Simmons v. Albertsons Companies, LLC

Filing 78

ORDER ON PLAINTIFF'S MOTION TO RETAX COSTS, granting 74 Motion. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
CASE NO. 18-5522 RJB
AVERY SIMMONS, an individual,

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Plaintiff,
v.
SAFEWAY, INC., d/b/a HAGGEN FOOD
AND PHARMACY, a Delaware
corporation,
Defendant.

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ORDER ON PLAINTIFF’S
MOTION TO RETAX COSTS

THIS MATTER comes before the Court on the Plaintiff Avery Simmons’ Motion to

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Retax Costs. Dkt. 74. The Court has considered the pleadings filed regarding the motion and the

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remaining file.

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On May 14, 2018, the Plaintiff filed this employment discrimination case in Thurston

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County, Washington, Superior Court, in connection with her employment in the deli at

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Defendant Safeway, Inc., d/b/a Haggen Food and Pharmacy’s (“Haggen” or “Defendant”)

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Olympia, Washington store. Dkt. 1-2. On August 1, 2019, Haggen’s motion for summary

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judgment on all claims was granted and the case dismissed. Dkt. 62. Haggen’s Motion for a Bill

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of Costs, in the amount of $5,088.55, was granted by the Clerk of the Court. Dkt. 73. The

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Plaintiff now moves to retax costs. Dkt. 74.

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ORDER ON PLAINTIFF’S MOTION TO RETAX COSTS - 1

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I.

BACKGROUND FACTS AND PROCEDURAL HISTORY

The background facts and procedural history are in the August 1, 2019 Order on Motion for
Summary Judgment (Dkt. 62, at 1-7) and are adopted here by reference.
As is also relevant to the pending motion, Haggen is a national corporation, with annual

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revenue of billions of dollars a year. Dkt. 71. The Plaintiff states that she “lives paycheck to

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paycheck,” earns between $11.50-$15.70 per hour, and often works two jobs to support herself.

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Dkt. 70. She states that she is not able to pay the $5,008.55 in costs awarded to Haggen. Id.

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II.

DISCUSSION

Under Fed. R. Civ. P. 54 (d)(1) “costs—other than attorney’s fees—shall be allowed to

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the prevailing party.” “On its face, the rule creates a presumption in favor of awarding costs to a

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prevailing party, but vests in the district court discretion to refuse to award costs.” Escriba v.

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Foster Poultry Farms, Inc., 743 F.3d 1236, 1247 (9th Cir. 2014)(internal quotation marks and

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citations omitted). Factors to be considered in “denying costs include: (1) the substantial public

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

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

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economic disparity between the parties.” Id., at 1247–48.

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The Plaintiff’s Motion to Retax Costs (Dkt. 74) should be granted. The first and second

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factors, public importance of the case and closeness and difficulty of the case, neither weigh in

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favor nor against awarding costs. The third, fourth, and fifth factors weigh in favor of denying

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Haggen’s costs. Awarding costs here would present a danger of chilling future sexual

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harassment actions. Forcing a plaintiff who alleges that she was a victim of sexual harassment to

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pay costs in a case like this one could discourage “potential plaintiffs from bringing such cases at

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all.” Ass’n of Mexican-American Educators v. State of California, 231 F.3d 572, 593 (9th Cir.

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ORDER ON PLAINTIFF’S MOTION TO RETAX COSTS - 2

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2000). Further, the Plaintiff has very limited financial resources which weighs against awarding

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costs to Haggen. The Plaintiff made around $24,000 in 2018 and states that she would not be

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able to pay $5,008.55 in costs. “Costs are properly denied when a plaintiff would be rendered

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indigent should she be forced to pay the amount assessed.” Escriba, at 1248. Haggen is a

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nationwide billion-dollar company. The “great economic disparity” between the parties also

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weighs against awarding Haggen costs. Id. at 1249. The Taxation of Costs (Dkt. 73) should be

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vacated and the Motion to Retax Costs (Dkt. 74) should be granted.
III.

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ORDER

It is ORDERED that:

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•

The Plaintiff Avery Simmons’ Motion to Retax Costs (Dkt. 74) IS GRANTED; and

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•

The Taxation of Costs (Dkt. 73) IS VACATED.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 1st day of October, 2019.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON PLAINTIFF’S MOTION TO RETAX COSTS - 3