United States Liability Ins. Co. v. Johnston ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES LIABILITY No. 2:18-cv-02729-TLN-AC INSURANCE COMPANY, a Pennsylvania 12 corporation, 13 Plaintiff, ORDER 14 v. 15 ROGER JOHNSTON, an individual; KIRK JOHNSTON, an individual; and DOES 1– 16 10, inclusive, 17 Defendants. 18 19 This matter is before the Court on an objection filed by Defendants Roger Johnston and 20 Kirk Johnston (collectively, “Defendants”) in response to a bill of costs filed by Plaintiff United 21 States Liability Insurance Company (“Plaintiff”). (ECF No. 32.) For the reasons set forth below, 22 Defendants’ objection is hereby SUSTAINED. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On September 13, 2021, this Court entered an Order granting Plaintiff’s Motion for 3 Summary Judgment. (ECF No. 28.) On September 27, 2021, Plaintiff submitted a bill of costs 4 for $960.96, attributed to the fees of the Clerk ($400), fees for service of summons and subpoena 5 ($548.50), and other miscellaneous mailing costs ($12.46). (ECF No. 30 at 1, 5.) Plaintiff has 6 attached the invoice from Nationwide Legal for $548.50 to effect service of summons on 7 Defendants’ counsel on November 15, 2018. (Id. at 4.) Defendants object to Plaintiff’s bill of 8 costs, arguing the fees for service of summons and subpoena — $548.50 — exceed the amount 9 allowable under Local Rule 292(f)(2). (ECF No. 32 at 2–3.) 10 II. STANDARD OF LAW 11 Under Federal Rule of Civil Procedure (“Rule”) 54(d)(1), the prevailing party in a lawsuit 12 may recover its costs, other than attorney’s fees, “[u]nless a federal statute, these rules, or a court 13 order provides otherwise.” Fed. R. Civ. P. 54(d)(1). “By its terms, the rule creates a presumption 14 in favor of awarding costs to a prevailing party, but vests in the [Court] discretion to refuse to 15 award costs.” Ass’n of Mexican–Am. Educators v. State of Cal., 231 F.3d 572, 591 (9th Cir. 16 2000). If the Court declines to award costs to the prevailing party, the Court must “specify 17 reasons” for denying costs. Id. However, the Court need not “specify reasons for its decision to 18 abide [by] the presumption and tax costs to the losing party.” Save Our Valley v. Sound Transit, 19 335 F.3d 932, 945 (9th Cir. 2003). 20 III. ANALYSIS 21 Local Rule 292(f)(2) allows for the taxation of fees paid to a private process server, but 22 only “to the extent they do not exceed the amount allowable for the same service by the Marshal.” 23 E.D. Cal. L.R. 292(f)(2). The party seeking fees for private service of process must demonstrate 24 the fees requested do not exceed the Marshal’s fees for the same service. Robinson v. Kia Motors 25 Am., Inc., No. 2:10-cv-03187-SOM, 2016 WL 4474505, at *2 (E.D. Cal. Aug. 25, 2016); Davis v. 26 Hollins Law, No. CIV S-12-3107 LKK/AC, 2014 WL 2875778, at *3 (E.D. Cal. June 24, 27 2014); Gregory v. Allied Prop. & Cas. Ins. Co., No. CIV S-10-1872 KJM EF, 2013 WL 949529, 28 at *1 (E.D. Cal. Mar. 11, 2013). At the time of service in the instant case, the Marshal charged 1 || $65 per hour for personal service, with additional fees for travel and mileage. 28 C.F.R. §§ 2 | 0.114(a)@), (c). 3 As previously noted, Plaintiffs bill of costs includes $548.50 paid to a private process 4 || server to serve summons on Defendants’ counsel. (ECF No. 30 at 4.) Defendants object to that 5 | portion of Plaintiff's bill of costs, arguing the costs should not exceed $76.11, which reflects no 6 | more than one hour of preparation time to effect service ($65.00 in time charges) and travel 7 | should not have exceeded 20.2 miles ($11.11). (ECF No. 32 at 3.) Defendants therefore request 8 | $472.39 to be deducted from Plaintiff's bill of costs, resulting in a sum of $76.11 to be awarded to 9 | Plaintiff for fees for service of summons and subpoena. (/d.) Although Plaintiff has provided 10 | receipts documenting what it paid for private service, it has provided no documentation indicating 11 | the length of time or mileage necessary to effect that service. (See ECF No. 30.) Consequently, 12 | the Court is unable to calculate what the Marshal would have charged for the same service and 13 | Plaintiff has not demonstrated its entitlement to the fee. See Robinson, 2016 WL 4474505, at *2; 14 | Davis, 2014 WL 2875778, at *3; Gregory, 2013 WL 949529, at *1. Defendant’s objection to the 15 | $548.50 fee for private service of process is hereby SUSTAINED. Plaintiff’s bill of costs, less 16 || the $472.39, comes to $76.11. 17 IV. CONCLUSION 18 For the foregoing reasons, Defendants’ objection to Plaintiff's bill of costs (ECF No. 32) 19 | is SUSTAINED. In accordance with this Order, Plaintiffs bill of costs is hereby amended, 20 | decreasing the costs awarded to Plaintiffs to $76.11. 21 IT IS SO ORDERED. 22 | Date: October 19, 2021 23 () 24 “ MN Vacohey 25 Troy L. Nunley ] United States District Judge 27 28