Gurshin v. Bank of America, N.A.

Filing 226

ORDER. IT IS ORDERED that 218 Plaintiff's Motion for Re-Taxation of Costs is GRANTED in part and DENIED in part. The Motion is granted insofar as the Court reduces the costs taxed against Plaintiff to $5,000. The Court denies Plaintiff's request to eliminate all costs taxed. Signed by Judge Gloria M. Navarro on 11/19/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALEXIS GURSHIN,
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Plaintiff,

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vs.

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BANK OF AMERICA, N.A.,
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Defendant.

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Case No.: 2:15-cv-00323-GMN-VCF
ORDER

Pending before the Court is Plaintiff Alexis Gurshin’s (“Plaintiff’s”) Motion for Re-

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Taxation of Costs, (ECF No. 218). Defendant Bank of America, N.A. (“Defendant”) filed a

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Response, (ECF No. 221). Plaintiff filed a Reply, (ECF No. 222). For the reasons discussed

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below, the Court GRANTS in part and DENIES in part Plaintiff’s Motion.

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I.

BACKGROUND

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This case arises from Plaintiff’s alleged subjection to gender discrimination and

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retaliation while working at Bank of America. (See Compl. ¶¶ 14–72). Defendant prevailed in

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the case when the Court granted its Motion for Summary Judgment. (See Order, ECF No. 205).

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As the prevailing party, Defendant filed a Bill of Costs for $30,328.44 pursuant to Federal Rule

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of Civil Procedure 54(d). (Bill of Costs, ECF No. 207). Plaintiff filed an Objection, (ECF No.

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208), arguing that she should not be taxed costs because of her limited financial resources, the

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disparity of resources between the parties, and the chilling effect taxing costs would have on

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future civil rights actions. (Objection 4:1–9:18). Plaintiff also made specific objections to some

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requested costs. (Id. 9:19–12:13). After deducting costs that are not recoverable under the local

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rules, the Clerk taxed costs in the amount of $27,668.95. (See Costs Taxed, ECF No 215); (see

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also Clerk’s Memorandum Regarding Taxation of Costs, ECF No. 216).

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Plaintiff now moves for the Court to re-tax costs because of “Plaintiff’s limited financial

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resources, the vast financial disparity between employee Plaintiff and Defendant employer, a

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huge national bank, and the chilling effect such an award would have on future plaintiffs

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seeking to vindicate their rights through Title VII.” (Motion for Re-Taxation of Costs

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(“Motion”) 2:8–11, ECF No. 218).
Defendant responds that the Court should award costs because the case is not of national

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importance, the issues presented in the case were not close or difficult, and any chilling effect

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the award produces would only chill frivolous litigation. (Resp. 2:18–3:1). Defendant also

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argues that Plaintiff is able to pay the taxed costs because “she is gainfully employed, has been

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gainfully employed for the past five years, and recently purchased her own home.” (Id. 2:17–

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18).

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II.

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LEGAL STANDARD
Generally, costs other than attorney fees “should be allowed to the prevailing party.”

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Fed. R. Civ. P. 54(d); see also LR 54-1(a) (“Unless the court orders otherwise, the prevailing

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party is entitled to reasonable costs.”). But, upon motion, the court has discretion to refuse to

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award costs. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). The motion

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“must specify the particular portions of the clerk’s ruling to which the party objects, and only

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those portions of the clerk’s ruling will be considered by the court.” LR 54-12(b). The court

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may only consider “the same papers and evidence submitted to the clerk” when ruling on the

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motion. Id.

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The court may deny costs for any appropriate reason. Escriba v. Foster Poultry Farms,

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Inc., 743 F.3d 1236, 1247 (9th Cir. 2014). Appropriate reasons include: “(1) the substantial

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public importance of the case, (2) the closeness and difficulty of the issues in the case, (3) the

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chilling effect on future similar actions, (4) the plaintiff’s limited financial resources, and (5)

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the economic disparity between the parties.” Id. at 1247–48. The preceding list is not an

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“exhaustive list of good reasons for declining to award costs, but rather a starting point for

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analysis.” Id. (internal quotations and citations omitted). If the plaintiff has the ability to pay

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the award, “the congressional goal of discouraging frivolous litigation demands that full fees be

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levied.” Faraci v. Hickey Freeman Co., 607 F.2d 1025, 1028 (2d Cir. 1979).

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III.

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DISCUSSION
After considering the reasons enumerated above, the Court concludes that the costs

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taxed to Plaintiff should be substantially reduced. The first and third reasons weigh in

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Plaintiff’s favor. Plaintiff’s case inherently carries public importance because of the public

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values at stake in Title VII cases. See Coulter v. Newmont Gold Co., 873 F. Supp. 394, 397 (D.

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Nev. 1994). Awarding the full costs requested would risk chilling future Title VII actions by

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prospective plaintiffs of modest means. Id. See also Escriba v. Foster Poultry Farms, Inc., 743

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F.3d 1236, 1248 (9th Cir. 2014) (explaining that the district court did not abuse its discretion by

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concluding that awarding costs would deter future FMLA actions from low-wage earners).

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Although Plaintiff has the ability to pay some of Defendant’s costs, Plaintiff’s limited

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resources and the economic disparity between the parties dissuade the Court from taxing almost

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$30,000 worth of costs against her. A court may appropriately decline to tax costs or reduce

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the costs taxed when the full award would subject the losing party to substantial financial

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hardship. See Escriba, 743 F.3d at 1247–48 (concluding that the district court did not abuse its

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discretion in denying costs when the amount exceeded the total income of the plaintiff); Stanley

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v. Univ. of S. California, 178 F.3d 1069, 1079–80 (9th Cir. 1999) (“Stanley’s argument that

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payment of the costs would render her indigent is compelling.”); Coulter, 873 F. Supp. at 397

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(awarding $4,200 instead of nearly $7,000 because the full award “would be a severe

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hardship,” and the plaintiff could pay the full award “but only by selling her trailer.”); Braxton

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v. United Parcel Serv., 148 F.R.D. 527, 529 (E.D. Penn. 1993) (declining to award full costs

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where plaintiff demonstrated that doing so would cause “significant financial hardship.”).

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Plaintiff earns roughly $30,000 per year. (Obj. 6:24). While Plaintiff is not indigent, she has

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limited financial resources, and taxing all of Defendant’s recoverable costs may require her to

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sell her home or file for bankruptcy (See Objection 6:16–7:9, 8:13–15).

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Similarly, the disparity between the parties’ financial resources encourages the Court to

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reduce the costs taxed to a more equitable sum. See Coulter, 873 F. Supp. at 397 (“there is a

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great disparity in financial resources between the parties. Newmont will not be financially

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crippled by a failure to award full costs in this case; Coulter will be crippled if full costs are

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awarded.”). See also Braxton, 148 F.R.D. at 529 (“In contrast to [plaintiff], UPS is said by

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Forbes magazine to be the third largest private company in America . . . . and will suffer little

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from a reduction in their recovery.”). The disparity in the parties’ resources is substantial.

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Plaintiff earns roughly $30,000 a year and Defendant is one of the largest banks in the country.

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(Obj. 8:4–15).

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Nevertheless, the Court declines to reduce the costs taxed to zero. Courts often reduce

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an award of costs where Plaintiff has some ability to pay. See Coulter, 987 F. Supp. at 396–98

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(reducing costs from just under $7,000 to $4,200); Braxton, 148 F.R.D. at 529–29 (reducing

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costs taxed from over $16,000 to $5,000). Plaintiff is not indigent and has some discretionary

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income. (See Motion 5:6–18). The Court wishes to avoid chilling civil rights litigation by

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awarding substantial costs against unmeritorious plaintiffs who act in good faith. However, the

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Court is mindful that declining to award costs may encourage frivolous litigation and

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needlessly vexatious tactics because plaintiffs of modest means would have little incentive to

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avoid such behavior. Plaintiff litigated this case intensely despite the case not being

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particularly close when the Court ruled on Defendant’s Motion for Summary Judgment.

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Plaintiff’s litigation tactics contributed greatly to the substantial bill of costs. Accordingly,

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Plaintiff should be responsible for an amount of costs that she can afford. Therefore, the Court

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taxes Plaintiff $5,000 of Defendant’s costs.

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IV.

CONCLUSION

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Re-Taxation of Costs, (ECF No

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218), is GRANTED in part and DENIED in part. The Motion is granted insofar as the Court

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reduces the costs taxed against Plaintiff to $5,000. The Court denies Plaintiff’s request to

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eliminate all costs taxed.

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DATED this _____ day of November, 2019.

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___________________________________
Gloria M. Navarro, District Judge
United States District Court

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