Dehen v. Doe et al

Filing 85

ORDER on Dehen's Memorandum for Cause. The Court finds that Twitter, USD, and Perkins Coie are "prevailing parties," and that Dehen has failed to show cause why Defendants' costs should not be taxed against her. Pursuant to the Co urt's Order of Dismissal, Dkt. 83 , the clerk is therefore ordered to enter judgment in favor of Twitter, USD, and Perkins Coie. This does not affect Dehen's remaining claims against John Doe. Defendants may each submit a bill of costs by 11/9/2018. Signed by Judge Larry Alan Burns on 10/24/2018.(All non-registered users served via U.S. Mail Service)(jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
10
11

SOUTHERN DISTRICT OF CALIFORNIA
TIFFANY DEHEN, an individual on
behalf of herself,

12
13
14
15

Plaintiff,

CASE NO. 17cv198-LAB (WCG)
ORDER ON DEHEN’S MEMORANDUM
FOR CAUSE

vs.
JOHN DOES 1-100, TWITTER, INC.,
UNIVERSITY OF SAN DIEGO, AND
PERKINS COIE LLP,

16

Defendants.

17
18

After dismissing with prejudice Plaintiff Tiffany Dehen’s claims against Defendants

19

Twitter, University of San Diego (USD), and Perkins Coie, this Court ordered Dehen to

20

show cause why each of the Defendants’ costs should not be taxed against her. Dkt. 83

21

at 12. Dehen has now responded. For the reasons below, the Court finds that she has

22

failed to show cause.

23

Dehen’s response makes a series of scattershot arguments, none of which are

24

availing. Her primary contention appears to be that by dismissing Twitter, the Court has

25

stripped her of the ability to seek recourse against John Doe. See Dkt. 84 at 2 (“The

26

Court dismissed out defendants before Defendant Twitter provided the identifying

27

information of John Doe . . . .”); Dkt. 84 at 3 (“[T]he Court’s order effectively leaves Ms.

28

Dehen with no meaningful legal recourse to pursue legal action in a court of law for which

-1-

1

Ms. Dehen has legitimate claims against John Doe . . . .”). First, that’s incorrect. Dehen

2

has never explained why Twitter needs to be a party to the case in order for her to take

3

third-party discovery to uncover the identity of Doe. Second, the argument completely

4

misses the point. Twitter and the other named Defendants “prevailed” in Dehen’s dispute

5

with each of them individually. Whether she has pending claims against John Doe, or

6

whether the Court’s dismissal of the named Defendants somehow impacts her claims

7

against John Doe, is irrelevant to whether the named Defendants, as prevailing parties,

8

are entitled to recover the costs they expended in defending against her claims.

9

Dehen also cites state trial court orders from Tennessee and New Jersey to

10

support her argument that the named Defendants are not entitled to costs. Id. at 1-2.

11

These opinions are not on point and have no relevance to whether Defendants may

12

recover costs under Ninth Circuit law. FRCP 54(d)(1) provides that “costs other than

13

attorneys’ fees shall be allowed as of course to the prevailing party unless the court

14

otherwise directs.” As the Ninth Circuit has recognized, “[b]ecause Rule 54(d)(1) states

15

that costs ‘shall’ be allowed ‘as of course,’ there is a strong presumption in favor of

16

awarding costs to the prevailing party.” Miles v. State of California, 320 F.3d 986, 988

17

(9th Cir. 2003). Courts within the Ninth Circuit have explicitly held that a dismissal for

18

failure to state a claim confers “prevailing party” status on a defendant. See Willis Corroon

19

Corp. of Utah v. United Capitol Ins. Co., 1998 WL 196472, at *3 (N.D. Cal. 1998) (“[W]hen

20

an action has been dismissed for failure to state a claim, the defendant is the prevailing

21

party for purposes of an attorney fee award.”). This District’s local rules support the same

22

finding. Civ. LR 54.1(f) (“The defendant is the prevailing party upon any termination of

23

the case without judgment for the plaintiff except a voluntary dismissal under Fed. R. Civ.

24

P 41(a).”).

25

The Court takes seriously Dehen’s contention that she is indigent and would be

26

unable to pay Defendants’ costs. But she should raise that argument in a motion to set

27

aside an award of costs, not as a basis to prevent Defendants from submitting a bill of

28

costs altogether. See Harrison v. Robinson Rancheria Band of Pomo Indians Bus.

-2-

1

Council, 2013 WL 6057077, at *4 (N.D. Cal. 2013) (“In any motion to set aside an award

2

of costs, this Court will consider demonstrated evidence of indigence as one of several

3

factors in determining whether to set aside an award, and will balance those factors

4

against the policy considerations that ordinarily compel the losing party to pay costs to

5

the prevailing. But the Court cannot conclude on the basis of the current record that any

6

costs Defendant might seek would necessarily result in severe injustice.”) (internal

7

quotation marks omitted).

8

In short, the Court finds that Twitter, USD, and Perkins Coie are “prevailing

9

parties,” and that Dehen has failed to show cause why Defendants’ costs should not be

10

taxed against her. The Court also finds that there is no reason to delay entry of judgment

11

as to these Defendants, given (1) the significant differences between Dehen’s (now

12

dismissed) claims against the named Defendants and her remaining claims against John

13

Doe, and (2) Dehen’s indication that she intends to appeal. Pursuant to the Court’s Order

14

of Dismissal, Dkt. 83, the clerk is therefore ORDERED to enter judgment in favor of

15

Twitter, USD, and Perkins Coie. FRCP 54(b). This does not affect Dehen’s remaining

16

claims against John Doe. Defendants may each submit a bill of costs by November 9,

17

2018.

18
19
20
21

IT IS SO ORDERED.
Dated: October 24, 2018
HONORABLE LARRY ALAN BURNS
United States District Judge

22
23
24
25
26
27
28

-3-