Plaintiff points out that the actual litigation costs incurre d by the Plaintiff himself and 1 actua lly paid by him under the Retaine r Ag ree ment with his counsel exceed $43,000.

UNITED STAT ES DIS TRICT COURT F OR THE D ISTRIC T OF CO LU M BIA M OHA M M ED AM IN K AK EH, :

: P la in t if f, :

: v. : Ci vi l A cti on No. 05 -12 71 (GK) : UNITED P LANNING

ORGA NIZA TION, :

: Defendan t. :

M EM OR

AN DU M OP IN ION Pla int if f h a s f ile d a Mo tio n fo r Attor

ne y s’ F e e s and

Cos ts. Th e Court

wi ll d e a l at th is t ime only with the Motio n fo r C osts, given the fac t that the Clerk’s Of fice has listed this filing as two separ ate Motions. Upon consider ation of Plaintiff’s Mo ti o n , D e f e n d a nt’s Opposition, and Plainti ff’ s Reply , the Motion will be granted in part and d enied in p art

. Plaintiff seeks the amount of $30,545.27. Def endant raises a number of objections to the 1 costs which the Court will deal with ser iat i m . There is no disagr eeme nt that Plainti ff is the preva iling par

ty in this l awsuit. Under Rule 54 of t he Feder al Rules of C ivil P roce dure, the Court has substantial discretion reg ardingwhether

a spec ific item is tax able a s a cost. How ever , that discretion, in the abse nce of other statutory

authority , is limit ed by 28 U.S.C. § 1920, which defines the extent of a fede ral c ourt’s power to shift lit igation costs. W est Virg inia Univ. Hospitals v. Casey , 4 9 9 U. S

. 8 3 , 86 (1991) (“Case y ”).-2-

l. Fe es for

the Service s of Expert Wi tnesses The District of Columbia False Claims Act, D.C. Code § 2-308.16(d) (2001), a nd the Fe dera l Fa lse Claims Act, 31 U.S.C. § 3730(h) (2009), provide for pay ment of “litig ation costs”; the District of Columbi a Whis tleblower Protection Act, D.C. Code § 2-223.03 ( 2001), provides f or pay ment of “re asonable costs.” Plaintiff seeks an amount of $12,925 attributable to e x pert witness fee s as par t of his claim for attorney s’ fe es and c osts. I n West Virginia U niv. Hospitals v. Casey , 499 U.S. 83, 96 ( 1991), the Supreme Court rule d that 28 U.S.C. § 1988 did not empower a dis trict court to awa rd expert witness fe es to a pre vailing party . Casey

relied on the rea soning and holding in Cra wford Fitting Co. v. J.T. Gibbons, I nc., 482 U.S. 437, 445 (1984), that no statute will be construe d as authority for taxation of expert witness fee s as costs unless that statute “r efe r[s] expli citly to witness fee s.” Most r ece ntly , in Arling ton Central Sc ho ol D istri c t B oa

rd of Ed uc a tio n v . M ur

ph y , 5 48 U. S. 2 91 , 3 01 -0 2 ( 20 06 ), the Su pr e me Court , relying on the rea soning of Crawf ord F itting and Casey , ruled that the I ndividuals with Disabilit ies Education Act, U.S.C. § 1415(i)(3) (B ) (I DEA), did not authorize an award of expert witness fee s as part of the awa

rd of the “reasona

ble attorney s’ fees” to which the preva iling plaintiffs we re e ntitled beca use it contained no suc h expli cit ref ere nce. Crawf ord Fitting, Casey , and Arling ton Ce ntral School District compel the conclusion that Plaintiff may

not rec over e x pert witness fee s as part of his costs in thi s case . As the Supreme Court

sa id i n Cr awf

or d F itt ing , Ru le 54 (d ) doe s n ot g ive a dis tr ic t ju dg e “ dis c re tio n to ta x whate ve r c os ts

may se e m a pp ro pr iate ,” 48 2 U .S. a t 43 9, and a s it re ite ra te d in Ar lin g ton

Ce ntr a l Sc ho ol D istric t, “the ter m ‘costs’ in Rule 54(d) is def ined by the l ist set out in § 1920.” 548 U.S. at 301. Whil e ther e is a pa uc ity of c a se law c on str

uin g the a tto rn e y s’ fe e s pr ov isi on s in the thr e e statut e s at is su e in t hisPla int if f c ite s Co ult e r v. G e ra ld F amil y Care , 9 64 A. 2d

17 0, 20 3- 04 (D .C. 20 09 ), in 2 support of his position. C oulter wa s a medica l malprac tice case in which the plaintiff pre vailed. The rul es for a

war ding c osts in such cases a re totally differ ent from those a

pplicable to fe e-shifting pr ov isi on s in

sp e c if ic statut e s. I t should be noted t hat P laintiff di d not respond to this objection, and there fore it may 3 be tre ated a s conce ded.

The pa rties use va

rious spellings f

or Dr. Molda

uer’ s name. 4 -3- c a se , th e Se ve nth

Cir c uit did a dd re ss t he iss ue in N e a l v. Ho ne y we ll, I nc ., 19 1 F .3 d 8 27 , 8 33 (7 th Cir. 1999). Relying on Cra wford F itting, the Seventh Circuit conc luded that t h e term “litigation costs” used in the f

eder al Fa lse Claims Act did not include pay ment of expert witness fe es, and that ther efore the plaintiff’ s rec overy of costs wa s limi ted to those costs specif ically identified in 28 U.S.C. § 1920. Given the Supreme Court’s ruling s in Crawfor d Fitting, Ca sey , and Ar lington Centra l School District, as we ll as Nea l, this C ourt holds that Pl aintiff’s r equest for $12,925 in expert witness fees must be denied

. 2 2. Costs of Transcr ipts for Depositions Noticed by Def endant Counsel for De fenda

nt noticed the depositions of Amin Kake h ($ 5 1 6 ), Nabe elah Ka keh ($123.52), Stuart Moore ($293.79), and Toni Kake h ($296.50). Those depositi on transcr ipts were not used on the re cord at any hear ing or

trial. Ther efor e, under

L CvR 54.1(d)(11), these costs of $1,229.81 must be denied

. 3 3. Wit ness Fe es for

Wit nesses Who Did Not Appea r at a Hea ring or Tria l Def endant objec ts to P laintiff’s re quest for witness fee s paid to D oris Steshenko ($40) a nd Dr. L anningMoldauer ( $40), and for servinga trial subpoena

on David Qua shie ($90), be cause none 4 of them testified at trial. Defe nd an t is corre ct about the witness f ee to Ms. Steshenko, a

nd the-4-

expense for se rving a trial subpoena on Mr. Quashie . Dr. Moldaue r’s testi m o n y was intende d by Pla int if f t o r e but th e te sti mony of Dr . Gol dma n. Ho we ve r, the De fe nd ant d id n ot t e ll Pl a int if f u nti l the trial had a lrea dy

started that it would not be ca lling Dr . Goldman as a witness. There fore , it was tot a lly a pp ro pr iate and

re a so na ble fo r P la int if

f t o h ave re qu ired Dr. Mo lda ue r’ s p re se nc e and

his witness fee is deemed a proper cost. I n sum, the amount of fee s for witnesses who did not appe ar should be reduc ed by

$130. 4. Photocopy ing a

nd Other Char g es De fe nd ant a

rgue s th a t Pla int if

f’ s p ho toc op yingc os ts a

re lim ite d, un de r L CvR

54 .1 (d )( 9) , to $300. Plaintiff has claimed a total of $5,090.25 in copying char g es. L CvR 54.1(d)( 8) provides that costs of photocopying may be shifted to the non-pre vailing pa rty for e x hibits which were introduced int o e vid e nc e , u se d f

or imp e a c hme nt, or

fi le d w ith the Cle rk

. Pla int if f ha s mad e no e ff

or t to in dic a te wh ic h, if any , o f i ts m any

e ntri es for

ph oto c op yinge xpe ns e s f a ll und e r t

he c a te g or ie s sp e c if

ie d in Rule 54.1(d)(8) . Consequently , Plaintiff is subject to the $300 limit contained in L CvR 54.1(d)(9), and the c osts for photocopying must be r educe d by $4,790.25. 5. Def

endant make s an ac ross-the- board obje ction to other costs and ex penses r elated to hours that are deter

mined to beu

nr e a s o n able or

non-compe nsable. De fenda nt argues that expenses for computer resear ch, messenge r service, photocopy ing, etc. can onl y be re imbursed if they

wer e incurre d on behalf

of a c laim that was succ essful. Plaintif f h as fa iled once a g ain to identify the claims for which these ma ny expense items were incurre d. Ba sed on this re asoning , Def endant a sks for a n acr oss-the-boa

rd reduction of 40 per cent in all of Plaintiff’s e x penses whic h have not a lrea dy been disa llowed.-5-

Pla int if f’ s c ouns e l has re pr e se nte d th a t th e se c os ts w e re re a so na ble and ne c e ssa ry fo r t his

e xten siv e and

c omp le x litig a tio n. Ha

vin g ob se rv e d Pl a int if

f’ s c ouns e l du

ri ngthe fo ur

y e ars of thi s litigation, havingrea d his ple ading s, and havingobserve d his perfor mance at trial, this Court, like the District of Columbia Circuit in Alabama Power Co. v. Gorsuch, 672 F.2d 1, 5 (D.C. Cir. 1982), is “content to re ly

on the integ rity

of counse l” and allow t he re mainder of the expenses desc ribed a

nd identified in Exhi bit O and Exhi bit D to Pl aintiff’s Motion. F or a ll the se re a so ns , th e Pla int if f’ s Mo tio n f

or Cos ts i s granted in part and d enied in p art

.

Se pte mbe r 2 4, 20 09 /s/ Glady s Kessler Un i t edS t at es Di s t ri ct J u d ge Copies via ECF t o all couns el of recor d