arizona 85020

11 such costs are not properly taxable and should not be allowed. 12 While Rule 54(b) provides the presumption that taxable costs incurred

13 should be recovered, the determination of what is properly allowable as taxable 14 is left to the discretion of the Clerk and this Court. See, LRCiv 54.1(b); see also, 15 Washington State Dep't of Transportation v. Washington Natural Gas Co., 16 Pacificorp, 59 F.3d 793 (9th Cir. 1995) (Disallowance of expenses for depositions 17 not used at trial is within district court's discretion.) The identified costs sought 18 by Plaintiff are not properly allowable and, therefore, should be denied. 19 II. Video Deposition Costs 20 In addition to the stenographic transcript costs for the depositions of Dan 21 22 Jones, Clair Griffith and Pam Posten, Plaintiff seeks to tax the costs associated 23 with the videotaping of these depositions. 24 follows: 25 26 Dan Jones (Transcript) Dan Jones (Video) Clair Griffith (Transcript) $816.00 $1,180.00 $634.10 Plaintiff sets forth these costs as

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Pam Posten (Transcript) Clair Griffith and Pam Posten (Video) Total:

$359.10 $1,530.00 $4,519.20

The costs associated with videotaping the depositions were not

4 necessarily incurred in this action and, therefore, are not properly allowable as 5 taxable costs. In addition, Plaintiff provides no factual basis as to why such costs 6 were necessarily incurred to support his request that they be taxed to 7 Defendants. 8 The taxation of costs is generally governed by 15 U.S.C. §1920 and Rule 9 (54.1), LRCiv. Generally, deposition costs have been considered to fall under 10 §1920(2) ­ "Fees of the court for all or any part of the stenographic transcript 11 necessarily obtained for use in the case." The key standard is whether or not 12 13 such costs were "necessarily obtained for use in the case". The concept of 14 necessity for use in the case connotes something more than convenience or 15 duplication to ensure alternative methods for presenting materials at trial. Cherry 16 v. Champion International Corporation, 186 F.3d 442, 449 (4th Cir. 1999); See 17 also, Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d 278, 285 (5th 18 Cir. 1991). As Plaintiff has not made a showing as to why either a transcript or 19 videotape would not have been sufficient, the additional costs of videotaping 20 should be deemed to be duplicative and unnecessary for use in this case. See 21 generally, Robinson v. Burlington Northern R. Co., 963 F.Supp. 691 (D.C.Ill. 22 1997) (Prevailing defendant's costs of videotaping deposition would not be 23 allowed, when costs of transcribing deposition had already been allowed, and 24 25 defendant did not indicate that subject matter of transcribed deposition was 26 different from that of videotaped deposition.)

DECONCINI MCDONALD YETWIN & LACY, P.C.

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Sixteenth Street, Suite 330 Phoenix, Arizona 85020

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The videotaping of the Jones, Griffith and Posten depositions was

2 unnecessary and the costs associated with these are duplicative of the costs of 3 transcription. Plaintiff used the transcribed depositions sparingly during trial and 4 at no time was a videotaped deposition, in whole or in part, offered during trial. 5 Based on the foregoing, the Clerk should disallow the costs associated with 6 videotaping the depositions of Mr. Jones ($1,180.00), Ms. Griffith and Ms. Posten 7 ($1,530.00 ­ combined) for a total of $2,710.00. 8 III. Trial Transcript 9 Plaintiff also seeks as a taxable cost in this matter partial trial transcripts 10
Sixteenth Street, Suite 330 Phoenix, Arizona 85020
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DECONCINI MCDONALD YETWIN & LACY, P.C.

11 obtained by him or his counsel apparently after the close of trial in the total 12 amount of $426.09. The relevant portions of Exhibit B to Plaintiff's Application 13 shows order dates for the three transcripts as August 22, 29 and 30, each after 14 the trial had ended. The Local Rules for the U.S. District Court ­ District of 15 Arizona are explicit on the issue of taxing the costs for transcripts. 16 Local Rule 54.1(e)(2) states as follows: 17 Fees Incident to Transcripts ­ Trial Transcripts. The 18 cost of the originals of transcripts of trials or matters prior to or subsequent to trial, is taxable at the rate 19 authorized by the judicial conference when either 20 requested by the Court, or prepared pursuant to stipulation.... Copies of transcripts for counsel's own 21 use are not taxable in the absence of a special order of 22 the Court. [Emphasis added]. 23 Because the partial trial transcripts were not ordered by the Court, nor was

24 it obtained pursuant to stipulation, and because no special order was obtained 25 from the Court regarding such transcripts, these costs are clearly not taxable 26 pursuant to the applicable local rule and, therefore, cannot be allowed by the Clerk.

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Conclusion For the reasons set forth above, Defendants request that the Clerk

3 disallow the above-identified costs as follow: Videotaped depositions ($2,710.10) 4 and partial trial transcript ($426.00) for total amount of disallowed costs of 5 $3,136.09. 6 DATED this 19th day of September, 2005. 7 8 DeCONCINI McDONALD YETWIN & LACY, P.C.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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Sixteenth Street, Suite 330 Phoenix, Arizona 85020

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By /s/ Michael A. Cordier___________________ Shelton L. Freeman Michael A. Cordier Lisa Anne Smith Attorneys for Defendants

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of 14 COPY th the foregoing mailed this 19 day of September, 2005, to: 15 16 Sabinus A. Megwa 17 The Megwa Law Office 18 6811 South Central Avenue Phoenix, AZ 85042 19 20 21 __/s/ Fonda Moore_______________ 22 23 24 25 26

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