Hahn v. Waddington et al

Filing 56

ORDER Denying Plaintiff's 47 Motion for Cost, signed by Magistrate Judge Theresa L Fricke.**3 PAGE(S), PRINT ALL**(Aaron Hahn, Prisoner ID: 332715)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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AARON HAHN,
Case No. 3:14-cv-05047-RJB-TLF

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Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTION FOR COST

v.
DOUG WADDINGTON, et al,
Defendants.

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This matter comes before the Court on plaintiff’s motion for cost against the government

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related (1) to his appeal of the Court’s Order granting defendants’ motion to dismiss on statute of

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limitations grounds, and (2) to proceedings before this Court. Dkt. 47. For the reasons set forth

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below, the Court finds plaintiff’s motion should be denied.

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Defendants argue plaintiff’s motion should be denied as to any costs related to the appeal

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because the motion is untimely and made in the wrong court. Defendants further argue plaintiff’s

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motion should be denied as to any costs related to the litigation before this Court, because such a

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request is premature. The undersigned agrees.

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Under Federal Rule of Appellate Procedure (FRAP) 39(d) (3), any party “who wants

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costs taxed must—within 14 days after entry of judgment—file with the circuit clerk, with proof

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of service, an itemized and verified bill of costs.” Thus, it is the Ninth Circuit Clerk of Court, not

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ORDER DENYING PLAINTIFF’S MOTION FOR COST - 1

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this Court, with whom plaintiff must apply for costs. As defendants point out, plaintiff did file a

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bill of costs request with the Ninth Circuit Clerk of Court on June 30, 2017, but that request was

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filed more than 14 days after the Ninth Circuit issued its judgment on June 5, 2017. See Hahn v.

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Waddington, Ninth Circuit Cause No. 15-35091, Dkt. 62.
Plaintiff argues the proper date upon which to rely to determine whether he timely filed

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his bill of costs is the date of the Ninth Circuit’s mandate, which was issued on June 27, 2017

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(Hahn, Ninth Circuit Cause No. 15-35091, Dkt. 61), and not June 5, 2017, the date it issued its

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memorandum in which it reversed and remanded the Court’s Order. (Id., Dkt. 60). The mandate,

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however, is not the judgment, and thus is the reason the Ninth Circuit rejected plaintiff’s bill of

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costs as untimely. Id., Dkt. 63. Plaintiff was required to file his bill of costs within 14 days of the

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date the memorandum disposing of the issues raised was issued, and his failure to do so resulted

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in the bill of costs’ denial. See Mollura v. Miller, 621 F.2d 334, 336 (9th Cir. 1980) (“Claims for

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costs should be filed promptly after the entry of judgment. Rule 39(d) sets forth a 14-day time

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limit in plain terms and its definite time limit must be scrupulously observed by litigants.”).

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As for costs plaintiff has incurred in prosecuting the lawsuit currently before this Court,

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again as defendants point out costs “should be allowed to the prevailing party.” Federal Rule of

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Civil Procedure 54(d)(1) (emphasis added). While plaintiff may have prevailed on appeal to the

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Ninth Circuit on the statute of limitations and equitable tolling issue, he has not prevailed as to

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his civil rights claims in this Court. Indeed, as noted in the Order to Show Cause issued the same

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date herewith, the other arguments defendants raised in their motion to dismiss plaintiff’s

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complaint remain and await resolution by the Court.

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ORDER DENYING PLAINTIFF’S MOTION FOR COST - 2

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Accordingly, for the foregoing reasons, plaintiff’s motion for cost (Dkt. 47) is DENIED.
The Clerk shall send a copy of this Order to the plaintiff.
Dated this 30th day of August, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION FOR COST - 3