Free Objection - District Court of Arizona - Arizona

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Charles D. Onofry ­ 012837 Luane Rosen ­ 013391 ReNae A. Nachman ­ 022614 SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Telephone: (602) 200-1280 Fax: (602) 230-8985 E-mail: [email protected] Attorneys for Third-Party Defendant Chemical Lime Company of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVEN SCHRUM, Plaintiff, vs. THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant, THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff, No. CIV04-619-PHX-RCB THIRD-PARTY DEFENDANT CHEMICAL LIME COMPANY OF ARIZONA'S OBJECTION TO BNSF'S APPLICATION/ STATEMENT OF COSTS

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vs.
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CHEMICAL LIME COMPANY OF ARIZONA, a corporation; ABC Corporations I-IV, fictitious corporations, Third-Party Defendants. Third-Party Defendant Chemical Lime Company of Arizona, by and through their attorneys Schneider & Onofry, P.C., hereby files its objection to BNSF's Application for Costs/Statement of Costs. Chemical Lime is filing a

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separate objection to BNSF's Application for Attorneys' Fees. Chemical Lime asks this Court to deny certain of BNSF's requested costs, as set forth below, because the requested costs fail to comply with LRCiv 54.1, Local Rules of Practice of the United States District Court for the District of Arizona. 1. This Court's Order of May 23, 2007, addressed BNSF's motion

for reconsideration and motion for summary judgment on only the issue of the duty to defend. The Order did not address any costs relating to the pending appeal, which respectfully would not be under this Court's jurisdiction to award. Thus, any costs incurred by BNSF from and after Plaintiff's June 16, 2006, Notice of Appeal, should be denied. These costs total $4,319.49. 2. Recoverable costs are governed by LRCiv 54.1(e), which

defines taxable costs as including: 1) Clerk's fees and service fees; 2) Fees for trial transcripts (not applicable); 3) Deposition costs ­ for original and one copy; specifically, counsel's fees and expenses in arranging for and attending the taking of a deposition are not taxable; 4) Witness Fees ­ limited to $40/day per 28 USC

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§1821, including expert witnesses; 5) Copies of papers obtained from third-party records custodians; all other copy costs are not taxable except by prior court order; 6) Maps, charts, models, photographs, summaries, computations, and statistical

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summaries (not applicable); 7) Interpreter fees (not applicable); 8) Docket fees ­ when the United States is the prevailing party (not applicable); 9) Fees paid to the
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Clerk of the State Court prior to removal (not applicable); and 10) Other items with prior court approval (not applicable). Pursuant to the above, the only potentially recoverable fees are set forth in the following chart. However, BNSF failed to attach any documentation of the requested costs pursuant to LRCiv 54.1(a). Thus, these costs should be denied unless proper documentation is provided to demonstrate that the costs are in fact taxable under the federal rules.
DATE 12/14/04 12/15/04 12/18/04 12/27/04 02/01/05 07/14/05 08/24/05 09/02/05 10/31/05 11/09/05 11/15/05 11/30/05 11/30/05 02/24/06 02/27/06 03/20/06 03/23/06 Total COST ITEM Medical Records of Steve Schrum (Plaintiff) Service of Process ­ Custodian of Records for Mayo Clinic Hospital Service of Process ­ Custodian of Records for Richard M. Riedy, M.D. Medical records of Steve Schrum Service of Process ­ Chemical Lime Company Records of Steve Schrum Video deposition of Steve Schrum Transcript of Steve Schrum's deposition Deposition fee (per USCA §1821, witness fee (including experts) limited to $40/day Medical records of Steve Schrum Transcript of Frank Burg's deposition Subpoena ­ Service of Process Subpoena ­ Service of Process Video of Dr. Khuri's deposition Transcript of Dr. Raja Khuri's deposition Deposition of Dr. Lindsey Transcript of Dr. Lindsey's deposition AMOUNT $10.60 93.20 138.80 42.70 57.20 85.75 1,128.50 1,477.50 40.00 15.00 704.00 68.00 45.00 100.00 200.30 317.66 122.50 $4,646.71

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BNSF's fees for the following should not be awarded as they are not taxable costs under the federal rules:
COST ITEM Incurred Prior to Appeal $33.55 2,849.96 1.49 201.07 87.48 5,497.99 1,903.25 276.50 387.75 25.75 1,481.58 9,138.60 69.75 26.48 326.50 Incurred After Appeal $8.02 1,643.80 9.28 49.26 13.70 1,991.06 Total

Telephone Toll Charges In-House Doc. Reproduction Pacer Electronic Pages Postage Express Charges Westlaw Lexis Unknown ­ REDACTED (10/02/04 entry) Telecopier Messenger Services Travel Expenses ­ to attend depositions Expert fees Unknown ­ Described as Full Service ­ Medium Litigation Audio tape Duplication Unknown ­ Described as Document and records review; preparation of report Expert Deposition fee ­ Billed $885, should be reduced by $840 to $40 per 28 USC §1821 Parking Teleconference Charges Mileage reimbursement to attend deposition Unknown - Name charge amendment ­ R. Greer Copies ­ Oversize stock Appellate Filing Fee Copies ­ docs from Dist. Ct. Mileage reimbursement - other Velo-Binding TOTAL

$41.57 4,493.76 10.77 250.33 101.18 7,489.05 1,903.25 276.50 413.25 25.75 1,481.58 9,138.60 69.75 26.48 326.50

25.50

840.00

840.00

4.50 3.12 171.77 5.50 5.41 455.00 39.00 2.23 82.64 $23,338.00 $4,319.49

4.50 3.12 171.77 5.50 5.41 455.00 39.00 2.23 82.64 $27,657.49

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Even if costs are considered under Arizona law, as urged by BNSF, A.R.S. §12-332 limits taxable costs to expenses incurred for witness fees, depositions, certified copies, surety expenses, and other costs pursuant to an agreement between the parties. Ahwatukee Custom Estates Management

Association, Inc. v. Bach, 193 Ariz. 401, 402, 973 P.2d 106, 107 (1999). Specifically, expenses for the following are not recoverable: photocopying, long distance telephone calls, messenger and delivery charges, and telecopier or fax charges. Id. Accordingly, at most, and only upon submission of proper documentation, BNSF should be awarded costs in the amount of $4,646.71. Dated this 5th day of July, 2007. SCHNEIDER & ONOFRY, P.C.

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By s/ Luane Rosen Charles D. Onofry - 012837 Luane Rosen ­ 013391 ReNae A. Nachman - 022614 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

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CERTIFICATE OF SERVICE I hereby certify that on July 5, 2007, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Burgess, Esq. Hoey & Farina, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff William L. Thorpe, Esq. Sal J. Rivera, Esq. Melissa Wilson Rawlinson Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF Charles Hamilton Houston, III Thomas Thomas & Appel, PC 2700 North Central Avenue, Suite 800 Phoenix, AZ 85004 Attorneys for BNSF I hereby certify that on July 5, 2007, I served the attached document by facsimile and US mail on the following, who are not registered participants of the CM/EFC System: William D. Black, Esq. One East Camelback Road, Suite 630 Phoenix, Arizona 85012-1658 Local Counsel for Plaintiff s/ Janice Froechte

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