Waltz v. United States of America Department of Agriculture et al

Filing 99

ORDER Denying Defendant's Motion for Costs 83 , signed by Magistrate Judge Sandra M. Snyder on 4/16/2011. (Herman, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BESSIE IRENE WALTZ,

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CASE NO. 1:07-cv-01691-SMS

Plaintiff,

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ORDER DENYING DEFENDANT’S
MOTION FOR COSTS

v.

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UNITED STATES OF AMERICA, et al.,
Defendants.

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(Doc. 83)
/

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Defendant United States of America seeks $2,084.40 for costs ($92.25 for service of
summons and subpoena, $1730.65 for transcript fees, and $261.50 for copying). Plaintiff

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objects, contending (1) she has limited resources; (2) her case was dismissed on a technicality

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attributable to the negligence of her former attorney; (3) because of the error of an attorney who

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previously represented Plaintiff, the government avoided a substantial claim for damages

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attributable to Plaintiff’s catastrophic injuries; and (4) the issues of the litigation were close and

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difficult. After a review of the parties’ written arguments, the record as a whole, and applicable

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law, this Court denies Defendant’s motion for costs.
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I.

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Procedural and Factual Background
Plaintiff received multiple serious injuries on May 20, 2006, when the motorcycle she

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was driving collided with a 1993 Ford ten-wheel dump truck loaded with dirt that had crossed the
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center line of Road 274 near the town of Bass Lake, California. (Waltz v. United States of

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America, 1:06-cv-01831-SMS (E.D.Cal.)(“Waltz I”), Doc.11). The dump truck was owned by

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the United States Forest Service and operated by its employee. Id.

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On June 21, 2006, in compliance with the Federal Tort Claims Act, 28 U.S.C. 2671-2680

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(“FTCA”), Plaintiff filed a claim for property damage and personal injury with the U.S.
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Department of Agriculture Forest Service. The government did not respond. Accordingly,

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Plaintiff filed suit against the United States; the U.S. Department of Forestry [sic]; Richard

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Ernest Bailey, the truck’s driver; and twenty-five John Doe Defendants on December 18, 2006

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(Waltz I , Doc.1). Waltz I was filed prematurely.1

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On February 13, 2007, the Department of Agriculture denied Plaintiff’s administrative

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claim (Waltz v. United States, 1:07-cv-01691-SMS (“Waltz II”), Doc. 20-3).
On February 26, 2007, Defendant answered the complaint, asserting as an affirmative

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defense that “Plaintiff has failed to exhaust her administrative remedies” (Waltz I, Doc. 15). On

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October 25, 2007, Defendant moved to dismiss the complaint, contending that the Court lacked

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subject matter jurisdiction under the FTCA because Plaintiff filed her complaint less than six

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months after filing her administrative claim, as required by 28 U.S.C. § 2675(a) (Waltz I, Doc.
17).

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Attorney James Joseph Banks, and Banks & W atson, who represented Plaintiff for purposes of this
motion, did not represent Plaintiff when the complaints in Waltz I and Waltz II were filed or when Waltz I was
dismissed.

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Plaintiff moved to amend her complaint and opposed the motion to dismiss, contending
that since Defendant had previously indicated that it would not assert any defense of issue

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regarding the timing of the complaint’s filing, Defendant should be equitably estopped from
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asserting the time limitation (Waltz I, Docs. 23, 24 & 31). According to Plaintiff, a former

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Assistant U.S. Attorney had represented to Plaintiff’s attorney that, although the complaint had

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been filed a few days early, the government would not raise any issues relating to the technically

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premature filing (Waltz I, Docs. 24 & 31). The Assistant U.S. Attorney denied having made the

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alleged representations (Waltz I, Doc. 42).

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Plaintiff filed a second complaint on November 20, 2007 (Waltz II, Doc. 1).
After this Court heard argument on the opposing motions in Waltz I on January 11, 2008,

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it concluded that it lacked subject matter jurisdiction and dismissed Plaintiff’s first complaint

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(Waltz I, Doc. 56).

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On February 19, 2008, Defendant moved to dismiss the complaint in Waltz II, again

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contending that the complaint was untimely, in this case because Plaintiff had filed the complaint

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more than six months after the final denial of her administrative claim on February 13, 2007

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(Waltz II, Doc. 20). Defendant also contended that Plaintiff was collaterally estopped from filing

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a second lawsuit and that Plaintiff could not establish the elements required to equitably toll the

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statute of limitations to permit the late filing of her complaint (Waltz II, Doc. 20). On March 13,

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2008, Plaintiff moved to compel depositions and production of documents (Waltz II, Doc. 24).
On April 4, 2008, this Court heard argument on Plaintiff’s motion to compel and stayed

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Defendant’s motion to dismiss (Waltz II, Doc. 36). The Court granted Plaintiff’s motion to

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compel on May 16, 2008, and directed the parties to meet and confer regarding outstanding

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discovery and scheduling of a discovery status conference and of Defendant’s motion to dismiss

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(Waltz II, Doc. 43). Thereafter, the parties engaged in a period of discovery and discovery

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disputes.
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On December 10, 2008, the then-pending motion to compel initiated by Plaintiff on

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September 19, 2008 (Waltz II, Doc. 51) was taken off-calendar to permit a status conference to

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discuss legal and procedural issues in light of Marley v. United States, 548 F.3d 1286 (9th Cir.

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2008). By the time of the status conference on January 22, 2009, a petition for rehearing of

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Marley was pending before the Ninth Circuit (Waltz II, Doc. 60). The Court stayed Plaintiff’s

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motion to compel (Waltz II, Doc. 51) and Defendant’s motion to dismiss (Waltz II, Doc. 20),
pending the outcome in Marley (Waltz II, Doc. 60).

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Following the Ninth Circuit’s June 1, 2009 amendment of its decision in Marley v.

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United States, 567 F.3d 1030 (9th Cir. 2009), the parties agreed that Defendant’s motion to

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dismiss was ripe for a ruling (Waltz II, Doc. 64) and stipulated to a briefing and hearing schedule

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(Waltz II, Doc. 66). On October 20, 2009, the motion was again stayed, pending resolution of

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the pending petition for certiorari in Marley (Waltz II, Doc. 75). On December 8, 2009,

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Defendant filed notice that the Supreme Court had denied Marley certiorari (Waltz II, Doc. 76).

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Marley v. United States, 567 F.3d 1030 (9th Cir.), cert. denied, 130 S.Ct. 796 (2009). On March

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4, 2010, this Court granted Defendant’s motion to dismiss. Doc. 79.

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II.

Discussion
“Unless a federal statute, these rules, or a court order provides otherwise, costs–other than

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attorneys’ fees–should be allowed to the prevailing party.” F.R.Civ.P. 54(d)(1). “By its terms,

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the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the

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district court discretion to refuse to award costs.” Association of Mexican-American Educators

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v. State of California, 231 F.3d 572, 591 (9th Cir. 2000). The court’s discretion is limited by a

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requirement that it specify reasons for a refusal to award costs. Id.
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“The requirement that district courts give reasons for denying costs flows logically from

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the presumption in favor of costs that is embodied in the test of the rule; if a district court wishes

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to depart from that presumption, it must explain why ‘so that the appellate court will be able to

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determine whether or not the trial court abused its discretion.’” Id. at 592-93, quoting

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Subscription Television, Inc. v. Southern California Theatre Owners Ass’n, 576 F.2d 230, 234

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(9th Cir. 1978). See also Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003).

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The district court’s articulation of its reasons should explain why the case is not “ordinary,” and

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why it would be inappropriate or inequitable to impose costs. Association of Mexican-American

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Educators, 231 F.3d at 593. Accordingly, in response to a prevailing party’s motion for costs, a

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losing party must set forth reasons why those costs should not be awarded. Stanley v. University

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of Southern California, 178 F.3d 1069, 1079 (9th Cir.), cert. denied, 528 U.S. 1022 (1999).
The Ninth Circuit has approved multiple reasons for a district court’s refusal to award

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costs, including (1) a party’s limited resources; (2) the prevailing party’s misconduct; (3) the

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chilling effect of imposing high costs on civil rights litigants; (4) the presence of one or more

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issues of substantial public importance; (5) the closeness and difficulty of the issues; (6) the fact

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that the plaintiff’s case had merit, despite the loss; and (7) the magnitude of the claimed costs.

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Association of Mexican-American Educators, 231 F.3d at 592-93. Put another way, on those rare

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occasions where awarding costs would result in severe injustice, a district court abuses its

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discretion if it fails to conclude that the presumption has been rebutted. Save Our Valley, 335

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F.3d at 945.

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Because imposing costs on Plaintiff in this case would result in severe injustice, this
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Court will deny Defendant’s motion for costs. In making its decision, the Court relies on

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Plaintiff’s limited resources; the closeness and difficulty of the issues; the merit of Plaintiff’s

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case, despite the procedural loss; and the relative magnitude of the claimed costs to Defendant,

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which has substantial resources and to Plaintiff, for whom the claimed costs represent a

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significant hardship. In particular, the Court declines to impose costs on a Plaintiff whose claims

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likely would have prevailed but for the procedural error of her former attorney.
For the foregoing reasons, Defendant’s motion for costs is hereby DENIED.

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IT IS SO ORDERED.
Dated:
icido3

April 16, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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