Gwitchyaa Zhee Corporation et al v. Alexander et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GWITCHYAA ZHEE CORPORATION and )
GWICHYAA ZHEE GWICH’IN TRIBAL )
GOVERNMENT, )
)
Plaintiffs, )
)
vs. )
)
CLARENCE ALEXANDER and DEMETRIE )
(DACHO) ALEXANDER, )
)
Defendants and Third-. )
Party Plaintiffs, )
) No. 4:18-cv -0016-HRH
vs. )
)
DAVID BERNHARDT, in his official )
capacity as Secretary of the United States )
Department of the Interior, )
)
Third-Party Defendant. )
_______________________________________)
O R D E R
Motion for Costs and Attorneys’ Fees
Plaintiffs Gwitchyaa Zhee Corporation and Gwichyaa Zhee Gwich’in Tribal
Government move for an award of taxable costs1 and attorneys’ fees.2 This motion is
1Pursuant to Local Rule 54.1, bills of costs are to be filed separately from a motion
for attorneys’ fees and are reviewed and taxed by the Clerk of Court. The court, however,
will consider plaintiffs’ bill of costs even though they did not comply with the local rule.
2Docket No. 300.
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opposed by defendants Clarence and Demetrie (“Dacho”) Alexander.3 Oral argument was
not requested and is not deemed necessary.
Background
This case began when plaintiffs filed a complaint in state court on February 26, 2018.
In their complaint, plaintiffs asserted a single ejectment claim. Plaintiffs sought to eject
defendants from land that defendants contended was part of Clarence’s ANCSA § 14(c)
claim. On April 17, 2018, defendants removed this case to federal court and on July 3, 2018,
the court denied plaintiffs’ motion to remand.4 The court held that removal had been proper
“because plaintiffs’ well-pleaded complaint establishes that plaintiffs’ right to relief on their
state-law ejectment claim depends on the resolution of substantial questions of federal law.”5
On July 13, 2018, defendants filed their answer, counterclaims, and third-party complaint.6
In their first counterclaim, defendants sought a declaration that GZ Corporation’s § 14(c)
processes and procedures were, among other things, unconstitutional because they violated
defendants’ due process rights.7 In their other counterclaims, defendants challenged
plaintiffs’ reliance on the statute of limitations in 43 U.S.C. § 1632, sought a de novo hearing
on Clarence’s § 14(c) claim, and moved to quiet title in the land at issue.8
3Docket Nos. 304 and 306.
4Docket No. 22.
5Id. at 11.
6Docket No. 24.
7Id. at 24, ¶ 40.
8Id. at 24, ¶ 41 - 28, ¶ 61.
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Over the remainder of 2018 and 2019, the parties engaged in motion practice;
discovery was conducted; and defendants pursued their third party complaint against the
Secretary of Interior, a complaint that was eventually dismissed.9 On December 19, 2019,
the court granted plaintiffs’ motion for summary judgment and denied defendants’ cross-
motion for summary judgment, holding that defendants were “time-barred from seeking
judicial review of Clarence’s § 14(c) claim.”10 On January 9, 2020, plaintiffs filed a motion
for summary judgment on their ejectment claim.11 The parties spent most of the remainder
of 2020 litigating the merits of plaintiffs’ ejectment claim, and on December 22, 2020, the
court entered judgment in plaintiffs’ favor.12 The instant motion for costs and attorneys’ fees
followed.
Attorneys’ Fees
Plaintiffs move for an award of attorneys’ fees pursuant to Rule 82, Alaska Rules of
Civil Procedure. “‘Alaska is the only state that does not follow the American rule [pertaining
to attorney’s fees].’” Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 665 (Alaska 2005)
(quoting Edwards v. Alaska Pulp Corp., 920 P.2d 751, 755 (Alaska 1996)). “‘Under the
American rule, each party pays its attorney’s fees, regardless of who prevails.’” Id. (quoting
Edwards, 920 P.2d at 755). “‘The purpose of Rule 82 is to partially compensate a prevailing
party for the expenses incurred in winning his case. It is not intended as a vehicle for
9Docket No. 210.
10Order re Cross-motions for Summary Judgment at 38, Docket No. 211.
11Docket No. 216.
12Docket No. 284.
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accomplishing anything other than providing compensation where it is justified.’” Id.
(quoting Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979)).
Rule 82 can “provide grounds for a fee award in the District of Alaska; specifically,
in diversity cases and in federal question cases with supplemental jurisdiction over state-law
claims[.]” Disability Law Center of Alaska, Inc. v. Anchorage School Dist., 581 F.3d 936,
941 (9th Cir. 2009) (internal citations omitted). But, defendants argue that AS 09.60.010(c)
limits the application of Rule 82 in this case.
AS 09.60.010(c)(2) provides that
[i]n a civil action or appeal concerning the establishment,
protection, or enforcement of a right under the United States
Constitution or the Constitution of the State of Alaska, the court
. . . may not order a claimant to pay the attorney fees of the
opposing party devoted to claims concerning constitutional
rights if the claimant as plaintiff, counterclaimant, cross
claimant, or third-party plaintiff in the action or appeal did not
prevail in asserting the right, the action or appeal asserting the
right was not frivolous, and the claimant did not have sufficient
economic incentive to bring the action or appeal regardless of
the constitutional claims involved.
This statute
was enacted to abrogate [Alaska’s] previous common law public
interest litigation attorney’s fees framework and replace it with
a narrower constitutional litigation framework. The statute both
encourages and protects those challenging governmental action
as a violation of federal or state constitutional rights. First, the
statute provides that a successful claimant generally is entitled
to an award of full reasonable attorney’s fees and costs incurred
in connection with a constitutional claim, unless the claimant
had “sufficient economic incentive” to bring the claim regard-
less of its constitutional nature. Second, the statute protects an
unsuccessful claimant from an adverse attorney’s fees award if
the constitutional claim was not frivolous and the claimant did
not have “sufficient economic incentive” to bring the claim
regardless of its constitutional nature.
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Alaska Conservation Foundation v. Pebble Ltd. Partnership, 350 P.3d 273, 274 (Alaska
2015) (quoting AS 09.06.010(c)). In other words, “Alaska Statute 09.60.010(c) . . . prohibits
a court from ordering a losing [party] to pay the attorney fees of an opponent devoted to
claims concerning constitutional rights.” Lake & Peninsula Borough Assembly v. Oberlatz,
329 P.3d 214, 226 (Alaska 2014). This means that in cases involving both constitutional and
non-constitutional claims, “Rule 82 attorney fees may be awarded only for work that would
not have been necessary but for a non-constitutional claim; AS 09.60.010(c)(2) applies to
work in which a constitutional claim is implicated in any way.” Id. at 228.
Defendants argue that AS 09.60.010(c) applies here because this case involved
constitutional claims in the form of their counterclaims. Plaintiffs, on the other hand, argue
that AS 09.60.010(c) has no application here because it only applies to an assertion of
constitutional claims against the government or government actors. Plaintiffs argue that AS
09.60.010(c) does not apply in cases such as this in which constitutional claims were asserted
against private parties.
The Alaska Supreme Court has never considered the issue of whether AS 09.60.010(c)
can apply in cases in which constitutional claims are asserted against private parties. But
assuming without deciding that if faced with this issue, the Alaska Supreme Court would
hold that AS 09.60.010(c) could apply to constitutional claims asserted against private
litigants, defendants would still not be entitled to the protection of the statute.
In order for defendants to be entitled to the protection offered by AS.09.60.010(c),
defendants must first show that their constitutional counterclaims were “not frivolous[.]”
Alaska Conservation Foundation, 350 P.3d at 274. The Alaska Supreme Court has held that
“[i]n most cases, . . . a claim should not be considered frivolous unless the litigant has abused
the judicial process or exhibited an improper or abusive purpose.” Manning v. State Dep’t
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of Fish and Game, 420 P.3d 1270, 1283–84 (Alaska 2018) (citation omitted). Under such
a definition, defendants’ constitutional counterclaims could not be considered frivolous.
Second, in order to fall under the protection of AS 09.60.010(c), defendants must
show that they “did not have ‘sufficient economic incentive’ to bring” their counterclaims
“regardless of [their] constitutional nature.” Alaska Conservation Foundation, 350 P.3d at
274. “A litigant has sufficient economic incentive to bring a claim when it is brought
primarily to advance the litigant’s direct economic interest, regardless of the nature of the
claim.” Id. at 281-82.
Defendants argue that they did not have sufficient economic interest to bring their
counterclaims because the land from which plaintiffs sought to eject them was of
“insignificant market value.”13 Defendants contend that by late 2011, they had “accepted the
status quo” that “the Joe Ward barge area was not part of Clarence’s § 14(c)(1) reconvey-
ance” and that they had no incentive to pursue a legal remedy given the area’s insignificant
market value.14
Defendants’ argument ignores the fact that Dacho has been using a portion of the land
at issue for his “log milling and storage business[.]”15 Plainly, some of the land at issue had
value to one of the Alexanders. In addition, two of the parcels at issue are unique pieces of
property because of their access to the Yukon River, and these two parcels have road access
as well as river access. The road and river access give this land economic value and further
13Defendants’ Opposition to Plaintiffs’ Motion for Attorney’s Fees at 12, Docket No.
306.
14Id. at 13-14.
15Affidavit of Defendant Dacho Alexander [etc.] at 5, ¶ 28, appended to Defendants’
Opposition to Plaintiffs’ Motion for Summary Judgment [etc.], Docket No. 228.
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illustrates that defendants had private, economic incentives to pursue the right to retain all
three parcels. Defendants were not acting as a “stalking horse” pursuing this litigation for
some broader public interest matter. Alaska Conservation Foundation, 350 P.3d at 276
(quotation marks omitted). Rather, they were pursuing their own economic interests. Thus,
even assuming that AS 09.60.010(c) applied here, defendants would not be entitled to its
protection.16
Because AS 09.60.010(c) does not apply in this case, the issue of attorneys’ fees is
governed by Rule 82. Under Rule 82, “[i]n cases[,]” such as this, “in which the prevailing
party recovers no money judgment, the court . . . shall award the prevailing party in a case
resolved without trial 20 percent of its actual attorney’s fees which were necessarily
incurred.” Alaska R. Civ. P. 82(b)(2). Prevailing parties in federal question cases with
supplemental jurisdiction over state-law claims are only entitled to attorneys’ fees that were
“incurred as a result of work done solely in defending the state law claims.” Dietzmann v.
City of Homer, Case No. 09–00019 RJB, 2013 WL 11309599, at *3 (D. Alaska June 11,
2013).
Plaintiffs have proposed dividing this case into two distinct time periods for the
purposes of a fee award: 1) from the filing of the lawsuit up to the court’s December 19,
2019 order granting them summary judgment and 2) after the court’s December 19, 2019
summary judgment order. The first time period involved both federal issues and state-law
issues and the second time period involved only plaintiffs’ state-law ejectment claim. The
court finds this proposed division reasonable.
16Because AS 09.60.010(c) does not apply, the court need not consider defendants’
argument that they are entitled to an abatement pursuant to AS 09.60.010(e).
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For the first time period, plaintiffs incurred $163,750.50 in reasonable and necessary
fees.17 The work during this period included written discovery, motion practice, and
attending depositions in Fort Yukon. Plaintiffs ask the court to allocate 40% of the fees
incurred during this period to their state-law claim.
Defendants object18 to plaintiffs’ allocation for the first time period. Defendants
suggest that only 15-20% of the fees from the first period should be allocated to state-law
issues, given that the federal issues were inextricably intertwined with the state-law issues.
During the first time period, most of the work being done on the case related to the
§ 14(c) issues, which were federal issues. The court finds that for the first period of time,
80% of the work related to federal issues and 20% related to the state-law issues, which
means that for the first time period, $32,750.10 of the fees incurred are subject to a Rule 82
fee award.
For the second time period, plaintiffs incurred $54,073.20 in reasonable and necessary
fees.19 All of these fees are subject to a Rule 82 fee award.
Plaintiffs have incurred $86,823.30 in fees that are subject to a Rule 82 fee award.
That means that plaintiffs are entitled to $17,364.66 in attorneys’ fees, unless a variation of
17Declaration of Counsel Lee C. Baxter at 5, ¶ 10 and Exhibit 1 thereto, Docket No.
301.
18This objection was made in an 18-page document which was attached to defendants’
opposition titled “Defendants’ Objections to Parts of Counsel’s Hybrid Declaration.” Many
of defendants’ “objections” were to plaintiffs’ counsel’s portrayal of the proceedings and
rulings in this case in his declaration. Both plaintiffs’ counsel’s declaration and defendants’
objections thereto contained unnecessary and improper argument.
19Baxter Declaration at 11, ¶ 21 and Exhibit 3 thereto, Docket No. 301.
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this amount is warranted. Pursuant to Alaska Rule 82(b)(3),
[t]he court may vary an attorney’s fee award calculated under
subparagraph (b)(1) or (2) of this rule if, upon consideration of
the factors listed below, the court determines a variation is
warranted:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys’ hourly rates and the
number of hours expended;
(D) the reasonableness of the number of attorneys used;
(E) the attorneys’ efforts to minimize fees;
(F) the reasonableness of the claims and defenses pursued by
each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of work performed and
the significance of the matters at stake;
(I) the extent to which a given fee award may be so onerous to
the non-prevailing party that it would deter similarly situated
litigants from the voluntary use of the courts;
(J) the extent to which the fees incurred by the prevailing party
suggest that they had been influenced by considerations apart
from the case at bar, such as a desire to discourage claims by
others against the prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
Not all the factors apply in every case, and “[i]f one or more [of the] factors justifies
departure from the schedule for fee awards, the trial court may base its decision on those
factors, without specifically explaining why the other factors are not relevant.” Osborne v.
Hurst, 947 P.2d 1356, 1362 n.3 (Alaska 1997).
Defendants argue that a downward departure in the amount of fees to be awarded is
warranted. Plaintiffs argue that an enhanced fee award is warranted in this case.
Defendants first argue that factor (C), which requires the court to consider the
reasonableness of the attorneys’ hourly rates and the number of hours expended, weighs in
favor of a downward departure. Defendants argue that the rates charged by plaintiffs’
lawyers and paralegals are not reasonable because they are Anchorage rates, rather than
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Fairbanks rates.20 The parties in this case are from Fort Yukon, Alaska and this case was
removed to the Fairbanks division of this court. As such, defendants argue that the court
should look to Fairbanks rates in determining what a reasonable hourly rate is, rather than
the Anchorage rates charged by plaintiffs’ counsel. Plaintiffs’ lawyers charged rates ranging
from $275 per hour to $390 per hour and the paralegal charged rates ranging from $195 to
$260.21 Defendants argue that these are considerably higher than what Fairbanks lawyers
with similar experience and qualifications charge. Defendants offer the declaration of their
attorney, who avers that, based on his conversations with other Fairbanks lawyers, Fairbanks
lawyers with similar experience and qualifications bill at rates of $250 to $325 per hour and
that Fairbanks paralegals bill at rates between $70 and $140 for civil matters, but up to $200
per hour for workers’ compensation cases.22
The Alaska Supreme Court “has never expressly deal[t] with the issue of locality in
setting reasonable hourly rates for purposes of a Rule 82 award.” Nautilus Marine
Enterprises, Inc. v. Exxon Mobil Corp., 332 P.3d 554, 558 (Alaska 2014) (quotation marks
omitted). Contrary to plaintiffs’ argument, the court in Nautilus Marine did not hold that the
entire state, rather than a particular city, is the appropriate “locality” or “forum” to consider
when determining whether rates are reasonable. The issue before the court in Nautilus
Marine was how to assess the reasonableness of rates charged when the prevailing party was
represented by out-of-state counsel, and the court held that “the fee customarily charged in
20Defendants do not challenge the number of hours that plaintiffs’ counsel expended
on this case.
21Baxter Declaration at 13-14, ¶ 24, Docket No. 301.
22Affidavit of Defendants’ Attorney [etc.] at 1-3, ¶¶ 3-13, appended to Defendants’
Opposition to Plaintiffs’ Motion for Attorney’s Fees, Docket No. 306.
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the locality for similar legal services is the basis on which awards should ordinarily be
calculated, and an award based on out-of-state rates should be made only in extraordinary
circumstances.” Id. at 559 (citation omitted). But, the Alaska Supreme Court did not
address whether, in cases involving only in-state counsel, “locality” meant the entire state of
Alaska or whether it meant a particular city within the state.
The court is unpersuaded that it must only look to the Fairbanks market in determining
the reasonableness of the rates charged by plaintiffs’ counsel. In Alaska, attorneys routinely
work back and forth between Fairbanks, Anchorage, and other places, particularly in federal
cases given that the District of Alaska covers the entire state. Moreover, in this case, as
between Anchorage and Fairbanks, the hourly rates of the lawyers are not all that different.
The court finds that the hourly rates charged by plaintiffs’ lawyers were reasonable.
Although the rate charged by the Anchorage paralegal was substantially higher than the rates
charged by Fairbanks paralegals, the Anchorage paralegal had “more than three decades of
experience as an Alaskan paralegal[,]”23 which justifies the higher rates. The court finds that
the rates charged by the paralegal were reasonable. Factor (C) does not weigh in favor of a
downward departure.
Defendants next argue that factor (D), the reasonableness of the number of attorneys
used, weighs in favor of a downward departure because plaintiffs’s use of four attorneys in
this matter was unreasonable. However, using four attorneys was not unreasonable,
particularly since two of the attorneys primarily provided supervision of Mr. Baxter, who
performed the majority of the legal work on this matter for plaintiffs.24 And, plaintiffs have
23Baxter Declaration at 14, ¶ 25, Docket No. 301.
24Id. at 2, ¶ 2.
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“redacted billing entries . . . such that only one supervisor [was] included for any legal
work.”25 Factor (D) does not weigh in favor of a downward departure.
Defendants next argue that factor (I) weighs in favor of a downward departure. Factor
(I) requires the court to consider the extent to which a given fee award may be so onerous to
the non-prevailing party that it would deter similarly situated litigants from the voluntary use
of the courts. Defendants argue that the amount of fees that plaintiffs are requesting, if
granted, would be onerous enough to deter similarly situated litigants from pursuing their
legal rights.
The court disagrees, primarily because it was defendants’ management of this case
which substantially impacted the amount of time that had to be expended on litigating it,
which in turn drove up the amount of fees incurred by plaintiffs. Moreover, defendants had
a choice here; they could have accepted the BLM’s final decision regarding the size and
shape of Clarence’s § 14(c) claim. They chose instead to do battle, and they must bear the
consequences of that decision. Factor (I) does not weigh in favor of a downward departure.
Defendants next argue that factor (J) weighs in favor of a downward departure. This
factor requires the court to consider the extent to which the fees incurred by the prevailing
party suggest that they had been influenced by considerations apart from the case at bar.
Defendants argue that the amount of fees incurred by plaintiffs to eject them from land that
is of modest value suggests that plaintiffs may have been motivated by a desire to discourage
others from bringing claims against them. Defendants contend that plaintiffs incurred
attorneys’ fees in an amount of about 19 times that of what the three parcels of land at issue
25Id. at 6, ¶ 11.
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are worth ($10,000-$11,000 for the land versus $217,000 in attorneys’ fees). Defendants
insist that this suggests that plaintiffs were driven by an improper motive.
There is no evidence of an improper motive on the part of plaintiffs in bringing this
case. Plaintiffs have simply sought to enforce the BLM’s ultimate decision as to the size and
shape of Clarence’s § 14(c) claim. And, again, to the extent that the amount of fees incurred
in this case is out of proportion to what was at risk, it was defendants’ management of this
litigation that caused such a result. Factor (J) does not weigh in favor of a downward
departure.
Finally, defendants argue that factor (K), which allows the court to consider other
equitable factors deemed relevant, weighs in favor of a downward departure. Defendants
argue that it would be unfair to burden Dacho with having to pay any attorneys’ fees because
he was not involved with Clarence’s § 14(c) application, being only 12 years in 1984;
because if the court’s ejectment order is upheld, Dacho will lose improvements that he made
on the land; and because he has three young children’s higher education to fund. Dacho
contends that an award of attorneys’ fees would largely fall to him as his father has no means
to pay any judgment against him.
Factor (K) does not weigh in favor of a downward departure. Although defendants
did not initiate this litigation, the possibility of an adverse fee award should have been part
of their consideration when they were deciding whether and to what extent they were going
to defend against plaintiffs’ ejectment claim.
Turning then to the question of an enhanced fee award, plaintiffs rely on factors (F)
and (G), which require the court to consider the reasonableness of the claims and defenses
pursued by each side and whether there was vexatious or bad faith conduct. “Reliance on”
factor (F) “is appropriate where the nonprevailing party has made unreasonable arguments.”
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State v. Jacob, 214 P.3d 353, 362 (Alaska 2009). But, “[w]hen a party has taken a legitimate
position, it has not acted unreasonably for the purposes of Rule 82.” Alderman v. Iditarod
Properties, Inc., 104 P.3d 136, 144 (Alaska 2004). “[T]he court may not hold . . . arguably
reasonable defenses against the losing party.” Riddle v. Lanser, 421 P.3d 35, 50 (Alaska
2018). As for factor (G), “Black’s Law Dictionary defines the term ‘vexatious” to mean
‘without reasonable or probable cause or excuse; harassing; annoying.’” United States v.
Sherburne, 249 F.3d 1121, 1126 (9th Cir. 2001) (quoting Black’s Law Dictionary 1559 (7th
ed.1999)).
Plaintiffs argue that defendants’ conduct has been “unreasonable and vexatious”26 and
that defendants’ approach to litigating this case greatly increased the cost to litigate this case.
In particular, plaintiffs contend that defendants refused to accept the court’s rulings on issues
as evidenced by their repeated attempts to revive claims, arguments, and issues that the court
had already decided. “[A] party’s insist[ence] on litigating a weak and incredible [position]
to its highly predictable conclusion may justify an enhanced fee award.” Keenan v. Meyer,
424 P.3d 351, 360 (Alaska 2018) (citation omitted). And, plaintiffs argue that is exactly what
has happened here. Plaintiffs argue that defendants have repeatedly continued to advance
their arguments on issues even after the court rejected their arguments. Plaintiffs are not
arguing that defendants’ positions and defenses were necessarily unreasonable to begin with.
Rather, they are arguing that defendants refused to accept the court’s rulings on any issue and
that by continuing to repeat their arguments at every opportunity, defendants have caused the
attorneys’ fees to be much higher in this case than they should have been. Plaintiffs cite to
26Motion for Costs and Attorneys’ Fees at 17, Docket No. 300.
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a number of examples but the best is perhaps from the court’s order on plaintiffs’ motion to
eject. There, the court stated that
[i]t has been defendants’ practice to file motions for reconsider-
ation of any substantive order entered by the court. Most of
these motions for reconsideration have been meritless because
defendants merely reiterate arguments that the court has already
considered and rejected. While the court is reluctant to preclude
defendants from filing a motion for reconsideration of this order,
defendants are reminded that the purpose of a motion for
reconsideration is not to repeat failed arguments. The court
understands that defendants believe that it is mistaken in its
application of the statute of limitations and its conclusion that
defendants’ adverse possession affirmative defense failed.
These are issues that defendants make take up on appeal. But,
rearguing these issues over and over again to this court is not
going to make the court change its mind.[27]
Plaintiffs argue that given defendants’ conduct, they are entitled to an enhanced fee of 75%.
Plaintiffs’ request for enhanced fees of 75% is over the top. Both the court and
plaintiffs were annoyed by defense counsel’s habit of filing repetitive motions for
reconsideration that had no basis in fact or law. But, the court is not convinced that
defendants’ claims and defenses were unreasonable or that defendants’ conduct reached the
level of vexatiousness.
Plaintiffs might have, but did not, address factor (E), the attorney’s efforts to minimize
fees. Here, defense counsel did nothing to minimize defendants’ exposure to attorneys’ fees.
On the contrary, defense counsel managed this litigation in a fashion which substantially
increased fees, primarily by failing to focus upon the real issues in the case and instead
pursuing issues that had either already been decided or had minimal chance of success.
Based on factor (E), the court finds that plaintiffs are entitled to an enhanced fee award of
27Order re Motion to Eject; Motions for Evidentiary Rulings at 27-28, Docket No. 281.
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thirty percent. As set out above, $86,823.30 of the fees reasonably and necessarily incurred
by plaintiffs are subject to Rule 82. Thus, plaintiffs are entitled to $26,046.99 in attorneys’
fees.
Taxable Costs
Local Rule 54.1(e) provides that
[t]axable costs include:
(1) marshal fees . . . and other reasonable service of process
fees;
(2) transcripts when prepared pursuant to stipulation or order;
(3) reasonable deposition costs, including transcript and inter-
preter’s fee;
(4) non-party witness fees, mileage, and subsistence,
including parties subpoenaed by adverse parties. . . ;
(5) interpreter fees;
(6) reasonable cost of copying and exhibit preparation, exclud-
ing demonstrative
exhibits;
(7) docket fees . . . ;
(8) fees for masters, receivers, and commissioners ordered by
the court;
(9) state court filing fees for removal jurisdiction actions;
(10) postage; and
(11) other costs specifically required by court order.
Plaintiffs seek $4,550.33 in taxable costs.28
Defendants first object to the $269.40 plaintiffs request for printing and the $78.96
for postage. Defendants argue that these are attempts by plaintiffs to get reimbursed “for
every expense” that they incurred, which is not permitted. Thomas v. Treasury Management
Ass’n, Inc., 158 F.R.D. 364, 372 (D. Md. 1994). These are, however, proper taxable costs.
Secondly, defendants object to the $1,094.96 plaintiffs request for “[f]ees for
exemplification and the costs of making copies of any materials where the copies are
28Exhibit 5 at 1, Baxter Declaration, Docket No. 301.
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necessarily obtained for use in the case.”29 Defendants argue that plaintiffs have not
provided any supporting documentation to show that these costs were essential or necessary
to the case. However, plaintiffs have provided the invoices for these costs,30 except for one
charge of $375.16. $375.16 will be deducted from plaintiffs’ request for taxable costs
Conclusion
Plaintiffs’ motion for costs and attorneys’ fees is granted. Plaintiffs are awarded
$26,046.99 in attorneys’ fees and $4,175.17 in taxable costs.
DATED at Anchorage, Alaska, this 18th day of March, 2021.
/s/ H. Russel Holland
United States District Judge
29Id.
30Exhibit 6 at 3-4, 7-8, Baxter Declaration, Docket No. 301.
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