Morgal v. Jacobs et al

Filing 209

ORDER: Morgal's Objection to Costs (Doc. 205 ) is Sustained in Part and Overruled in Part. The Judgment on Taxation of Costs (Doc. 204 ) is VACATED. The Clerk of Court is directed to issue a Judgment on Taxation of Costs with costs taxed for Williams and against Morgal in the amount of $1,000. Signed by Judge Cindy K Jorgenson on 10/18/2016. (See attached PDF for complete information)(DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Allan K. Morgal,
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Plaintiff,
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vs.
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Edward Williams,
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Defendant.
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No. CV 12-280-TUC-CKJ
ORDER

Pending before the Court is the Objection to Costs (Doc. 205) filed by Allan
Kenneth Morgal (“Morgal”). A response has been filed (Doc. 208).

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Procedural History

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On April 13, 2016, a judgment pursuant to a jury verdict was entered in favor of

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Edward Williams (“Williams”) and against Morgal. On April 25, 2016, counsel for

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Williams submitted a Bill of Costs totaling $7,196.94 and supporting documentation

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(Doc. 201). An exhibit to the response indicates that Morgal signed for mail from

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counsel’s office on April 29, 2016 (Doc. 208-1). On May 13, 2016, the Clerk of Court

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entered a Judgment on Taxation of Costs in the amount of $7,196.94 (Doc. 204). The

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docket sheet does not indicate that a copy of the Judgment on Taxation of Costs was

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mailed to Morgal by the Clerk of Court.

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On June 20, 2016, Morgal filed an Objection to Costs. Morgal asserts an improper

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service of the Bill of Costs (Doc. 201) was attempted (Doc. 205) and that he did not

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receive a copy of the Judgment on Taxation of Costs (Doc. 208). He also objects to the

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costs of the transcripts of Marc Puliuchio, Ramond Grewe, Cameron Lindsay and Eldon

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Vail as those persons were not used at trial nor did they have any knowledge of the

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incident.1 Morgal further asserts that he is indigent (e.g., he is still paying his original

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filing fees).

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Williams responds that Morgal has not presented any information or argument that

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rebuts the presumption that Morgal received the Bill of Costs. Counsel for Williams

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mailed the Bill of Costs to Morgal on April 25, 2016 (Doc. 208), Exs. A and B. Further,

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Williams asserts his costs were reasonable and necessary.

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Notice of Bill of Costs

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The applicable rule states: “The clerk may tax costs on 14 days’ notice. On

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motion served within the next 7 days, the court may review the clerk's action.”

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Fed.R.Civ.P. 54.1(d)(1). Here, Morgal does not dispute that Defendant sent the Bill of

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Costs to him. Rather, he only asserts he did not receive a copy from the Clerk of Court.

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However, the rule does not require that the notice be from the Clerk. The Court finds

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Morgal received adequate notice of the Bill of Costs.

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Further, although Morgal’s Objection was not filed within seven days, the Court
finds it appropriate to consider Morgal’s Objection.

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Bill of Costs – Reasonable and Necessary

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

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Pursuant to Fed.R.Civ.P. 54(d), costs incurred by the prevailing party may be assessed

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against the losing party and may be taxed by the Clerk. Lai v. Nw. Mut. Life Ins. Co., No.

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13-CV-05183-SI, 2015 WL 885035, at *1 (N.D. Cal. Feb. 27, 2015). “Unless a federal

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Morgal asserts that “[a]lthough Anna Jacobs did testify she had nothing substantive to
add.” It is not clear if Morgal is objecting to her deposition transcript as well.

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statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise, costs

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– other than attorney's fees – should be allowed to the prevailing party.”

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54(d)(1). “Rule 54(d) creates a presumption in favor of awarding costs to prevailing

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parties, and it is incumbent upon the losing party to demonstrate why the costs should not

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be awarded.”

Fed.R.Civ.P.

Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).

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Taxable costs are listed in 28 U.S.C. § 1920 as follows:

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(1) Fees of the clerk and marshal;

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(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;

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(3) Fees and disbursements for printing and witnesses;
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(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;

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(5) Docket fees under section 1923 of this title;

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(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.

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28 U.S.C. § 1920.

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As to Morgal’s objections to the costs for transcripts that were prepared for several

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witnesses because they “were not used nor had any knowledge of the alleged incident[,]”

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(Doc. 205, p. 1), Morgal does not dispute Defendant’s assertion that counsel for Morgal

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noticed the depositions of Pulicicchio, Grewe, Lindsay, and Jacobs. The Court agrees

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with Defendant that the costs associated with obtaining copies of the transcripts of those

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proceedings were both reasonable and necessary. Further, it was because Morgal sought

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to present expert testimony that the defense was placed in the position of seeking expert

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Vail (Doc. 113); the Court finds these costs were reasonable and necessary.

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Bill of Costs – Discretion of Court

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Upon motion for review of the taxation of costs by the clerk, the clerk's actions

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may be reviewed by the Court. Fed.R.Civ.P. 54(d)(1). The taxation of costs lies within

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the trial court's discretion. In re Media Vision Tech. Sees. Litig., 913 F.Supp. 1362, 1366

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(N.D.Cal. 1996). If a district court departs from the presumption in favor of awarding

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costs, it must give reasons for doing so by explaining “why a case is not ‘ordinary’ and

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why, in the circumstances, it would be inappropriate or inequitable to award costs.”

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Ass'n. of Mexican-American Educators v. Cal., 231 F.3d 572, 593 (9th Cir. 2000). A

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district court may consider a variety of factors in determining whether to exercise its

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discretion to deny costs to the prevailing party, including great economic disparity

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between the parties, meritorious claims, public importance of the issues, and the losing

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party's limited financial resources. Id.2

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The Court also considers that the Ninth Circuit Court of Appeals has stated, “We

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do not mean to suggest that the presumption in favor of awarding costs to prevailing

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parties does not apply to defendants in civil rights actions.” Id. at 593. Nonetheless, a

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district court abuses its discretion when it awards costs against a losing plaintiff without

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considering the plaintiff's limited financial resources. Id. at 592; Stanley, 178 F.3d at

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1079–80 (“[d]istrict courts should consider the financial resources of the plaintiff and the

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amount of costs in civil rights cases[;]” referring to the possibility that the plaintiff

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“would be rendered indigent should she be forced to pay” the amount assessed against

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her); see also Mansourian v. Board of Regents of the Univ. of California at Davis, 566

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F.Supp.2d 1168, 1171 (E.D. Cal. 2008) (refusing to award costs against student plaintiffs,

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noting their “limited financial resources” and that they were barely able to cover their

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monthly living expenses).

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This case has public importance. Indeed, “[i]ndividual Eighth Amendment cases

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are important for safeguarding the rights and safety of prisoners.” Draper v. Rosario, —

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As pointed out by the Ninth Circuit, a prisoner “proceeding in forma pauperis does not,
by itself, exempt a prisoner from paying costs. Indeed, 28 U.S.C. § 1915 provides that when
costs are awarded against an indigent prisoner, the prisoner will be required to pay those costs
on a monthly payment plan of twenty percent of the prisoner's income from the previous month.”
Draper v. Rosario, — F.3d — , 2016 WL 4651407 (9th Cir. September 7, 2016).

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F.3d —, 2016 WL 4651407 *12 (9th Cir. September 7, 2016) (citations omitted). Further,

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“[Morgal’s] evidence of an Eighth Amendment violation was sufficient to survive

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summary judgment. Ultimately, the case turned on which competing account of events

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the jurors believed.” Id. However, it does not appear this case was nearly as close as in

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Draper. In Draper, “[a]fter closing arguments, the jury deliberated for the remaining

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half-day and then for several more hours the next morning before returning a verdict for

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Rosario.” Id. In this case, the jury reached its verdict in less than two hours (Doc. 96).

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However, the Court also considers the imposition of full costs could have a chilling

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effect. Draper, 2016 WL 4651407 at *12. Lastly, there is a great economic disparity

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between the parties and Morgal has limited financial resources. See e.g. Baltimore v.

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Haggins, No. 1:10-cv-00931, 2014 WL 804463 *2 (E.D.Cal. Feb. 27, 2014) (“Plaintiff's

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in forma pauperis and incarceration status makes the financial disparity between him and

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Defendant (a free, employed person, whose defense bills were undoubtedly paid by his

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employer) self-evident.”). The Court finds it is appropriate to award costs in a reduced

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amount. Draper, 2016 WL 4651407 at *12. In considering these factors, the Court finds

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this case is not “ordinary” and taxation for the reduced amount of $1,000 of the costs for

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Williams and against Morgal to be appropriate.

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Accordingly, IT IS ORDERED:

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in Part.

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Morgal’s Objection to Costs (Doc. 205) is Sustained in Part and Overruled

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The Judgment on Taxation of Costs (Doc. 204) is VACATED. The Clerk

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of Court is directed to issue a Judgment on Taxation of Costs with costs

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taxed for Williams and against Morgal in the amount of $1,000.

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DATED this 18th day of October, 2016.

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