United States District Court, D. Nevada
J. YOUHAH UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff Bank of America, N.A.'s
(“BANA”) Bill of Costs (ECF No. 73). The Court
has considered Defendant 9060 Boston Springs Trust's
Objection to Bill of Costs (ECF No. 75), and Plaintiff's
Reply to Objection to Bill of Costs (ECF No. 76). At issue is
whether BANA's expert report and transcript are taxable
Civ. P. 54(d)(1) provides that unless a federal statute, the
Federal Rules of Civil Procedure, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party. The clerk may tax costs on
14 days' notice. Local Rules of Practice
(“LR”) 54-1(d) provides that if an objection to
the bill of costs is filed, once a response to the objection
is filed or the deadline for doing so has passed, the clerk
may prepare, sign, and enter an order disposing of a bill of
costs, subject to a motion to re-tax under LR 54-12. The
clerk's taxation of costs is final, unless modified on
review as provided in these rules. The U.S. Supreme Court
clarified that the “unless the court otherwise
directs” language contained in Fed.R.Civ.P. 54(d) vests
discretion in the court as to allowing costs. Farmer v.
Arabian American Oil Co., 379 U.S. 227, 232 (1964).
However, the Court may not either reduce or increase the
amount of the costs from those reasonably and actually
incurred by the prevailing party. See Copper Liquor, Inc.
v. Adolph Coors Co., 684 F.2d 1087, 1101 (5th Cir.
respect to the transcript, 28 U.S.C. § 1920 provides
that “[a] judge or clerk of any court of the United
States may tax as costs, ” among other things,
“fees for printed or electronically recorded
transcripts necessarily obtained for use in the case.”
Defendant argues that Plaintiff's claim for recovery of
$530.00 for the Certified Copy of the Transcript of the
deposition of Kelly Mitchell was not necessary and, thus,
BANA should not be allowed to recover such costs under 28
U.S.C. § 1920. ECF No. 75 at 4. This argument is not
persuasive. Although the Court issued its Order (ECF No. 70)
Granting BANA's Motion for Partial Summary Judgment (ECF
No. 56) based on factual similarity to the decision in
Bank of America, N.A. v. Thomas Jessup, LLC Series
VII, 435 P.3d 1217 (Nev. 2019), BANA has sufficiently
demonstrated the independent necessity of the expert
witness' testimony. Plaintiff cited to the Mitchell
deposition in its Motion for Partial Summary Judgment
numerous times to demonstrate, among other things, that
Mitchell's testimony was substantively identical to the
testimony the expert witness gave in the parallel state court
case. Therefore, the Court awards BANA its costs
in obtaining printed or electronically recorded transcripts
necessarily obtained for use in this case.
respect to the expert report, 28 U.S.C. § 1821 provides
for the recovery of certain witness fees, including per diem
and mileage costs, that are incurred during the course of
proceedings. Defendant argues that Plaintiff's claim for
recovery of $400.00 for the Appraisal Report does not qualify
as recoverable costs under 28 U.S.C. § 1821 and is,
therefore, improper. Defendant distinguishes between
allowable costs under this statute as related to costs a
witness may incur in the course of attending court
or a deposition, from non-allowable costs a
plaintiff may incur in employing a witness to
prepare materials such as appraisal reports. ECF No. 75 at 4.
Again, this argument is not persuasive.
discretion to tax costs not specifically authorized by
statute should be exercised sparingly. Miller-Wohl Co. v.
Comm'r of Labor and Industry, 694 F.2d 203, n.2 (9th
Cir. 1982). Notwithstanding, “the central concern in
deciding whether to tax an expert witness' fees as costs
is the necessity of the expert's testimony.”
Heverly v. Lewis, 99 F.R.D. 135, 137-18 (D. Nev.
1983) (internal citation omitted). That is, an expert
witness' fees may be taxable only if the testimony is
material to an issue tried and reasonably necessary to its
disposition. Id. (internal quotations omitted).
Here, BANA obtained an expert to provide a valuation of
property. As BANA accurately points out, this expert report
was used to “decide a critical element of this case-the
property's fair market value as compared to the
foreclosure sale price-in determining whether the court
should set aside the sale under the Nevada's supreme
court's standard . . . .” ECF No. 76 at 2.
Therefore, this Court awards BANA its costs in obtaining its
expert report valuating the property in dispute.
IT IS HEREBY ORDERED that $530.00 in fees obtaining printed
or electronically recorded transcripts necessarily obtained
for use in this case are taxed as costs.
FURTHER ORDERED that $400.00 in fees for Plaintiffs expert
report are taxed as costs.
 ECF No. 56 at 5, 7-9, 11. BANA also
attached the Mitchell deposition as a separate Exhibit. ECF