Velasquez v. City of Santa Clara et al

Filing 313

ORDER TAXING COSTS by Magistrate Judge Paul Singh Grewal granting-in-part 304 (psglc2, COURT STAFF) (Filed on 9/24/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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VICTOR VELASQUEZ,

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Plaintiff,
v.

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CITY OF SANTA CLARA, et al.,
Defendants.

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Case No.: 5:11-cv-03588-PSG
ORDER TAXING COSTS
(Re: Docket No. 304)

Following a jury verdict in this Section 1983 case in favor of Defendants City of Santa
Clara, Steven Burress, Craig Middlekauff and Stephen Lodge (“City of Santa Clara”), 1 Plaintiff
Victor Velasquez seeks further reduction to the Bill of Costs as assessed by the Clerk of Court. 2

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City of Santa Clara opposes. 3 The court finds the issue suitable for disposition on the papers
pursuant to Civil L.R. 7-1(b). 4

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See Docket No. 279.

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Docket No. 303, 304. City of Santa Clara initially submitted a bill of costs in the amount of
$49,600.97. The Clerk reduced the award to $13,938.20.

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See Docket No. 306.

See Civil L.R. 7-1(b) (“In the Judge’s discretion, or upon request by counsel and with the Judge’s
approval, a motion may be determined without oral argument or by telephone conference call.”).
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Case No. 5:11-cv-03588-PSG
ORDER TAXING COSTS

Fed. R. Civ. P. 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as

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of course to the prevailing party unless the court otherwise directs.” “Thus, Rule 54(d) creates a

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presumption in favor of awarding costs to prevailing parties, and it is incumbent upon the losing

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party to demonstrate why the costs should not be awarded.” 5

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“District courts should consider the financial resources of the plaintiff and the amount of
costs in civil rights cases.” 6 Indigency may amount to a compelling “factor that the district court
may properly consider in deciding whether to award costs.” 7 The trial court must evaluate whether
the imposition of significant “costs on losing civil rights plaintiffs of modest means may chill civil

United States District Court
For the Northern District of California

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rights litigation”—an area that raises “important issues” without “obvious” answers. 8 Despite this,

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“a district court need not give affirmative reasons for awarding costs; instead, it need only find that

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the reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor

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of an award.” 9

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Stanley v. Univ. of S. California, 178 F.3d 1069, 1079 (9th Cir. 1999) (citing National Info.
Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir. 1995).

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Id. (citing Wrighten v. Metropolitan Hosps., Inc., 726 F.2d 1346, 1358 (9th Cir. 1984); Moore v.
Hughes Helicopters, Inc., 708 F.2d 475, 486 (9th Cir. 1983).
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See id. at 1079-80 (citing National Org. for Women v. Bank of California, 680 F.2d 1291, 1294
(9th Cir. 1982); McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.1994)).

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See id. at 1080 (“Without civil rights litigants who are willing to test the boundaries of our laws,
we would not have made much of the progress that has occurred in this nation since Brown v.
Board of Educ., 347 U.S. 483 (1954)).
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Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (characterizing Stanley as
only holding “that, in the rare occasion where severe injustice will result from an award of costs
(such as the injustice that would result from an indigent plaintiff’s being forced to pay tens of
thousands of dollars of her alleged oppressor’s legal costs), a district court abuses its discretion by
failing to conclude that the presumption” has been rebutted and finding that no “such injustice will
result from the award of $5,310.55” in the present case).
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Case No. 5:11-cv-03588-PSG
ORDER TAXING COSTS

Here, Velasquez urges that taxing costs to the tune of $13,938.20—as determined by the

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Clerk of Court—would be inequitable. Velasquez also disputes some of the costs under the local

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rules. 10

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United States District Court
For the Northern District of California

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See Civil L.R. 54-3. Standards for Taxing Costs.
(a) Fees for Filing and Service of Process
(1) The Clerk’s filing fee is allowable if paid by the claimant.
(2) Fees of the marshal as set forth in 28 U.S.C. § 1921 are allowable to the extent
actually incurred. Fees for service of process by someone other than the marshal acting
pursuant to Fed. R. Civ. P. 4(c), are allowable to the extent reasonably required and
actually incurred.
(b) Reporters’ Transcripts
(1) The cost of transcripts necessarily obtained for an appeal is allowable.
(2) The cost of a transcript of a statement by a Judge from the bench which is to be
reduced to a formal order prepared by counsel is allowable.
(3) The cost of other transcripts is not normally allowable unless, before it is incurred,
it is approved by a Judge or stipulated to be recoverable by counsel.
(c) Depositions
(1) The cost of an original and one copy of any deposition (including videotaped
depositions) taken for any purpose in connection with the case is allowable.
(2) The expenses of counsel for attending depositions are not allowable.
(3) The cost of reproducing exhibits to depositions is allowable if the cost of the
deposition is allowable.
(4) Notary fees incurred in connection with taking depositions are allowable.
(5) The attendance fee of a reporter when a witness fails to appear is allowable if the
claimant made use of available process to compel the attendance of the witness.
(d) Reproduction and Exemplification
(1) The cost of reproducing and certifying or exemplifying government records used
for any purpose in the case is allowable.
(2) The cost of reproducing disclosure or formal discovery documents when used for
any purpose in the case is allowable.
(3) The cost of reproducing copies of motions, pleadings, notices, and other routine
case papers is not allowable.
(4) The cost of reproducing trial exhibits is allowable to the extent that a Judge requires
copies to be provided.
(5) The cost of preparing charts, diagrams, videotapes and other visual aids to be used
as exhibits is allowable if such exhibits are reasonably necessary to assist the jury or the
Court in understanding the issues at the trial.
(e) Witness Expenses. Per diem, subsistence and mileage payments for witnesses are allowable
to the extent reasonably necessary and provided for by 28 U.S.C. § 1821. No other witness
expenses, including fees for expert witnesses, are allowable.
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Case No. 5:11-cv-03588-PSG
ORDER TAXING COSTS

Considering the stakes, the taxing of costs in this case will not chill civil rights litigation in

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this area. First, the assessed costs are less than half of those initially sought, and they are modest in

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light of the damages Velasquez sought at trial. 11 Second, although Velasquez’s financial resources

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are relevant to this court’s analysis, he fails to provide any evidence of his indigence, instead

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asserting merely that he “would, in all likelihood, be unable to pay the cost award.” 12 Third,

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Stanley and Save Our Valley require this court to evaluate whether “severe injustice” would result
from an award of costs in a civil rights case. 13 While every civil rights claim is important,
Velasquez’s case did not raise broad, Brown-level issues challenging “the boundaries of our laws”
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United States District Court
For the Northern District of California

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that overcome the presumption that Defendants are entitled to costs.

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challenged specific police action that was deemed reasonable and appropriate by a jury of his

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peers. The extended nature of the jury deliberations does not change this. 15

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Velasquez instead

The court’s review of costs filed by Defendants and the amounts ultimately taxed by the
Clerk show them to be, on-the-whole, warranted. The court agrees, however, with Velasquez’s

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request for a reduction in costs associated with service of subpoenas. Civil Local Rule 54-3(a)(2)

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contemplates fees for service of process but not for service of deposition subpoenas or other court

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(f) Fees for Masters and Receivers. Fees to masters and receivers are allowable.
(g) Costs on Appeal. Such other costs, not heretofore provided for, authorized under Rule 39,
Federal Rules of Appellate Procedure, are allowable.
(h) Costs of Bonds and Security. Premiums on undertaking bonds and costs of providing
security required by law, by order of a Judge, or otherwise necessarily incurred are allowable.
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See Docket No. 1-1 at 21-22; cf. Save Our Valley, 335 F.3d at 946 (hypothesizing that the
“district court might have believed that this relatively small sum—$5,310.55—would not “chill”
future civil rights litigation” and therefore awarded costs).

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Docket No. 304 at 13.

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See Save Our Valley, 335 F.3d at 945.

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See Stanley, 178 F.3d at 1080.

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See Docket No. 279. Velasquez further argues that “it can be presumed that others who have
been shot by police, when they did not possess a weapon, based on a mistaken presumption of a
weapon will certainly question litigation if an award such as [this one] is granted.” Docket No. 304
at 12-13. But Velasquez offers no evidence or case law to support this presumption.
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Case No. 5:11-cv-03588-PSG
ORDER TAXING COSTS