MEMORANDUM DECISION GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES (Doc. 211) AND AWARDING COSTS

Before the Court are Plaintiffs motion for an award of attorney’s fees pursuant to 42 U.S.C. § 1988 , Plaintiffs bill of costs, and Defendants County of Kings and Mark Sherman’s opposing bill of costs.

A. PLAINTIFF’S MOTION FOR ATTORNEY’S FEES.

Plaintiff Daniel Ruff moves for an award of attorney’s fees pursuant to 42 U.S.C. § 1988 in the amount of $217,365.00.

1. Governing Standards.

42 U.S.C. § 1988 (b) provides:

“ ‘In determining what a reasonable attorneys’ fee entails, the district court must apply the hybrid approach adopted in Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983).’ ... ‘The most useful starting point for determining the amount of a reasonable fee is (1) the number of hours reasonably expended on the litigation (2) multiplied by a reasonable hourly rate.’ ... The resulting figure is known as the ‘Lodestar.’ ” WalMart Stores, Inc. v. City of Turlock, 483 F.Supp.2d 1023, 1040 (E.D.Cal.2007). Although there is a strong presumption that the lodestar represents a reasonable fee, Burlington v. Dague, 505 U.S. 557, 562 , 112 S.Ct. 2638 , 120 L.Ed.2d 449 (1992), the district court has the discretion to exclude from the initial fee calculation hours that were not reasonably expended, for example, cases that are overstaffed. Furthermore, the Supreme Court in Hensley held:

Id. at 434 , 103 S.Ct. 1933 . As explained in Wood v. Sunn, 865 F.2d 982, 991 (9th Cir.1988):

See also Clark v. City of Los Angeles, 803 F.2d 987 , 990 & n. 3 (9th Cir.1986). As the Clark court explained:

Id. The Kerr factors, as modified by Stewart v. Gates, 987 F.2d 1450, 1453 (9th Cir.1993), are:

Id.; see also Rule 54-293(c), Local Rules of Practice.

The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked. Hensley, supra at 433, 437 , 103 S.Ct. 1933 . The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits. Blum v. Stenson, 465 U.S. 886 , 892 n. 5, 104 S.Ct. 1541 , 79 L.Ed.2d 891 (1984); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir.1987).

2. Partial or Limited Success.

Defendants argue that the award of attorney’s fees should not include time incurred on issues not presented to the jury or incurred on issues as to which Plaintiff did not prevail.

“The extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988 .” Hensley, id., 461 U.S. at 440 , 103 S.Ct. 1933 . Hensley prescribed a two-step process for calculating attorney’s fees in a case of partial or limited success. A Court must consider (1) whether “the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on which he succeeded,” and (2) whether “the plaintiff achiev[ed] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” Hensley, id. at 434, 103 S.Ct. 1933 . Deductions based on limited success are within the discretion of the district court. Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002), cert. denied, 538 U.S. 923 , 123 S.Ct. 1574 , 155 L.Ed.2d 313 (2003). As explained in Dang v. Cross, 422 F.3d 800, 813 (9th Cir.2005):

Plaintiffs First Amended Complaint alleged causes of action for violation of Section 1983, 1985(3), 15 U.S.C. §§ 2 and 15, and for declaratory judgment. By Memorandum Decision filed on September 17, 2008, 2008 WL 4287638 (Doc. 92), the Court dismissed Plaintiffs Fifth Amendment takings claim on the ground of ripeness and alleged delay in processing Plaintiffs application and dismissed Plaintiffs antitrust claim because controlling Supreme Court and Ninth Circuit authority establish as a matter of law that Defendants are entitled to immunity from antitrust liability alleged in the FAC.

The Court granted summary judgment for Defendants with regard to Plaintiffs claim that Defendants intentionally discriminated against Plaintiff on the basis of his race by amending the General Plan and granted summary judgment for Defendants to the extent Plaintiffs claim of denial of procedural due process was based on the failure to mail notice specifically to Plaintiff.

Plaintiff proceeded to trial on his claims of violation of his rights to procedural and substantive due process and of denial of equal protection of the laws. The jury found that Plaintiff “proved by a preponderance of the evidence” that Defendants William Zumwalt and Sandy Roper “violated [Plaintiffs] right to procedural due process under the Fourteenth Amendment” and that Plaintiff “proved by a preponderance of the evidence that the violation of his right to procedural due process by any defendant was a cause of harm or damage” to Plaintiff. The jury found that Plaintiff had not proved that any of the individual defendants violated Plaintiffs right to substantive due process under the Fourteenth Amendment or violated Plaintiffs right to equal protection of the law under the Fourteenth Amendment and found that the violation of procedural due process was not the result of a custom, policy or practice of the County of Kings. The jury awarded monetary damages against Defendant Zumwalt in the amount of $140,000 and against Defendant Roper in the amount of $60,000 but did not award punitive damages.

Post trial, Plaintiff filed motions for declaratory relief and for prejudgment interest. Plaintiffs motion for declaratory relief was denied, (Doc. 236), as was Plaintiffs motion for reconsideration of that denial. (Doc. 248). Plaintiffs motion for prejudgment interest was granted in part and denied in part. (Docs. 226 & 235). Defendants filed a renewed motion for judgment as a matter of law or for new trial, which was denied. (Doc. 225).

a. Issues Not Presented to the Jury.

As to issues not presented to the jury and other miscellaneous non-recoverable time, Defendants refer to the time log for April 18-19, 2006, attached to Plaintiffs opening brief, for “Research re Motion in Limine (1.0) and E-File Motion in Limine (1.5). The docket does not show that any such motion was filed at that time.

Plaintiff responds that the time log attached to his opening brief “resulted from an input error on the original spreadsheet document” and that the subject hours were incurred in 2009, not 2006.

Defendants object to inclusion of time incurred (18.8 hours) in connection with Plaintiffs expert, John Bettancourt, CPA. Plaintiff retained Mr. Bettancourt to testify as to Plaintiffs lost business opportunities or loss of income. However, Mr. Bettancourt was not called as a witness at trial.

Plaintiff responds that it would have been malpractice not to retain an expert to investigate whether Plaintiffs economic damages were the proper subject of expert testimony, and to preserve such potential testimony by designating Mr. Bettancourt as a potential trial witness. Plaintiff asserts that the decision not to call Mr. Bettancourt at trial is of no moment for attorney’s fees, since the retention and solicitation of his opinion was reasonable. Plaintiff asserts that it was also reasonable for Plaintiffs counsel to modify the presentation of his case based on the composition of the jury, the development of evidence at trial, and the cost-benefit analysis of calling the expert witness. Plaintiff cites Moreno v. City of Sacramento, 534 F.3d 1106,1112 (9th Cir.2008):

Plaintiff argues that an attorney is not required to be clairvoyant as to how litigation will develop in order for the time incurred to be reasonable.

Defendants assert that “[i]n or around April of 2009, plaintiffs counsel brought a motion to preclude the defendants from calling certain witnesses or presenting certain evidence.” From the docket, Defendants are referring to Plaintiffs motions in limine filed on April 19, 2009 as Doc. 116). Defendants assert that the Court denied Plaintiffs motion provided that Defendants complied with certain enumerated conditions. Defendants contend that, because Plaintiff did not prevail on the motion, attorney’s fees incurred in connection with the motion (7.9 hours), should be stricken.

Plaintiff responds that the Court “only denied the plaintiffs requested relief because it decided to be lenient and not strike what would have been the majority of the defense case, which for still unknown reasons was not disclosed by predecessor defense counsel in discovery.” Plaintiff asserts that it was only because of Plaintiffs motion that reasonable time for discovery was granted by the Court and the trial date continued to September, 2009: “The defendants’ argument that the plaintiffs motion was unsuccessful and not deserving of compensation ignores what actually occurred as a result thereof and how it changed the case.”

Defendants assert that the time incurred on issues that were not tried to the jury, anti-trust issues -1.4 hours, or on issues on which Plaintiff did not prevail, i.e., LAFCO issues, substantive due process violation claim (5.5 hours), Kings County Planning Minutes/Guidelines (3.9 hours), publication Government Code issues — effective date of amended General Plan (7.25 hours), and land use planning-issues (5.5 hours), should be stricken.

Defendants’ objection lacks merit because all of Plaintiffs claims were inextricably interrelated factually and in terms of the relief requested. As Plaintiff asserts:

Plaintiff asserts that “only one damages verdict inquiry was necessary at trial as to all of the plaintiffs claims, thus confirming the overlapping nature of the relief sought.” Finally, Plaintiff contends, Plaintiffs counsel’s time records demonstrate that “almost all of his time was related to multiple asserted claims or requests for relief, or issues that overlapped two or more of these claims/requests.” Plaintiff asserts that there is “no way to go back ... to separate the time spent and apportion it among various claims.”

b. Unsuccessful Claims.

Defendants argue that the fee award should be reduced because Plaintiff prevailed on only one of his claims. Defendants acknowledge that, in reviewing counsel’s time logs, it cannot be determined to which of Plaintiffs various claims the time relates and that Plaintiff will argue that all of his claims were interrelated. Defendants assert:

Because the jury returned a verdict for Plaintiff on only one of his five separate theories of liability and, ■ rather than returning a multi-million dollar verdict to award Plaintiff his past, present and future lost business opportunity, awarded him $200,000, Defendants assert that the verdict and the award is “minimal at best.” Therefore, Defendants argue, the Court should reduce the fee award “to at least one-half, if not more, of the items allowed.”

Plaintiff obtained far more than nominal damages. Referring to what was then his pending motion for declaratory relief, since denied by the Court, Plaintiff asserts:

Plaintiff refers to an email communication from Plaintiffs counsel to Defendants’ counsel on September 3, 2009, attached to Plaintiffs reply. Mr. Little had inquired of Defendant’s counsel concerning any possible settlement. Ms. Dillahunty inquired asking for a “range or something” that Plaintiff was looking for. Mr. Little replied:

Plaintiff asserts that, “[gjiven the relief obtained by plaintiff or still pending mirrors that which he sought to resolve this matter before trial, it can hardly be found that he achieved only minimal or insubstantial success at trial.”

Although Plaintiffs motion for declaratory relief was denied on all grounds, the Court concurs with Plaintiff that a reduction of the fee award based on a finding of limited success would ignore the record and disregard the crucial importance of federal civil rights litigation generally. In City of Riverside v. Rivera, 477 U.S. 561, 574-578 , 106 S.Ct. 2686 , 91 L.Ed.2d 466 (1986), the Supreme Court stated:

3. Lodestar.

a. Hours Reasonably Expended.

In support of the motion for attorney’s fees is filed the declaration of Plaintiffs counsel, Kevin Little. Mr. Little details his professional background as well as his background in civil rights litigation. Mr. Little avers:

At the hearing, Plaintiffs counsel conceded that he is not entitled to an award of attorney’s fees from the District Court for those fees incurred in connection with Plaintiffs decision to file an appeal with the Ninth Circuit. Plaintiffs Notice of Appeal was filed on January 7, 2010. (Doc. 258). In Plaintiffs Submission of Updated Time Records filed on February 20, 2010, (Doc. 263), Mr. Little incurred time in connection with Plaintiffs appeal starting on December 30, 2009 through February 19, 2010, totaling 31.40 hours. Plaintiffs fee award will be reduced by these hours.

In addition, the duration of this was caused in large part by Mr. Little’s failure to timely prosecute the action. The Complaint was filed on May 10, 2005. At the time, Plaintiff was represented by Rafael Pio Fonseca. Defendants’ Answer was filed on June 6, 2005. On December 2, 2005, Kevin Little, present counsel for Plaintiff, made a special appearance and requested leave to file an amended complaint. A Minute Order ordered that an amended complaint be filed by January 15, 2006. Plaintiff did not file an amended complaint as required by the Court’s Order. On March 31, 2006, Mr. Little filed a Notice of Substitution of Attorneys, listing himself as counsel for Plaintiff and substituting Mr. Little as counsel of record (Doc. 25). On April 25, 2006, Mr. Little, listing himself as attorney for Plaintiff, filed a Stipulation and Proposed Order substituting Mr. Little as counsel for Plaintiff (Doc. 27). Mr. Little was substituted as counsel for Plaintiff by docket entry issued on April 7, 2006. On October 19, 2006, Plaintiff filed a motion to vacate the dates set forth in the Scheduling Order (Doc. 31), stating as grounds that the current pretrial schedule “was rendered infeasible by unforeseen delays in the finalization of the undersigned counsel’s retention in this matter”; that “[t]he finalization of this retention, which has now occurred, was necessary before counsel began substantial work in this matter”; that “as a result of counsel’s extended illness in the latter part of 2005 many maters [sic] were delayed, and he has had to ‘make up for lost time’ in 2006 and has been in a trial or evidentiary-type proceeding virtually the entire year, in addition to handling complex briefing issues on several cases.” Plaintiffs motion to vacate the schedule was granted and new dates set by Minute Order filed on November 20, 2006 (Doc. 35) and formal written Order filed on March 13, 2007 (Doc. 40). By Stipulation and Order filed on July 5, 2007, a new schedule was entered “[d]ue to a confluence of circumstances affecting the schedule of plaintiffs counsel and certain key witnesses, as well as the unintended failure to file a prior duly executed stipulation” (Doc. 43). The July 5, 2007 scheduling order required that non-dispositive motions be filed by November 5, 2007 and that dispositive motions be filed by December 3, 2007. The Pretrial Conference was set for March 28, 2008 and jury trial was set for May 6, 2008.

On December 3, 2007, Defendants filed a motion for summary judgment or summary adjudication, noticing the motion for hearing on January 14, 2008 (Doc. 47). On January 2, 2008, the day Plaintiffs opposition to the motion for summary judgment was due, Plaintiff filed an ex parte application for a 90 day continuance of the due date for Plaintiffs opposition to the motion for summary judgment and for continuance of the hearing date of the motion (Doc. 49). In support of this requested continuance, Plaintiffs counsel asserted:

(Doc. 49, ¶ 1). Plaintiffs ex parte application was heard on January 4, 2008. By Minute Order filed on January 4, 2008, Plaintiffs request for a 90 day continuance was granted; Plaintiffs response to the motion for summary judgment was due by April 4, 2008; reply briefs due by April 18, 2008; and the hearing on the motion for summary judgment was set for May 5, 2008. The pretrial conference and trial dates were vacated and a further scheduling conference to revise the trial schedule was set for May 30, 2008. Defendants’ counsel was instructed to prepare a written Order reflecting the Court’s rulings. A proposed Order was lodged by Defendants’ counsel on January 29, 2008 (Doe. 53). Plaintiff objected to the proposed Order, contending that the Court had ruled on January 4, 2008 that Plaintiff could file the amended complaint and objecting that the proposed Order limits permissible additional depositions to those witnesses whose affidavits were submitted by Defendants in support of their motion for summary judgment (Doc. 54). On January 31, 2008, Plaintiff filed a First Amended Complaint (Doc. 57). The Court ordered a hearing on the dispute concerning Defendants’ proposed Order for February 1, 2008 (Doc. 58). Because the conference call was not successfully coordinated, the hearing on the proposed Order was continued to February 4, 2008 (Doc. 59). The Order Granting Plaintiffs Ex Parte Application for Continuance of Hearing Date for Pending Summary Judgment Motion and For Related Necessary Relief was filed on February 25, 2008 (Doc. 67). After reciting the dates for completion of briefing and hearing of the summary judgment motion, the First Amended Complaint filed on January 31, 2008 was stricken; Plaintiff was ordered to file a motion for leave to amend by February 11, 2008; Defendants opposition was ordered to be filed by February 22, 2008, and no reply brief was allowed. The Court expressly stated at the February 4, 2008 hearing: “Then from the time that your motion is filed, the defendants will have ten days to respond and then we’ll hear that motion, no reply.” (Doc. 64, CT, 14:20-22). Notwithstanding this explicit order, on February 26, 2008 at 3:35 p.m., Mr. Little filed “Plaintiffs Supplemental Brief in Further Support of Motion for Leave to File Amended Complaint” (Doc. 68). By Minute Order filed on March 3, 2008, Plaintiffs motion to file the Amended Complaint was granted. Given this delay, attributable to Mr. Little, the Court reduced the amount of prejudgment interest to which Plaintiff was entitled, ruling that the periods from December 2, 2005 through July 5, 2007 and from December 17, 2007 through August 4, 2008, would not be included in the time for calculation of prejudgment interest because of Plaintiffs inexcusable delay in the prosecution of this action.

At the hearing, Mr. Little conceded that a reduction in the fee award for tasks performed as a result of his unavailability which would not otherwise have been necessary was appropriate. In his supplemental brief filed on February 23, 2010, (Doc. 265), Plaintiff redacted the following time from his fee request:

The Court also concludes that the time incurred by Mr. Little in connection with his motion to amend will be redacted. The motion to amend would have been totally unnecessary had Mr. Little timely with the Court’s Order granting him leave to amend by January 15, 2006. From the Court’s review of the time records, this includes the time incurred February 4, 2008 through March 3, 2008, for a total of 16.2 hours.

Consequently, the requested fee award is reduced by a total of 31.10 hours for the unnecessary time incurred by Plaintiffs counsel due to his failure to timely prosecute this action.

The total number of hours redacted from Plaintiffs fee request is 62.50 hours.

Defendants complain that the billing records submitted by Mr. Little with his opening brief are vague and general and refer to specific entries in the time records submitted with Plaintiffs opening brief. Defendants also asserts that there are numerous emails to Plaintiffs retained experts which fail to provide information as to the nature of the emails, vague entries pertaining to emails to Defendants’ attorneys, and vague entries of “T.C. With D. Ruff re: update.”

“Plaintiffs counsel ... is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures.” Hensley, supra, 461 U.S. at 437 n. 12, 103 S.Ct. 1933 . Even minimal descriptions will pass muster if they establish that the time was spent on matters for which the district court awarded attorney’s fees. See Lytle v. Carl, 382 F.3d 978, 989 (9th Cir. 2004). However, “[w]here the documentation of the hours is inadequate, the district court may reduce the award accordingly.” Hensley, id. at 432, 103 S.Ct. 1933 .

In his reply brief, Plaintiff amended all of the time entries cited by Defendants as inadequate and amplified them with more detail. The Court concludes that the revised time sheets are specific and detailed enough to pass muster.

Plaintiff asserts that his attorney has complied with his duty to exercise billing judgment to “exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley, supra, 461 U.S. at 434 , 103 S.Ct. 1933 . Plaintiff contends:

Plaintiff argues that, where counsel has already to some degree discounted the hours to which he would be entitled to claim, the Court should consider that reduction in assessing the reasonableness of the fee request. As authority, Plaintiff cites Moreno v. City of Sacramento, supra, 534 F.3d at 1113 :

Mr. Little provides no evidence of the amount of time incurred by his assistants or what those assistants did. Consequently, there is no evidence of the amount of time that Plaintiff asserts has been redacted from the fee request. Moreover, Mr. Little provides no evidence by way of declaration that he redacted anything from his billing statements pursuant to the Hensley standard, i.e., excessive, redundant, or otherwise unnecessary. However, given the redactions ordered above, the Court concludes that the award is reasonable,

b. Reasonable Hourly Rate.

Reasonable fees under Section 1988 are calculated according to the prevailing market rates in the relevant legal community. Blum v. Stenson, supra, 465 U.S. at 895 , 104 S.Ct. 1541 . The general rule is that the rates of attorneys practicing in the forum district are used. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.1992); Davis v. Mason County, 927 F.2d 1473, 1478 (9th Cir.), cert. denied, 502 U.S. 899 , 112 S.Ct. 275 , 116 L.Ed.2d 227 (1991). The reasonable hourly rate “is not made by reference to rates actually charged by the prevailing party.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986). The Court should use the prevailing market rate in the community for similar services of lawyers “of reasonably comparable skill, experience, and reputation.” Id.

Plaintiff asserts that $300/hour is a reasonable hourly rate for the Eastern District of California. Mr. Little avers:

Defendants pose no objection to the $300 hourly rate sought by Plaintiff.

The $300 hourly rate is reasonable. Despite his medical troubles, Mr. Little is an experienced and competent civil rights trial lawyer. In Beauford v. E.W.H. Group Inc., 2009 WL 3162249 (E.D.Cal., Sept. 29, 2009), Judge Ishii ruled that a $350 hourly rate was reasonable for the Eastern District. See also Wells Fargo Bank, Nat. Ass’n v. PACCAR Financial Corp., 2009 WL 211386 (E.D.Cal., Jan. 28, 2009) (Judge Ishii ruled that $315 is a reasonable hourly rate). Judge Ishii’s rulings were supported by current affidavits from other counsel. Although Mr. Little would have done better to submit more recent affidavits establishing the current hourly rate being charged by civil rights attorneys of comparable skill and experience, the absence of any objection from Defendants coupled with Judge Ishii’s rulings establishes that the $300.00 hourly rate is reasonable.

4. Interim Award.

In his reply brief, Plaintiff requested that attorney’s fees be paid as part of an interim fee award as permitted under Section 1988.

Defendants objected to this request as prejudicial to them because they were unable to respond to it. Courts generally decline to consider arguments raised for the first time in a reply brief. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992); United States v. Boyce, 148 F.Supp.2d 1069, 1085 (SJD.Cal.2001). Therefore, Plaintiffs request for an interim award of attorney’s fees is denied.

B. PLAINTIFF’S REQUEST FOR BILL OF COSTS.

On October 6, 2009, Plaintiff filed a Bill of Costs, seeking costs in the total amount of $16,887.19.

Defendants object that Plaintiffs Bill of Costs was untimely filed.

Judgment for Plaintiff was entered on September 24, 2009. Rule 54-292(b), Local Rules of Practice, in effect on October 2, 2009, provided:

Effective March 3, 2010, the Local Rules for the Eastern District of California were amended. Rule 292(a), Local Rules of Practice now provides:

Rule 6(a)(1), Federal Rules of Civil Procedure, effective December 1, 2009, provides:

Pursuant to Rule 6(a)(2), the ten day period in which to file the Bill of Costs expired on Monday, October 5, 2009.

Plaintiff argues that, when an applicable time period is less than ten days, intermediate weekend days and holidays are excluded, referring to Rule 6 prior to its amendment and to Rule 6-136, Local Rules of Practice. At the time Plaintiff filed his bill of costs, the amendment to Rule 6 had become effective. Local Rule 6-136 merely refers the party to Rule 6. Plaintiff is charged to know the law. Although the Local Rules of Practice for the Eastern District as amended were not issued until March 3, 2010, Rule 54-292(b) specifically referred the party to Rule 6(a). Rule 6(b)(1), effective December 1, 2009, provides:

Defendants’ objection that Plaintiffs Bill of Costs was untimely filed is well-taken. Although Plaintiff did not seek an extension of time within the original time period and has not filed a motion seeking relief from the time requirement because of excusable neglect, the Court nonetheless concludes that Plaintiffs failure was due to excusable neglect. Plaintiffs counsel clearly was not aware that a long-standing rule of federal procedure had been amended and Plaintiffs Bill of Costs was filed only one day late under the new calculation procedure set forth in Rule 6(a)(2). If the Local Rules as amended on March 3, 2010 had been in effect, Plaintiffs Bill of Costs would have been timely. Defendants’ objection to Plaintiffs Bill of Costs on the ground of untimeliness is rejected.

Plaintiffs Bill of Costs seeks reimbursement for items beyond those allowed by 28 U.S.C. §§ 1821 (pertaining to per diem and mileage generally) and 1920. Specifically, Plaintiff seeks reimbursement for “compensation of court-appointed experts” in the amount of $13,370.48, and for “other costs” in the amount of $1,802.85. In Plaintiffs itemization, the expert fees are $13,000.00 for Barrett Kays and $370.48 for John Bettancourt. In Plaintiffs itemization, the “other costs” are:

Section 1821(a)(1) provides that “[e]xcept as otherwise provided by law, a witness in attendance at any court of the United States ... or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.” A witness “shall be paid an attendance fee of $40 per day for each day’s attendance” and shall be paid “the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.” Section 1821(b). Section 1821(c)(1) provides:

“[P]arking fees (upon presentation of a valid parking receipt), shall be paid in full to the witness incurring such expenses,” Section 1821(c)(3), and “[a]ll normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920.” Section 1821(c)(4). “A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance” which shall be “paid in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services, pursuant to Section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government.” Section 1821(d)(1) & (2). Section 1920 provides that the following costs may be taxed:

Plaintiff contends that costs and expert fees are explicitly recoverable under 42 U.S.C. § 1988 (c).

In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439 , 107 S.Ct. 2494 , 96 L.Ed.2d 385 (1987), the Supreme Court held that expert witness fees are only recoverable pursuant to a contract or explicit statutory authority. In West Virginia University Hospitals v. Casey, 499 U.S. 83 , 111 S.Ct. 1138 , 113 L.Ed.2d 68 (1991), the Supreme Court addressed whether expert fees in civil rights litigation may be shifted to the losing party pursuant to Section 1988. The Supreme Court found that where Congress had intended to provide for the recovery of expert fees, it specifically provided for such recovery and ruled that Section 1988’s provision for a “reasonable attorney’s fee” did not allow for the recovery of expert witness fees. 42 U.S.C. § 1988 (c) was enacted in 1991 to expressly provide:

Here, Plaintiffs action was based on Section 1983, not Section 1981 or Section 1981a. Plaintiff cites no authority that has permitted an award of expert witness fees in a Section 1983 action pursuant to Section 1988(c). The Court’s research indicates that cases are uniform that Section 1988(c) does not apply to a Section 1983 action, relying on the plain wording of the statute and West Virginia University Hospitals v. Casey, supra. See e.g., Frevach Land Co. v. Multnomah County, Dept. of Environmental Services, Land Use Planning Div., 2001 WL 34039133 at *35-36 (D.Or. Dec. 18, 2001). In fact, Plaintiff concedes in his reply brief that he cannot seek reimbursement for expert witness fees. Plaintiffs bill of costs for $13,370.48 in expert witness fees is disallowed.

Defendants argue that Plaintiffs Bill of Costs should be reduced to reflect his limited success in this action. For the reasons stated supra, this contention is rejected.

Defendants argue that Plaintiffs Bill of Costs for $1,252.56 in fees for exemplification and copies of papers necessarily obtained for use in the case should be reduced by $1,241.39. Defendants refer to the following itemization attached to Plaintiffs Bill of Costs:

As to April 15, 2009 copying costs, Defendants assert that they received no production of documents from Plaintiff on or about April 15, 2009, and that the receipt indicates “services” in the amounts of $56.00 and $211.06, as well as burning or scanning of a CD in the amount of $8.97, and a “services/handplace” in the amount of $179.75. As to the September 11, 2009 Office Depot receipts, the costs include Post-It tabs, a Sharpie pen, computer printer ink, costs, for indexing, binding and labor, none of which, Defendants assert, are taxable.

Defendants assert that Plaintiffs Bill of Costs for $151.30 for fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case should be reduced by $129.80 paid to Al Cala and Associates for John Bettancourt’s deposition transcript. Defendants note that the deposition transcript was not ordered until one week prior to the trial and Mr. Bettancourt was not called as a witness in this action.

As to Plaintiffs “Other Costs,” Defendants that the Public Records Fee to the Kings Waste and Recycling Authority and the Postal Annex mailing fees are not recoverable costs under Section 1920. With regard to the parking fees, Defendants note that Plaintiff fails to identify on whose behalf the parking fees were incurred, i.e., for a specific witness or Plaintiffs counsel. As to the lodging fees for Plaintiffs son, Hannaniah Ruff, at Motel 6 on September 14, 2009 and at La Quinta on September 21 and 22, 2009, Defendants note that Hannaniah Ruff testified as a witness on the second day of the trial, September 16, 2009. Defendants assert:

Plaintiff replies that Defendants’ contentions “conflate 28 U.S.C. § 1920 with 42 U.S.C. § 1988 .” Plaintiff concedes that his Bill of Costs seeks reimbursement for items beyond those allowed by Section 1821 and 1920, but, Plaintiff asserts, the reason for this is that such costs are taxable in a civil rights action pursuant to Section 1988. “Under § 1988, the prevailing party ‘may recover as part of the award of attorney’s fees those out-of-pocket expenses that “would normally be charged to a fee paying client,” ’ ” Dang v. Cross, 422 F.3d 800, 814 (9th Cir.2005), even if the court cannot tax these expenses as “costs” under Section 1920. Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994). Such out-of-pocket expenses are recoverable when reasonable. Dang, id.

Defendants do not contend that the “Other Costs” are not ones that would normally be charged to a fee-paying client; they only argue that the challenged costs were not necessary or were not taxable under Section 1920. Nonetheless, an attorney would not normally charge a fee paying client for hotel bills for a witness and some unidentified person for a number of days when that witness only testified on one day. Plaintiffs bill of costs is reduced by the amount of $318.54.

C. DEFENDANTS’ REQUEST FOR BILL OF COSTS.

On October 2, 2010, Defendants County of Kings and Mark Sherman timely filed a Bill of Costs, seeking costs in the total amount of $2,210.49, representing one half of the costs incurred by Defendants in the action.

Plaintiff, referring to his then pending motion for declaratory relief against the County of Kings, (Doc. 199), argued that the County’s liability for prospective relief dictates that it is not a prevailing party in this action. However, Plaintiffs motion for declaratory relief was denied by Memorandum Decision and Order filed on December 18, 2009, 2009 WL 5111766 (Doc. 236), as was Plaintiffs motion for reconsideration. (Doc. 248).

As to Defendant Mark Sherman, Plaintiff objects that he has failed to show that, despite indemnification rights under California Government Code §§ 825 and 825.2, he is actually personally hable for paying any defense costs. Plaintiff cites Chew v. Gates, 27 F.3d 1432, 1436 (9th Cir.1994) and Farmers Ins. Group v. County of Santa Clara, 36 Cal.App.4th 91 , 31 Cal.Rptr.2d 874 (1994). Plaintiff contends:

However, there is no such discussion in Chew v. Gates. And as Defendants note, the lower court opinion in Farmers Ins. Group 40 was reversed by the California Supreme Court in Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992 , 47 Cal.Rptr.2d 478 , 906 P.2d 440 (1995). In the lower court opinion, a deputy sheriff and his homeowner’s insurer brought an action against the county seeking indemnity pursuant to Government Code §§ 825.2 and 996 for attorney fees, costs, and settlement payment in an action by female deputies alleging sexual harassment. The Court of Appeal held that the deputy’s conduct was within his “scope of employment” and, therefore the county was required to indemnify the deputy sheriff. The Supreme Court reversed, holding that sexual harassment was not within the scope of employment even though it occurred during work hours in a workplace that could be characterized as traditionally male dominated. Moreover, the County is a prevailing party in this action because the jury found for the County and the Court denied Plaintiffs motion for declaratory relief.

Plaintiff concedes that, as a general rule, a prevailing party whose costs are paid by a third party is still entitled to seek costs from a losing party. Plaintiff cites Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir.1991) (costs under Rule 54(d) could be awarded to a prevailing city even though the costs were incurred by the city’s insurer; to rule otherwise would allow plaintiffs to bring lawsuits against insured defendants without incurring litigation costs after losing on the merits); see also Safway Rental & Sales Co. v. Albina Engine & Machine Works, Inc., 343 F.2d 129, 135 (10th Cir. 1965). However, Plaintiff argues, the “role of defendant Sherman’s indemnitor, Kings County, is not merely one of an insurer but rather one of a codefendant who is not entitled to seek costs.” Therefore, Plaintiff contends, Kings County is more aptly characterized as a party to a joint defense rather than Defendant Sherman’s insurer. Plaintiff argues that “[t]he third party insurer rule is inapplicable in the joint defense context; typically, parties to a joint defense or cost sharing arrangement are entitled to recover only that portion of costs they actually paid thereunder.” Unless Defendant Sherman can demonstrate that he actually paid the joint defense costs for which he seeks reimbursement, Plaintiff asserts the Bill of Costs should be denied as to Defendant Sherman. Plaintiff cites Smith v. Hughes Aircraft Co., 10 F.3d 1448, 1453 (9th Cir. 1993) and Truck Components, Inc. v. Beatrice Co., 1996 WL 402520 (N.D.Ill, July 15, 1996), as authorizing reimbursement to a joint defense or cost sharing defendant based on the amount of costs for which the defendant was actually responsible.

There is no discussion of such a rule in either of these cases.

Defendants respond that there is no evidence that the County and Defendant Sherman are co-insurers or entered into any cost sharing agreement:

The fact that the County was also a named defendant in this matter has no bearing on whether Mr. Sherman, as a prevailing party, may recover his costs.

Plaintiffs contention that the joint defense or cost-sharing rule applies to preclude the taxing of costs as to Defendant Sherman is without merit. First of all, the County is a prevailing party and entitled to seek costs. Secondly, as a public employee whose defense was provided by the County, Defendant Sherman would not have been liable for any of these costs.

Plaintiff objects to Defendants’ Bill of Costs for $737.50 in fees for service of summons and subpoena, itemized in Exhibit A to the Bill of Costs. Plaintiff asserts:

Exhibit A shows that the stated expenses were not merely for service but also for investigative-type expenses. The latter categories are not subject to reimbursement under 28 U.S.C. § 1821 and 1920. Since the defendants have failed to separate the compensable and non-compensable expenses under this item, it should be altogether denied. Moreover, there is a $193.00 expense for a trial subpoena serve [sic] on Jan Reynolds, who did not even testify at trial.

Exhibit A to Defendants’ Bill of Costs includes two invoices from Doug Stokes Investigations for the service of six presumably trial subpoenas in late May-early June, 2009 and for the service of a trial subpoena on Jan Reynolds. Fees for service of trial subpoenas by private process servers are taxable as costs. See Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175,178 (9th Cir.1990).

Defendants respond that Exhibit A to Defendants’ Bill of Costs documents the steps that were necessarily taken in order to effectuate service of the various subpoenas. The invoice for service of the six trial subpoenas in late May-early June, 2009 shows the following activity log:

5-29-09

• Dropped off old subpoenas and picked up new

• Drove to Armona and served Rita Brown (she understands Ruff brothers are still living out of state)

• Drove to 533 W. Ivy, Hanford and attempted to serve Brieno

• Drove to 208 Scott St., Hanford and served Tammy Sanders

• Drove to 9549 Eastview Dr., Hanford and spoke with Mr. Ruff who refused to give information regarding his wife’s whereabouts

3.5hr/124 mi

5-S0-09

• Drove to Eastview Dr., Hanford — no answer, spoke with neighbors who state they have not seen Edith [Ruff] for a month or so

• Drove to Ivy address and served Brieno (he stated that D. Ruff is separated from his wife and Edith is living in Fresno with her mother)

3 hr/120 mi

6-1-09

• Spoke with Dillahunty regarding information obtained

• Ran skip trace check for E. Ruff in Fresno — no new addresses

• Created activity log 1 hr

6-3-09

• Returned proof of service and unserved subpoenas

5 mi

BILLING

7.5 hrs @ $70/hr = $ 525.00

254 mi @.50/mi = $ 127.00

$ 652.00

Defendants assert that, just as defendants are entitled to recover witness fees paid to a witness who was not called to testify, Defendants should be entitled to recover costs incurred in subpoenaing a trial witness who was not ultimately called to testify.

Plaintiff objects to Defendants’ Bill of Costs for $3,326.95 for fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case. Defendants’ itemization of its Bill of Costs reflects deposition transcripts of Plaintiff, John Bettancourt, Barrett L. Kays, Art Brieno, Tammye Sanders, and Rita Brown. Plaintiff asserts that the record shows that Defendants did not call any of the deponents as witnesses at trial and deponents John Bettancourt and Rita Brown did not testify at all.

Deposition costs are taxable if they are reasonably necessary for trial. Evanow v. MfV Neptune, 163 F.3d 1108, 1118 (9th Cir.1998). “‘Whether a transcript or deposition is “necessary” must be determined in light of the facts known at the time the expense was incurred....’” Sunstone Behavioral Health, Inc. v. Alameda County ..., 646 F.Supp.2d 1206, 1219 (E.D.Cal.2009), citing Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.1993). Defendants assert:

Plaintiff objects to Defendants’ Bill of Costs for $200 for fees for witnesses. Defendants’ itemization of its Bill of Costs indicates $40.00 for the depositions of John Bettancourt, Barrett Kays, Art Brieno, Rita Brown, and Tammye Johnson [sic]. Plaintiff asserts that Defendants are not entitled to obtain reimbursement for expert witness fees or fees for witnesses who were not necessary for trial under 28 U.S.C. §§ 1821 or 1920. Plaintiff contends:

Plaintiffs objections are without merit. Both Rule 54-292 and Rule 292, Local Rules of Practice, provide that items taxable as costs include “[p]er diem, mileage and subsistence for witnesses ( 28 U.S.C. § 1821 ).” Section 1821(a)(1) and (b) provides for the payment of the statutory fee of $40.00 per day for a witness’s attendance “before any person authorized to take his deposition pursuant to any rule or order of a court of the United States.”

Plaintiffs objections are without merit. Defendants’ bill of costs is allowed as an offset to the costs allowed to Plaintiff.

CONCLUSION

For the reasons stated:

1. Plaintiffs motion for attorney’s fees is GRANTED;

2. Plaintiff is awarded attorney’s fees in the amount of $198,615.00 (662.05 hrs. x $300.00 hr.);

3. Plaintiffs Bill of Costs is taxed at the total amount of $3,198.17,. offset by $ $2,210.48 for Defendants County of Kings and Mark Sherman’s Bill of Costs, for a total taxable cost to Plaintiff of $967.68.

3. Plaintiffs counsel shall prepare and lodge a form of order consistent with this Memorandum Decision within five (5) court days following service of this Memorandum Decision.

IT IS SO ORDERED.