American Tower Corporation v. City of San Diego et al

Filing 364

ORDER Granting in Part and Denying in Part Parties' Respective Motions to Re-Tax Costs (Doc. Nos. 346 , 347 , 348 , 321 ). The Court orders that the clerk's taxation of costs be re-taxed such that the costs are not taxed against either party. Signed by Judge Roger T. Benitez on 5/24/2012. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LEAD CASE NO. 07-cv-399 - BEN

(WVG)

CONSOLIDATED WITH CASE NO.

08-cv-435 - BEN (WVG)

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IN RE CELL TOWER LITIGATION

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ORDER GRANTING IN PART
AND DENYING IN PART
PARTIES' RESPECTIVE
MOTIONS TO RE-T AX COSTS

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[Doc. Nos. 321, 346, 347, 348]

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These cases involve alleged violations of certain portions of the Telecommunications Act of

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1996,47 U.S.C. §§ 251 et seq. Plaintiffs American Tower Corporation ("ATC") and T-Mobile West

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Corporation asserted that Defendants City of San Diego, City Council of City of San Diego, and

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Development Services Department of City of San Diego ("the City") denied them conditional use

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permits ("CUPs") for wireless communications facilities located at several sites. Currently before the

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Court are parties' respective motions to re-tax costs awarded by the Clerk of Court ("clerk"). Having

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considered the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART

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and DENIES IN PART the motions and ORDERS that each party bear its own costs.

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BACKGROUND

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The background is outlined in the Court's August 5, 2011 and August 26,2011 orders ruling

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on the parties' cross-motions for summary judgment. [See Doc. Nos. 267, 292.] As relevant to these

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07cv399 (08cv435)

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of CUPs for several sites. Plaintiffs alleged numerous claims against the City, including violations

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of the Telecommunications Act, preemption of the City's regulations, unreasonable discrimination,

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lack ofsubstantial evidence for the City's determination, and violation ofthe Permit Streamlining Act

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("PSA"). The Court ruled in the City's favor on all of Plaintiffs' claims except ATC's claims under

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the PSA. With regard to the PSA claims, the Court ordered the City to issue the CUPs sought by ATC.

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[See Order Denying the City's Motion for Reconsideration, at 3 [Doc. No. 3l3].)

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On August 29,2011, the Court entered judgment in Case No. 07-cv-399 in favor of the City

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on all of the claims except the PSA claim, and in favor of ATC on the PSA claim. [Doc. No. 296.]

lOOn August 30, 2011, the City filed a motion for reconsideration, which the Court denied on September
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16,2011. On September 16,2011, the Court entered an amended judgment in Case No. 07-cv-399

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in favor of the City on all of the claims except the PSA claim, and in favor of ATC on the PSA claim.

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[Doc. No. 315.] The Court also entered judgment in Case No. 08-cv-435 in favor of the City on all

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of the claims except the PSA claim, and in favor of ATC on the PSA claim. [Doc. No. 314.]

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After the parties submitted their respective bills of costs, the clerk held several hearings

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regarding the taxation ofcosts. On September 27,2011, the clerk taxed costs in Case No. 07-cv-399

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in theamountof$42,221.82 againstATC. [Doc. No. 317.] On October 28, 2011, the clerk taxed costs

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in Case No. 07-cv-399in the amount of$21,649.24 againstthe City. [Doc. No. 342.] AlsoonOctober

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28,2011, the clerk taxed costs in Case No. 08-cv-435 in the amount of$78,028.18 againstATC and

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in the amount of $21 ,445.56 against the City. [Doc. Nos. 341, 343.]

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On October 4,2011 and November 3,2011, ATC filed timely motions to re-tax the clerk's

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September 27,2011 (Case No. 07-cv-399) and October 28,2011 (Case No. 08-cv-435) taxation of

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costs. [Doc. No. 321.] On November 4,2011, the City filed timely motions to re-tax the clerk's

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October 28,2011 (Case Nos. 07-cv-399 and 08-cv-435) taxation of costs. [Doc. Nos. 347, 348.]

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Each party essentially argues that the clerk erred in taxing costs against it (but not the other

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party) because it (and not the other party) was the sole "prevailing party." Each party further contends

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that ifthe other party is to be considered the "prevailing party," the Court should exercise its discretion

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in denying that party recovery of costs. Finally, the City argues that to the extent the Court allows

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07cv399 (OBcv43S)

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costs to be taxed against the City, the Court should reduce the amount of those costs. The Court

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decides these motions without oral argument pursuant to Civil Local Rule 7.1 (d)( I).

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LEGAL STANDARD

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Federal Rule of Civil Procedure 54(d)(1) provides that unless a federal statute, the rules, or a

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court order direct otherwise, "costs--{)ther than attorney's fees-should be allowed to the prevailing

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party." The clerk may tax costs on 14 days' notice. Id. The Court may review the clerk's action upon

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a motion served within seven days after the costs are taxed. Id. The Court reviews the clerk's taxation

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of costs de novo. Rivera v. NIBCO, 701 F. Supp. 2d 1135, 1137 (E.D. Cal. 2010).

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DISCUSSION

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Rule 54(d)( 1) "creates a presumption in favor of awarding costs to a prevailing party." Ass 'n

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ofMex. -Am. Educators v. State ofCalifornia, 231 F .3d 572, 591 (9th Cir. 2000) (en banc). "Courts

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consistently confirm that' a party in whose favor judgment is rendered is generally the prevailing party

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for purposes of awarding costs under Rule 54(d). '" San Diego Police Officers' Ass 'n v. San Diego

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City Employees' Ret. Sys., 568 F.3d 725, 741 (9th Cir. 2009) (citations omitted). It is not necessary

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for the party to prevail on all of its claims to be considered the prevailing party. Id. Rather, what is

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necessary is for the party to obtain some "actual relief on the merits ofhis claim [that] materially alters

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the legal relationship between the parties by modifying the [other party's] behavior in a way that

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directly benefits [the first party]." See Farrar v. Hobby, 506 u.s. 103, 111-12 (1992)(concluding that

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a plaintiff who wins nominal damages is a prevailing party under 42 U.S.C. § 1988).

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In the present case, the parties disagree as to which one of them qualifies as the "prevailing

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party." On the one hand, the City argues persuasively that it should be considered the prevailing party

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because it had judgment entered in its favor on the majority of Plaintiffs' claims. On the other hand,

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ATC is equally persuasive in arguing that it is the prevailing party because, although it did not succeed

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on most of its claims, it was successful in obtaining the ultimate relief sought in the complaints-the

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issuance ofthe renewed CUPs for the several sites. Accordingly, each party appears to have prevailed

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to some extent in these cases. This quandary creates a dilemma for the Court because, as the parties

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acknowledge, although the clerk taxed the costs against both parties, there can be only one prevailing

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party under Rule 54(d)(1). See Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010).

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07cv399 (08cv435)

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It is hard for the Court to determine whether the City or A TC prevailed the most. Pursuant to

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Civil Local Rule 54.1 (1), in the event each side recovers in part, "ordinarily the party recovering the

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larger sum will be considered the prevailing party." In this case, the City did not "recover" anything.

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At the same time, it successfully defended against a plenitude of Plaintiffs' accusations and avoided

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paying any damages or attorney's fees to Plaintiffs. On the other hand, A TC lost on all of its claims,

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except the PSA claim. But that one claim provided A TC with the ultimate relief sought-the issuance

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ofthe CUPs despite the City's refusal to do so. Accordingly, no matter how the Court looks at it, this

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case represents a stereotypical example of a mixed judgment. The Ninth Circuit has indicated that

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"[i]n the event of a mixed judgment, ... it is within the discretion of a district court to require each

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party to bear its own costs." Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1996). Having

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considered all of the relevant circumstances in these cases, and in light of the mixed judgment, the

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Court will exercise its discretion and will require each party to bear its own costs.

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CONCLUSION

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In light of the mixed judgments in these cases, the Court will exercise its discretion and will

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required each party to bear its own costs. Accordingly, the parties' respective motions to re-tax costs

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are GRANTED IN PART and DENIED IN PART. The Court ORDERS that the clerk's taxation

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of costs be RE-T AXED such that the costs are not taxed against either party.

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IT IS SO ORDERED.

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Date: May¢, 2012

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07cv399 (08cv435)