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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 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. 15 16 Plaintiff moves the Court pursuant to Fed.R.Civ.P. 54(d) to re-tax costs 17 imposed against the Plaintiff in the amount of $13,271.06. Plaintiff’s motion is 18 granted. No costs are imposed. 19 20 DISCUSSION Rule 54(d)(1) of the Federal Rules of Civil Procedure creates a presumption 21 in favor of awarding costs to a prevailing party. Nevertheless, the Court has 22 discretion to deny costs. Fed.R.Civ.P. 54(d)(1) (“[C]osts other than attorneys’ fees 23 shall be allowed as of course to the prevailing party unless the court otherwise 24 directs.”). The Court may deny costs where the circumstances are such that an 25 award “would be inappropriate or inequitable.” Champion Produce, Inc. v. Ruby 26 Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003). Circumstances justifying 27 the denial of costs include the following: (1) a losing party’s limited financial 28 resources; (2) misconduct by the prevailing party; and (3) ‘the chilling effect of -1- 02cv1349-BEN 1 imposing high costs on future civil rights litigants.’” Id. (quoting Association of 2 Mexican-American Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000) (en 3 banc)). Other factors for denying costs include that the issues were close and 4 difficult, and that “the case presented a landmark issue of national importance.” Id. 5 The Court finds it would not be equitable to award the Government costs 6 against the Plaintiff. In other circumstances, the costs incurred by the Government 7 would be reasonably awarded. But, the issues in this case were close and difficult. 8 The Plaintiff is part of a military family with limited financial resources that is 9 already sacrificing in manifold ways for the benefit of the Government. Moreover, 10 an award of costs in favor of the Government and against Plaintiff could have a 11 chilling effect upon future military families living on military bases considering 12 suits where the Government undertakes potentially hazardous remediation projects. 13 Finally, the presented legal issue of when the discretionary function exception 14 applies is an issue of national importance. The Court finds these factors justify the 15 Court’s exercise of its discretion to deny costs to the Government in this case. CONCLUSION 16 17 For the reasons set forth herein, the Court finds this is an unusual case where 18 an award of costs in favor of a prevailing party defendant would be inequitable. 19 Therefore, the Court GRANTS Plaintiff’s motion to re-tax costs, and vacates the 20 Clerk’s order taxing costs in favor of Defendant. No costs are awarded to the 21 Government defendant. 22 IT IS SO ORDERED. 23 DATED: March 22, 2017 24 25 Hon. Roger T. Benitez United States District Judge 26 27 28 -2- 02cv1349-BEN

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