Fox v. Arizona, State of et al

Filing 196

ORDER: Plaintiff's Objection to Defendants' Bill of Costs (Doc. 192 ) is sustained in part and overruled in part. The Court awards Defendants State of Arizona and Van Winkle $3,112.18 in costs and Defendant McClelland $4,925.32 in costs. Signed by Judge Michael T. Liburdi on 3/28/2024. (LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marcella Fox,

No. CV-21-01089-PHX-MTL
Plaintiff,

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v.

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State of Arizona, et al.,

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ORDER

Defendant.

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Before the Court is Plaintiff’s Objection to Defendants’ Bill of Costs (Doc. 192),

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to which Defendant McClelland filed a Reply in Support of Bill of Costs (Doc. 193). The

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Court rules as follows.

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I.

BACKGROUND

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In 2022, Plaintiff filed an Amended Complaint (Doc. 33) alleging claims for assault,

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battery, false imprisonment, intentional infliction of emotional distress, negligence, and

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violation of equal protection under Section 1983 against the State of Arizona, Jason

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McClelland, and Jeffrey Van Winkle. The claims arose out of Plaintiff’s allegation that

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Defendant McClelland sexually assaulted her while they were both employed at the

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Arizona Department of Correction, Rehabilitation, and Reentry prison facility.

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(Id. ¶¶ 107-52.)

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On July 3, 2023, the Court dismissed Plaintiff’s claims of assault and battery, false

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imprisonment, and intentional infliction of emotional distress against Defendant State of

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Arizona. (Doc. 165.) On November 7, 2023, the Court entered summary judgment in favor

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of Defendants, thereby dispensing with Plaintiff’s sole surviving claims. (Doc. 177.)

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Defendant McClelland then filed a bill of costs totaling $9,850.64 and Defendants State of

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Arizona and Van Winkle filed a joint bill of costs totaling $6,763.45. (Docs. 181, 183.) On

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December 4, 2023, Plaintiff filed objections to the bill of costs. (Doc. 192.) Defendant

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McClelland replied on December 11, 2023. (Doc. 193.)

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II.

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LEGAL STANDARD
28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax several

classes of enumerated costs. Taxable costs include:
(1) Fees of the clerk and marshal; (2) Fees for printed or
electronically recorded transcripts necessarily obtained for use
in the case; (3) Fees and disbursements for printing and
witnesses; (4) Fees for exemplification and the costs of making
copies of any materials where the copies are necessarily
obtained for use in the case; (5) Docket fees under 28 U.S.C. §
1923; (6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, expenses, and
costs of special interpretation services under 28 U.S.C. § 1828.
28 U.S.C. §1920.

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Pursuant to Federal Rule of Civil Procedure 54(d)(1), authorized costs “should be

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allowed to the prevailing party unless a court, federal statute, or the federal rules otherwise

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direct.” Thus, “the rule creates a presumption in favor of awarding costs to a prevailing

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party, but vests in the district court discretion to refuse to award costs.” Ass’n of Mexican-

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Am. Educators v. State of Cal., 231 F.3d 572, 591 (9th Cir. 2000). But the “discretion is

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not unlimited.” Id. Therefore, “[a] district court must specify reasons for its refusal to award

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costs.” Id. (cleaned up). The requirement to “give reasons for denying costs is, in essence,

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a requirement that the court explain why a case is not ‘ordinary’ and why, in the

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circumstances, it would be inappropriate or inequitable to award costs.” Id. at 593.

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Appropriate reasons for denying costs include: “(1) the substantial public

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importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the

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chilling effect on future similar actions, (4) the plaintiff's limited financial resources, and

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(5) the economic disparity between the parties.” Escriba v. Foster Poultry Farms, Inc.,

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743 F.3d 1236, 1247-48. These indicators are “not an exhaustive list of good reasons for

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declining to award costs, but rather a starting point for analysis.” Id. at 1248 (cleaned up).

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Ultimately, the losing party bears the burden of demonstrating why costs should not be

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awarded to the prevailing party. Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th

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Cir. 2003).

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III.

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ANALYSIS
A.

Taxable Costs
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Substantial Public Importance

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The Ninth Circuit has found substantial public importance in cases that carry

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implications beyond the immediate parties involved. For instance, in Association of

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Mexican-American Educators, plaintiffs raised an issue of substantial public importance

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because “the action affect[ed] tens of thousands of Californians and the state’s public

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school system as a whole.” 231 F.3d at 593. Similarly, in Escriba, the court noted evidence

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suggesting that the plaintiff’s claim under the Family and Medical Leave Act was of the

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type that could “establish the parameters of what constitutes sufficient employee notice”

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and furthermore “potentially had a much broader application to the workplace” 743 F.3d

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at 1248 (cleaned up).

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Plaintiff asserts that she brought her claim in part to “prevent others working in

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Arizona prisons from experiencing sexual harassment in the workplace.” (Doc. 192 at 7.)

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The prevention of such wrongs is, of course, important. But Plaintiff’s claims lack the sort

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of far-reaching implications evident in Association of Mexican-American Educators and

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Escriba necessary to invoke an issue of substantial public importance.

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In a similar case, an employee of a Florida jail filed civil rights claims against her

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employer stemming from allegations of sexual harassment. Valdez v. Miami-Dade Cnty.,

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Fla., No. 19-20647-CIV, 2020 WL 6140472, at *1 (S.D. Fla. June 23, 2020), report and

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recommendation adopted sub nom. Valdez v. Miami-Dade Cnty., No. 19-20647-CIV, 2020

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WL 6114879 (S.D. Fla. July 16, 2020). Having prevailed at the summary judgment stage,

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the defendant sought costs pursuant to Fed. R. Civ. P. 54(d)(1). Id. The District Court,

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considering Ninth Circuit law, rejected the plaintiff’s argument that her status as a female

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employee working in the jail system “should be deemed of high public importance to rebut

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the presumption favoring costs.” Id. at *2. Noting that the issues raised in Association of

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Mexican-American Educators concerned “vital civil rights for women in the workplace”

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the court found that, by comparison, the plaintiff provided no “compelling reason to deny

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Defendant’s rightful award of costs in a straightforward employment case that had little

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consequences outside of the immediate parties involved.” Id.

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Here, Plaintiff’s claims carried some potential to affect the practices of Arizona

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prisons. But the same could be said anytime a claim of a similar nature is brought against

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a government employer. Absent a clearer demonstration that the outcome of Plaintiff’s

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claims carried wider consequences for the public, Plaintiff’s claims do not exceed the

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bounds of a controversy between the involved parties. See Mosavi v. Mt. San Antonio Coll.,

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No. LACV-15-04147-VAP-AFMX, 2018 WL 6219864, at *3 (C.D. Cal. Nov. 15, 2018)

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(“[T]his case amounted to a dispute between two people about whether sexual assault,

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religious harassment, retaliation, and violence took place. Although every case alleging a

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potential civil rights violation is important, the present case is not ‘extraordinary’ as

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defined by the Ninth Circuit.”). Thus, this factor weighs against Plaintiff.

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2.

Closeness and Difficulty of the Issues

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Courts have found close and difficult issues under a variety of circumstances. For

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instance, a party may have raised an issue of first impression within a Circuit. See e.g.,

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Mansourian v. Bd. of Regents of Univ. of California at Davis, 566 F. Supp. 2d 1168, 1172

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(E.D. Cal. 2008). A case may be close and difficult because it necessarily turns on a close

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factual or legal determination. See e.g., Draper v. Rosario, 836 F.3d 1072, 1088 (9th Cir.

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2016); Escriba, 743 F.3d at 1248. Surviving summary judgment, though not determinative,

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is also evidence of a close and difficult issue. Compare Economus v. City & Cnty. of San

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Francisco, No. 18-CV-01071-HSG-DMR, 2019 WL 3293292, at *3 (N.D. Cal. July 5,

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2019), report and recommendation adopted, No. 18-CV-01071-HSG, 2019 WL 3290761

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(N.D. Cal. July 22, 2019) (noting that “[t]he fact that Defendants prevailed at the summary

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judgment stage does not mean the issues presented were not close or difficult”) with

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Hamilton v. Yavapai Cmty. Coll. Dist., No. CV-12-08193-PCT-GMS, 2022 WL 504474,

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at *2 (D. Ariz. Feb. 18, 2022) (concluding that the “case was far from an easy one” because

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“[t]he litigation lasted for the better part of a decade, and several of Plaintiff's claims

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survived motions to dismiss, for judgment on the pleadings, and for summary judgment”).

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Here, Plaintiff’s claims did not raise an issue of first impression within the Ninth

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Circuit. See e.g., Mansourian, 566 F. Supp. 2d at 1172. And ultimately, Plaintiff’s last

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surviving claims were defeated at summary judgment. (Doc. 177.) The Court finds that

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Plaintiff’s claims were far from frivolous, and she pursued them in a good faith effort to

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vindicate her rights. But her claims did not raise especially close and difficult issues such

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that this is an extraordinary case. Thus, this factor weighs against Plaintiff.
3.

Chilling Effect

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Plaintiff argues that awarding costs in this case will create a chilling effect

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preventing future civil rights litigants from pursuing similar cases. (Doc. 192 at 5.)

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Defendant McClelland counters that an allegation of sexual assault or harassment is not by

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itself a basis to deny costs and moreover that the amount of costs at stake is insufficient to

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deter future litigants. (Doc. 193 at 6.)

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Litigation is not without its risks and “liability for costs is a normal incident of

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defeat.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). Yet the Ninth Circuit

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recognizes a countervailing policy to not unduly discourage “civil rights litigants who are

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willing to test the boundaries of our laws.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1080

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(9th Cir. 1999). While Plaintiff’s claims failed, it is possible that others could bring facially

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similar yet viable claims. Awarding costs in an unsuccessful but non-frivolous claim could

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cause these individuals to hesitate to bring their own meritorious claims. It is true that the

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costs Defendants seek are not extraordinarily high. Cf. Ass’n of Mexican-Am. Educators,

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231 F.3d 572, at 591, 593 (concluding that costs in the amount of $216,443.67 were

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“extraordinarily high”). But “even modest costs can discourage potential plaintiffs

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who . . . earn low wages.” Escriba, 743 F.3d at 1249. Given that government employees

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earning modest salaries are those most likely to bring claims similar to Plaintiff’s, this is

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an especially relevant consideration. Thus, this factor weighs in favor of Plaintiff.
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Plaintiff’s Limited Financial Resources

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“Costs are properly denied when a plaintiff ‘would be rendered indigent should she

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be forced to pay’ the amount assessed.” Escriba, 743 F.3d at 1248 (quoting Stanley v. Univ.

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of S. Cal., 179 F.3d 1079, 1080). A plaintiff seeking to avoid paying costs is not required

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to “provide any evidence of her financial situation, but she does have the burden of

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demonstrating that [the] general presumption in favor of Defendants’ costs does not apply.”

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Greene v. Buckeye Valley Fire Dep’t, No. CV-11-02351-PHX-NVW, 2013 WL 12160997,

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at *1 (D. Ariz. July 16, 2013). Furthermore, a plaintiff’s mere declaration of financial

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hardship may be insufficient to carry the burden. Id.

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Plaintiff argues that requiring her to pay Defendants’ costs would create a

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significant financial hardship for her. (Doc. 192 at 4.) She states that she has faced a period

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of unstable employment since the events underlying the subject litigation and consequently

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“lost approximately $28,510.82 in wages or reduced earnings between July 2020 and

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February 2022.” (Id. at 5.)

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Although bearing Defendants’ costs may financially strain Plaintiff, she has not

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demonstrated that paying such costs would render her indigent. Accordingly, this factor

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weighs against Plaintiff.

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5.

Economic Disparity Between the Parties

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To support her contention that she should not have to pay Defendants’ costs,

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Plaintiff points to the vast economic disparity between her and the State of Arizona. (Doc.

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192 at 5.) Defendant Van Winkle was represented by the State of Arizona and these two

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Defendants filed a joint bill of costs. (Doc. 183.) Moreover, Plaintiff asserts that Defendant

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McClelland’s costs were paid by the State, an assertion which Defendant McClelland did

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not contest. (Doc. 192 at 5; Doc. 193.) “[B]y failing to address arguments in an opposition,

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a party effectively concedes a claim.” Thompson v. Isagenix Int’l, LLC, No. CV-18-04599-

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PHX-SPL, 2020 WL 1432840, at *4 (D. Ariz. Mar. 24, 2020), aff’d, 849 F. App’x 712 (9th

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Cir. 2021), and aff’d, 849 F. App’x 712 (9th Cir. 2021) (citing Jenkins v. County of

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Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)). Thus, the Court considers the State of

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Arizona’s resources for the purposes of assessing economic disparity between parties.

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As a general principle, “financial disparity almost always exists between individual

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plaintiffs litigating against . . . large defendants such as corporations or governments.” Van

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Horn v. Dhillon, No. 08-CV-01622-LJO-DLB, 2011 WL 66244, at *4 (E.D. Cal. Jan. 10,

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2011). Accordingly, “disparity alone is insufficient to overcome the presumption in favor

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of awarding costs.” Ayala v. Pac. Mar. Ass’n, No. C08-0119-TEH, 2011 WL 6217298, at

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*2 (N.D. Cal. Dec. 14, 2011).

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Nevertheless, disparity is a consideration. Undoubtedly, there is a substantial

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economic disparity between Plaintiff and the State. This factor weighs in favor of Plaintiff.

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Overall, however, Plaintiff has failed to demonstrate that this is an extraordinary

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case such that Defendants should be denied their costs outright. Yet the Court recognizes

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the potential chilling effect that awarding costs may produce, as well as the economic

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disparity between parties. These factors are sufficient to warrant a reduction in costs. See

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Cornfield v. Pickens, No. CV-16-00924-PHX-ROS, 2018 WL 8262770, at *3 (D. Ariz.

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Mar. 22, 2018), aff’d sub nom. Cornfield v. Thompson, 765 F. App'x 387 (9th Cir. 2019)

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(reducing costs in a meritless claim solely because plaintiffs had limited financial means

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and awarding over twenty-thousand dollars in costs “would have a disproportionate

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chilling effect on civil rights litigants”). As discussed above, the costs involved here are

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not extraordinary but still sufficient to deter similarly positioned litigants from pursuing

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similar claims. Reducing costs is an appropriate measure to “strike[] the proper balance

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between the presumption in favor of awarding [a prevailing party’s] costs and the

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discretionary factors” militating against granting costs. Magdaluyo v. MGM Grand Hotel,

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LLC, No. 2:14-CV-01806-APG-GWF, 2018 WL 3429684, at *4 (D. Nev. July 16, 2018).

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In this instance, the Court finds that reducing the Defendants’ costs by 50% strikes the

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appropriate balance.

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B.

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Plaintiff additionally argues that Defendants violated LRCiv. 54.1 by failing to

Insufficient Documentation

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include sufficient documentation to support some taxable costs. (Doc. 192 at 1-3.)

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Specifically, Plaintiff claims that Defendants failed to support their claim of $539.10 as the

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cost for obtaining Defendant Van Winkle’s deposition transcript because the supporting

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.pdf file containing the invoice is illegible. (Id.) In addition, Plaintiff takes issue with

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Defendants’ claim of docket fees, for which documentation was not provided. (Id. at 3.)

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Taxable costs are recoverable “‘with strict compliance’ to the Federal Rules of Civil

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Procedure Rule 54(d)(1), Local Rules of Civil Procedure Rule 54.1(a), and 28 U.S.C.

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section 1920.” Felix v. Pic-N-Run, Inc., No. CV-09-8015-PCT-JAT, 2012 WL 551645, at

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*5 (D. Ariz. Feb. 21, 2012). LRCiv. 54.1(a) requires a party to file a bill of costs within

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fourteen days of entry of final judgment. The bill of costs “shall include a memorandum of

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the costs and necessary disbursements, so itemized that the nature of each can be readily

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understood, and, where available, documentation of requested costs in all categories must

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be attached.” LRCiv. 54.1(a). Plaintiff is correct that the referenced .pdf file appears to be

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damaged and therefore is impossible to read. As a result, the transcript costs are not

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properly supported with documentation. Furthermore, Defendants State of Arizona and

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Van Winkle failed to remedy the defect within the fourteen-day period allotted to claim

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costs. Thus, Defendants did not strictly comply with the local rules. Therefore, the Court

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will strike the $539.10 claimed for obtaining Defendant Van Winkle’s deposition transcript

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from Defendants’ taxable costs.

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The $5 docket fee at issue is set by statute. See 28 U.S.C. §1923(a). Defendants are

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not required to attach additional documentation. Thus, the docket fee is properly claimed.

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Accordingly, Defendants State of Arizona and Van Winkle will be awarded

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$3,112.18 to reflect the elimination of the ineligible transcript cost and the 50% reduction

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while Defendant McClelland will be awarded $4,925.32 in accordance with the 50%

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reduction also applicable to his costs.

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….

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….

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….

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V.

CONCLUSION

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Accordingly,

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IT IS ORDERED that Plaintiff’s Objection to Defendants’ Bill of Costs (Doc. 192)

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is sustained in part and overruled in part.
IT IS FURTHER ORDERED that the Court awards Defendants State of Arizona
and Van Winkle $3,112.18 in costs and Defendant McClelland $4,925.32 in costs.
Dated this 28th day of March, 2024.

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