Free Motion for Reconsideration - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Michael D. Moberly ­ 009219 Andrea G. Lisenbee - 019882 Attorneys for Defendant/Counterclaimant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
AMMAR HALLOUM, Plaintiff, vs. INTEL CORPORATION, Defendant. INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants. DEFENDANT/ COUNTERCLAIMANT'S MOTION TO MODIFY TAXATION OF COSTS ORDER No. CIV-02-02245-PHX-EHC

MOTION Pursuant to FED.R.CIV.P. 54(d) and LRCiv 54.1(b), defendant/counterclaimant Intel Corporation ("Intel" or the "Company") moves for modification of the Clerk's Taxation of Costs Order dated February 13, 2007. In particular, Intel requests that the portion of the Order denying its request for taxation of the cost it incurred in connection with the Court Reporter's preparation of the trial transcript be modified to tax this cost against the plaintiff. Memorandum of Points and Authorities. This motion is supported by the following

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747902.1

Document 203

Filed 02/15/2007

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MEMORANDUM OF POINTS AND AUTHORITIES Argument Intel requested that the cost it incurred in connection with the Court Reporter's preparation of the trial transcript be taxed against the plaintiff. The Clerk denied the Company's request, citing LRCiv 54.1(e)(2) as the basis for the denial. Rule 54.1(e)(2) provides for taxation of the cost of trial transcripts "requested by the Court," while disallowing taxation where the transcript was requested "for counsel's own use . . . in the absence of a special order of the Court." LRCiv 54.1(e)(2). In this instance, the circumstances giving rise to the preparation of the transcript were stated on the record at the conclusion of trial: THE COURT: . . . The record is, of course, extensive. There are a number of exhibits that have involved ­ that have been submitted. The witnesses have testified, and their testimony and the relationship to exhibits need to be addressed. I will order that each party file proposed findings of fact and conclusions of law and reference transcript pages and exhibit numbers for those findings. And that the findings are to be filed with the Court by ­ How long will it take you on the transcript, Candy? COURT REPORTER: Two weeks. THE COURT: Monday, 2006. With the Court by August the 7th, a

And any memorandum of law supporting those matters. With respect to the cost of the transcript, it's ordered that it be prepared by the court ­ by the court reporter, with a statement regarding the cost of the transcript.

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I've no idea how long that might be. My ordinary procedure, Mr. Halloum, Mr. Moberly, is to order that each party share a half of the cost of the transcript, with the full cost to be ­ the party responsible for that to be determined at the time that a judgment is entered by the Court. Do you understand that, Mr. Halloum? MR. HALLOUM: Yes. THE COURT: And I have no idea about the cost of the transcript. . . . But it will be a substantial figure, certainly in the four figure range, in a significant amount. But it's going to be necessary for me to have it in order to review it, my staff to review it. Reporter's Transcript of Proceedings (excerpt attached), at 1216-17 (emphasis added). It is clear from the foregoing that the trial transcript not only was "requested by the Court" within the meaning of LRCiv 54.1(e)(2), but that the Court took pains to be sure the plaintiff, in particular, understood that the full cost of the transcript ultimately might be borne entirely by one of the parties, depending on the outcome of the trial. Under these circumstances, Intel respectfully submits that even if the cost of the transcript was not automatically taxable under the applicable rule ­ as Intel believes it is ­ this would be an appropriate case in which to tax this cost by "special order of the Court." In his objection to the Company's Bill of Costs, the plaintiff himself did not assert that Intel's share of the transcript cost was not taxable under LRCiv 54.1(e)(2). He instead objected to the taxation of that cost solely on the ground that it would be economically burdensome (more specifically, "excruciating") for him to be compelled to reimburse Intel for that cost. However, this argument provides no basis for declining to tax this cost against the plaintiff. See Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998) ("Rule 54(d)(1) creates a presumption in favor of awarding costs to the prevailing party which may only be overcome by pointing to some impropriety on the part of the prevailing party that would justify a
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denial of costs."); National Information Services, Inc. v. TRW, Inc., 51 F.3d 1470, 1472 (9th Cir. 1995) ("A district court . . . generally must award costs unless the prevailing party is guilty of some fault, misconduct, or default worthy of punishment."). II. Conclusion For the foregoing reasons, Intel requests that the Court modify the Clerk's Taxation of Costs Order to reflect that the $2,500.71 in costs incurred by the Company for the Court Reporter's preparation of the trial transcript is being taxed against the plaintiff. RESPECTFULLY SUBMITTED this 15th day of February, 2007. RYLEY CARLOCK & APPLEWHITE

By s/ Michael D. Moberly Michael D. Moberly Andrea G. Lisenbee One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendant/Counterclaimant

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CERTIFICATE OF SERVICE I hereby certify that on February 15, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on February 15, 2007, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System:

Ammar Halloum P.O. Box 26662 Tempe, AZ 85285 Plaintiff/Counterdefendant Sawsan Hamad 260 W. Buena Vista Dr. Tempe, Arizona 85284 Counterdefendant s/ Michael D. Moberly Michael D. Moberly

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