PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 1 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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HONORABLE ROBERT S. LASNIK 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

FANAYE TURNER, 

Plaintiff, 

v. 

UNIVERSITY OF WASHINGTON and 

BUDDY RATNER, 

Defendants. 

 

NO. CV05-1575L 

PLAINTIFF’S RESPONSE TO NOTICE 

OF DEFENDANTS’ BILL OF COSTS 

NOTE ON MOTION CALENDAR: 

January 17, 2008 

Plaintiff Fanaye Turner hereby objects to Defendants Bill of Costs for the reasons set 

forth below. 

A. Fees for Witnesses. 

Defendants seek reimbursement for witness lodging and meals far above the maximum 

per diem allowance proscribed by law. 

Local Rule 54 provides in pertinent part: “The attendance, travel, and subsistence fees of 

witnesses, for actual and proper attendance, shall be allowed in accordance with 28 U.S.C. 

§ 1821. . .” When an overnight stay is required because the court is so far from the witness’ 

residence as to prohibit return thereto from day to day, “[a] subsistence allowance for a witness 

shall be paid in an amount not to exceed the maximum per diem allowance prescribed by the 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 1 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 2 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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Administrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the 

area of attendance by employees of the Federal Government.” 28 U.S.C. § 1821(d)(1). 

Attached hereto is the U.S. General Services Administration Domestic Per Diem Rates 

for the State of Washington. Declaration of Katherine C. Chamberlain (“Chamberlain Dec”), 

Ex. 1. The maximum lodging rate for Seattle is $152 per night, excluding taxes. The maximum 

per diem for meals and incidental expenses is $64 per day ($12 for breakfast, $18 for lunch, $31 

for dinner, and $3 for incidental expenses). 

The Court may tax only those costs explicitly authorized by statute and only for the 

amounts authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 

(1987) (holding that “absent 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.”).

1. Hotel Stay

Plaintiff challenges the following bills for lodging: 

$581.41 for the lodging of Cindy Long (2 nights). Dkt. No. 84, pg. 9. 

$601.12 for the lodging of Alma Weightman (2 nights). Dkt. No. 84, pg. 10. 

$665.12 for the lodging of Rita Jensen (2 nights)1. Dkt. No. 84, pg. 18, 19. 

$323.68 for the lodging of Mike Keller (1 night).2 Dkt. No. 84, pg. 9. 

TOTAL: $2,171.33 

 

1

 It appears that Defendants seek $665.12 for the lodging of Ms. Jensen. Although the hotel receipt states 

$711.36 as the total amount charged, an “Expense Reimbursement Form” indicates that that amount was 

reduced by $46.24 “for spouse.” Dkt. No. 84, pgs. 18, 19. 

2

 Defendants have submitted two Westin hotel receipts for Mike Keller’s hotel stay, one for $323.68 and 

one for $569.08. Dkt. No. 84, pgs. 9, 14. Defendants’ spreadsheet titled “Fees for Witnesses” indicates 

that they seek $577.50 for Mike Keller’s hotel and subsistence. Dkt. No. 84, pg. 5. Defendants seek 

reimbursement of $253.82 for Mike Keller’s “unreimbursed expenses.” Dkt. No. 84, pg. 11. The 

amounts $323.68 (one of the hotel receipts) and $253.82 (the “unreimbursed expenses”) total $577.50 

(the amount stated on Defendants’ spreadsheet). Therefore, Plaintiff assumes that Defendants are seeking 

reimbursement for $323.68 hotel stay. 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 2 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 3 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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First, Plaintiff objects to this bill for lodging because the amounts paid for lodging far 

exceed the statutory maximum. In total, Defendants request reimbursement for six (6) nights at 

approximately $280 or more3 per night per person, excluding taxes. The maximum per diem 

lodging rate allowed by 28 U.S.C. § 1821 is $152 per night, and the amount to be taxed for six 

nights should, therefore, be $912 plus taxes. 

Second, Plaintiff objects to this bill for lodging because several of Defendants’ witnesses 

stayed two nights in Seattle where clearly only one night was necessary. “A subsistence 

allowance shall be paid to a witness when an overnight stay is required at the place of attendance 

because such place is so far removed from the residence of such witness as to prohibit return 

thereto from day to day.” 28 USC §1821(d)(1) (emphasis added). 

Rita Jensen’s testimony concluded on October 30 in the early afternoon. Chamberlain 

Dec., ¶ 4. Rita Jensen lives in Winthrop, Washington, approximately 244 miles from Seattle. 

Chamberlain Dec., Ex. 2. The hotel receipt for Rita Jensen indicates that she arrived on October 

29 and departed on October 31. Dkt. No. 84, pg. 19. Ms. Jensen’s home is not so far from the 

court as to prohibit her from returning thereto on the day she testified, October 30. Therefore, 

Plaintiff should not be taxed for Ms. Jensen’s second night in the hotel. 

Cindy Long was the first witness to testify on the morning of October 30, 2007. Her 

testimony concluded that morning. Chamberlain Dec, ¶ 4. The hotel receipt for Cindy Long’s 

hotel stay indicates that she arrived on October 30 (the day she testified) and that she departed 

two days later on November 1, 2007. Dkt. No. 84, pg. 9. Plaintiff should not be taxed for the 

second night of Ms. Long’s stay. 

For these reasons, the maximum amount to be taxed against Plaintiff for witness lodging 

should be for $608.00 plus taxes (four (4) nights at $152 per night = $608.00). 

 

3

 The exact room rate is not clear. In total, Defendants request reimbursement of $2,171.33 (this amount 

divided by 6 is $361.88 per night). Some of the hotel receipts are itemized and others are not. Those that 

are itemized, state $280 as the “room charge,” while others state various amounts well over $280 and 

appear to include taxes and various other charges. See Dkt. 84, pgs. 9, 10, 14, and 19. 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 3 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 4 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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2. Meals

Defendants also have submitted to the Court meal costs exceeding the maximum per 

diem rate of $64 or the specific meal limits imposed by federal law. 

Plaintiff challenges the following bills for meals: 

a) $70 for Mike Keller’s October 30 dinner. 

Pursuant to 28 U.S.C. § 1821(d)(1) and the U.S. General Services Administration 

Domestic Per Diem Rates for the State of Washington, the maximum amount that may be taxed 

for a dinner is $31, therefore, the amount taxed for this meal should be $31. 

b) $26.90 for Mike Keller’s October 31 lunch. 

The maximum that may be taxed for a lunch is $18. Therefore, the amount taxed for this 

meal should be $18. 28 U.S.C. § 1821. 

c) $32 for Mike Keller’s October 31 dinner. 

Defendants did not submit a receipt for this meal to the court. Defendants failed to prove 

that this cost was incurred. Therefore, Plaintiff should not be taxed for this meal. 

d) $5.20 for Mike Keller’s October 31 breakfast. 

Defendants did not submit a receipt for this meal to the court. Defendants failed to prove 

that this cost was incurred. Therefore, Plaintiff should not be taxed for this meal. 

e) $36.50 for Rita Jensen’s meals. 

Defendants did not submit receipts for any of Rita Jensen’s meals. Defendants failed to 

prove that these costs were incurred. Therefore, Plaintiff should not be taxed for these meals. 

f) $55.25 for Alma Weightman’s October 30 dinner. 

The maximum amount that may be taxed for a dinner is $31. Therefore, the amount 

taxed for this meal should be $31. 28 U.S.C. § 1821. 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 4 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 5 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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In total, Defendants seek reimbursement of $547.8 for “subsistence.”4 For the reasons 

stated above, the amount taxed against Plaintiff for witness meals should be only $401.95. 

B. Fees of the court reporter for all or any part of the transcript necessarily obtained 

for use in the case.

The clerk may tax as costs the “[f]ees of the court reporter for all or any part of the 

stenographic transcript necessarily obtained for use in the case.” 28 U.S.C. § 1920. Defendants 

have submitted to the clerk a Bill of Costs that includes fees of $3,196.50 for the original written 

transcript of the deposition of Fanaye Turner as well as the original video set of the deposition of 

Fanaye Turner. These are $1,879.00 and $1,317.50 respectively. 

Defendants are not entitled to both the costs of transcribing and videotaping a deposition 

unless they can show that one would not have been sufficient for use in the case. See Cherry v. 

Champion, 186 F.3d 442, 448-49 (4th Cir. 1999) (holding that a defendant is not entitled to 

recovery of both the cost of the video and the transcript of a deposition where it failed to make a 

showing why either a video or a transcript would not have been sufficient). “The concept of 

necessity for use in the case connotes something more than convenience or duplication to ensure 

alternative methods for presenting materials at trial.” Id. at 449; see also Nederhiser v. 

Foxworth, 2007 U.S. Dist. LEXIS 34196 (D. Or. 2007). Defendants cannot make such a 

showing. This was a bench trial and the videotape was of marginal, if any, value. It was used 

only once and in the opening. It had no evidentiary value. Therefore, the costs of the videotape 

($1,317.50) may not be taxed against Plaintiff. 

C. Fee for Service of Subpoena

Defendants seek reimbursement for the “Service of Subpoena for Medical Records from 

Jonathan Kantor” of $170.00. Fees for service of subpoenas are not included on the list of 

 

4

 Defendants do not list a total amount sought for subsistence only. Defendants’ spreadsheet lists “hotel 

and subsistence” together with a total of $2719.13. As stated above, it appears that Defendants seek 

$2,171.33 for lodging and therefore $547.80 for meals ($2,171.33 +547.80 = $2,719.13). 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 5 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 6 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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expenses the court may tax as costs. See 28 USC §1920. 5 Absent express statutory 

authorization, the Court may only tax costs as specifically authorized by 28 USC §1920. 

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-445 (1987). Therefore, the cost of 

service of the subpoena may not be taxed against Plaintiff. 

For these reasons, any costs awarded to Defendants must be limited as outlined above. 

DATED this 14th day of January, 2008. 

MacDONALD HOAGUE & BAYLESS 

By /s/ Katherine C. Chamberlain 

Andrea Brenneke, WSBA #22027 

Katherine C. Chamberlain, Pro Hac Vice

Attorneys for Plaintiff 

 

5

 Section §1920 provides as follows: 

“A judge or clerk of any court of the United States may tax as costs the following: 

 (1) Fees of the clerk and marshal; 

 (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for 

use in the case; 

 (3) Fees and disbursements for printing and witnesses; 

 (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; 

 (5) Docket fees under section 1923 of this title [28 USCS § 1923]; 

 (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, 

and costs of special interpretation services under section 1828 of this title [28 USCS § 1828]. 

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.” 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 6 of 7
PLAINTIFF’S RESPONSE TO NOTICE OF 

DEFENDANTS’ BILL OF COSTS (CV05-1575L) - 7 

MacDONALD HOAGUE & BAYLESS 

1500 HOGE BUILDING 

705 SECOND AVENUE 

SEATTLE, WASHINGTON 98104-1745 

(206) 622-1604 

FAX: (206) 343-3961 

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CERTIFICATE OF SERVICE 

I hereby certify that on January 14, 2008, I electronically filed the foregoing to the Clerk 

of the Court using the CM/ECF system which will send notification of such filing to the 

following: 

• Michael Madden 

mmadden@bbllaw.com,ecf@bbllaw.com 

• Marie Renee Westermeier 

mwestermeier@bbllaw.com,ecf@bbllaw.com

 By /s/ Katherine C. Chamberlain 

Andrea Brenneke, WSBA No. 22027 

abrenneke@mhb.com 

1500 Hoge Building 

705 Second Avenue 

Seattle, WA 98104-1745 

Phone: 206-622-1604 

Fax: 206-343-3961 

Attorneys for Plaintiff 

Case 2:05-cv-01575-RSL Document 86 Filed 01/14/08 Page 7 of 7