Norvell v. BNSF Railway Company

Filing 230

ORDER re 227 Motion to Re-Tax Costs. The Court will Re-Tax costs in the amount of $5,000.00 in BNSF's favor and against Norvell; signed by Judge Benjamin H. Settle.(AMD)

Case 3:17-cv-05683-BHS Document 230 Filed 04/20/22 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. 3:17-cv-5683-BHS

JAMES T. NORVELL,
Plaintiff,

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ORDER

v.
BNSF RAILWAY COMPANY,

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Defendant.

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This MATTER is before the Court on Plaintiff James Norvell’s motion to re-tax
costs, Dkt. 227.

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After it prevailed at trial, Defendant BNSF Railway Company sought almost

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$31,000 in costs under Federal Rule of Civil Procedure 54(d)(1). Dkt. 215. Norvell

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objected, both as to specific requested costs and to the award of any costs, under the so-

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called Escriba factors, which are non-exhaustive: (1) the substantial public importance of

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the case; (2) the closeness and difficulty of the issues in the case; (3) the chilling effect on

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future similar actions; (4) the plaintiff’s limited financial resources; and (5) the economic

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disparity between the parties. Dkt. 218 at 1 (citing Escriba v. Foster Poultry Farms, Inc.,

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743 F.3d 1236, 1247–48 (9th Cir. 2014)). He argued an award of costs that would leave

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ORDER - 1

Case 3:17-cv-05683-BHS Document 230 Filed 04/20/22 Page 2 of 4

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him indigent would be unjust and would have a chilling effect on similar actions. He

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asked the Court to deny costs in its discretion. Id.

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The Court Clerk agreed with several of Norvell’s “line item” objections to BNSF’s

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cost bill and awarded costs in the amount of $12,554.31. Dkt. 226. The Clerk properly

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recognized that it did not have the discretion to deny costs under Rule 54(d)(1) and the

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Escriba factors. Id. at 2.

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Norvell repeats his arguments in asking the Court to re-tax costs and to, in its

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discretion, deny any award of costs. Dkt. 227. He argues that he sued to vindicate the

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public policy in favor of saving a human life even if it violates a company rule, that the

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issues were close and difficult, and that awarding costs against a losing plaintiff in a case

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involving these important issues would chill future plaintiffs. He argues that the parties

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have disparate economic circumstances, and, in the end, that he simply cannot afford to

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pay costs on his $30,000 per year salary.

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BNSF disputes that any of these factors support a denial of its requests for costs as

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the prevailing party under Rule 54(d)(1). It points out that the losing party bears the

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burden of demonstrating good cause for the denial of costs to the prevailing party. Dkt.

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228 at 2 (citing Stanley v. Univ. of So. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999)).

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BNSF argues, as it successfully did to the jury and to the Court in response to

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Norvell’s motion for a new trial, that it terminated Norvell not for saving a life, but for

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putting his train in a position where he had to take emergency action to do so. Thus, it

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claims, Norvell’s lawsuit did not raise matters of substantial public importance. Id.

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ORDER - 2

Case 3:17-cv-05683-BHS Document 230 Filed 04/20/22 Page 3 of 4

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It argues that the case was not difficult or a close call, notwithstanding the fact that

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Norvell’s claim survived summary judgment and required a trial. Id. at 2–3. Instead,

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Norvell’s claim and BNSF’s responsive reason for terminating him after the incident

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presented a factual dispute that was properly decided by the jury. BNSF argues that

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awarding costs against Norvell would not have a chilling effect on meritorious future

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cases, pointing to what it claims are similar employment cases awarding similar costs

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where the unsuccessful plaintiff had income similar to Norvell’s. Id. at 3. BNSF argues

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that Norvell’s financial straits are of his own making, based on his decision to leave

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BNSF after he was reinstated. Id. at 3–4. It relies on persuasive authority awarding

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$9,500 in costs against a plaintiff who made $60,000 annually and one awarding $2,000

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in costs against a plaintiff making $35,000. Id. (citations omitted).

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The Court agrees that the Escriba factors weigh against an award of costs against

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Norvell in the amount BNSF seeks, or even in the amount awarded by the Clerk. At the

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same time, these factors do not require that the Court decline to award any costs.

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The most compelling reason for a significant discount on the costs the Clerk

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determined were awardable under Rule 54(d)(1) is the undisputed fact that Norvell

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cannot afford to pay them. It may be true that Novell would be in a better financial

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situation had he not elected to leave BNSF, but that does not change the fact that an

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award threatens to leave him indigent. And, while Norvell’s view of the case did not

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prevail, it is undisputable that he was seeking to assert a claim based in sound public

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policy and, furthermore, that future such claimants would be chilled by a cost award that

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would financially devastate the unsuccessful plaintiff.

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ORDER - 3

Case 3:17-cv-05683-BHS Document 230 Filed 04/20/22 Page 4 of 4

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Therefore, consistent with these authorities and the Court’s own sense of fairness,

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the Court will Re-Tax costs in the amount of $5,000.00 in BNSF’s favor and against

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Norvell.

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IT IS SO ORDERED.

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Dated this 20th day of April, 2022.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4