Myers, et al v. USA, et al

Filing 595

ORDER granting Plaintiff's 588 Motion to Re-Tax Costs. Costs taxed in the amount of $ $13,271.06 against Plaintiff. Signed by Judge Roger T. Benitez on 3/22/2017. (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTINE MYERS, Acting as
guardian ad litem for L. Myers, a
minor,

CASE NO. 02cv1349-BEN
ORDER GRANTING
PLAINTIFF’S MOTION TO
RE-TAX COSTS (Dkt. No. 588)

Plaintiff,

vs.

UNITED STATES OF AMERICA,
Defendant.

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Plaintiff moves the Court pursuant to Fed.R.Civ.P. 54(d) to re-tax costs

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imposed against the Plaintiff in the amount of $13,271.06. Plaintiff’s motion is

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granted. No costs are imposed.

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DISCUSSION
Rule 54(d)(1) of the Federal Rules of Civil Procedure creates a presumption

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in favor of awarding costs to a prevailing party. Nevertheless, the Court has

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discretion to deny costs. Fed.R.Civ.P. 54(d)(1) (“[C]osts other than attorneys’ fees

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shall be allowed as of course to the prevailing party unless the court otherwise

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directs.”). The Court may deny costs where the circumstances are such that an

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award “would be inappropriate or inequitable.” Champion Produce, Inc. v. Ruby

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Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003). Circumstances justifying

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the denial of costs include the following: (1) a losing party’s limited financial

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resources; (2) misconduct by the prevailing party; and (3) ‘the chilling effect of
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02cv1349-BEN

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imposing high costs on future civil rights litigants.’” Id. (quoting Association of

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Mexican-American Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000) (en

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banc)). Other factors for denying costs include that the issues were close and

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difficult, and that “the case presented a landmark issue of national importance.” Id.

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The Court finds it would not be equitable to award the Government costs

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against the Plaintiff. In other circumstances, the costs incurred by the Government

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would be reasonably awarded. But, the issues in this case were close and difficult.

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The Plaintiff is part of a military family with limited financial resources that is

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already sacrificing in manifold ways for the benefit of the Government. Moreover,

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an award of costs in favor of the Government and against Plaintiff could have a

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chilling effect upon future military families living on military bases considering

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suits where the Government undertakes potentially hazardous remediation projects.

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Finally, the presented legal issue of when the discretionary function exception

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applies is an issue of national importance. The Court finds these factors justify the

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Court’s exercise of its discretion to deny costs to the Government in this case.
CONCLUSION

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For the reasons set forth herein, the Court finds this is an unusual case where

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an award of costs in favor of a prevailing party defendant would be inequitable.

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Therefore, the Court GRANTS Plaintiff’s motion to re-tax costs, and vacates the

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Clerk’s order taxing costs in favor of Defendant. No costs are awarded to the

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Government defendant.

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IT IS SO ORDERED.

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DATED: March 22, 2017

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Hon. Roger T. Benitez
United States District Judge

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02cv1349-BEN