Jones v. Neven et al

Filing 310

ORDER Denying 304 Plaintiff Christopher A. Jones's Motion to Review Costs. Signed by Judge James C. Mahan on 1/14/2013. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHRISTOPHER A. JONES,

2:07-CV-1088 JCM (GWF)

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Plaintiff,
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v.

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N/A
N/A

DWIGHT NEVEN, et al.,

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Date:
Time:

Defendant.

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ORDER

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Presently before the court is plaintiff Christopher A. Jones’s motion to review costs pursuant

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to Local Rule 51-14(a). (Doc. # 304). Defendants Dwight Neven et al. has responded (doc. # 306)

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and plaintiff has replied (doc. # 307).

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The court granted defendants’ motion for summary judgment after remand from the Ninth

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Circuit. (Doc. # 292). Defendant submitted a bill of costs (doc. # 294) and plaintiff objected to the

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bill of costs (doc. # 299). The clerk of the court then taxed costs against plaintiff in the amount of

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$550.05. (Doc. # 302). Plaintiff now requests this court to re-tax costs.

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I.

Legal standard

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“Unless otherwise ordered by the Court, the prevailing party shall be entitled to reasonable

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costs. A prevailing party who claims such costs shall serve and file a bill of costs . . . no later than

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fourteen (14) days after the date of entry of the judgment or decree.” Nev. Dist. Court Local Rule

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James C. Mahan
U.S. District Judge

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54-1(a). Here, defendant timely filed its bill of costs. (See doc. # 294).

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“Unless a federal statute, these rules, or a court order provides otherwise, costs–other than

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attorney’s fees–should be allowed to the prevailing party . . . . The clerk may tax costs on 14 days’

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notice.” FED. R. CIV. P. 54(d)(1). Here, the clerk of the court did not timely tax costs. Plaintiff

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objected to the bill of costs on July 18, 2012, and the clerk of the court did not tax the costs until

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September 27, 2012.

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“On motion served within the next 7 days, the court may review the clerk’s action.” Id. Here,

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plaintiff did not timely file a motion to re-tax costs. The clerk of the court taxed costs on September

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27, 2012, and plaintiff did not object until October 9, 2012. (See docs # 303, 304).

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Fed. R. Civ. P. 54 “creates a presumption for awarding costs to prevailing parties; the losing

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party must show why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932,

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944-45 (9th Cir. 2003) (internal citation omitted). Lastly, Local Rule 54-14(b) states “[a] motion to

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retax shall particularly specify the ruling of the Clerk excepted to, and no others will be considered

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by the Court. The motion shall be decided on the same papers and evidence submitted to the Clerk.”

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Title 28 U.S.C. § 1920 governs the billing of costs. Courts are free to interpret the meaning

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and scope of the items enumerated as taxable costs under § 1920. Alflex Corp. v. Underwriters

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Laboratories, Inc., 914 F.2d 175, 178 (9th Cir. 1990) disapproved of by Collins v. Gorman, 96 F.3d

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1057 (7th Cir. 1996).

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II.

Discussion

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A.

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Procedurally, plaintiff argues that the clerk of the court untimely taxed costs. The court

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agrees. However, the court does not find the clerk’s delay to be of consequence. While the Local

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Rules mandate that “the Clerk shall tax the costs not later than fourteen (14) days after the filing of

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objections . . .,” Nev. Dist. Court Local Rule 54-1©; plaintiff also did not timely file a motion to re-

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tax under Local Rule 51-14(a). On this basis, the court finds it equitable to overlook the procedural

Procedural issues

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James C. Mahan
U.S. District Judge

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defects of both filings.1

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B.

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As an initial matter, the court considers the factors in Stanley v. University of Southern

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California, 178 F.3d 1069 (9th Cir. 1999) (in awarding costs, courts should consider (1) plaintiff’s

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limited financial resources, and (2) “the chilling effect of imposing such high costs on future civil

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rights litigants.”). Plaintiff argues that indigent persons should not be deterred from bringing civil

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rights actions which raise important constitutional issues by the imposition of costs. However, to the

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extent that policy considerations are contemplated, the countervailing consideration is also

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true–defendants should not be forced to subsidize plaintiff’s litigation activities. The court does not

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find $550.05 in costs likely to chill future civil rights litigants. See Save Our Valley v. Sound Transit,

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335 F.3d 932, 945 (9th Cir. 2003) (affirming the award of $5,310.55 in costs and rejecting

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appellant’s argument that this amount posed a risk of chilling future litigation).

Discretionary factors

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Although plaintiff is designated as proceeding in forma pauperis (last assessed in September

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2007, see doc. # 32); that designation, in it of itself, does not warrant absolving all costs that an

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opposing prevailing party seeks against him. That is, plaintiff’s financial status does not, alone,

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govern this determination. See Janoe v. Stone, 06-CV-1511-JM, 2012 WL 70424 (S.D. Cal. Jan. 9,

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2012); cf. 28 U.S.C. § 1915(f)(2)(B) (providing for payment of costs by installments as described

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under § 1915(b)(2)); Player v. Salas, No. 04-cv-1761, 2007 WL 4250015, at *2 (S.D.Cal., Nov.30,

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2007) (in light of the provision of § 1915 for installment payments, finding no basis for incarcerated

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plaintiff’s fear that he would not be able to pay for hygiene items and postage unless costs were re-

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taxed); see also Williams v. Diaz, 03CV634-WQL-PCL, 2010 WL 2428743 (S.D. Cal. June 11,

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2010). Further, defendants are only seeking $550.05 in costs in a matter that exceeds three hundred

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(300) docket filings. The court finds this request to be a relatively small recovery in comparison to

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the time and effort defendants surely expended in defending the instant action.

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James C. Mahan
U.S. District Judge

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The court notes that the clerk of the court had authority to address plaintiff’s initial objection to the bills of
costs. (See Local Rule 54-13(b)).

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Plaintiff also argues that the court should deny costs because he brought the case in good

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faith. However, this fact is insufficient to justify the denial of costs to a prevailing party. See

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Mandujano v. Geithner, C 10-01226 LB, 2011 WL 3566398 (N.D. Cal. Aug. 12, 2011).

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C.

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Plaintiff substantively challenges the clerk’s taxation of costs on two grounds: (1) arguing

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that he did object to the $350.00 filing fee that the clerk stated was not objected to; and (2) arguing

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that the clerk misconstrued plaintiff’s objection to the deposition charge.

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Objections to specific costs

(1)

$350.00 filing fee

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As a preliminary matter, the court does not find that plaintiff directly objected to the $350.00

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filing fee in his initial objection. But it does appear that plaintiff objected to the imposition of any

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costs in his objection. On this basis, the court considers plaintiff’s argument.

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Plaintiff filed this case in state court. Plaintiff argues that it was defendant’s choice to remove

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this action to federal court and incur the $350.00 filing fee, thus he should not have to pay it.

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Plaintiff contends that state courts are competent to decide matters under federal law. The court

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agrees. However, when plaintiff chose to bring this case in state court based on a violation of 18

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U.S.C. § 1983, plaintiff became subject to the implications of the Federal Rules of Civil Procedure,

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including defendants’ right to remove.

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While the court acknowledges that such a fee would likely have been waived based on

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plaintiff’s in forma pauperis status if plaintiff would have filed this action in federal court; plaintiff

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chose to file his case in state court–a strategic decision that resulted in a cost to defendant that is

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taxable against plaintiff.

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(2)

$200.05 deposition charge

It is incumbent upon the losing party to demonstrate why the costs should not be awarded.
Stanley, 178 F.3d 1069 at 1079.

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Plaintiff argues that he should not have to pay for the cost of a copy of a deposition that he

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noticed as he paid for an original and a copy in his invoice from “depo international” (see doc. # 299,

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Ex. B). Plaintiff declares that this paid-for copy was given to defendants free of charge. (See doc. #

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James C. Mahan
U.S. District Judge

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299, 5 (declaration on page 7)). However, defendants have declared that the cost of obtaining a copy

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of this deposition was “correct and [ ] necessarily incurred in this action . . . .” (Doc. # 294, 1). While

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the cost incurred by defendants may have been in error, it appears that plaintiff’s dispute as to this

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charge is with depo international, and not defendants.

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Further, to the extent that plaintiff argues that he should not have to pay for a cost that

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defendants have not yet incurred, the court finds this argument misplaced. Regardless of whether

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defendants have paid a third-party for a service does not effect plaintiff’s obligation to defendant

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pursuant to court order under Fed. R. Civ. P. 54 and 28 U.S.C. § 1920. The recovery of costs is not

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dependant on whether the bill has been paid, but on whether a debt has been incurred. Defendants’

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bill from depo international demonstrates this debt, whether paid or not.

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Lastly, while the court notes discrepancies between depo international’s invoice to plaintiff

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(doc. # 299, Ex. B) and its invoice to defendants (doc. # 294, 4),2 any concern is allayed by

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defendants’ declaration that such cost was correct and necessarily incurred.

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III.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Christopher A.

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Jones’s motion to review costs (doc. # 304) be, and the same hereby is, DENIED.
DATED January 14, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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That is, plaintiff’s invoice provides a list of items charged, while defendant’s invoice is blank except for “sub
total” and “balance due.”

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