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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ALBERT D. BOLT,

NO. CIV. S-04-0893 WBS DAD

Plaintiff,

v.

ORDER RE: COSTS

MERRIMACK PHARMACEUTICALS,

INC.

Defendant.

----oo0oo----

On June 17, 2005, the court entered final judgment in

favor of plaintiff. Plaintiff submitted a bill of costs totaling

$4,454.77. Defendant objects to the amount submitted on two

grounds: (1) that this case was close; and (2) that the

depositions of James Scibetta and John DiGiovanni were

unnecessary, and therefore defendant should not be required to

pay for transcription costs of those depositions.

Rule 54(d)(1) of the Federal Rules of Civil Procedure

and Local Rule 54-292(f) govern the taxation of costs to losing

parties, subject to limits set under 28 U.S.C. § 1920. See 28

U.S.C. § 1920 (enumerating taxable costs); Fed. R. Civ. P.

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54(d)(1) (“costs other than attorneys’ fees shall be allowed as

of course to the prevailing party unless the court otherwise

directs . . . .”); L.R. 54-292(f); Crawford Fitting Co. v. J.T.

Gibbons, 482 U.S. 437, 441 (1987) (limiting taxable costs to

those enumerated in 28 U.S.C. § 1920). The district court has

discretion to determine what constitutes a taxable cost within

the meaning of 28 U.S.C. § 1920. Amarel v. Connell, 102 F.3d

1494, 1523 (9th Cir. 1996). The losing party has the burden of

overcoming the presumption in favor of awarding costs to the

prevailing party. Russian River Watershed Protection Comm. v.

City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998).

Defendant cites Association of Mexican-American

Educators v. State of California for the proposition that a court

should exercise its discretion and deny the application for costs

when a case is close and the losing party acted in good faith. 

See 231 F.3d 572 (9th Cir. 2000). That case involved a class

action suit brought by minority teachers and nonprofit

organizations challenging the use of a certain test in the

teacher credentialing process. Id. The district court used its

discretion to not award the $216,443.67 in costs to the

prevailing defendant. Id. at 591. The district court gave four

reasons for its denial:

(1) the case involves issues of substantial public

importance, specifically educational quality, interracial

disputes in economic opportunity, and access to positions of

social influence; (2) there is great economic disparity

between Plaintiffs, who are individuals and small nonprofit

educational organizations, and the State of California; (3)

the issues in the case are close and difficult; and (4)

Plaintiffs’ case, although unsuccessful, had some merit, as

evidenced by the 1995 modification of the [test at issue].

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Id. at 592(quotation marks omitted). The appellate court held

that a district court has discretion to deny costs when a case

presents an extraordinary situation. Id. at 593. Concluding

that “[t]his is an extraordinary, and extraordinarily important

case,” and emphasizing the inability of the losing party to pay

the costs and the importance to the public of the issues

presented, the court upheld the decision to not award costs. Id.

Here, although the arguments may have made the case

seem close, once the accounting principles involved are properly

understood, the decision was not at all a close one. Moreover,

regardless of whether the case is characterized as close, the

other factors the district court took into account in MexicanAmerican Educators are not present. Defendant Merrimack has not

shown that it would be unable to pay costs of $4,454.77. In

addition, this litigation is a private contractual dispute, and

does not have the importance to the public that Mexican-American

Educators had. Any subjective determination by the court that

this case is close would not be enough to overcome the

presumption in favor of awarding costs to the prevailing party.

The next issue is whether the depositions of John

DiGiovanni and James Scibetta were unnecessary such that the

court should exercise its discretion to exclude the transcription

costs associated with those depositions. “Deposition costs are

taxable if they are reasonably necessary for trial.” Evanow v.

M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998). The

depositions of DiGiovanni and Scibetta were reasonably necessary. 

DiGiovanni was the clerk of Atlantic Biopharmaceuticals, Inc.,

which merged with defendant in 2001, and DiGiovanni has firstCase 2:04-cv-00893-WBS-DAD Document 102 Filed 08/15/05 Page 3 of 4
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hand knowledge of many documents produced by Merrimack in this

case. (Pl.’s Reply to Def.’s Opp’n to Bill of Costs at 3 n.1). 

Scibetta is the Executive Vice President and Chief Financial

Officer of defendant. (Scibetta Decl. of June 27, 2005 ¶ 1). He

also has first-hand knowledge of relevant documents produced by

defendant.

After reviewing the bill, the court finds all costs to

be reasonable. Accordingly, costs of $4,454.77 will be allowed.

IT IS SO ORDERED.

DATED: August 15, 2005

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