Washburn et al v. Gymboree Retail Stores, Inc. et al

Filing 120

ORDER AFFIRMING TAXATION OF COSTS denying pltfs' 118 Motion to re-tax costs by Judge Robert S. Lasnik.(RS)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7

KERRY and MICHAEL WASHBURN,

8
9
10

Plaintiffs,
v.
GYMBOREE RETAIL STORES, INC., et
al.,

11

Case No. C11-822RSL
ORDER AFFIRMING
TAXATION OF COSTS

Defendants.

12
13

This matter comes before the Court on plaintiffs’ “Motion to Retax Costs” (Dkt.

14

# 118). On November 30, 2012, the Clerk of Court awarded defendants $3,604.69 in

15

costs. Having reviewed the documents that were before the Clerk as well as the

16
17
18

pleadings, declarations, and exhibits submitted on appeal, the Court finds as follows:
(1) Plaintiffs do not dispute the Clerk’s award of any particular costs to
defendants. Dkt. # 118 at 1. Rather, plaintiffs contend that defendants are not entitled
to recover any costs because they acted in bad faith and civil rights concepts suggest that

19
20
21

defendants are not prevailing parties in this case even though judgment was entered in
their favor. Id. at 2.
(2) Rule 54 of the Federal Rules of Civil Procedure (“Rule 54”) provides that

22

costs other than attorney’s fees should be allowed to the prevailing party unless a

23

statute, rule of civil procedure, or court order provides otherwise. Fed. R. Civ. P.

24

54(d)(1). Rule 54(d) creates a presumption in favor of awarding costs to a prevailing

25
26

ORDER AFFIRMING
TAXATION OF COSTS- 1

1

party, but the district court retains discretion to deny the award of costs. Ass’n of

2

Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000). “Courts

3

consistently confirm that [a] party in whose favor judgment is rendered is generally the

4

prevailing party for purposes of awarding costs under Rule 54(d).” San Diego Police

5
6
7

Officers’ Ass’n v. San Diego City Employees’ Retirement System, 568 F.3d 725, 741
(9th Cir. 2009) (internal quotation marks omitted).
(3) Even though the Court sanctioned Gymboree and Nixon Peabody $50,000
based on their failure to conduct a reasonable factual inquiry and the related obstruction

8
of the proceedings, judgment was entered in favor of defendants. Dkt. # 111 at 15; Dkt.
9
10

# 16. Thus, the Court finds that defendants are the prevailing parties for purposes of
awarding costs under Rule 54.

11

(4) While this Court may refuse to award costs to the prevailing party due to the

12

party’s misconduct, Ass’n of Mexican-American Educators, 231 F.3d at 592, the Court

13

is not required to deny the award of costs. For example, where a court has already

14

sanctioned the misconduct of the prevailing party, the court has discretion to deny a

15

plaintiffs’ motion to re-tax costs. Ritchie v. United States, 343 Fed.Appx. 238, 239 (9th

16

Cir. 2009). However, when considering a losing civil rights plaintiff’s motion to re-tax

17

costs, a district court must consider the plaintiff’s limited financial resources and “the

18

chilling effect of imposing such high costs on future civil rights litigants.” Ass’n of

19

Mexican-American Educators, 231 F.3d at 592 (quoting Stanley v. Univ. of S. Cal., 178

20
21

F.3d 1069, 1079-80 (9th Cir. 1999)). Plaintiffs here do not argue that they are unable to
pay the costs and they have not presented any evidence regarding ability to pay.
(5) The Court is mindful of the potential chilling effect awarding costs to

22
prevailing defendants in civil rights cases may have. However, the Court finds that the
23
24

low amount of costs awarded in this case is not likely to dissuade potential plaintiffs
from pursuing claims of discrimination. Therefore, the Court finds that plaintiffs’

25
26

ORDER AFFIRMING
TAXATION OF COSTS- 2

1

arguments are insufficient to rebut the presumption in favor of awarding costs to

2

defendants. Therefore, the Court DENIES plaintiffs’ motion re-tax costs.

3
For all of the foregoing reasons, the Court AFFIRMS the Clerk’s taxation of

4
5
6

costs.
DATED this 21st day of May, 2013.

7
8

A

9

Robert S. Lasnik
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

ORDER AFFIRMING
TAXATION OF COSTS- 3