United States District Court, D. Idaho
DOUGLAS G. HARMON, Plaintiff,
THE UNITED STATES OF AMERICA, acting by and through BUREAU OF INDIAN AFFAIRS, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
before the Court is Defendant's Motion for Entry of Costs
(Dkt. 42). For the reasons stated below, the Court will grant
the motion in part and deny the motion in part.
Douglas Harmon filed his complaint against the United States
on May 21, 2015 asserting claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346
and 2671, et seq. (Dkt. 1). The parties proceeded
through discovery, and Mr. Harmon filed a Motion for Summary
Judgment (Dkt. 16) on October 3, 2016. The motion was fully
briefed, and was argued before the Court on February 3, 2017.
On March 24, 2017, the Court entered an order granting the
motion in part, and denying it in part. (Dkt. 27).
Subsequently, the United States filed a Motion to Dismiss for
lack of jurisdiction. (Dkt. 30). On June 12, 2017, the Court
granted the motion to dismiss and entered judgment in favor
of the United States. (Dkts. 39, 40). The United States
timely filed its Motion for Costs on June 23, 2017. After
briefing was complete on the motion for costs, Mr. Harmon
timely appealed the Court's June 12 decision to the Ninth
Circuit. (Dkt. 45).
United States district court may order the payment of
“just costs” in any action that is dismissed for
lack of jurisdiction. 28 U.S.C. § 1919. Just costs may
include witness fees and fees for printed or electronic
copies of deposition transcripts, so long as the transcript
is necessary for use in the case. 28 U.S.C. §
1920(2)-(3). “A cost award under § 1919 does not
turn on prevailing party status and lies within the sound
discretion of the district court.” Otay Land Co. v.
United Enterprises Ltd., 672 F.3d 1152, 1156 (9th Cir.
2012). To determine whether to award “just costs”
under § 1919, “a district court should consider
what is most fair and equitable under the totality of the
circumstances.” Id. at 1157. It does so by
applying a two-step analysis: First the court must determine
whether an award of costs is just and equitable, and, if so,
it must determine the appropriate amount of costs to award.
Id. Although costs may be “justly awarded even
absent extraordinary circumstances, ” the mere fact
that a district court may award such costs “does not
mean that costs are mandated. Id. at 1158. Rather,
courts have broad discretion to award costs where doing so is
“fair and equitable under the totality of the
circumstances.” Id. at 1159.
United States asks this Court to award it two separate
categories of costs. The Court will address each request
United States seeks to recover as costs witness fees of $40
per person for seven federal employees who were deposed by
Mr. Harmon during the discovery phase of this action. See
Def.'s Reply at 2, Dkt. 44; Woychick Decl.
Ex. A at 3, Dkt. 42-2. Under § 1821(b), witnesses are
entitled to an attendance fee of $40 per day. See 28
U.S.C. § 1821(b). Courts have the discretion to allow
payment of witness fees for an appearance at a deposition to
be taxed as costs, “as long as the deposition appeared
reasonably necessary at the time it was taken.” See
Alonso v. Union Oil Co. of Cal., 71 F.R.D. 523, 525
(S.D.N.Y. 1976) (allowing the plaintiff to tax witness fees
for attendance at a deposition).
the witnesses were noticed by the Plaintiff, thus any cost
associated with fees paid to them would normally accrue to
the Plaintiff. It appears the Plaintiff did not pay the
witnesses the statutory fee under § 1821(b). But, the
United States does not allege that it paid out witness fees
to its employees, and seeks to recoup that cost. Rather, the
United States appears to be seeking compensation for making
its employees available for the depositions based on the
amount those witnesses should have accrued in fees. See
Def.'s Reply at 2, Dkt. 44 (“the question is
whether . . . the United states is eligible and entitled to
recover witness fees on behalf of those employees who
appeared and testified in response to Plaintiff's
deposition subpoenas.”). The United States points to no
authority which suggests § 1821 entitles an employer to
recover the costs of having employees appear at a deposition.
Rather, the plain language § 1821(b) makes clear that
such fees “shall be paid” to the witness. 28
U.S.C. § 1821(b).
United States argues that it is entitled to recover witness
fees on behalf of its employees, because those employees are
not named parties, nor parties in real interest in this case.
Def.'s Reply at 3, Dkt. 44. Whether the
non-party employees are entitled to witness fees, however, is
a separate question from whether the United States is
entitled to recover costs in the amount of fees that it did
not pay out. The United States cites several cases for the
proposition that non-party employees are entitled to witness
fees, and the Court does not find otherwise here. However,
these cases dealt with the issue of whether a party could
recover as costs fees that were actually paid to non-party
employees, or expended on their behalf. See, e.g.,
Kemart Corp. v. Printing Arts Research Laboratories,
Inc., 232 F.2d 897, 901 (9th Cir. 1956)
(“concerning the witness fees paid officers of
appellant corporation”); El Dorado Irrigation Dist.
v. Traylor Bros., Inc., No. CIV. S-03-949 LKK/GGH, 2007
WL 512428 at *9 (E.D. Cal. Feb. 12, 2007) (allowing a
corporate party to recover costs expended on travel for a
non-party employee witness). Here, it appears neither party
actually paid the witness fees the United States seeks to
recover as costs. While Mr. Harmon may be obligated to pay
the individual witnesses the fees they are entitled to under
§ 1821, the United States is not entitled to recover
those fees as costs.