Pavel v. University of Oregon et al

Filing 122

OPINION AND ORDER: Defendants' Bill of Costs 116 is GRANTED in part. Costs are allowed in the amount of $2,302.10. Signed on 11/12/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

CHIXAPKAID DONALD MICHAEL
PAVEL,
Plaintiff,

Case No. 6:16-cv-00819-AA
OPINION AND ORDER

vs.
UNIVERSITY OF OREGON, et al.,
Defendants.

AIKEN, District Judge:
Defendants, as prevailing parties, have filed a Bill of Costs (doc. 116) with this
Court following entry of the Ninth Circuit's Mandate (doc. 115) affirming the Court's
Judgement (doc. 108) dismissing this action. For the reasons set forth below, the
Court GRANTS defendants' costs in part in the amount of $2,302.10.

LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) provides that, "[u]nless a federal statute,
these rules, or a court order provides otherwise, costs--other than attorney's feesshould be allowed to the prevailing party." Fed. R. Civ. P. 54(d). "Costs" taxable

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under Rule 54(d) "are limited to those set forth in 28 U.S.C. §§ 1920 and 1821."

Twentieth Century Fox Film Corp. v. Entm't Distrib., 429 F.3d 869, 885 (9th Cir.
2005), abrogated on other groiinds by Rimini Street, Inc. v. Oracle USA, Inc.,_ U.S.
_ , 139 S. Ct. 873 (2019) (citing Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.
437, 445 (1987)). 28 U.S.C. § 1920, provides that the court may tax as costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
28 U.S.C. § 1920.
Rule 54 creates a presumption in favor of awarding costs to the prevailing
party. See e.g., Ass'n of Mex.-Am. Educators v. California, 231 F.3d 572, 592-93 (9th
Cir. 2000). "[I]f a district court wishes to depart from that presumption, it must
explain why so that the appellate court will be able to determine whether or not the
trial court abused its discretion ... [and] explain why a case is not ordinary." Save Our

Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (quotation marks and
citation omitted). When exercising its discretion in to deny costs, courts may consider
the following factors: (1) whether the suit was brought in the public interest, (2) the

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limited financial resources of the losing party, (3) whether the suit was brought in
good faith and whether the claims had merit, and (4) the chilling effect that imposing
costs may have on future litigants. Ass'n of Mex.-Am. Educators, 231 F.3d at 591593.
The district court, however, "needs no affirmatively expressed reason to tax
costs. Rather, it need only conclude that the reasons advanced by the party bearing
the burden-the losing party-are not sufficiently persuasive to overcome the
presumption." Id. at 946. Courts are free to construe the meaning and scope of the
items enumerated as taxable costs in 28 U.S.C. § 1920. A/flex Corp. v. Underwriters

Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990).

The district court retains broad

discretion to decide how much to award, if anything. Padgett v. Loventhal, 706 F.3d
1205, 1209 (9th Cir. 2013). Ultimately, it is "incumbent upon the losing party to
demonstrate why the costs should not be awarded." Stanley v. Univ. of S. Cal., 178
F.3d 1069, 1079 (9th Cir. 1999) (citation omitted).

DISCUSSION
Defendants seek $2,544.13 in costs for service of summons and subpoena,
deposition transcripts, photocopies of deposition exhibits, and the costs shown on the
Mandate of the Court of Appeals.

Plaintiff objects, arguing that (1) the bill is

untimely, (2) the transcripts were not "necessarily obtained for use in the case," and
(3) because the suit was in the public interest.
Plaintiff first argues that the Bill of Costs is untimely because defendants did
not seek costs until after the judgment in defendants' favor was affirmed on appeal.

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Plaintiff asserts that Rule 54(d)(l) of the Federal Rules of Civil Procedure required
defendants to seek costs within 14 days of the entry of the judgment. Rule 54(d)
provides that a motion for attorney's fees must "be filed no later than 14 days after
the entry of judgment[.]" Fed. R. Civ. P. 54(d)(2)(B). However, that rule does not
govern the timeliness of a motion for costs. Instead, Rule 54(d) permits the clerk to
"tax costs on 14 days' notice" and the court to "review the clerk's action" when a
motion is "served within the next 7 days[.]" Fed. R. Civ. P. 54(d)(l).
Under Local Rule 54-l(a)(l), the prevailing party may file a Bill of Costs "not
later than 14 days after entry of judgment or receipt and docketing of the appellate
court's mandate[.]" Here, the Ninth Circuit's Mandate was docketed on July 17, 2019,
and the Bill of Costs was filed on July 18, 2019. Therefore, the Bill of Costs was
timely under the local rules.
Plaintiff also objects to costs related to reproducing deposition transcripts for
several witnesses on the grounds that the transcripts, or portions of those transcripts,
were not used at summary judgment. Plaintiff argues that any recoverable costs
should be limited to transcript pages actually cited and submitted by defendants.
"[T]he presence of a deposition in the record -is not a prerequisite for finding
that it was necessary to take the deposition." Frederich v. City of Portland, 162 F.R.D.
139, 143 (D. Or. 1995). "[A] deposition need not be absolutely indispensable to justify
an award of costs; rather, it must only be reasonably necessary at the time it was
taken, without regard to later developments that may eventually render the
deposition unneeded at the time of trial or summary disposition." Id.

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The Court finds that defendants reasonably incurred the costs associated with
plaintiffs and defendants Blandy and Daugherty's transcripts. Defendants cited
portions of those transcripts in their summary judgment briefing.

Further,

regardless of the transcript pages cited or submitted, defendants incurred the cost of
the entire transcript.
The Court cannot, however, cannot make the same finding for costs associated
with Anne Bonner's deposition and transcript. Rather than demonstrating that those
costs were reasonably necessary for the litigation, defendants responded: "To the
extent Defendants are not entitled to the costs associated with Anne Bonner's
Deposition, that cost was $242.03." Reply to Obj. (doc. 119) at 3. Because it is unclear
on the record before the Court whether the compensation defendants seek was
reasonably necessary for the litigation, costs are reduced by $242.03.
Finally, plaintiffs equitable objections are not sufficiently persuasive to
overcome the presumption in favor of allowing defendants' costs. Plaintiffs vague
objections include a "severe chilling effect" on potential civil rights plaintiffs, the
disparity of resources between the parties, and the importance and merit in plaintiffs
case. Plaintiffs objection is not accompanied by any documentation supporting his
claim of financial hardship, nor does plaintiff explain how this case is similar to cases
like Ass'n of Mexican-American Educators, where a $216,443.67 cost bill was denied
in large part because the action had a far-reaching effect on "tens of thousands of
Californians" and the record demonstrated that the plaintiffs' resources were limited,
231 F.3d at 593, or Stanley, where the plaintiffs suit arose from her termination and

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plaintiffs objections to the defendants' bill of costs demonstrated that she had not
obtained employment "at the time of the filing of the cost bill," which was "persuasive
evidence of the possibility she would be rendered indigent should she be forced to pay
$46,710.97," 178 F.3d at 1080 (emphasis added).
The presumption in favor of awarding costs is not overcome in this case.
Plaintiff has offered no proof of limited resources for the bill of $2,544.13, and that
amount is far less than the large sums in the aforementioned cases. Accordingly, the
Court declines to exercise its discretion to deny costs.

CONCLUSION
For the reasons stated above, defendants' Bill of Costs (doc. 116) is GRANTED
in part. Costs are allowed in the amount of $2,302.10.
ITIS SO ORDERED.
DATED this/d.

'"tJ;of November 2019.

~
Ann Aiken
United States District Judge

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