Padula v. Morris

Filing 271

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 2/16/2012 ORDERING that costs are taxed in favor of Defendants as stated in their Amended BOC, except with respect to ten (10) cents per page the Court deducted from Defendants' in-house copying charges. Total costs are therefore awarded to Defendants in the sum of $23,511.41. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAYNA PADULA, ET AL.,

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Plaintiffs,

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No. 2:05-cv-00411-MCE-EFB

v.

MEMORANDUM AND ORDER

ROBERT MORRIS, ET AL.,

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Defendants.

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On March 1, 2005, Plaintiff Dayna Padula (“Plaintiff”), the

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sole remaining plaintiff in this case, initiated this sexual

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harassment action against remaining Defendants Dunsmuir Joint

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Union High School District, Robert Morris, Ray Kellar, Paula

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Amen-Schmitt, Steven Rogers, Christopher Raine and William

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Townsend (collectively “Defendants”).

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unanimous verdict in favor of Defendants on August 2, 2011.

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Presently before the Court is Defendants’ post-trial request for

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costs.

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now taxed pursuant to that request.

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A jury returned a

As set forth below, costs in the amount of $23,511.41 are

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BACKGROUND

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After a five-day trial in July of 2011, a jury unanimously

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rejected Plaintiff’s claims that she and other students were

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subjected to sexual harassment by the principal and other

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employees at Dunsmuir High School in Dunsmuir, California.

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jury deliberated for only ninety minutes before returning its

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verdict in favor of Defendants.

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the Court entered its judgment on August 4.

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The

Pursuant to that jury verdict,

Six days later, on August 10, Defendants, as the prevailing

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parties, timely filed a Bill of Costs (“Original BOC”) (ECF

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No. 255) pursuant to 28 U.S.C. § 1920 in the amount of

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$36,462.51.

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Original BOC on August 16, and Defendants then timely filed a

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Response and Amended Bill of Costs (“Amended BOC”) (ECF No. 257)

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modifying their requested recovery to $26,136.81.

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filed no further objections.

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Court now taxes the vast majority of the costs requested in the

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Amended BOC.

Plaintiff filed Objections (ECF No. 256) to the

Plaintiff

For the following reasons, the

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ANALYSIS

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Under Federal Rule of Civil Procedure 54(d), the prevailing

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party in a lawsuit may recover its costs “unless a federal

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

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provides otherwise.”

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decision on whether to award costs is a matter within the court’s

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discretion.

As this language suggests, the ultimate

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Association of Mexican-American Educators v. State of California,

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231 F.3d 572, 591 (9th Cir. 2000).

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presumption for awarding costs to prevailing parties; the losing

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party must show why costs should not be awarded.”

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Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003).

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“[A] district court need not give affirmative reasons for

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awarding costs; instead, it need only find that the reasons for

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denying costs are not sufficiently persuasive to overcome the

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presumption in favor of an award.”

“Rule 54(d) creates a

Id. at 945.

Save Our

If the Court

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declines to award costs as requested by the prevailing party,

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however, it should specify its reasons for doing so.

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Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002).

Berkla v.

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In her objections to the Original BOC, Plaintiff argues

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generally that the Court should refuse to tax all costs because:

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1) Plaintiff is indigent; 2) Defendants acted in bad faith when

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submitting their original cost request; and 3) a cost award here

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would chill important future civil rights litigation.

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specifically attacks each category of Defendants’ requested costs

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as well.

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Defendants’ Amended BOC, to the extent her challenges to the

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Original BOC carry over to Defendants’ operative request, the

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Court will consider them here.

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Plaintiff

Though Plaintiff did not file any response to

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A.

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Plaintiff’s General Objections to the Taxing of Any
Costs.

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Plaintiff generally asks this Court to exercise its

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discretion to deny all costs because: 1) Defendants engaged in

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bad-faith litigation practices by filing a “patently frivolous

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cost bill”; 2) Plaintiff is indigent; and 3) an award of costs

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would serve to chill future civil rights litigation.

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generally Van Horn v. Dhillon, 2011 WL 66244, *3 (E.D. Cal.)

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(identifying various grounds on which courts have refused to tax

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costs).

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See

Each of Plaintiff’s arguments is rejected.

First, Plaintiff claims Defendants’ Original BOC included

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legally frivolous and factually unsupported claims.

Defendants’

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Amended BOC nonetheless rectifies any such errors or oversights,

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and the Court will not presume the Original BOC was drafted and

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submitted with any mal-intent.

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of line items in a post-trial bill of costs simply does not rise

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to the level of bad faith that has justified a denial of costs in

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other cases.

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1228 (7th Cir. 1996) (refusal to award costs justified when the

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prevailing party’s counsel, among other things, “inexplicably

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refused over a dozen offers of the policy limit, needlessly

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pursued a trial, appealed the jury’s decision not to award

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punitive damages even though the defendants were judgment-proof,

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vanished for large periods of time” and made frivolous legal

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claims.).

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Moreover, the erroneous inclusion

See, e.g., Overbeek v. Heimbecker, 101 F.3d 1225,

Plaintiff’s argument thus fails.

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As for Plaintiff’s invitation to this Court to deny costs

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based on her indigent status, the Court declines to do so for

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those reasons already articulated in the Court’s Order Denying

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Plaintiff’s Request to Proceed In Forma Pauperis (ECF No. 266).

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Indeed, especially given the fact that Plaintiff’s only evidence

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of her financial status in support of her Objections to

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Defendants’ Original BOC is an unsigned, pro forma declaration,

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Plaintiff has simply not carried her burden of convincing this

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Court that departure from the general rule entitling a prevailing

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party to recover its costs is warranted.

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Finally, Plaintiff’s conclusory assertion that a cost award

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in this case will chill future litigation is not persuasive and

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fails to convince the Court costs should not be taxed here.

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Stanley v. University of Southern California, the Ninth Circuit

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held that it was an abuse of discretion for the district court to

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fail to re-tax costs awarded to defendants and observed that “the

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imposition of such high costs on losing civil rights plaintiffs

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of modest means may chill civil rights litigation.”

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1069, 1080 (9th Cir. 1999).

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claims “raise[d] important issues and...the answers were far from

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obvious.”

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deliberated for only ninety minutes before returning its

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unanimous verdict in favor of Defendants, and this Court has

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since determined that any appeal from that verdict cannot be

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taken in “good faith.”

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close, and the answer reached, as evidenced by the speed with

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which the jury returned its verdict, was “obvious.”

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Id.

In

178 F.3d

In that case, however, plaintiff’s

To the contrary in the instant action, the jury

ECF No. 266.

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The result here was not

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Accordingly, this is not a case where “injustice will result”

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from a cost award, see Save Our Valley, 335 F.3d at 945, and

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Defendants are entitled to recover their costs.

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B.

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Plaintiff’s Specific Objections to Defendants’
Requested Costs.

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The Court addresses each of Plaintiff’s more specific
objections in turn below.

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1.

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Fees for Services of Summons and Subpoenas
(28 U.S.C. § 1920(1)).

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Defendants ask this Court to tax $1,189.95 in fees for

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service of discovery and trial subpoenas by private process

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servers.

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disallowed because 28 U.S.C. § 1920(1) and Local Rule 292 permit

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only the recovery of fees incurred in effecting the service of

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summons by the marshal under Federal Rule of Civil Procedure 4,

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not fees incurred by privately serving discovery and trial

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subpoenas.

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Underwriters Laboratories, Inc., 914 F.2d 175, 178 (9th Cir.

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1990) (costs for private service of process of subpoenas taxable

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under 28 U.S.C. § 1920(1)).

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hereby taxed in an amount of $1,189.95.

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Plaintiff argues all of these costs should be

This argument fails.

See Alflex Corp. v.

Defendants’ requested costs are

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2.

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Fees for Printed or Electronically Recorded
Transcripts Necessarily Obtained for Use in the
Case (28 U.S.C. § 1920(2)).

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Under this category of costs, Defendants seek to recover

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$13,839.97, which is comprised of costs Defendants incurred to

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utilize the Public Access to Court Electronic Records (“PACER”)

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system, to obtain trial and deposition transcripts and to provide

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airfare for witnesses.1

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Defendants’ requested costs are proper.

First, the parties have not identified, nor has this Court

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found, any binding authority addressing whether fees incurred in

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accessing PACER are recoverable.

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with those courts that have taxed costs for such fees and awards

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Defendants’ costs here.

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Salaried Employees Ltd. Plan, 2009 WL 2579100, *8-9 (E.D. Cal.);

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Lewallen v. City of Beaumont, 2009 WL 2175637, *17 (E.D. Tex.).

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In addition, the transcripts of the Motion in Limine hearing and

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the trial testimony of Dayna Padula and Christina Pistorious are

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also recoverable, especially given the direct relevance of these

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portions of the proceedings to Defendants’ ultimate success in

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this case.

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Chicago, 218 F.3d 816, 825 (7th Cir. 2000).

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for the deposition transcripts, all of which this Court finds

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were necessary at the time the expenses were incurred, are

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recoverable as well.

This Court now agrees, however,

See, e.g., Frank v. Wilbur-Ellis Co.

Alfex, 914 F.2d 175, 177 n.3; Majeske v. City of
Likewise, the costs

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In their Original BOC, Defendants requested $17,342.80.
Defendants have since omitted their improper request to recover
electronic research fees. See Trustees of Const. Industry and
Laborers Health and Welfare Trust v. Redland Ins. Co., 460 F.3d
1253, 1258-59 (9th Cir. 2006) (costs of computerized research
recoverable as attorney’s fees).
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See Declaration of John P. Kelley (“Kelley Decl.”), ¶ 6

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(explaining that the “vast majority of the witnesses...deposed

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were plaintiffs...at the time their depositions were taken,” that

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all but two depositions were noticed by Plaintiff and that those

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two remaining deponents supplied testimony directly relevant to

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the claims existing at the time); Alflex, 914 F.2d 177; Ruff v.

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County of Kings, 700 F. Supp. 2d 1225, 1247 (E.D. Cal. 2010).

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Finally, while the costs of airfare incurred to depose Dayna

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Padula and Travis Feri should more properly have been included in

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the subsequent section regarding taxing witness costs pursuant to

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28 U.S.C. § 1920(3), these costs are nonetheless recoverable as

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well.

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Materials, 2004 WL 5361246, *8 (N.D. Cal.).

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Court once again taxes all costs sought by Defendants.

28 U.S.C. § 1821; MEMC Elec. Materials v. Mitsubishi
Accordingly, the

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3.

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Fees and Disbursements for Printing (28
§ 1920(3)) and Fees for Exemplification
Costs of Making Copies of Any Materials
Copies Are Necessarily Obtained for Use
Case (28 U.S.C. § 1920(4)).

U.S.C.
and the
Where the
in the

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Defendants seek to tax $8,684.58 for general copy costs and

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an additional $346.50 for copies of court records.

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challenge these line items on a number of grounds.

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Plaintiffs

Plaintiffs first argue that only the cost to copy pleadings

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is recoverable.

Plaintiffs are incorrect.

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proper to tax costs incurred to make copies of all papers

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necessarily obtained for use in a case.

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It is unquestionably

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Ferreira v. M/V CCNI Antofagasta, 2007 WL 3034941, *2 (E.D.

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Cal.); E.D. Cal. Local Rule 292(f)(5) (expressly interpreting

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28 U.S.C. § 1920(4) to extend to “papers necessarily obtained for

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use in the action”) (emphasis added).

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Plaintiff further challenges as excessive the thirty cents

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(30) per page Defendants claim they charge for in-house copy

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services.

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excessive and will tax only twenty (20) cents per page.

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e.g., Seyler v. Burlington Northern Santa Fe Corp., 2006 WL

This Court agrees that thirty (30) cents per page is
See,

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3772312, *5 (D. Kan. 2006) (taxing costs at a rate of twenty (20)

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cents per page); Griffin v. JTSI, Inc., 2009 WL 5126335, *4

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(D. Hawaii) (practice of the court to tax copies at fifteen (15)

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cents per page).

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The Court nonetheless finds that, given the lengthy and

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complex history of this case, the 26,254 pages of in-house copies

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were necessary.

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Defendants’ counsel, this number actually constitutes a

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conservative estimate of those copies for which recovery could be

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had.

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Defendants’ requested costs were calculated); see also Ziemack v.

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Centell Corp., 1997 WL 97384, *1-2 (N.D. Ill.); EEOC v. W&O,

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Inc., 213 F.3d 600, 623 (11th Cir. 2000); Sensormatic Electronics

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Corp. v. Tag, Co., 2009 WL 3208649, *9 (S.D. Fla.).

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Plaintiff tacitly concedes that this request is proper since,

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upon receipt of Defendants’ more detailed explanation of their

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request for costs in the Amended BOC, she did not renew her

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original objections.

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cents per page for all 26,254 pages.

Moreover, based on the declaration of

See Kelley Decl., ¶ 9 (explaining in great detail how

Indeed,

Defendants are thus awarded twenty (20)

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Defendants are also entitled to recover costs for copies

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outsourced to a third party.

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costs of $6,405.68, a sum comprised of $346.50 for copies of

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court records, $5,250.80 for in-house copying and $808.38 for

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outsourced copies.

Accordingly, the Court now taxes

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Fees for Witnesses (28 U.S.C. § 1920(3)).

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In their Amended BOC, Defendants seek $1,887.95 in witness

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fees.

Defendants originally sought $7,902.54, but, after

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Plaintiff challenged the bulk of those costs as improperly

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attributable to attorney and party expenses rather than to

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witness fees, Defendants reduced their request appropriately.

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Plaintiff filed no further objections to Defendants’ amended cost

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bill, and the Court hereby taxes all $1,887.95.

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6.

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Other Costs.

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Plaintiff challenged a variety of “other costs” included in

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Defendants’ Original BOC that have since been removed.

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Defendants now seek to recover only $187.86 incurred in creating

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CDs of out of audio files of interviews conducted by investigator

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Diane Davis.

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§ 1920(4); Maxwell v. Hapapag-Lloyd Aktiengesellschat, Hamburg,

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862 F.2d 767, 770 (9th Cir. 1988); Cefalu v. Village of

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Elk Grove, 211 F.3d 416, 427-28 (7th Cir. 2007).

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the Court taxes these costs as requested as well.

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These costs are recoverable under 28 U.S.C.

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Accordingly,

CONCLUSION

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Given the foregoing, costs are taxed in favor of Defendants

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as stated in their Amended BOC, except with respect to ten (10)

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cents per page the Court deducted from Defendants’ in-house

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copying charges.

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in the sum of $23,511.41.

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Total costs are therefore awarded to Defendants

IT IS SO ORDERED.
Dated: February 16, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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