Sei Y. Kim v. Truck Insurance Exchange et al

Filing 80

ORDER re: DEFENDANT TRUCK INSURANCE EXCHANGE'S MOTION FOR ORDER REQUIRING PLAINTIFF SEI Y. KIM TO FILE AN UNDERTAKING 63 by Judge Ronald S.W. Lew: Defendant Truck has failed to establish a legitimate risk that it will be unable to recover co sts from Plaintiff. Thus, because Truck has not provided the Court with a reasonable basis on which the Court can determine a reasonable bond amount, see GeoTag, 2014 WL at *4-5, and because it has failed to demonstrate the need for the bond, Trucks Motion is hereby DENIED. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 SEI Y. KIM,
Plaintiff,
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v.
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TRUCK INSURANCE EXCHANGE
14 and PEERLESS INSURANCE
COMPANY,
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Defendants.
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CV 14-4270 RSWL (VBKx)
ORDER re: DEFENDANT
TRUCK INSURANCE
EXCHANGE’S MOTION FOR
ORDER REQUIRING
PLAINTIFF SEI Y. KIM TO
FILE AN UNDERTAKING [63]

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Before the Court is Defendant Truck Insurance

19 Exchange’s (“Truck” or “Defendant Truck) Motion for
20 Order Requiring Plaintiff Sei Kim to File an
21 Undertaking [63].

The Court, having considered all

22 arguments presented to the Court, NOW FINDS AND RULES
23 AS FOLLOWS:
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The Court DENIES Defendant’s Motion.
DISCUSSION
Defendant Truck brings this Motion asserting that

27 because Plaintiff Sei Kim (“Plaintiff” or “Sei Kim”) is
28 an out-of-country plaintiff, a security for costs
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1 should be required.
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According to the Ninth Circuit,

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There is no specific provision in the

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Federal

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relating to security for costs. However,

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the

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inherent power to require plaintiffs to

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post

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federal courts, either by rule or by

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case-to-case determination, follow the

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forum state's practice with regard to

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security for costs, as they did prior to

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the federal rules; this is especially

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common

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involved.”

Rules

federal

Civil

district

security

when

of

a

for

Procedure

courts

costs.

non-resident

have

“Typically

party

is

16 Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37
17 F.3d 573, 574 (9th Cir. 1994) (quoting 10 Wright,
18 Miller & Kane, Federal Practice and Procedure: Civil
19 2nd § 2671).
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California Code of Civil Procedure § 1030 provides

21 that a defendant may file a motion for a plaintiff who
22 resides out of the state or who is a foreign
23 corporation to secure an award of costs and attorney’s
24 fees which may be awarded in the action.
25 Civ. Pro. § 1030(a).

Cal. Code

The statute requires the

26 defendant to show that there is a “reasonable
27 possibility that the moving defendant will obtain
28 judgment in the action or special proceeding.” Id. §
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1 1030(b).

The “reasonable possibility” standard is

2 relatively low.

GeoTag, Inc. v. Zoosk, Inc., No.

3 C-13-0217 EMC, 2014 WL 793526, at *3 (N.D. Cal. Feb.
4 26, 2014).

In determining whether to order the posting

5 of a bond, courts consider “(i) the degree of
6 probability/improbability of success on the merits, and
7 the background and purpose of the suit; (ii) the
8 reasonable extent of the security to be posted, if any,
9 viewed from the defendant's perspective; and (iii) the
10 reasonable extent of the security to be posted, if any,
11 viewed from the nondomiciliary plaintiff's
12 perspective.”
13 omitted).

Simulnet, 37 F.3d at 573 (citations

Finally, a defendant must provide the Court

14 a basis for determining a reasonable bond amount to
15 cover costs.
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GeoTag, 2014 WL at *4-5.

Here, it may well be that Defendant Truck can

17 establish that it has a reasonable possibility of
18 obtaining judgment.

Truck has failed, however, to

19 provide the Court a reasonable basis on which the Court
20 can determine a reasonable bond amount to cover Truck’s
21 anticipated costs in this action.

Truck asserts that a

22 bond in the amount of $92,548.65 should issue, based on
23 already-incurred costs of $24,198.65 and future costs
24 of $68,350.00.
25 16-18.

Def.’s Mot., Decl. of Kathleen Carter ¶

These costs include line-items that are not,

26 under federal rules or local rules, taxable as costs,
27 such as mediation and parking.

Id.

They also include

28 substantial sums for line-items such as “reproduction
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1 of documents” that may or may not be taxable as costs.
2 Finally, they include substantial sums for broad line3 items explained only as “depositions” ($25,000) and
4 “expert depositions” ($15,000) that are insufficiently
5 broken down to account for those costs which may be
6 taxable (such as a $40.00/day attendance fee) and those
7 which are not taxable.

Id.

The Court has no way of

8 determining Defendant’s actual taxable current costs,
9 let alone the future costs that Defendant claims amount
10 to substantially more.
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Finally, other courts have held that a bond is

12 unnecessary where a defendant does not demonstrate that
13 there is a risk it will be unable to recover costs from
14 the plaintiff if it prevails.

See Wilson & Haubert,

15 PLLC v. Yahoo! Inc., No. C-13-5879 EMC, 2014 WL
16 1351210, at *4 (N.D. Cal. Apr. 4, 2014);

Susilo v.

17 Wells Fargo Bank, N.A., No. CV 11–1814 CAS (PJWx), 2012
18 WL 5896577, at *2 (C.D.Cal. Nov. 19, 2012) (“Without
19 any particularized showing that there is a real risk of
20 defendants being unable to recover costs and attorney's
21 fees to which they are entitled, there is simply no
22 basis on which to require plaintiff to post a bond.”);
23 Plata v. Darbun Enterprises, Inc., No. 09cv44–IEG(CAB),
24 2009 WL 3153747, at *12 (denying a section 1030 motion,
25 in part, because “Defendant has not set forth any
26 details regarding its legitimate need for the
27 prophylaxis of a bond in its moving papers”).

Here,

28 Defendant Truck has failed to establish a legitimate
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1 risk that it will be unable to recover costs from
2 Plaintiff.

Thus, because Truck has not provided the

3 Court with a reasonable basis on which the Court can
4 determine a reasonable bond amount, see GeoTag, 2014 WL
5 at *4-5, and because it has failed to demonstrate the
6 need for the bond, Truck’s Motion is hereby DENIED.
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IT IS SO ORDERED.

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9 DATED: July 8, 2015
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HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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