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Branch Banking and Trust Co. v. D.M.S.I., L.L.C.

United States District Court, D. Nevada

April 28, 2017

BRANCH BANKING AND TRUST COMPANY, Plaintiff,
v.
D.M.S.I., L.L.C., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR NON-TAXABLE COSTS (ECF NO. 157)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff Branch Banking and Trust Company (BB&T) previously moved for an award of attorney's fees and non-taxable costs incurred in connection with this matter. I denied BB&T's request for non-taxable costs because it was unclear what costs BB&T was seeking as non-taxable costs. However, I granted BB&T leave to file a new motion for non-taxable costs.

         BB&T renews its motion for non-taxable costs in the amount of $3, 677.39 and attaches in support a declaration and a spreadsheet purporting to show costs incurred in this action. The defendants oppose, arguing that the description of certain costs is inadequate to determine what the cost was, whether it was related to this litigation, and whether it was reasonable. Specifically, the defendants object to: (1) four of the five cost items related to the deposition of Tamara Stidham; (2) the cost items related to the deposition of Oscar Bruni; (3) the cost items related to the hearing on the motion to compel; (4) the cost items related to the hearing on the motion for summary judgment; and (5) Westlaw research.

         BB&T responds that the agreements between the parties do not condition the recovery of fees on reasonableness. BB&T also argues that the small dollar amounts and the identification of the depositions and hearings are sufficient to award BB&T its costs.

         I. LEGAL STANDARD

         Non-taxable costs are recoverable on a motion to the court under Rule 54(d)(2). Fed. R. Civ. Proc. 54(d)(2); see also LR 54-16(b)(2) (a motion for attorney's fees must include “[a]n itemization of all costs sought to be charged as part of the fee award and not otherwise taxable pursuant to LR 54-1 through 54-15”). An award of costs involves a two-step inquiry. I must first determine who is a “prevailing party” under Rule 54, and then I must determine “how much (if any) costs should be awarded to the prevailing party.” Shum v. Intel Corp., 629 F .3d 1360, 1366 (Fed. Cir. 2010); Ass'n of Mex.-Am. Educators v. Cal., 231 F.3d 572, 593 (9th Cir. 2000) (noting that district courts have discretion in choosing to award costs under Rule 54(d)). There is a presumption in favor of awarding costs to the prevailing party. Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006). To overcome this presumption, the losing party must establish a reason to deny costs. Id.

         As stated in my prior order, BB&T is a prevailing party who is entitled to recover some non-taxable costs under the loan documents. ECF No. 154. Thus, the only question is what amount, if any, BB&T should be awarded.

         A. Deposition of Tamara Stidham

         The spreadsheet identifies four costs items that are described only as “Travel to Las Vegas for Depo of Tamara Stidham” and one item that is described as “Travel to Las Vegas for Depo of Tamara Stidham; airport parking.” ECF No. 157-1 at 5. Only the airport parking item is sufficiently described for me to determine whether the cost incurred was reasonable. BB&T contends it need not show its costs were reasonable because the loan documents do not limit recovery to reasonable costs. However, every contract has an implied covenant of good faith and fair dealing. See Ins. Co. of the W. v. Gibson Tile Co., 134 P.3d 698, 702 (Nev. 2006). Consequently, BB&T cannot seek unreasonable or unrelated costs. Because BB&T has not adequately described these requested costs, I deny them except for the $14.00 in airport parking.

         B. Deposition of Oscar Bruni

         The spreadsheet identifies five costs items that are described only as “Deposition of Oscar Bruni.” ECF No. 157-1 at 5. Because BB&T has not adequately described these requested costs, I deny them.

         C. Hearing on the Motion to Compel

         The spreadsheet identifies five costs items that are described only as “Hearing re motion to compel.” Id. Because BB&T has not adequately described these requested costs, I deny them.

         D. Hearing on the Motion ...


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