IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSEPH KWIECINSKI, 

Plaintiff, 

v. 

MEDI-TECH INTERNATIONAL 

CORP., a Delaware 

corporation, 

Defendant. 

DONALD B. POTTER 

Spaulding & Potter LLP 

3236 S.W. Kelly Avenue 

Suite 101 

Portland, OR 97239 

(503) 223-2612 

Attorneys for Plaintiff 

DANIEL J. NICHOLS 

Gordon & Rees LLP 

121 S.W. Morrision 

Suite 1575 

Portland, OR 97204 

(503) 222-1075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

3:14-CV-01512-BR 

OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 1 of 13
BROWN, Judge. 

This matter comes before the Court on Defendant Medi-Tech 

International Corporation's Bill of Costs (#68). For the reasons 

that follow, the Court AWARDS costs to Defendant in the amount of 

$4,267.43. 1 

BACKGROUND 

On September 23, 2014, Plaintiff Joseph Kwiecinski filed an 

action in this Court against Defendant Medi-Tech International 

Corporation alleging claims for workers' compensation 

discrimination in violation of Oregon Revised Statute § 659A.040, 

failure to pay wages in violation of Oregon wage-and-hour laws, 

and failure to pay final wages in violation of Oregon wage-andhour laws. 

On December 15, 2014, Plaintiff filed an Amended Complaint 

in which he alleged claims for workers' compensation 

discrimination in violation of Oregon Revised Statute 

§ 659A.040 and failure to pay final wages in violation of Oregon 

wage-and-hour laws. 

On December 29, 2014, Defendant filed a Motion to Dismiss 

Amended Complaint for lack of personal jurisdiction and/or on the 

ground that venue was not proper in Oregon. 

On April 17, 2015,the Court heard oral argument on 

1 See Exhibit 1 for the Court's calculation of costs. 

2 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 2 of 13
Defendant's Motion. At oral argument Plaintiff voluntarily 

dismissed his claim against Defendant for failure to pay final 

wages in violation of Oregon wage-and-hour laws, the Court denied 

Defendant's Motion to Dismiss for lack of personal jurisdiction, 

and the Court directed the parties to file simultaneous briefs on 

Defendant's Motion to Dismiss Plaintiff's remaining claim for 

workers' compensation discrimination on the basis of improper 

venue. 

On April 27, 2015, the parties filed supplemental briefs. 

On June 25, 2015, the Court issued an Opinion and Order in 

which it denied Defendant's Motion to Dismiss Plaintiff's 

remaining claim for workers' compensation discrimination. 

On August 28, 2015, Plaintiff filed a Second Amended 

Complaint against Defendant alleging claims for workers' 

compensation discrimination in violation of Oregon Revised 

Statute § 659A.040 and wrongful discharge and revived his claim 

for failure to pay final wages in violation of Oregon wageand-hour laws. 

On January 29, 2016, the parties filed a Joint Concise 

Statement of Agreed Material Facts in which Plaintiff again 

withdrew his claim for failure to pay final wages in violation of 

Oregon wage-and-hour laws. 

On February 12, 2016, Defendant filed a Motion for Summary 

Judgment in which it sought summary judgment as to Plaintiff's 

3 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 3 of 13
remaining claims for workers' compensation discrimination in 

violation of§ 659A.040 and wrongful discharge. 

On June 6, 2016, the Court issued an Opinion and Order in 

which it granted Defendant's Motion for Summary Judgment. On 

that same day the Court entered a Judgment dismissing this matter 

with prejudice. 

On June 20, 2016, Defendant filed a Bill of Costs. 

STANDARDS 

Absent a showing of circumstances not relevant here, an 

award of costs is generally governed by federal law. See In re 

Merrill Lynch Relocation Mgt., Inc., 812 F. 2d 1116, 1120 n. 2 (9th 

Cir. 1987) (dictum). Accordingly, the Court applies federal law 

to the issue of awarding costs in this case. 

28 U.S.C. § 1920 allows a federal court to tax specific 

items as costs against a losing party pursuant to Federal Rule of 

Civil Procedure 54 (d) (1). Section 1920 provides: 

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; 

(6)Compensation for court-appointed experts, 

compensation of interpreters, and salaries, 

4 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 4 of 13
fees, expenses, and costs of special 

interpretation services under § 1828 of this 

title. 

A bill of costs shall be filed in the case and, 

upon allowance, included in the judgment or 

decree. 

The court has broad discretion to allow or to disallow a 

prevailing party to recoup costs of litigation. The Supreme 

Court, however, has held ""taxable costs are limited by statute 

and modest in scope." Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. 

Ct. 1997, 2006 (2012). The court may not tax costs beyond those 

authorized by § 1920. Frederick v. City of Portland, 162 F.R.D. 

139, 142 (D. Or. 1995). 

DISCUSSION 

Defendant seeks costs of $5,372.37 comprised of fees for 

transcripts, photocopying charges, and travel expenses. In 

support of its request, Defendant submits the following: the 

Declaration of Christopher Hawk; a list of items photocopied, 

transcripts ordered, and travel expenses; and copies of receipts 

for photocopies, transcripts, and travel expenses. 

Plaintiff objects to Defendant taxing him for the cost of 

various deposition transcripts, photocopies of certain documents, 

and all travel expenses. 

I. Transcripts. 

Defendant requests $4,107.35 for court-reporter fees 

5 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 5 of 13
incurred in obtaining various deposition transcripts and the 

transcript of the parties' oral argument on Defendant's Motion to 

Dismiss. Plaintiff objects to Defendant's request for the courtreporter fees incurred in obtaining the transcript of the 

parties' oral argument, the deposition transcript of Randall 

Walsh, and the deposition transcript of James Coyne. 

A. Transcript of Oral Argument on Defendant's Motion to 

Dismiss 

Defendant requests $182.50 for court-reporter fees 

incurred in obtaining the transcript of the parties' oral 

argument on Defendant's Motion to Dismiss. 

Plaintiff notes the Court ultimately denied Defendant's 

Motion to Dismiss and asserts the transcript of the oral argument 

on Defendant's Motion was not necessary to defend against 

Plaintiff's claims. The record, however, reflects Defendant 

requested a copy of the transcript on August 31, 2015, after 

Plaintiff filed his Second Amended Complaint in which he again 

included a claim for failure to pay final wages in violation of 

Oregon wage-and-hour laws even though Plaintiff withdrew that 

claim at the April 2015 hearing on the Motion to Dismiss. As 

noted, when the parties filed their Joint Concise Statement in 

January 2016 Plaintiff again withdrew his claim for failure to 

pay final wages in violation of Oregon wage-and-hour laws. In 

light of that fact, it seems reasonable to infer that Defendant 

needed the transcript of the hearing on the Motion to Dismiss to 

6 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 6 of 13
confirm that Plaintiff had, in fact, waived this claim at oral 

argument, to confer with Plaintiff before filing the Joint 

Concise Statement, and to confirm that claim was, in fact, no 

longer part of this matter. 

On this record the Court concludes Defendant properly 

obtained the transcript for the hearing on the Motion to Dismiss 

to use in defense of this action. Accordingly, the Court grants 

Defendant's request for $182.50 for court-reporter fees for that 

transcript. 

B. Deposition Transcripts of Randall Walsh and James Coyne 

Defendant requests $3,924.85 for the cost of various 

depositions transcripts. Plaintiff, however, objects to 

Defendant's request for $1,669.10 for the cost of deposition 

transcripts of Walsh and Coyne. 2 Defendant asserts those 

transcripts were "necessary to the resolution of this case and 

[were] cited as evidence in support of [Defendant's] motion for 

summary judgment." Deel. of Christopher Hawk at ~~ 11, 13. 

Plaintiff points out that the Court did not cite the 

deposition testimony of Walsh or Coyne in its Opinion and Order 

resolving Defendant's Motion for Summary Judgment. The Court 

notes, however, Defendant cited the deposition testimony of Walsh 

and Coyne in support of its Motion for Summary Judgment. 

2 Plaintiff does not challenge Defendant's request for 

$2,255.75 for the cost of other deposition transcripts. 

7 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 7 of 13
The Ninth Circuit has made clear that the fact the 

deposition transcripts were not ultimately used in dispositivemotion practice or at trial is not sufficient to automatically 

render the transcripts unnecessary. See Aflex Corp. v. 

Underwriters Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990) 

(Transcripts of depositions and court proceedings need not have 

been used at trial to be "necessarily obtained for use in the 

case."). Thus, the fact that the Court did not cite the 

deposition testimony in its Opinion and Order does not mean the 

Court did not consider the testimony nor that it was unnecessary 

for Defendant's Motion. 

Plaintiff also notes Walsh and Coyne were subpoenaed by 

Plaintiff rather than by Defendant. Plaintiff, therefore, 

contends the evidence that Defendant obtained and cited from the 

deposition testimony of Walsh and Coyne could have been obtained 

by Defendant and submitted in the form of an affidavit. Although 

it is possible that Defendant could have obtained similar 

information from Walsh and Coyne and submitted it to the Court 

via affidavit, the record does not suggest Defendant is seeking 

an improper or abusive amount of costs associated with this 

matter, and Plaintiff does not cite any authority in this circuit 

that requires a party to submit information from its own 

employees via affidavit rather than through deposition testimony. 

On this record the Court concludes Defendant properly 

8 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 8 of 13
obtained the transcripts at issue and used them in its defense of 

this action. Accordingly, the Court grants Defendant's request 

for $1,669.10 for court-reporter fees for the deposition 

transcripts of Walsh and Coyne as well as Defendant's 

unchallenged request for $2,255.75 for other deposition 

transcripts for a total award of $3,924.85 in costs for 

deposition transcripts. 

II. Photocopies. 

Plaintiff requests $316.69 in photocopying costs. Plaintiff 

objects to the costs for photocopies from MDT of Portland, 

Clearview MRI, and the Oregon Bureau of Labor and Industry 

(BOLI). 

A. Documents from MDT of Portland and Clearview MRI 

Defendant requests costs of $76.50 for photocopies of 

documents of Plaintiff's medical treatment provided by MDT of 

Portland in connection with Defendant's injuries suffered in the 

New York car accident and for photocopies of an MRI that 

Plaintiff received from Clearview MRI in connection with that 

same accident. Defendant asserts it obtained these documents 

"for their potential evidentiary and cross-examination value in 

the case." Hawk Deel. at tt 7-8. 

Plaintiff objects to Defendant's request for these 

costs on the ground that Plaintiff did not seek to recover 

damages for physical injuries resulting from the car accident. 

9 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 9 of 13
This action involved only claims for violation of wage-and-hour 

laws, workers' compensation discrimination, and wrongful 

termination, none of which involved Plaintiff's physical injuries 

from the New York car accident. The Court agrees. Plaintiff did 

not seek damages for physical injuries in this matter and the 

claims at issue did not encompass damages for physical injuries. 

The Court, therefore, denies Defendant's request for $76.50 for 

photocopies of documents of Plaintiff's medical treatment 

provided by MDT and Clearview MRI. 

B. Documents from BOLI 

Defendant seeks a total of $121.04 in costs for 

photocopies obtain from BOLI including $40.93 for copies obtained 

on September 22, 2015, and $80.11 for photocopies obtained on 

April 5, 2016. Defendant asserts these documents were necessary 

"for their potential evidentiary and cross-examination value in 

the case.a Hawk Deel. at ! 14. 

Plaintiff does not object to Defendant's request for 

BOLI documents obtained on September 22, 2015. Plaintiff, 

however, objects to Defendant's request for the BOLI documents 

obtained on April 5, 2016, on the ground that they involve the 

investigation of an administrative complaint made by Plaintiff 

against a different employer in 2009, which is three years before 

the events in this matter. 

The Court concludes Defendant has not established the 

10 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 10 of 13
BOLI records prior to Plaintiff's employment with Defendant that 

are unrelated to any of Plaintiff's claims against Defendant were 

necessary for use in this matter. 

Accordingly, the Court grants Defendant's request for 

$40.93 for photocopies of BOLI documents obtained September 22, 

2015, and denies Defendant's request for $80.11 for photocopies 

of BOLI documents obtained April 5, 2016. 

C. Travel Costs 

Defendant seeks $948.33 in costs for defense counsel to 

travel to New York City "to defend the depositions of 

[Defendant's] representatives." The requested costs include 

aifare, hotel costs, mileage, parking, taxi costs, and meals. 

Plaintiff objects to Defendant's request for travel costs on the 

grounds that they are not specifically taxable pursuant to § 1920 

and Defendant has not established extraordinary circumstances 

permitting such an award. 

Courts in the Ninth Circuit, mindful of the Supreme 

Court's reminder in Taniguchi that "taxable costs are limited by 

statute and modest in scope," have held "'[o]rdinary attorney's 

travel costs for depositions, pre-trial conferences and trial, 

long-distance phone calls, Federal Express and local delivery 

service, office expenses, postage, and typing charges are not 

'costs' as that term is used in 28 U.S.C. § 1920, but are in fact 

out-of-pocket expenses'" that may be recoverable as attorneys' 

11 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 11 of 13
fees when such fees are permitted. Carr v. Tadin, Inc., 51 F. 

Supp. 2d 970, 985 (S.D. Cal. 2014) (quoting In re Glacier Bay, 746 

F. Supp. 1379, 1393-94 (D. Alaska 1990)). See also Ignacio v. 

County of Hawaii, No. 11-00516 SOM-BMK, 2013 WL 2405211, at *2 

(D. Haw. May 31, 2013) ("§ 1920 does not allow the recovery of 

[counsel's] travel costs.") ; Ferreira v. M/V CCNI ANTOFAGASTA, 

No. 2:04-cv-1916-MCE-DAD, 2007 WL 3034941, at *2 (E.D. Cal. 

Oct. 16, 2007) ("Section 1920 does not provide for attorney travel 

expenses and cases have held such expenses are not taxable as 

costs."). 

Accordingly, the Court denies Defendant's request for 

$948.33 in travel expenses. 

CONCLUSION 

For these reasons, the Court AWARDS costs to Defendant in 

this action in the amount of $4,267.43. 

IT IS SO ORDERED. 

DATED this 25th day of August, 2016. 

12 - OPINION AND ORDER 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 12 of 13
Kwiecinski v. Medi-Tech Int'/ 

14-CV-1512-BR 

Cost Bill 

Item 

Transcript of Motion to Dismiss 

Kwiecinski Depa Transcript 

Walsh Depa Transcript 

Fortunato Depa Transcript 

Coyne Depa Transcript 

Subtotal 

BOU copies 

Claim Fox copies 

MDT copies 

Clearview MRI 

Subtotal 

Travel expenses 

Requested Cost 

Cost Disallowed Total 

$ 182.50 $ 182.50 

$ 1,473.65 $ 1,473.65 

$ 972.20 $ 972.20 

$ 782.10 $ 782.10 

$ 696.90 $ 696.90 

$ 4,107.35 $ 4,107.35 

$ 121.04 $ 80.11 $ 40.93 

$ 119.15 $ 119.15 

$ 51.50 $ 51.50 $ 

$ 25.00 $ 25.00 $ 

$ 316.69 $ 160.08 

$ 948.33 $ 948.33 $ 

$ 5,372.37 $ 1,104.94 $ 4,267.43 Total costs allowed 

Exhibit 1 

Case 3:14-cv-01512-BR Document 75 Filed 08/25/16 Page 13 of 13