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Arenberg v. Ryan

United States District Court, Ninth Circuit

September 23, 2013

CHARLES L. RYAN, et al., Defendants.

ORDER AND OPINION [Re: Motions at docs. 214, 226 & 227]

JOHN W. SEDWICK, District Judge.


At docket 214, plaintiff David Arenberg ("Arenberg") moves for an award of attorney's fees against defendant James Taylor ("Taylor"). The memorandum required by the local rules, which supports that motion, is at docket is at docket 232. That memorandum makes clear that Arenberg is also seeking an award of non-taxable costs. Taylor's response is at docket 233. Arenberg's reply is at docket 235.

At docket 226 defendants Ryan, Rowe, and Taylor moved for an award of costs as a sanction, and amended the motion at docket 227. Arenberg's response is included in the memorandum at docket 232. Defendants' reply is at docket 234.

Oral argument was not requested and would not be of assistance to the court.


When Arenberg commenced this action he was proceeding pro se. The court screened his complaint pursuant to 28 U.S.C. ยง 1915A (a) and dismissed defendant Sharon Malcom in November of 2010.[1] In his amended complaint at docket 64, Arenberg, still proceeding pro se, named Charles L. Ryan, Director of the Arizona Department of Corrections ("Department"); James Taylor, Regional Health Administrator of the Department's Northern Region; Richard Rowe, Medical Program Director for the Department; and Sandra Lawrence, a Corrections Officer IV employed by the Department, as defendants. Defendants' motion for summary judgment was addressed in the court's order at docket 117, which provides considerable background information about this lawsuit. In the order at docket 117, the court dismissed Arenberg's claim against Ryan in his official capacity, and it dismissed his claim against Lawrence. The court allowed the individual capacity claims for compensatory damages and the punitive damages claims against Ryan, Rowe, and Taylor to proceed. On November 15, 2012, five weeks after the order at docket 117 was filed, Nerner Hadous and David Ali Chami appeared as counsel for Arenberg. Messrs. Hadous and Chami represented Arenberg in the final pre-trial preparations and at trial.

Before trial defendants made an offer of judgment pursuant to Fed.R.Civ.P. 68 in the amount of $20, 000. Arenberg rejected the offer on June 28, 2013.

The case was tried to a jury for four days commencing on July 22, 2013. During the course of the trial, the court granted a defense motion to dismiss all claims against defendant Taylor and the punitive damage claims against defendants Rowe and Taylor, but allowed the compensatory damage claims against Rowe and Taylor to proceed for determination by the jury. The jury returned a verdict for Rowe, but found Taylor liable to Arenberg for compensatory damages in the amount of $3, 000.


A. Motion at docket 226 as amended at docket 227

On June 26, 2013, defendants Ryan, Rowe, and Taylor made an offer of judgment to Arenberg pursuant to Fed.R.Civ.P. 68. The offer was in the amount of $20, 000. Arenberg rejected the offer. Defendants' motion is brought pursuant to Rule 68(d), which provides that when the judgment obtained by the party to whom the offer was made "is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made."

The costs defendants seek consist of the $609.65 paid for transcripts of the trial testimony given by Rowe and Arenberg's witness, Kanter, a witness whose testimony was clearly important to Arenberg's case. Trial transcripts are treated by statute as recoverable costs when they are necessarily obtained for use in the case.[2] Given that the testimony of both Rowe and Kanter was important testimony whose review would aid defense counsel in preparing for Rule 50 motion practice and closing argument, the transcripts were necessarily requested for use in the case.

Arenberg opposes the motion on the grounds that by the time the transcripts were ordered, the court had already dismissed Ryan. That is not a matter of any moment, because the transcripts were still significant to Rowe's defense. Arenberg also urges that his $3, 000 recovery from Taylor was better than the $20, 000 offer made on behalf of all three defendants. Whatever allocation one might make of the $20, 000 as between the three defendants, it cannot be gainsaid that the result of the trial-dismissal of the claim against Ryan, a jury verdict in favor of Rowe, and a jury verdict against Taylor for only $3, ...

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