Metropolitan News-Enterprise


Friday, December 20, 2013


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Ninth Circuit Holds Pro Hac Vice Admittance Fees Not Recoverable Among Prevailing Party Costs


By JUSTIN LEVINE, Staff Writer


An award of costs for a prevailing party in federal court should not include any fees that his or her attorney paid in order to be admitted to a jurisdiction on a pro hac vice basis, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court also held that an award of costs associated with editing and synchronizing deposition videotapes is also improper and not taxable under the costs statute.

The court’s ruling came in response to an appeal from Kalitta Air LLC, an air cargo transportation company that sued numerous defendants after modifications of two of its aircraft caused the Federal Aviation Administration to ground those planes.

After a lengthy set of procedural postures that included a partial summary judgment, mistrial, interlocutory appeal and remand, defendant Central Texas Airborne System Inc. prevailed after a third trial and was subsequently awarded a total of $622,036.38 in costs by the clerk of the court. The figure included $1,310 in costs for fees that the defendant’s attorney paid to be admitted to the Northern District of California on a pro hac vice basis.

Kalitta appealed, arguing that pro hac vice admission fees were not taxable and that the award included impermissible costs for deposition video production, transcript synchronization that conforms a transcript’s text to video presentations, and other costs relating to trial presentation support.

In a per curiam decision, the Ninth Circuit held that a prevailing party’s costs allowed under Federal Rule of Civil Procedure 54 does not encompass pro hac vice admission fees, nor the costs associated with editing and synchronizing deposition videotapes.

The panel that issued the ruling included Senior Judge Jerome Farris and Judge Sandra Ikuta, as well as Susan Black, a senior circuit judge from the Eleventh U.S. Circuit Court of Appeals who was sitting by designation.

Reviewing the district court’s award of costs for abuse of discretion, the appellate panel pointed to 28 U.S.C. §1920 which defines the term “costs” as used in Rule 54(d) and determined that nothing in the statute’s language allowed for the inclusion of pro hac vice admission fees.

The panel said the statute’s reference allowing a court to tax costs for “fees of the clerk” only included the actual filing fee and other fees that were specifically prescribed by the Judicial Conference of the United States. The Judicial Conference allows for fees for an “original admission” of attorneys to practice, but the panel concluded that the phrase “original admission” only refers to the permanent admission of attorneys to a district court’s bar, not a temporary or limited pro hac vice admission.

Similarly, the panel also held that the costs of deposition editing and synchronizing are not authorized by §1920. Section 1920(4) allows a taxing of costs for “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case,” but the panel ruled that this definition did not encompass editing or synchronization costs.

It wrote:

“The cost of editing deposition videotapes into clips to be played at trial in lieu of live witness testimony is not taxable because it is a service in excess of the costs of making copies of the videotape and, further, is an expense incidental to trial preparation akin to preparing a witness for trial… The costs of editing depositions into video clips to be played for the jury as a substitute for live witness testimony does not fall within any definition of ‘exemplification,’ and is not taxable under the costs statute.

Similarly, synchronizing deposition videotapes with their transcripts, while convenient, was not an act of copying or exemplification and was not truly necessary for trial.”

The panel said that the description of authorized costs contained in §1920 should be read narrowly in light of the recent U.S. Supreme Court decision of Taniguchi v. Kan Pac.Saipan, Ltd., (2012) 132 S. Ct. 1997, which held that “taxable costs are limited by statute and are modest in scope” and that they should not cover the costs of translating documents to be used at trial.

Because of the Taniguchi decision, the panel said, it would not follow decisions from both the Seventh and Eighth Circuits that awarded pro hac vice fee costs but were issued before the Supreme Court’s ruling. It remanded to the district court so that it could recalculate the amount of costs in light of its decision.

The case is Kalitta Air L.L.C. v. Central Texas Airborne System Inc., No. 13-15015.


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