Harris v. Pimentel, et al.

Filing 153

ORDER DENYING Without Prejudice, 151 Motion to Stay Proceedings ; Fourteen Day Deadline to File Opposition to Defendant's Request for Costs; ORDER DENYING 152 Motion for Transcripts, signed by Magistrate Judge Michael J. Seng on 5/11/17. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL HARRIS, Plaintiff, 12 13 14 15 16 17 18 19 Case No. 1:13-cv-1354-DAD-MJS (PC) ORDER DENYING, WITHOUT PREJUDICE, MOTION TO STAY PROCEEDINGS v. S. ESCAMILLA, (ECF No. 151) Defendant. FOURTEEN DAY DEADLINE TO FILE OPPOSITION TO DEFENDANT’S REQUEST FOR COSTS ORDER DENYING MOTION FOR TRANSCRIPTS (ECF No. 152) 20 21 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 22 rights action brought pursuant to 42 U.S.C. § 1983. On January 19, 2017, the case was 23 dismissed and judgment was entered the same day. (ECF Nos. 145 & 146.) On January 24 31, 2017, Defendant filed a Bill of Costs with the Court, seeking $1,189.95 for the cost 25 of printed and electronically recorded transcripts. (ECF No. 147.) On February 1, 2017, 26 Plaintiff filed a notice of appeal to the Ninth Circuit. (ECF No. 148.) On February 13, 27 2017, Plaintiff filed a motion to stay the proceedings pending appeal, asking that the 28 1 Court refrain from taxing costs against Plaintiff while his appeal was still pending. (ECF 2 No. 151.) On February 27, 2017, Plaintiff filed a motion requesting that the Court 3 provide him transcripts of the July 8, 2016 telephonic discovery hearing at the 4 Government’s expense. (ECF No. 152.) Defendant has not opposed either motion and 5 the time to do so has passed. They are submitted. Local Rule 230(l). 6 I. Motion to Stay 7 Plaintiff moves pursuant to Fed. R. Civ. P. 62(b)(1) and 28 U.S.C. §§ 8 1292(D)(4)(A) and (B)1 to stay these proceedings pending the outcome of his appeal. 9 Specifically, he appears to ask that costs not be taxed against him before his appeal is 10 resolved, and indicates that he “has every intention” of opposing the award of costs to 11 Defendant. Rule 54 of the Federal Rules of Civil Procedure states: “Unless a federal statute, 12 13 these rules, or a court order provides otherwise, costs—other than attorney’s fees— 14 should be allowed to the prevailing party.” There is a presumption in favor of awarding 15 costs to the prevailing party, and a District Court following the presumption need not 16 specify its reasons for doing so. Save Our Valley v. Sound Transit, 335 F.3d 932, 94417 45 (9th Cir. 2003). However, the Court may elect not to award costs where the party is 18 indigent or where other compelling circumstances exist. Escriba v. Foster Poultry 19 Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). The Court can also stay the taxing 20 of costs pending the resolution of an appeal, provided there is no undue prejudice to 21 Defendant. See Redwind v. Western Union, LLC, 3:14-cv-01699-AC, 2017 WL 22 1025184, at *6 (D. Or. Mar. 16, 2017) At present, no costs have been taxed to Plaintiff, therefore there is nothing to 23 24 stay. Plaintiff’s motion is premature and will be denied on that basis. To the extent 25 Plaintiff wishes to contest Defendant’s request for costs, he may file a motion to that 26 27 28 1 Rule 62(b)(1) reads: “On appropriate terms for opposing party’s security, the court may stay the execution of a judgment—or any proceedings to enforce it—pending disposition of [a motion] under Rule 50, for judgment as a matter of law.” No such motion is currently pending, thus Rule 62(b)(1) does not apply. Section 1292 deals with the jurisdictional reach of the Court of Appeals, and is also inapplicable here. 2 1 effect within fourteen days of this order and set forth therein his reasons. 2 II. Motion for Transcripts 3 Plaintiff seeks transcripts of the July 8, 2016 telephonic discovery dispute 4 conference. However, as the parties were advised at the time, this informal conference 5 took place in chambers and off the record. No transcript of the conference exists. (See 6 ECF No. 105.) Plaintiff’s request for transcripts is denied as moot. 7 III. Conclusion 8 For the foregoing reasons, IT IS HEREBY ORDERED: 9 1. Plaintiff’s motion to stay the proceedings (ECF No. 151) is DENIED without prejudice; 10 11 2. Plaintiff may file a motion in opposition to Defendant’s request for costs within fourteen days of this order; 12 13 3. Failure to file said motion or otherwise respond will result in the taxing of costs against Plaintiff in the amount requested by Defendant; and 14 15 4. Plaintiff’s motion for transcripts (ECF No. 152) is DENIED. 16 17 18 IT IS SO ORDERED. Dated: May 11, 2017 /s/ 19 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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