Bommarito v. The Northwestern Mutual Life Insurance Company

Filing 62

ORDER RE: BILL OF COSTS signed by Senior Judge William B. Shubb on 9/25/2018 AWARDING total costs for defendant and against plaintiff as follows: Subpoenas $ 135.00, Deposition and Related Costs $ 6,233.90, and Copying Costs $ 1,299.15 for TOTAL AWARD $ 7,668.05. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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DEVRA BOMMARITO, an individual,
Plaintiff,

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No. 2:15-cv-1187 WBS DB

v.

ORDER RE: BILL OF COSTS

THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY and MARK
MAJEWSKI,
Defendant.

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----oo0oo---After judgment in favor of defendant was entered

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(Docket No. 59) following a grant of partial summary judgment,

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defendant Northwestern Mutual Life Insurance Company

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(“Northwestern Mutual”) submitted a Bill of Costs totaling

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$13,541.14 for the costs of subpoenas, transcripts, witness fees,

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copies, and related expenses.

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filed objections to the Bill of Costs on several grounds, arguing

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that the court should not award any costs, or should reduce or

(Docket No. 60).

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Plaintiffs have

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disallow costs for many items listed.1

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(Docket No. 61).

Rule 54(d)(1) of the Federal Rules of Civil Procedure

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and Local Civil Rule 54.1 govern the taxation of costs, which are

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generally subject to limits set under 28 U.S.C. § 1920.

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U.S.C. § 1920 (enumerating taxable costs); Fed. R. Civ. P.

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54(d)(1) (“Unless a federal statute, these rules, or a court

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order provides otherwise, costs--other than attorney’s fees--

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should be allowed to the prevailing party.”); Crawford Fitting

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Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-45 (1987) (limiting

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taxable costs to those enumerated in § 1920).

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The court exercises its discretion in determining

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whether to allow certain costs.

See Amarel v. Connell, 102 F.3d

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1494, 1523 (9th Cir. 1996) (district court has discretion to

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determine what constitutes a taxable cost within the meaning of §

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1920).

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presumption in favor of awarding costs to the prevailing party.

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See Russian River Watershed Prot. Comm. v. City of Santa Rosa,

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142 F.3d 1136, 1144 (9th Cir. 1998) (noting that the presumption

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“may only be overcome by pointing to some impropriety on the part

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of the prevailing party”); Amarel, 102 F.3d at 1523.

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I.

The losing party has the burden of overcoming the

Prevailing Party Status

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Plaintiffs’ first objection is that the court cannot

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award costs to defendant because it is not a prevailing party.

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Plaintiff argues that the court’s order did not materially alter

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the parties’ legal relationship because it only decided that

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Plaintiff states in her objections that she will appeal
this court’s previous order. Regardless, the court elects to use
its discretion and rule on the request for costs. See 1993
Advisory Committee Notes to Fed. R. Civ. P. 54(d).
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ERISA applied instead of state law.

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of Costs at 1–2.)

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(Pl.’s Objs. to Def.’s Bill

This argument ignores the judgment itself.

(Docket No.

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59.)

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court entered judgment in favor of defendant on both of

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plaintiff’s claims.2

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prevailing party.

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(9th Cir. 2002) (finding that a court’s incorporation of a

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stipulation is enough to qualify a party as a prevailing party).

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II.

Pursuant to the stipulation signed by both parties, the

Therefore, defendant is clearly a

See Labotest, Inc. v. Bonta, 297 F.3d 892, 895

Court’s Discretion to Deny All Costs

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Plaintiff also argues that the court should exercise

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its discretion to deny all costs because of (1) the financial

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disparity between the parties, (2) plaintiff’s limited financial

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means, (3) defendant’s misconduct, (4) the potential chilling

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effect on future litigation if costs are granted, (5) the

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plaintiff’s good faith in litigating, and (6) the importance of

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the case.

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A district court may consider a variety of reasons,

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including those mentioned by the plaintiff, in determining

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whether to exercise its discretion to deny costs to the

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prevailing party. See Champion Produce, Inc. v. Ruby Robinson

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Co., 342 F.3d 1016, 1022 (9th Cir. 2003).

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A.

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Financial Disparity Between the Parties
Plaintiff argues that this court should deny all costs

because she is an individual and defendant is a $265 billion

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The judgment explicitly said that the court would
“determine the amount, if any, of costs of suit to which
[defendant] is entitled.” (Judgment at 2.)
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company.

Such a disparity by itself, however, is insufficient to

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deny costs, given that even plaintiffs who proceed in forma

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pauperis are not per se protected from taxation of costs. See

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Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994).

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financial disparity will almost always exist between individual

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plaintiffs litigating against large corporations.

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presumption of Rule 54(d)(1) may sometimes be overcome by a

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financial disparity, but the bulk of these cases deal with civil

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rights issues or the application of important federal statutes.

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The

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See Van Horn v. Dhillon, No. 08-CV-01622 LJO DLB, 2011 WL 66244,

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at *4 (E.D. Cal. Jan. 10, 2011).

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financial disparity is not sufficiently persuasive to support a

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denial of costs.

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B.

Therefore, the mere fact of a

Plaintiff’s Limited Financial Resources
Next, in her declaration, plaintiff claims that (1) she

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has earned no salary from her physical therapy business since

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2009; (2) she was forced to close her office permanently in 2014

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after losing key staff; (3) her only income is $2,495 from Social

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Security Disability Insurance; (4) she has incurred hundreds of

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thousands of dollars in criminal defense fees; (5) she has a lien

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against her home; (6) the San Joaquin County District Attorney’s

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Office has frozen her bank accounts containing less than $20,000;

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(7) she owes $12,335.03 in tax attorney fees; (8) she owes

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$30,144.04 to The Grey Law Firm for costs related to this action;

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(9) she owes a monthly mortgage of $2,055.86; and (10) she has

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had to liquidate much of her IRA which is currently worth

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approximately $236,800.

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Decl.”) ¶¶ 3-13).

(Decl. of Devra Bommarito (“Bommarito

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Even if plaintiff’s declaration is completely and fully

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accurate,3 she has not put forth enough evidence to establish

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indigency.

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approximately $236,800.”

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costs are only a fraction of that amount.

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not demonstrated that payment of defendant’s costs would make her

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indigent.

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Cal. 2010) (Wanger, J.) (finding that the proper inquiry is

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whether an award of costs would render the party indigent).

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C.

Plaintiff claims that her IRA is “currently worth
(Bommarito Decl. ¶ 13).

Defendant’s

Thus, plaintiff has

See Rivera v. NIBCO, 701 F. Supp. 2d 1135, 1143 (E.D.

Defendant’s Misconduct

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Plaintiff cursorily asserts that the primary drain on

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her assets have been the costs related to her criminal defense,

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which she claims resulted from defendant’s supposed misconduct.

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More specifically, she claims that defendant “pivot[ed] from an

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unbiased evaluator of her insurance claim to a retaliatory

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advocate in search of information to justify terminating her

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benefits, paint her as a liar and cheat, and assist in a criminal

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Plaintiff has not provided any documentation that supports
her current claims about her assets and liabilities. The only
evidence she puts forth are her statements in her declaration.
She has not included any corporate tax returns for her business,
evidence regarding her personal residence, bills related to her
legal fees, or any financial documents about her IRA. Thus, her
alleged limited financial means are likely insufficient to
disallow costs in this case. See, e.g., Fletes v. City of San
Diego, No. 13-cv-2279-JAH(JMA), 2016 WL 6804434, at *2-3 (S.D.
Cal. July 1, 2016) (requiring plaintiff to prove indigence
through documentation because “mere assertions are inadequate to
demonstrate indigence that would warrant relief from Plaintiff’s
obligation to pay costs”); Ritchie v. Haw. Dep’t of Pub. Safety,
No. 14-46 LEK-KJM, 2017 WL 4172500, at *3-6 (D. Haw. Aug. 23,
2017) (plaintiff’s representations regarding her employment
status, current salary, and state of finances were insufficient,
without detailed information regarding her assets, to establish
indigency for purposes of bill of costs).
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prosecution of her for insurance fraud.”

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Bill of Costs at 4.)

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(Pl.’s Objs. to Def.’s

This court already decided that defendant did not act

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in bad faith.

(Docket No. 57).

In ruling on defendant’s motion

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for partial summary judgment, the court concluded that defendant

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had a reasonable basis to deny her insurance claim given

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plaintiff’s misrepresentations and evidence that plaintiff was

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working as a physical therapist.

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express an opinion on the merits of plaintiff’s breach of

Even though the court did not

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contract claim, the court did conclude that defendant’s actions

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were reasonable given the circumstances.

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provided any basis for the court to conclude that defendant’s

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involvement with plaintiff’s criminal prosecution was

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inappropriate.

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D.

Plaintiff has not

Chilling Effect on Future Litigation
Plaintiff claims that requiring her to pay defendant’s

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costs would chill litigation by individuals against powerful

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corporations because the costs associated with litigation would

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be too great a risk.

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Plaintiff provides no justification for why costs

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upwards of $13,000 would chill future insurance litigation.

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Ninth Circuit has only discussed the chilling effect of awarding

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costs against plaintiffs in the context of civil rights

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litigation, though some district courts have discussed this

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factor in the context of other types of “public interest”

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litigation.

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1069, 1080 (9th Cir. 1999) (“[T]he imposition of such high costs

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on losing civil rights plaintiffs of modest means may chill civil

The

See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d

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rights litigation . . . .”); Ass’n of Mex. Am. Educators, 231

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F.3d at 593 (discussing Stanley); Makaneole v. SolarWorld Indus.

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Am., Inc., 3:14-CV-1528-PK, 2017 WL 2345706, *3 (D. Or. May 10,

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2017) (recommending that $2,375.40 in costs be denied because

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awarding costs would have a significant chilling effect on future

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class action wage-claim litigation where the potential individual

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recovery is small).

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courts may consider whether an award of costs will chill

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subsequent insurance contract actions.

The court assumes, but does not decide, that

However, the facts of

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this particular case counsel against finding any chilling effect.

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Just as plaintiffs with potentially meritorious claims should not

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be discouraged from bringing the, plaintiffs with non-meritorious

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claims should not unnecessarily be encouraged to bring them.

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E.

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Plaintiff’s Good Faith and the Importance of the Issue
Finally, plaintiff argues that costs should be denied

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because (1) she pursued the matter in good faith and (2) it is

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important to apply state law rather than ERISA to this matter.

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Good faith by itself is insufficient to justify denying

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costs.

Parties are legally and professionally obligated to act

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in good faith.

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Conduct R. 3.1.

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Rule 54(d) meaningless because any unsuccessful party who acted

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in accordance with their obligations would be free from paying

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any costs.

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F.2d 772, 776 (7th Cir. 1975) (“If the awarding of costs could be

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thwarted every time the unsuccessful party is a normal, average

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party and not a knave, Rule 54(d) would have little substance

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remaining.”)

See Fed. R. Civ. P 11; Model Rules of Prof’l
Denials based on good faith alone would render

See Popeil Bros., Inc. v. Schick Elec., Inc., 516

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Separately, plaintiff has not sufficiently argued that

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this case “present[s] a landmark issue of national importance.”

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See Quan v. Comput. Sciences Corp., 623 F.3d 870, 888–89 (9th

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Cir. 2010) (citation omitted).

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applicability may be important to plaintiff’s specific claim,

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plaintiff has not explained its significance in the context of

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other cases.

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Even though the issue of ERISA’s

As such, plaintiff has not met her burden of showing
that costs should not be awarded in this case, and the court

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finds that “the reasons for denying costs are not sufficiently

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persuasive to overcome the presumption in favor of an award.”

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

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2003) (district court must provide reasons for denying costs but

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need not do so if it grants costs, as “[t]he presumption itself

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provides all the reason a court needs for awarding costs”).

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Accordingly, the court will proceed to examine plaintiffs’

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specific challenges to certain items in defendant’s Bill of

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Costs.

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II.

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Defendant’s Request for Reduction of Costs
A.

Fees for Service of Summons and Subpoenas
Plaintiff challenges defendant’s taxation of $528.04 in

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fees for service of subpoenas.

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thirteen charges for service (1) do not describe the need for

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subpoenas, (2) do not provide the hourly rate charged by the

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process server, or (3) include charges that are not related to

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subpoenas.

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Plaintiff claims that the

28 U.S.C. § 1921(1) provides for the collection of fees
for serving a subpoena.

Alflex Corp. v. Underwriters Labs.,
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Inc., 914 F.2d 175, 178 (9th Cir. 1990).

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description of the documents and parties, the plaintiff’s

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subpoena for records appears to be “reasonable and necessary in

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light of the facts known at the time of service.”

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& Guar. Co. v. Lee Invs., LLC, Civ. No. 99-5583 OWW SMS, 2010 WL

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3037500, at *3 (E.D. Cal. Aug. 2, 2010) (citation omitted).

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While plaintiff claims that the subpoena for records to the San

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Joaquin County District Attorney is unrelated to this case, the

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itemized invoice specifically lists that the documents were

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acquired for the civil case and both parties agree that the

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criminal prosecution of the plaintiff relates to this case.

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Based on the itemized

See U.S. Fid.

Parties seeking to tax costs for subpoenas may only

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recover the fees that may be charged by the United States

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Marshals Service, which is $65 per hour for each item served per

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process server, plus travel costs and any other out-of-pocket

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expenses.

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v. Gen. Elec. Co., No. 06-cv-1245, 2016 WL 7217725, at *3 (N.D.

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Ill. Dec. 12, 2016).

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the subpoena to the San Joaquin County District Attorney, satisfy

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this requirement.

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rates or particular expenses.

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to this cost, the court will award $65 for this subpoena.

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Oleksy, 2016 WL 7217725, at *3 (where party seeks to recover

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private service fees without providing sufficient information to

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determine if the rate exceeded the Marshals’ normal rate, “the

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appropriate practice is to award the lesser of the amount that

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the party actually paid and the minimum charge of the U.S.

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Marshals”) (citations and internal punctuation omitted).

28 U.S.C. § 1920(1); 28 C.F.R. § 0.114(a)(3); Oleksy

All of defendant’s subpoenas, except for

That invoice, however, does not itemize hourly
Because of the lack of detail as

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See

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Finally, defendant cannot recover costs for the service

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of documents.

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charges, cannot be taxed under Section 1920.4

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Ins. Co. of Pittsburgh v. Allied Prop. & Cas. Ins. Co., No. 2:12-

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CV-01380-MCE-KJ, 2014 WL 3529980, at *1 (E.D. Cal. July 16,

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2014).

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denied.

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thus entitled to recover $135.00 in fees for service of summons

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and subpoenas.

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Communication charges, including courier and mail
Nat’l Union Fire

Accordingly, defendant’s requests for these costs are

B.

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The cost award will be reduced by $306.04.

Defendant is

Transcripts and Related Costs
Plaintiff objects to awarding costs for the deposition

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transcripts of Sharon Hyde, Adam Kawa, Lisa Duller, Donald

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Seebach, and Mark Majewski.

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is ‘necessary’ must be determined in light of the facts known at

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the time the expense was incurred.”

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Inc. v. Alameda Cty. Med. Ctr., 646 F. Supp. 2d 1206, 1219 (E.D.

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Cal. 2009) (Shubb, J.) (citation omitted).

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“Whether a transcript or deposition

Sunstone Behavioral Health,

Each challenged deposition appears necessary given the

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circumstances of the case.

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disability benefits at Northwestern Mutual at the time the

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decision was made to deny plaintiff’s claim for disability

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benefits.

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working at the time she was collecting disability benefits.

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Duller approved the denial of the claim for benefits made by the

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Relatedly, defendant cannot recover for any printing
costs related to the service of documents. Defendant has not
shown that the printed service of these documents was necessary.
See Robinson v. Kia Motors Am., Inc., No. 2:10-CV-03187-SOM, 2016
WL 4474505, at *4 (E.D. Cal. Aug. 25, 2016) (finding that
printing costs must be necessarily incurred).
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Sharon Hyde was the director of

Adam Kawa investigated the claim that plaintiff was
Lisa

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plaintiff.

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relevant to plaintiff’s claim.

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Northwestern Mutual and he was listed as a defendant in the

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original complaint.

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Donald Seebach was familiar with documentation
Mark Majewski was an employee of

The court finds that defendant may recover costs for

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the original and one certified copy of those deposition

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transcripts, as well as exhibit fees, read and sign fees,

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shipping and handling fees, production and processing fees, and

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fees for the court reporter’s attendance, mileage, and parking,

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which all appear necessary to obtain the transcripts.

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Daniel v. Ford Motor Co., No. 2:11-cv-2890 WBS EFB, 2018 WL

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1960653, at *4 (E.D. Cal. Apr. 26, 2018) (citation omitted).

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However, the court will not allow costs for rough drafts,

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expedited fees, electronic litigation packages, or “LEF files,”

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which appear to have been provided for the convenience of at the

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attorneys without an explanation of their necessity.

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Accordingly, the court will award for transcripts and related

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expenses as follows:

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Devra Bommarito

$

1,289.60

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Sharon Hyde (Vol. 1)

$

1,164.40

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Sharon Hyde (Vol. 2)

$

224.25

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Mark Majewski

$

945.00

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Adam Kawa

$

661.45

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Lisa Duller

$

1,130.95

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Donald Seebach

$

818.25

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Total:

$

See

6,233.90

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C.

Witness Fees
Witness fees are recoverable under 28 U.S.C. §§
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1920(3).

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292 includes “[p]er diem, mileage, and subsistence for witnesses”

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within the list of items taxable as costs.

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statutes or the local rules indicates that witness fees include

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fees for subpoenaing documents from parties.

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defendant’s request for witness fees is denied and its total

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recovery is reduced by $105.00.

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D.

Relying on 28 U.S.C § 1821, Eastern District Local Rule

Nothing within these

Therefore,

Copying Costs
28 U.S.C. §§ 1920(4) allows a prevailing party to

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recover fees for exemplification and costs of making copies of

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any materials where the copies are necessarily obtained for use

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in the case.

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court files and records defendants obtained appear to be

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necessarily obtained.

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closely intersects with her civil claim; and defendant relied on

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the patient and medical records in their motion for partial

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summary judgment.

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recover for the service of documents.

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of Pittsburgh, 2014 WL, at *1.

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for exemplification and the costs of making copies as follows:

For many of the same reasons discussed above, the

The criminal prosecution of the plaintiff

As explained before, however, defendant cannot
Nat’l Union Fire Ins. Co.

Accordingly, the court will award

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San Joaquin Court File

$

7.33

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San Joaquin Deposition File

$

1,220.10

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Records of Jeff Jones

$

33.00

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Records of Jenny Sanders

$

0.75

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Records of Valley Medical

$

17.00

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Records of Charter Pharmacy

$

0.50

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Records of El Dorado

$

1.50

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Records of Rite Aid

$

0.25

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San Joaquin Court File

$

18.72

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Total:

$

1,299.15

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E.

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Total Costs
In total, costs of $7,668.05 will be allowed for

defendant and are taxed against plaintiff as follows:

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Subpoenas

$

135.00

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Deposition and Related Costs

$

6,233.90

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Copying Costs

$

1,299.15

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TOTAL AWARD

$

7,668.05

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IT IS SO ORDERED.
Dated:

September 25, 2018

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