Schoenmann v. Pacific Securitization, Inc. et al

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
LORI MAC, INC.,
Debtor.
E. LYNN SCHOENMANN, Trustee,
Plaintiff,
vs.
PACIFIC SECURITIZATION, INC.,
PACIFIC SPORTS SECTION, INC.,
JOHN OLIVERO, and JOHN OLIVERO,
III,
Defendants.
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Case No. 07-30165 TEC
Chapter 7
Adv. Proc. No. 07-3136 TC
MEMORANDUM RE DEFENDANT’S MOTION TO VACATE TAXATION OF COSTS
On April 7, 2011, the court entered judgment for Plaintiff
Trustee, E. Lynn Schoenmann (“Trustee”) against Defendant Pacific
Sports Section, Inc. (“PSS”).
On April 19, 2011, Trustee personally served PSS service with
a copy of the Bill of Costs (the “Bill of Costs”).
On April 22, 2011, Trustee filed the Bill of Costs for
$8,058.18, which included charges of $323.08 for messenger services
MEMORANDUM RE MOTION TO VACATE
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Signed and Filed: December 2, 2011
________________________________________
THOMAS E. CARLSON U.S. Bankruptcy Judge
Entered on Docket
December 05, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 07-03136 Doc# 100 Filed: 12/02/11 Entered: 12/05/11 12:09:44 Page 1 of
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and $60.00 for telephonic court appearances.
On May 3, 2011, PSS filed an objection to the Bill of Costs,
alleging inter alia, that the Bill of Costs was not filed timely
pursuant to Civil Local Rule 54-1(a),(c).
On May 6, 2011, Trustee filed a response to PSS’s objection,
alleging inter alia, that the 1-day delay in filing the Bill of
Costs was a result of excusable neglect. 	The court construes
Trustee’s response as a motion to enlarge time to file the Bill of
Costs based on excusable neglect.
The Clerk of the Bankruptcy Court did not take any action on
the Bill of Costs.
On October 10, 2011, Trustee filed an Amended Bill of Costs
(the “Amended Bill of Costs”) for $7,675.10, which omitted charges
for messenger services and telephonic court appearances.
On October 11, 2011, the Clerk of the Bankruptcy Court taxed
costs against James S. Monroe, Esq. in the amount of $7,675.10.
On October 18, 2011, PSS filed a motion to vacate the clerk’s
taxation of costs (“Motion to Vacate”).
On November 18, 2011, the court held a hearing on the Motion
to Vacate. 	James S. Monroe appeared for PSS. 	Aron M. Oliner
appeared for Trustee. 	Upon due consideration, and for the reasons
stated on the record at the hearing, the court hereby resolves the
motion as follows:
(1) The Motion to Vacate should be denied. 	The Trustee was
the prevailing party against PSS and the time limits for filing a
bill of costs pursuant to Federal Rule of Civil Procedure 54(d)(1)
may be enlarged under Federal Rule of Bankruptcy Procedure
9006(b)(1) for excusable neglect, which is present in this case,
MEMORANDUM RE MOTION TO VACATE
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because there is no prejudice to PSS, because a 1-day delay in
filing the Bill of Costs is de minimis, because PPS was personally
served with a copy of the Bill of Costs within 14 days after entry
of the judgment, and because there is no evidence of bad-faith by
Trustee.
(2) The request to reduce the amount of taxed costs should be
denied, because the Amended Bill of Costs does not include charges
for messenger services or telephonic appearances, because costs for
reproducing discovery documents and trial exhibits are recoverable,
and because PSS raised for the first time at the hearing that the
Amended Bill of Costs included excessive costs for photocopying.
(3) The Amended Bill of Costs should be taxed and enforceable
against only PSS and should not be taxed and enforceable against:
(a) Pacific Securitization, Inc.; (b) John Olivero; (c) John
Olivero III; or (d) James S. Monroe, Esquire.
**END OF MEMORANDUM**
MEMORANDUM RE MOTION TO VACATE
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Court Service List
Pacific Sports Section, Inc.
655 Montgomery Street, Suite 800
San Francisco, CA 94111
Case: 07-03136 Doc# 100 Filed: 12/02/11 Entered: 12/05/11 12:09:44 Page 4 of
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