Moore v. United States of America

Filing 133

ORDER Granting in Part and Denying in Part Plaintiff's 128 Motion to Re-Tax Costs. Defendant is awarded costs in the amount of $4,206.30. Signed by Magistrate Judge David H. Bartick on 8/11/2016. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAQUEL SABRINA MOORE,

Case No.: 13-cv-00931-DHB
Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO RE-TAX COSTS

v.
UNITED STATE OF AMERICA,
Defendant.

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[ECF No. 128]

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On June 7, 2016, Plaintiff Raquel Sabrina Moore (“Plaintiff”) filed a Motion to Re-

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Tax Costs. (ECF No. 128.) On June 23, 2016, Defendant United States of America

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(“Defendant”) filed an opposition. (ECF No. 130.) On June 30, 2016, Plaintiff filed a

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reply. (ECF No. 131.) Having considered the parties’ submissions and supporting exhibits,

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the Court hereby awards costs to Defendant in the amount of $4,206.30.

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I.

BACKGROUND

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On April 18, 2013, Plaintiff filed a negligence action against Defendant under the

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Federal Tort Claims Act. (ECF No. 1.) On May 9, 2016, following a four day bench trial,

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judgment was entered in favor of Defendant. (ECF No. 122.) On May 13, 2016, Defendant

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filed a Bill of Costs in the amount of $4,312.30, and on May 26, 2016, Plaintiff filed an

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objection to the Bill of Costs. (ECF Nos. 123, 125.) The Clerk of Court held a telephonic

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Bill of Costs hearing on June 2, 2016 and issued an Order Taxing Costs in the amount of
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$4,264.30. (ECF No. 127.) Plaintiff contends that the Order Taxing Costs should be

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vacated, or in the alternative, reduced by the amount of $319.80. (ECF No. 128 at 10.)

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II.

DISCUSSION

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Plaintiff argues the Court should use its discretion to decline to award Defendant

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costs because Plaintiff will suffer severe financial hardship if costs are imposed.

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Specifically, Plaintiff represents that she is a low paid employee of the U.S. Department of

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Veterans Affairs (VA), and that her current monthly income only exceeds her monthly

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expenses by approximately $37.70 per month. (Id. at 3.) In addition, Plaintiff indicates

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that she is a single mother who supports her child who is currently attending college, and

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that Plaintiff filed for bankruptcy during the pendency of the underlying litigation. (Id.)

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Plaintiff also claims Defendant is in a “better position to bear the burden of its own costs,

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as Defendant is the federal government of a first world nation.” (Id.) Plaintiff further

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contends Defendant has failed to properly itemize the costs involved and failed to provide

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the Court with sufficient details to assess the reasonableness of the amounts claimed. (Id.

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at 6.)

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Defendant counters that it is entitled to recover its costs because this case is not

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extraordinary and that a severe injustice will not result if Plaintiff is ordered to pay costs.

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(ECF No. 130 at 8.) Defendant also provides supplemental information addressing the

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individual costs challenged by Plaintiff. (Id. at 13-15.)

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A.

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Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, it is presumed that a

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prevailing party will recover its costs. See Fed. R. Civ. P. 54(d); Quan v. Computer

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Sciences Corp., 623 F.3d 870, 888 (9th Cir. 2010), abrogated on other grounds by Fifth

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Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459 (2014). The losing party bears the burden

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of showing “why costs should not be awarded.” Quan, 623 F.3d at 888 (quoting Save our

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Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003)). Proper grounds for denying

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costs include: (1) a losing party’s limited financial resources; (2) misconduct by the

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prevailing party; (3) the chilling effect of imposing high costs of civil rights litigants; (4)

The Court’s Discretionary Authority to Award Costs

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whether the issues in the case were close and difficult; (5) whether the prevailing party’s

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recovery was nominal or partial; (6) whether the losing party litigated in good faith; and

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(7) whether the case presented a landmark issue of national importance. Id. at 888-89.

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It is undisputed that Defendant was the prevailing party in this action, as Judgment

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was entered on May 9, 2016, after the Court concluded that Plaintiff failed to prove

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Defendant was negligent by a preponderance of the evidence. (ECF Nos. 121, 122.)

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Therefore, it is presumed Defendant is entitled to recover costs, and Plaintiff bears the

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burden of showing why costs should not be awarded. For the reasons discussed below,

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looking at each of the relevant factors individually, the Court finds Plaintiff has not

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demonstrated this case represents one of the “rare occasion[s] where severe injustice will

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result from an award of costs (such as the injustice that would result from an indigent

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plaintiff’s being forced to pay tens of thousands of dollars of her alleged oppressor’s legal

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costs).” Save our Valley, 335 F.3d at 945.

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1.

The Losing Party’s Financial Resources

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The Court appreciates Plaintiff’s financial situation; however, based on the

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information provided in her submitted declaration, she is not indigent. Plaintiff has a full

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time job at the VA, and she also receives benefits as a disabled Veteran. She has a total

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net income of approximately $4,449.00 per month. (ECF No. 128-1 at 2).1 Although

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Plaintiff claims that her monthly income barely covers her monthly expenses, she is able

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to make charitable contributions on a monthly basis. (Id.) It is commendable that Plaintiff

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is assisting her adult daughter with college expenses. However, it does appear that Plaintiff

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has discretionary income.

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circumstances, this factor does not support a denial of costs, particularly since it does

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appear that Plaintiff has sufficient assets to make payments over time. See Ardalan v.

While the Court is sympathetic to Plaintiff’s financial

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The Court is unable to ascertain whether Plaintiff has any assets in investment,
savings, or checking accounts, as this information was not provided in the submitted
financial declaration.
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Monterey Inst. of Int’l Studies, No. C 03-01075 JFPVT, 2004 WL 2047593, at *2-4 (N.D.

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Cal. Sept. 14, 2004).

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2.

Misconduct by the Prevailing Party

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There is no allegation by Plaintiff that Defendant engaged in misconduct or

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impropriety in the litigation of this case. This case was professionally litigated by both

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parties, and the Court was sincerely impressed with the high caliber of representation on

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both sides of the aisle. This factor favors imposition of a cost award.

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3.

The Chilling Effect of Imposing High Costs of Civil Rights Litigants

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The underlying action was not a civil rights case, as the sole cause of action was

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negligence based on a slip and fall incident at a VA hospital. The amount of costs are not

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unusually high or extraordinary for a case that was litigated for a period of more than three

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years. See Darensburg v. Metro. Transp. Comm’n, No. C-05001597 EDL, 2009 WL

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2392094 (N.D. Cal. Aug. 4, 2009) (comparing cases with small cost awards under $9,000

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and large cost awards ranging from $16,268.71 to $485,159.49). This factor favors the

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imposition of a cost award.

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4.

Whether the Issues in the Case Were Close and Difficult

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Plaintiff contends that because her case was meritorious that she should be relieved

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from an award of costs. (ECF No. 128 at 4.) It is true that the Court found that the evidence

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supported her contention that she slipped and fell in a puddle of Isagel liquid. However,

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this factual finding was only one step towards meeting Plaintiff’s burden in establishing

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liability. As stated in the Court’s Memorandum of Decision, Plaintiff failed to prove that

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Defendant had actual or constructive knowledge of the dangerous condition that allegedly

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caused her injury. (ECF No. 121 at 8-13.) As previously held by the Court, there was no

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evidence introduced depicting how, when, or who spilled the Isagel. (Id.) The facts of the

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underlying case were fairly straightforward, and the legal issues were not particularly

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difficult or complex. This factor favors the imposition of a cost award.

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5.

Whether the Prevailing Party’s Recovery was Nominal or Partial

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Defendant prevailed because Plaintiff failed to meet her burden of proof. There was

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no partial recovery for Plaintiff based on comparative negligence, contributory negligence,

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or any other legal theory. This factor favors the imposition of a cost award.

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6.

Whether the Losing Party Litigated in Good Faith

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The Court does find that Plaintiff litigated this case in good faith. There were factual

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issues that needed to be determined by a trier of fact. This factor favors the Court utilizing

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its discretion in denying a cost award.

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7.

Whether the Case Presented a Landmark Issue of National Importance

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Plaintiff contends that this case is particularly significant because, “in a broader

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context, this case is about ensuring the medical needs of our Nation’s veterans, in a safe

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environment.” (ECF No. 128 at 4.) The Court certainly recognizes the importance of

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keeping our veterans safe. However, this case did not address specific health care issues

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or allegations of delayed medical treatment, which may be defined as important national

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issues. This case involved an isolated incident at the VA, and did not impact or affect

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nationwide policy or federal decision making. Simply stated, the underlying matter was

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not “an extraordinary, and extraordinarily important, case.”

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Educators v. State of Cal., 231 F.3d 572, 593 (9th Cir. 2000) (en banc). This factor favors

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the imposition of a cost award.

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Ass’n of Mexican-Am.

Given the foregoing, the Court finds that it would not be inequitable or improper to
award costs.

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B.

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Plaintiff challenges the cost award based on the fact that numerous costs were not

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reasonable and necessary, and that Defendant failed to comply with Civil Local Rule

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54.1(b)(6)(c), which states:

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Adequacy of Defendant’s Cost Bill

The party seeking recovery must present documentary evidence in the form
of affidavits describing the documents copied, to whom they were provided,
the number of pages copied, and the cost per page, and the use of or intended
purpose for the items copied. If documents were provided only to the party
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seeking recovery, that party must specify the purpose of acquisition and
photocopying of the documents served. In the absence of a specific showing,
recovery must be denied.
Civ. L.R. 54.1(b)(6)(c).

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Plaintiff objects to the subpoena fees awarded to Defendant for the service of

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subpoenas to the VA Hospital, Steven Alsing, MD, and attorney Craig Dwyer. (ECF No.

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128 at 6.) The Court finds that the service of the subpoenas to the VA Hospital and Dr.

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Alsing was reasonable and necessary, as it was appropriate for Defendant to subpoena

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medical records and Dr. Alsing was a potential witness. However, Defendant has not

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provided justification for serving attorney Dwyer twice, once on January 12, 2016 ($58.00)

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and again on February 8, 2016 ($58.00). (ECF No. 123 at 4.) The Court acknowledges

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that attorney Dwyer was a trial witness, and therefore the issuance of a subpoena was

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necessary, but based on a lack of justification for the two separate subpoena costs, the Court

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will adjust the costs award by deducting the sum of one of the service costs in the amount

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of $58.00.

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Plaintiff contends that Defendant’s Claim for Exemplification and Copies of Papers

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should be denied for various reasons, including failure to demonstrate which copies were

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required to be provided to the Court and to opposing counsel, as well as various issues

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concerning photographs. (ECF No. 128 at 7-9.) The stated requirements in Civil Local

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Rule 54.1 for the submission of a Bill of Costs requires a more particularized description

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of the expended costs than is required under Rule 54 of the Federal Rules of Civil

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Procedure. The purpose of the local rule’s greater specificity is to ensure that opposing

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counsel and the Court have a clear understanding of the nature and purpose of the claimed

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costs. Plaintiff states that Defendant’s Bill of Costs is incomplete because the motion did

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not explain to whom the duplicated documents were provided, nor did the original

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submission state the use of, or the intended purpose of, the items copied. (Id.) However,

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Defendant’s Attachment to Bill of Costs (Exhibit C) does contain a categorical listing of

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each exhibit copied and the amount of the respective copy costs for each exhibit. (ECF

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No. 123 at 21-24). In regard to these exhibits, four copies were made, which is consistent
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with the Court’s order that the Court was to be provided with two copies of the exhibit

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binders, and a copy needed to be provided to opposing counsel. It is also reasonable that

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one copy of the exhibits would be retained by Defendant. Therefore, Plaintiff had

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knowledge based on the Court’s previously issued Amended Trial Order as to the number

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of exhibits binders (and exhibits) that had to be made by each party. (ECF No. 94 at 3.)

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The Court finds that the cost in duplicating four copies of each exhibit was necessary and

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reasonable.

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The Court further finds that the photographic copies were digital images printed on

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8½ x 11 inch copy paper, and therefore these exhibits were not traditional photographs, as

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contemplated in Civil Local Rule 54.1(7)(a) and (b). In addition, the Court finds that the

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costs incurred in the duplication of these digital images were necessary and reasonable.

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III.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Re-

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Tax Costs in GRANTED IN PART and DENIED IN PART. Defendant is awarded costs

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in the amount of $4,206.30.

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IT IS SO ORDERED.
Dated: August 11, 2016
_________________________
DAVID H. BARTICK
United States Magistrate Judge

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