Opinion
Civil No. 03-365-MO.
April 13, 2004
ORDER ON BILL OF COSTS
On March 9, 2004, the court issued a final judgment upholding the City of Hillsboro's denial of plaintiff Voice Stream's application for a conditional use. The judgment provided that the "City of Hillsboro is the prevailing party and shall recover its costs and disbursements as determined by Fed.R.Civ.P. 54(d)(1)." The City of Hillsboro submitted a bill of costs for $760.03 on March 23, 2004, to which plaintiff Voice Stream objected.
The parties disagree as to two points: (1) whether the city may recover a $5.00 docketing fee in connection with filing a motion to dismiss, and (2) whether the city may recover the costs it incurred in making certain photocopies for this case.
Thus giving lie to the phrase, " de minimis non curat lex."
Federal Rule of Civil Procedure 54(d) provides that courts shall award a prevailing party "costs other than attorneys' fees . . . as of course unless the court otherwise directs." What costs are appropriately taxed against the losing party are specifically delineated by statute. See 28 U.S.C. § 1920. Among other allowable costs, the statute allows recovery of "[f]ees for exemplification and copies of papers necessarily obtained for use in the case." Id. In addition the prevailing party may recover certain "docket fees," including "$5 on [a] motion for judgment."Id. (incorporating 28 U.S.C. § 1923). "The court does not have discretion to award whatever costs seem appropriate, but must limit an award of costs to those costs defined in 28 U.S.C. § 1920." In re Melridge, Inc. Secs. Litig., 154 F.R.D. 260, 261 (D. Or. 1994). While courts cannot tax costs "beyond those expressly authorized by section 1920," they retain discretion to refuse to tax costs in favor of a prevailing party. Romero v. City of Pomona, 883 F.2d 1418, 1428 (9th Cir. 1989).
The city seeks reimbursement for photocopying costs amounting to $613.20. According to the city, these costs were incurred in making three copies of the record of the proceedings before the local zoning board. Two copies of the record were filed with the court as required by the Local Rules, while the third copy was served on Voice Stream as required by Fed.R.Civ.P. 5. The city's itemization of copying costs includes about $325.00 in costs for staff time. Voice Stream argues that Section 1920 does not allow recovery for the city's copying expenses.
Photocopying costs are recoverable "to the extent the copies were 'necessarily obtained for use in the case.'" Frederick v. City of Portland, 162 F.R.D. 139, 144 (D. Or. 1995) (quoting 28 U.S.C. § 1920 and citing Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 224 (9th Cir. 1964)); see, e.g.,Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (upholding award of costs incurred in "copying papers"). Costs incurred in producing copies which are "used in presenting arguments and evidence to the court" are generally recoverable. Id. In-house photocopying costs, however, are not recoverable when they were incurred merely to produce copies for the convenience of counsel. See,Frederick, 162 F.R.D. at 144.
The court awards the city its copying costs to a limited extent. Obtaining copies of the record was a necessary part of presenting the appeal from the local zoning board. The court, however, will not award costs in connection with the city's obtaining binders and cassette tapes. See 28 U.S.C. § 1920 (allowing recovery for costs "for the exemplification and copies of papers necessarily obtained for use in the case" (emphasis added)).
Moreover the court will not permit the city to recover copying costs associated with staff time. While the city's bill of costs lists almost $325.00 in "staff time" costs, the city does not discuss the reasonableness or necessity of the assessed costs or otherwise elaborate on the proposed costs. In addition the Ninth Circuit has construed Section 1920(4) in a relatively narrow fashion, supporting further Voice Stream's objection to the recovery of staff-time costs. Cf. Romero, 883 F.2d at 1428 ("Section 1920(4) speaks narrowly of 'fees for exemplification and copies of papers,' suggesting that fees are permitted only for the physical preparation and duplication of documents, not the intellectual effort involved in their production."). In sum, given the absence of more detailed explanation from the city, the court will not allow recovery for staff-time costs.
As for the $5 dispute, it appears that the city seeks a docket fee in connection with a motion to dismiss it filed on April 14, 2003. Judge Brown granted the city's motion in part, holding that Voice Stream could not state a Section 1983 claim.
Voice Stream argues that the city should not recover $5 because it never filed a motion for summary judgment. As the city correctly points out, however, the docket-fees statute is not limited to motions for summary judgment but allows an award of $5 in connection with a "motion for judgment." 28 U.S.C. § 1923. Because the city prevailed in part on its motion to dismiss, which sought a judgment against Voice Stream, the court will allow the $5 docket fee in favor of the city.
In summary the city may recover only a portion of its proffered photocopying costs, specifically, the $97.92 incurred for producing black and white copies and the $64.80 incurred for producing the 144 color copies. All other costs are awarded as set forth in the city's bill of costs.
IT IS SO ORDERED.