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 USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 112345678910111213141516171819202122232425262728L
AW
O
FFICE OF
E
UGENE
L
EE
 Eugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: elee@LOEL.comAttorneys for Plaintiff DAVID F. JADWIN, D.O.UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIAFRESNO DIVISIONDAVID F. JADWIN, D.O.,Plaintiff,v.COUNTY OF KERN, et al.,Defendants.Civil Action No. 1:07-cv-00026 OWW DLB
PLAINTIFF'S REPLY TO DEFENDANT’SOBJECTIONS TO BILL OF COSTS
Complaint Filed: January 6, 2007Trial Date: May 14, 2009Plaintiff DAVID F. JADWIN ("Plaintiff" or "Dr. Jadwin") hereby submits his reply to Defendant KernCounty’s objections (Doc. 394) to his bill of costs (Doc. 392).
Case 1:07-cv-00026-OWW-DLB Document 395 Filed 07/23/2009 Page 1 of 16
 
 USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 112345678910111213141516171819202122232425262728
I.
 
PROCEDURAL BACKGROUND
On May 14, 2009, Plaintiff submitted 9 causes of action to a trial by jury. On June 5, the juryfound unanimously for Plaintiff on all 9 causes of action and against Defendant on its affirmativedefense. (Doc. 384). The Court entered partial judgment on verdicts of the trial jury on June 18, 2009(Doc. 389).On June 29, Plaintiff filed his Bill of Costs and accompanying declaration of Eugene Lee,seeking reimbursement of $261,690.22. Defendant filed its objections on July 14, contending that theamount should be reduced by $190, 453.86, more than 70%.
II.
 
ARGUMENTA.
 
Bill of Costs Is Not Premature
Defendant contends: “Plaintiffs cost bill is premature because final judgment has not yet beenentered”. (Objections, 1:24). Defendant requests the Court therefore punish Plaintiff by barring recoveryof any additional costs incurred after submission of Plaintiff’s bill of costs.Contrary to Defendant’s contention, Federal Rules of Civil Procedure (“FRCP”) 54 sets nospecific time limit for filing a bill of costs. See FRCP 54(a);
Congregation of the Passion, Holy CrossProvince v. Touche, Ross & Co.
(7th Cir. 1988) 854 F2d 219, 220. One must therefore look to LocalRule 42-292(b), which states: “
Within ten (10) days after 
entry of judgment or
order under which costsmay be claimed 
, the prevailing party may serve on all other parties and file with the Clerk a bill of costsconforming to 28 U.S.C. § 1924”. (emphasis added). It is somewhat unclear to Plaintiff what constitutesan “order under which costs may be claimed” although it is apparently distinct and separate from entryof a final order. This phrase is conspicuously absent from Local Rule 54-293, which provides: “Motionsfor awards of attorneys' fees to prevailing parties pursuant to statute shall be filed not later than thirty(30) days
after entry of final judgment 
”. (emphasis added). The partial judgment entered by the Courtexpressly stated that “Plaintiff shall recover damages of $505,457.00 from Defendant Kern County”(Doc. 389, 2:12.5-13.5). Based on that and the ambiguity in L.R. 54-293, Plaintiff was concerned thatthe Court’s entry of partial judgment could constitute an “order under which costs may be claimed” andthus filed his bill of costs within 10 days thereafter in order to be preserve his right to recover costs.Plaintiff disagrees that he should be punished for his attempt to comply with LR 54-293.
Case 1:07-cv-00026-OWW-DLB Document 395 Filed 07/23/2009 Page 2 of 16
 
 USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 212345678910111213141516171819202122232425262728
B.
 
General Standard for Costs
In federal law, there is a strong presumption that a prevailing party is entitled to costs, which thelosing party must overcome. FRCP 54(d)(1) provides that “costs other than attorneys’ fees shall beallowed
as of course
to the prevailing party unless the court otherwise directs.” (emphasis added). “Byits terms, the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in thedistrict court discretion to refuse to award costs.”
 Ass’n of Mexican-American Educators v. California
,231 F.3d 572, 591 (9th Cir. 2000). The district court’s discretion to deny costs to the prevailing party islimited and the court must “specify reasons” for its refusal.
 Id.
(citation omitted). Given the presumption“that costs are to be awarded as a matter of course in the ordinary case,” the court is required to “explainwhy a case is not ‘ordinary’ and why, in the circumstances, it would be inappropriate or inequitable toaward costs.”
 Id.
at 593.
C.
 
Defendant’s Misconduct Drove Up Plaintiff’s Costs
Defendant’s sole contention, which Defendant repeats throughout its objections, is thatPlaintiff’s costs are “excessive and not recoverable”. (Objections, 2:28).Plaintiff disagrees. It was Defendant who engaged in a scorched-earth Stalingrad defense of thisaction that was calculated to drive up Plaintiff’s costs and fees. Defendant’s abusive conduct duringdiscovery was recidivist, ultimately forcing this Court to impose $3,200 of sanctions on Defendant (Doc.242, 4:3-7), formally admonish Defendant’s counsel for engaging in no less than 11 speaking objectionswhich had caused the re-convening of 6 out of 10 of Plaintiff’s depositions in late 2008 (all at Plaintiff’sexpense) (Doc. 207, 10:10-11), grant Plaintiff’s voluminous motions to compel production andresponses from Defendant (Docs. 113, 24, 207, 240), and grant Plaintiff’s motion to quash Defendant’simproper attempts to subpoena psychiatric records in violation of an express stipulation not to do so(Doc. 173). Defendant denied Plaintiff’s requests for admission out of hand and as a matter of courseand refused to stipulate to basic facts and ancillary legal elements, burdening Plaintiff with the need toretain experts and engage in costly proofs both before and at trial. By way of example, Defendantrefused at the outset to acknowledge that Plaintiff had depression, forcing Plaintiff to retain a forensicpsychiatrist. Yet Defendant’s own expert, Dr. Robert Burchuk, later rendered the same exact DSM AxisI diagnosis as Plaintiff’s expert: “major depressive disorder recurrent”. In addition, Defendant buried
Case 1:07-cv-00026-OWW-DLB Document 395 Filed 07/23/2009 Page 3 of 16
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