Adams v. Roberts

BRENDAN E. ADAMS, an individual, Plaintiff and Counter Defendant, v. HOWARD C. ROBERTS, an individual, Defendant

and Counter Claimant.

No. CV 18-148-M-DLC

United States District Court, D. Montana, Missoula Division

August 11, 2021

ORDER

Dana L. Christensen, District Judge

Before the Court is Defendant and Counter Claimant Howard C Roberts' Motion for Award of Attorney's Fees and Costs. (Doc. 99.) Specifically, Roberts seeks $7, 066.78 in costs and $77, 395.00 in fees after judgment was entered in his favor following a week-long jury trial. (Doc. 100-1 at 2.) Pursuant to District of Montana Local Rule 54.1 Plaintiff and Counter Defendant Brendan E. Adams objects to the inclusion of several items in Roberts' Bill of Costs. (Doc. 104 at 26.) Adams also argues that Roberts' fee request is overbroad. (Id. at 6-13.) The Court held an evidentiary hearing on the fee dispute on August 11, 2021.

For the following reasons, the Court sustains Adams' objections to Roberts' Bill of Costs and agrees that Roberts' fee request is overbroad. Accordingly, the Court reduces the costs and fees due to Roberts from the amounts he requests.

Background

After three years of litigation and on the heels of a five-day trial, the parties are well-familiar with this case's factual and procedural background. Thus, the Court will only recite those facts necessary to make sense of its ruling on the instant motion.

Almost four years ago to date, an altercation occurred between Adams and Roberts regarding the use of an easement road on Adams' Lake Mary Ronan property. Adams sued Roberts a year afterward, alleging battery, trespass, and intentional infliction of emotional distress. Roberts counterclaimed asserting assault and unlawful restraint or false imprisonment. Roberts also advanced a justifiable use of force defense against Adams' battery and emotional distress claims.

On May 7, 2021, the Jury returned a verdict in favor of Roberts on his false imprisonment counterclaim. And, relevant here, the Jury also determined that Roberts' use of force was justified, and that he did not commit a battery against Adams, nor did he intentionally inflict emotional distress upon him. After the Court entered judgment in favor of Roberts and against Adams, Roberts timely applied for taxation of costs as the prevailing party and moved for an award of attorney's fees pursuant to a Montana immunity statute.

Discussion

The Court first addresses Adams' objection to Roberts' Bill of Costs before turning to the question of fees.

I. Costs

This diversity case is controlled by federal procedural rules Hanna v. Plumer, 380 U.S. 460, 464-65 (1965), and the parties agree that federal law directs the Court's consideration of Roberts' Bill of Costs and Adams' objections thereto. C.f. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1168 (9th Cir. 1995) (holding that “federal law should control the reimbursement of expert witnesses in federal courts sitting in diversity jurisdiction”). Accordingly, the Court applies the framework set out by the Supreme Court in Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987) (“Crawford Fitting”) to guide its analysis.

The starting point, Crawford Fitting tells us, is 28 U.S.C. § 1920. See 482 U.S. at 440. Section 1920 “embodies Congress' considered choice as to the kinds of expenses that a federal court may tax as costs against the losing party[.]” Id. Relevant to the issues presented here, a judge may tax as costs “fees and disbursements for printing and witnesses.” 28 U.S.C. § 1920(3). The next step is 28 U.S.C. § 1821, which specifies the scope of allowances payable to “a witness in attendance at any court of the United States.” Specifically, § 1821 provides that “[a] witness shall be paid $40 per day for each day's attendance, ” along with mileage if the witness travels. Id. at § 1821(b), (c)(2). Federal Rule of Civil Procedure 54(d) completes the framework, by prescribing that costs “should” be allowed to a prevailing party, “[u]nless a federal statute, these rules, or a court order provides otherwise.” Fed.R.Civ.P. 54(d)(1). By its terms, Rule 54 “creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.” Assoc. of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000). So, reading these provisions together, the Crawford Fitting Court concluded “that § 1821 specifies the amount of the fee that must be tendered to a witness, § 1920 provides the fee that may be taxed as a cost, and Rule 54(d) provides that the cost shall be taxed against the losing party unless the court otherwise directs.” 482 U.S. at 441.

Based on this conclusion, the Court rejected the notion that § 1920's permissive language grants courts discretion to tax costs beyond those specifically enumerated. Id. Instead, § 1920 “comprehensively” lists the items a federal court may tax as costs pursuant to Rule 54(d), which includes witness fees. Id. at 442. Witness fees, in turn, are set by § 1821(b) at $40 per day. Id. The discretion provided by Rule 54(d), Crawford Fitting clarifies, is not “a power to evade” the exhaustive scope of § 1920 or the limitations prescribed in § 1821(b). Id. “Rather, it is solely a power to decline to tax, as costs, the items enumerated in § 1920.” Id.

Here, Adams does not dispute that he owes costs as the losing party but argues that various items in Roberts' Bill of Costs fall outside the scope of the Court's taxing authority. The Court organizes the disputed items, as Adams does, into three categories. Comprising the first category are costs associated with Roberts' expert witness fees. In the second category are costs largely related to Roberts' pretrial motion for sanctions and the April 16, 2021 hearing on the same. (See Docs. 43, 57.) The third category relates to costs incurred for the depositions of Roberts and his daughter. The Court takes each category in turn before deciding the total allowable costs.

A. Expert Witness Costs

Thomas Henesh testified by deposition to the nature and scope of the easement road where the altercation between Adams and Roberts occurred. Roberts used Mr. Henesh's deposition testimony at trial, pursuant to Federal Rule of Civil Procedure 32, and seeks $2, 492.50 in costs associated with obtaining Mr. Henesh's expertise. (Doc. 101 at 14.) This sum includes charges for: reviewing the case and providing an opinion ($400); coordination and discussions ($300); travel ($600); deposition ($700); deposition review ($200); and mileage ($292.50). (Id.) Adams objects to taxing anything but $40 as it relates Mr. Henesh. (Doc. 104 at 2-3.)

The Court sustains Adams' objection. “[A]bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.” Crawford Fitting, 482 U.S. at 445. The Local Rules for the District of Montana iterate this rule: “For expert witnesses, the party seeking costs may be entitled to recover only the statutory fees and mileage[.]” D. Mont. L.R. 54(b)(2)(B). Thus, the Court is bound by the limit of § 1821(b) as it relates to Roberts' request for reimbursement for fees he paid to Mr. Henesh. And, as already discussed, § 1821 limits witness fees to $40 per day. Accordingly, the Court limits the taxable costs as it relates to Mr. Henesh to $40 as reimbursement for his single-day deposition testimony.

Further, the Court agrees with Adams that Mr. Henesh's $0.65 mileage rate has no legal basis, when the Administrator of General Services has set the 2021 rate per mile at $0.56. See 5 U.S.C. § 5704(a). Pursuant to its authority to decline to tax costs enumerated under 18 U.S.C. § 1920, the Court refuses to tax Mr. Henesh's mileage as a cost. See Fed.R.Civ.P. 54(d); Assoc. of Mexican-Am. Educators, 231 F.3d at 591.

In sum, as it relates to Roberts' request to be reimbursed for Mr. Henesh's expert witness fees, the Court will tax $40 as a cost.^[1] Adams' objection is sustained.

B. Costs Associated with Motion for Sanctions

In addition to reimbursement for his expert witness fees, Roberts also seeks fees for five witnesses who testified, or to whom summons were issued to testify, at the April 16, 2021 pretrial hearing. (Doc. 101 at 2, 9-13.) As the parties will recall, the basis for the hearing was Roberts' motion for sanctions against Adams for allegedly intimidating a trial witness. (Docs. 43, 44.) After the hearing, the Court issued an order denying the motion. (Doc. 57.) Notably, out of the five witnesses summoned to testify at the hearing, only one-John Kenney-was also summoned and testified as a trial witness. (Doc. 101 at 13.)

Adams objects to the fees associated with these witnesses, primarily because Roberts did not prevail on the sanctions issue. (Doc. 104 at 4-5.) And, in any event, Adams argues no costs should be taxed relating to witnesses who did not testify at trial. (Id.) While the Court understands the logic of Adams' main objection, his second argument carries the day. Thus, the Court need not decide the scope of Rule 54(d)'s “prevailing party” inquiry.

Instead it is the discretion Rule 54(d) affords courts to refuse to tax costs enumerated in § 1920 that controls. A court's discretion, commentators say, is found in the Rule's “or a court order” language. 10 Charles Alan Wright et al., Fed. Prac. & Proc. § 2665 (4th ed.) Here, the “court order” that undermines Rule 54(d)'s presumption in favor of allowing costs is found in the form of a Local Rule. Specifically, Local Rule 54.1 limits the scope of the taxable costs enumerated in § 1920, stating, “[c]osts and fees for witnesses . . . are allowed for each day a...