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Branch Banking and Trust Co. v. Smoke Ranch Development, LLC

United States District Court, D. Nevada

April 28, 2017

BRANCH BANKING AND TRUST COMPANY, Plaintiff,
v.
SMOKE RANCH DEVELOPMENT, LLC, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR NON-TAXABLE COSTS (ECF No. 203)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         Plaintiff Branch Banking and Trust Company 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 $11, 399.12 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 the following items as not sufficiently described: (1) cost items for “Deposition of Haskel Iny”; (2) cost items for “Deposition of Ron Fuqua”; (3) cost items for “Deposition of Teresa Griswold and Charles Jack”; (4) “Hearing re MSJ”; and (5) Westlaw research. The defendants also object to paying for travel expenses for the plaintiff's counsel to attend hearings in Las Vegas because they contend plaintiff's counsel's firm has competent attorneys in Las Vegas who could have handled the matters without incurring those expenses. Finally, the defendants object to two entries related to BB&T's appraiser.

         BB&T responds that the agreements between the parties do not condition the recovery of fees on reasonableness. BB&T also argues the travel expenses were reasonably incurred because counsel had expertise in the relevant areas of law. As to the expert costs, BB&T argues the costs were reasonably incurred in preparing the expert for deposition and trial.

         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. 199. Thus, the only question is what amount, if any, BB&T should be awarded.

         A. Deposition of Haskel Iny

         The spreadsheet identifies various costs items that are described only as “Deposition of Haskel Iny.” ECF No. 199-1 at 5. These items are not sufficiently described for me to determine whether the costs incurred were 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.

         B. Deposition of Ron Fuqua

         The spreadsheet identifies various costs items that are described only as “Depo of Ron Fuqua” or “Deposition of Ron Fuqua.” ECF No. 203-1. Because BB&T has not adequately described these requested costs, I deny them.

         C. Deposition of Teresa Griswold and Charles Jack

         The spreadsheet identifies various costs items that are described only as “Deposition of Teresa Griswold and Charles Jack.” Id. Because BB&T has not adequately described these requested costs, I deny them.

         D. ...


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