Local Rule Civil Rule 54.1: Costs

Civil Rule 54.1 Costs a. In General. See 28 U.S.C. §§ 1920 and 1923; Rule 54(d), Fed. R. Civ. P. Unless otherwise ordered by the Court, or stipulated by the parties, the prevailing party is entitled to costs. Within fourteen (14) days after entry of judgment, the party in whose favor a judgment for costs is awarded or allowed by law, and who claims costs, must file with the Clerk the bill of costs, together with a notice of when the Clerk will hear the application. Unless otherwise ordered by the Court, the filing of a motion under Fed. R. Civ. P. 59 or 60 does not extend the time to file the bill of costs. Prevailing party may elect to hold a telephonic hearing upon notice to the Clerk and the attorney for the adverse party. It will be the responsibility of the prevailing party to initiate the conference call. The bill of costs must itemize the costs claimed and must be supported by a memorandum of costs, an affidavit of counsel that the costs claimed are allowable by law, are correctly stated, and were necessarily incurred, and copies of the invoices for requested costs. Cost bill forms must be made available by the Clerk's Office upon request. The notice must specify the hour and date when application to the Clerk to tax the costs will be made, which must not be less than fourteen (14) nor more than twenty-one (21) days from the date of the notice. Any opposition or memorandum by the opposing party must be filed at a time specified by the Clerk prior to the hearing indicated on the bill of costs. b. Items Taxable as Costs. It is the custom of the Court to allow certain items of costs not otherwise allowed or prohibited by statute or by specific order, as follows: 1. Fees for Service of Process. Fees for service of process (whether served by the United States Marshal or other persons authorized by Fed. R. Civ. P. 4) are allowable. Fees for expedited service are allowable only if the Court ordered service to be affected on an expedited basis. Costs for service of subpoenas are taxable as well as service of summonses and complaints. 2. Fees Incident to Transcripts – Trial Transcripts. Except as provided below, the cost of transcripts is not normally allowable unless, before it is incurred, it is approved by a judge or stipulated to be recoverable by counsel. a) The cost of the original and one (1) copy of a trial transcript, a daily transcript and of a transcript of matters prior or subsequent to trial, furnished the Court is taxable, when either requested by the Court, or prepared pursuant to stipulation. Mere acceptance by the Court does not constitute a request. Copies of transcripts for counsel's own use are not taxable in the absence of a special order of the Court. b) The cost of transcripts necessarily obtained for appeal is allowable. c) The cost of a transcript of a statement by a judge from the bench which is to be reduced to a formal order prepared by counsel is allowable. 3. Depositions. Costs incurred in connection with taking depositions, including: a) The cost of an original and one copy of any deposition (including videotaped depositions) necessarily obtained for use in the case is allowable. Depositions need not be introduced in evidence or used at trial to be taxable so long as at the time it was taken it could reasonably be expected that the deposition would be used for trial preparation, rather than mere discovery. Counsel's copies (whether paper or electronic), in excess of the original and one (1) copy are not taxable, regardless of which party took the deposition. b) If both video and stenographic depositions are taken, they both will be allowed as costs only if the video deposition is used at trial. The cost of electronic versions is recoverable. c) The reasonable expenses of the deposition reporter, and the notary or other official presiding at the taking of the depositions are recoverable, including travel and subsistence. d) Postage cost, including registry, for sending the original deposition to the Clerk for filing is recoverable. e) Counsel's fees, expenses in arranging for taking and expenses in attending the taking of a deposition are not recoverable, except as provided by statute or by the Fed. R. Civ. P. f) Fees for the witness at the taking of a deposition are taxable at the same rate as for attendance at trial. The witness need not be under subpoena. g) A reasonable fee for a necessary interpreter at the taking of a deposition is recoverable. h) The attendance fee of a reporter when a witness fails to appear is allowable if the claimant made use of available process to compel the attendance of the witness. 4. Witness Fees. Fees paid to witnesses, including: a) Per diem, mileage, subsistence and attendance fees as provided in 28 U.S.C. § 1821 paid to witnesses subpoenaed and/or actually attending the proceeding, if the witness is served with the subpoena within California or as otherwise authorized by Fed. R. Civ. P. 45(b)(2). 1. Such fees are taxable even though the witness does not take the stand, provided the witness necessarily attends the Court. 2. Such fees are taxable even though the witness attends voluntarily upon request and is not under subpoena. 3. If the witness comes from outside the district, the transportation expenses taxable must be based on the most direct route, and on the most economical rate reasonably available, for means of the transportation used by the witness, subject to the additional provisions of the Fed. R. Civ. P. 4. Witness fees and subsistence are taxable only for the reasonable period during which the witness is within the district. 5. If a witness appears on the same date in related cases requiring appearance in the same court, one set of fees is taxable, the single set as taxed to be divided equally among the related cases. b) Witness fees for a party if required to attend by opposing party. c) Witness fees for officers and employees of a corporation if they are not parties in their individual capacities. d) Unless otherwise provided by law, fees for expert witnesses are not taxable in a greater amount than that statutorily allowable for ordinary witnesses. e) The reasonable fee of a competent interpreter is taxable, if the fee of the witness involved is taxable. The reasonable fee of a competent translator is taxable if the document translated is necessarily filed, or admitted into evidence. 5. Compensation of Court-Appointed Experts. Compensation of court-appointed experts, compensation for interpreters, and salaries, fees, expenses and costs of special interpretation services (28 U.S.C. §§ 1828 and 1920(6)) are allowable. 6. Exemplification and Copies of Papers. a) The cost of copies necessarily obtained for use in the case are taxable if one or more of the following criteria are met: 1. Copies were provided either to the Court or to opposing counsel either by court order, or rule or statue. 2. Copies were used as court exhibits, either admitted into evidence, or attached to a motion. 3. The fee of an official for certification, or proof regarding nonexistence of a document is taxable. 4. The reasonable fee of a competent translator is taxable if the document translated is taxable. 5. Notary fees are taxable if actually incurred, but only for documents which are required to be notarized and which are necessarily filed. 6. The cost of patent file wrappers and prior art patents are taxable at the rate charged by the patent office. Expenses for service of persons checking patent office records to determine what should be ordered are not taxable. b) The following copy costs are not taxable: 1. The cost of copies submitted in lieu of originals because of the convenience of offering counsel or client are not taxable. 2. The cost of reproducing copies of motions, pleadings, notices and other routine case papers is not allowable. 3. The cost of copies obtained for counsel's own use is not taxable. c) Procedure regarding copy and electronic conversion costs: The party seeking recovery must present documentary evidence in the form of affidavits describing the documents copied or converted, to whom they were provided, the number of pages copied or converted, and the cost per page or per hour, and the use of or intended purpose for the items copied or converted. If documents were provided only to the party seeking recovery, that party must specify the purpose of acquisition and photocopying or for conversion of the documents served. In the absence of a specific showing, recovery must be denied. 7. Maps, Charts, Models, Photographs, Summaries, Computations, and Statistical Summaries. a) The cost of preparing charts, diagrams, videotapes and other visual aids to be used as exhibits is taxable if such exhibits are reasonably necessary to assist the jury or the Court in understanding the issues at the trial. An explanation of how the above related to a material issue in the case will be provided. b) The cost of photographs, 16" x 20" in size or less, is taxable if admitted into evidence, the cost of photographs attached to documents required to be filed and served on opposing counsel is limited to 8"x10". Enlargements greater than 16" x 20" are not taxable except by order of the Court. c) The cost of models is not taxable except by order of the Court. d) The cost of compiling summaries, computations, and statistical comparisons is not taxable, except by prior approval by the Court. e) The cost of preparing material for electronic retrieval and demonstrations (i.e. CD ROM and VHS tape) is taxable only as it relates to exhibits admitted in evidence, the cost to rent the equipment for court is not taxable. 8. Fees to Masters, Receivers and Commissioners. Fees to masters, receivers, and commissioners are taxable as costs, unless otherwise ordered by the Court. 9. Premiums on Undertakings, Bonds or Security Stipulations. The party entitled to recover costs will ordinarily be allowed premiums paid on undertakings, bonds or security stipulations, where the same have been furnished by reason of express requirement of the law, or on order of the Court or a judge thereof, or where the same is necessarily required to enable the party to secure some right accorded him in the action or proceeding. 10. Removed Cases. In a case removed from the state court, costs incurred in the state court prior to removal must be recovered by the prevailing party in federal court to the extent they are covered in this rule or otherwise permitted by state law. 11. Admiralty. Fees for compensation, as set by general order, for keepers of boats, vessels and other property attached or libeled are taxable as costs. 12. Appeals. Costs incurred on appeal as allowed by the Federal Rules of Appellate Procedure. c. Costs Not Allowed. Unless a party must substantiate the claim by reference to statutes or decisions for the following costs, the following will not ordinarily be allowed: (1) accountant's fees incurred for investigation; (2) the purchase of infringing devices in patent cases; (3) the physical examination of an opposing party; (4) courtesy copies of exhibits furnished to opposing counsel without request; and (5) rental of equipment for use at court hearings or trial. d. Costs Where Offer of Judgment Filed. (See Rule 68, Fed. R. Civ. P.) If the defendant offers a judgment in a certain sum which is rejected by the plaintiff, and the case thereafter goes to trial with the resulting recovery (plus any authorized pre-offer costs and attorney's fees) of only the amount previously offered by the defendant, or less, then the defendant is the prevailing party. No costs will be allowed to either party if the Court is unable to clearly determine the prevailing party. e. Costs Against the Government. (See 28 U.S.C. § 2412) f. Party Entitled to Costs. The determination of the prevailing party will be within the discretion of the Court in all cases except where such determination is inconsistent with statute or the Fed. R. Civ. P. or the rules of the appellate courts. If each side recovers in part, ordinarily the party recovering the larger sum will be considered the prevailing party. The defendant is the prevailing party upon any termination of the case without judgment for the plaintiff except a voluntary dismissal under Fed. R. Civ. P. 41(a). g. Method of Taxation of Costs. 1. At the time specified in the notice, the party objecting to any item of costs contained in the bill of costs must file the objections in writing, specifying each item to which objection is made and the ground of the objection, and file any affidavit or present facts relied on which may be rebutted by the opposing party. 2. The Clerk will thereupon proceed to tax the costs, and must allow such items specified in said bill of costs as are properly chargeable as costs. The Clerk must make an insertion of the costs in the docket. 3. The taxation of costs made by the Clerk must be final, unless modified on review as provided in Local Rule 54.1.h. 4. Notice of the Clerk's taxation of costs must be given by mailing a copy of the bill as approved by the Clerk to all parties in accordance with Rule 5, Fed. R. Civ. P. 5. Except as otherwise provided by law, costs will be taxed on the date set notwithstanding the fact that an appeal may have been filed. h. Review of Costs. A review of the decision of the Clerk in the taxation of costs may be taken to the Court on motion to re-tax by any party in accordance with Rule 54(d), Fed. R. Civ. P., and Civil Local Rule 7.1. 1. A motion to retax must be served and filed within seven (7) days after receipt of the notice provided for in Civil Local Rule 54.1.g or unless within the seven (7) day period the Court permits the motion to be made orally. 2. A motion to retax must particularly specify the ruling of the Clerk excepted to and no others will be considered at the hearing, except that the opposing party may, within (3) days of service if the motion to retax, file a cross-motion to retax. i. Writ of Execution for Costs. The Clerk will, upon request, issue a writ of execution to recover costs or attorney's fees included in the judgment: 1. Upon presentation of a certified copy of the final judgment in the District Court; or 2. Upon presentation of a mandate of the Court of Appeals to recover costs taxed by the appellate court.