Santana et al v. County of Yuba et al

Filing 148

ORDER signed by Chief District Judge Kimberly J. Mueller on 2/9/2021 ADJUSTING defendant's bill of costs to reflect a new total of $29,603.46. DIRECTING plaintiffs to pay this amount to the Yuba County defendants within fourteen days of this order.(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE I. SANTANA, et al.,

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Plaintiffs,

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v.

No. 2:15-cv-00794-KJM-EFB

BILL OF COSTS ORDER

THE COUNTY OF YUBA, et al.,

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Defendants.

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After prevailing on summary judgment, Yuba County defendants filed a bill of

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costs in the amount of $38,073.46. Plaintiffs moved to stay taxation of costs for untimely filing

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and, in the alternative, during the pendency of plaintiffs’ appeal1 of the court’s summary

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judgment order. Plaintiffs also object to certain specific cost items sought by defendants in its bill

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of costs. The court sustains in part and overrules in part the plaintiffs’ objections and awards

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costs in the reduced amount of $29,603.46 as discussed below.

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I.

BACKGROUND
The court set forth the relevant facts in its order on summary judgment and

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incorporates them by reference here. Order on Summ. J., ECF No. 127. On December 12, 2019,

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defendants filed their bill of costs with the clerk of the court. Bill of Costs, ECF No. 136.

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The appeal is currently pending. See Court of Appeals Docket No. 19-17505.
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Plaintiffs filed objections to defendants’ bill of costs, ECF No. 138, and defendants responded,

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ECF No. 141.

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The court notes there is some dispute about when the judgment became final. On

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September 27, 2019, the court issued an order granting defendants’ motion for summary

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judgment in full as to all claims, except the state law claim for malicious prosecution. Order on

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Summ. J. On November 25, 2019, plaintiffs and defendant Timothy J. Evans filed a stipulation

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and proposed order for dismissal of the entire action with prejudice and entry of judgment,

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providing that “each party shall bear its own costs and attorney’s fees.” ECF No. 131. That

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stipulation did not waive Yuba County defendants’ right to recover costs. Id. On November 26,

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2019, the court issued a minute order dismissing the action, with prejudice, in its entirety and

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adopting the stipulated proposed order, ECF No. 132. On December 3, 2019, Yuba County

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defendants filed a proposed order for final judgment, ECF No. 133, which the court did not adopt.

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II.

LEGAL STANDARD

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Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, a prevailing party is

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entitled to an award of costs, other than attorney’s fees, “[u]nless a federal statute, [federal] rules,

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or a court order provides otherwise.” There is a presumption that the prevailing party will be

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awarded its taxable costs; to overcome this presumption, a losing party must establish a reason to

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deny costs. See Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006). Title 28 U.S.C.

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§ 1920 defines the term “costs” as used in Rule 54(d) and enumerates expenses that a federal

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court may tax as costs. Section 1920 is phrased permissibly because Rule 54(d) “vests in the

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district court discretion to refuse to award costs.” Ass’n of Mexican-Am. Educators v. State of

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California, 231 F.3d 572, 591 (9th Cir. 2000). Such discretion is not unlimited. Id. “To permit

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proper review, a district court may not deny costs to a prevailing party without specifying reasons

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for the refusal.” Miles v. State of California, 320 F.3d 986, 988 (9th Cir. 2003).

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III.

DISCUSSION
A.

Whether Costs Should be Denied on the Basis that Bill of Costs was Untimely
Plaintiffs assert defendants did not submit the bill of costs on time, citing Federal

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Rule of Civil Procedure 54(d), which provides the bill of costs should be filed “no later than

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fourteen days after entry of judgment,” Fed. R. Civ. P. 54(d)(2)(B)(i) and Eastern District Local

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Rule 292(b), requiring the filing of bill of costs within “fourteen (14) days after entry of judgment

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or order under which costs may be claimed.”

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According to plaintiffs, this rule required defendants to file its bill of costs within
fourteen days of “the court’s entry of final judgment, on November 26, 2019, (ECF No. 132) . . .

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[meaning] the cut-off date . . . was December 10, 2019.” Obj. at 2, ECF No. 138. Defendants

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counter that “[i]nstead of issuing a final judgment in favor of Yuba County Defendants, the court

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issued a minute order dismissing the remaining claims . . . that included the clause that each party

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will bear their own costs and attorney fees . . . Since there was no other judgment entered . . . on

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December 3, 2019 Yuba County Defendants filed a proposed judgment to clarify they were the

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prevailing party to filing and serving their bill of costs,” Resp. at 4, ECF No.141; see generally

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Proposed Judgment, ECF No. 133.

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The time period prescribed in Rule 54 for a party to file a bill of costs is “after

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entry of judgment.” The court’s “minute order did constitute a dispositive order in compliance

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with Fed. R. Civ. P. 58 where the document (1) stated on its face that it was an order; (2) was

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mailed to the parties; and (3) was entered on the docket as an order.” Ingram v. ACandS, Inc.,

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977 F.2d 1332, 1338 (9th Cir. 1992) (emphasis in original). The court nonetheless finds

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plaintiffs’ argument does not justify a denial of costs in this case. Yuba County defendants

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explain plaintiffs were not prejudiced in any way by the fact defendants filed their bill of costs on

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December 12, 2019, two days after December 10, 2019, “within fourteen days of filing the

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proposed judgment.” Resp. at 4. See Weber v. TMG Logistics, Inc., No. 2:15-CV-01829 WBS,

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2018 WL 4566874, at *2 (E.D. Cal. Sept. 21, 2018) (sister court did not disallow costs in their

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entirety based on a one-day delay which did not cause any prejudice to defendants). Therefore,

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the court declines to deny defendants costs on the basis of untimeliness.
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B.

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Whether the Court Should Stay Taxation of Costs Pending Appeal
Plaintiffs asks the court to stay taxation of costs pending their appeal of the court’s

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summary judgment order on the basis that plaintiffs’ “success on the appeal would render the

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instant taxation of costs moot.” Obj. at 2. In determining whether to issue a stay pending appeal,

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courts consider the following factors: “whether the stay applicant has made a strong showing that

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he is likely to succeed on the merits; whether the applicant will be irreparably injured absent a

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stay; whether issuance of the stay will substantially injure the other parties interested in the

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proceeding; and where the public interest lies.” Nken v. Holder, 556 U.S. 418, 433 (2009).

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Plaintiffs do not address these factors. In particular, they do not articulate any

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hardship or irreparable harm they would suffer if the court does not grant a stay. Entry of a stay

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is not warranted.

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C.

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Fees for Privately Retained Expert Witness Depositions
Plaintiffs object to costs in the amount of $8,550 related to fees associated with

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defendants’ taking the depositions of two “expert witness[es] that were privately retained by

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plaintiffs . . . ,” noting they were “not court appointed expert witnesses and therefore . . . [the fees

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are] non-taxable.” Obj. at 5. Defendants concede “expert deposition fees are non-taxable

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pursuant to Local Rule 292,” but argue the Yuba County defendants should be awarded $40 each

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for the statutory witness attendance fees defendants were required to pay “Mr. Sprinkles and

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Mr. Shore . . . in order to depose them.” Resp. at 6 (citing Ass’n of Flight Attendants, AFL-CIO v.

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Horizon Air Indus., Inc., 976 F. 2d 541, 551–52 (9th Cir. 1992) (noting $40 per diem rate for

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expert witness attendance is taxable for privately retained experts even when expert witness fees

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are not). “Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to

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prevailing parties.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 565 (2012). Section 1920

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of Title 28, in turn, “defines the term ‘costs’ as used in Rule 54(d) and enumerates expenses that a

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federal court may tax as costs under the discretionary authority found in Rule 54(d).” Crawford

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Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 437 (1987). That section does not permit the

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court to tax compensation to a party’s retained expert witnesses, but rather only compensation of

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“court appointed experts.” 28 U.S.C. § 1920(6). This court therefore has no authority to tax

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expert witness fees under Rule 54(d) and § 1920.

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A different statute, 28 U.S.C. § 1821, does permit the taxation of expert witness

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fees, but only for trial and deposition testimony, and only up to $40 per day. See 28 U.S.C.

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§ 1821(a)–(b). While there was no trial in this case, Yuba County defendants claim they paid for

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plaintiff’s experts to offer deposition testimony. See Resp. at 6. For that reason, the requested

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expert witness fees are taxable under § 1821. Plaintiffs’ objection is overruled, and defendant is

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awarded a total of $40 each for the statutory witness fee defendants paid the two expert witnesses.

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D.

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Fees for Videographer Transcripts
Plaintiffs object to the costs related to videotaped depositions of “Mary Barr for

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$761.90, Melanie Bendorf for $686.90, and, Timothy Evans for $161.81 for a total of $1,610.61.”

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Obj. at 5. Defendants invoke Weco Supply Co. v. Sherwin-Williams Co., No. 1:10-cv-00171 AWI

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BAM, 2013 WL 56639, at *5 (E.D. Cal. Jan. 3, 2013), to argue “a videotaped copy of the

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deposition was necessary” to “properly defend this matter . . . and analyze all evidence Plaintiffs’

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could potentially introduce at trial.” Resp. at 7. Generally, a “district court need not give

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

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costs are not sufficiently persuasive to overcome the presumption in favor of an award. The

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presumption itself provides all the reason a court needs for awarding costs.” Saberi v. BFS Retail

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& Commercial Operations, LLC, No. C 08-4232 JL, 2011 WL 13258236, at *2 (N.D. Cal.

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May 23, 2011) (quoting Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003)).

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Plaintiffs’ objection to the fees for videographer transcripts is not supported by any showing to

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overcome the presumption in favor of an award. This objection is overruled.

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IV.

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CONCLUSION
For the reasons discussed above, defendant’s bill of costs is adjusted to reflect a

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new total of $29,603.46. The plaintiffs are directed to pay this amount to the Yuba County

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defendants within fourteen days of this order.

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This order resolves ECF No. 138.

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IT IS SO ORDERED.

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DATED: February 9, 2021.

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