Brubaker et al v. Tucson, City of et al

Filing 226

ORDERED that the Motion to Extend Time (Doc. 218 ) is GRANTED. IT IS FURTHER ORDERED that the Motion for Review of Judgment on Taxation of Costs (Doc. 219 ) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall amend the Judgment on Taxation of Costs to be: $3,674.35. Review attached Order for details. Signed by Senior Judge David C Bury on 11/2/2020. (MCO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Brubaker, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-10-00649-TUC-DCB

City of Tucson, et al.,

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Defendants.

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On May 7, 2020, this Court denied attorney fees for Defendants, who prevailed at

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trial on a Rule 50 motion in this civil rights action and referred the question of taxable costs

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to the Clerk of the Court for consideration. (Order (Doc. 212)). On May 19, the Clerk

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denied the taxable costs because Defendants failed to file the Bill of Costs on an AO133

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form with supporting documents. The Clerk marked their filing deficient and ordered them

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to file a new Bill of Costs using the AOform within 7 business days. On May 20, 2020, the

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Defendants filed the AO-Bill of Costs form and included an exhibit captioned Motion for

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Taxable Costs. (Doc. 215.) The Plaintiff responded that the motion was untimely and that

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the Defendants mistakenly referenced Arizona Rule 54(f), not Fed. R. Civ. P. 54.1(a).

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(Objection (Doc. 216)). The original motion for costs was included in the Motion for

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Attorney Fees and Costs (Doc. 199). The Court finds the objections, especially to the

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timeliness of the Motion for Costs, to be one of form rather than substance.

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On July 16, 2020, the Clerk entered a Taxation Judgment for $4,282.65, mistakenly

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citing “no objection” from the Plaintiff. Subsequently, the Plaintiff has filed a Motion to

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Extend Time to File a Motion for Review of the Judgment on Taxation of Costs (Doc. 218)

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and the Motion for Review of the Judgment on Taxation of Costs (Doc. 219). The Plaintiff

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explains that his attorney, Mr. Risner, was sick with COVID-19 and that COVID-fog

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caused him to miss the deadline for filing the Motion for Review of the Judgment on

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Taxation Costs. In the Motion for Review, Plaintiff points out that he did file a Response

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(Doc. 216) to the new Motion for Costs/AOform Bill of Costs. Plaintiff argues,

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substantively, that this Court should exercise its discretion and deny costs because of his

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dire financial condition, which in large part has been caused by the incidents in the lawsuit.

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Id. When it denied the Defendants’ Motion for Attorney Fees, the Court considered the

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financial circumstances of the Plaintiff and the importance of civil rights litigation cannot

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be overstated as leverage for ordinary people in forcing the government to take the

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Constitution seriously. (Order (Doc. 212) at 1 (citing Champion Produce, Inc. v. Ruby

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Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 2003)). The Court will not exercise this

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discretion again.

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The Court rejects the Defendants’ arguments against extending time for the Plaintiff

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to file the Motion for Review (Response (Doc. 220), especially since Defendants

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previously admitted that the invoice from Inter-State in the amount of $620.80 does not

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reflect costs and that “Defendants are entitled to recover $3,674.35 in costs, not $4,282.65.

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(Reply (Doc. 206)).

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Accordingly,

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IT IS ORDERED that the Motion to Extend Time (Doc. 218) is GRANTED.

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IT IS FURTHER ORDERED that the Motion for Review of Judgment on

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Taxation of Costs (Doc. 219) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall amend the
Judgment on Taxation of Costs to be: $3,674.35.
Dated this 2nd day of November, 2020.

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