A.B. v. County of San Diego

• Court: District Court, S.D. California
• Decided: January 12, 2021
• Docket: 3:18-cv-01541
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.B., et al., Case No. 18cv1541-MMA (LL)

12 Plaintiffs, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PLAINTIFFS’ MOTION TO RETAX COSTS 14 COUNTY OF SAN DIEGO, et al.,

15 Defendants. [Doc. No. 100]

16 17 18 Plaintiffs A.B., a minor, individually and as successor in interest to decedent 19 Kristopher Birtcher, by and through her Guardian ad Litem, Ryan Birtcher, Michael 20 Birtcher, and Catherine Birtcher (collectively “Plaintiffs”) brought this action asserting 21 civil rights violations pursuant to 42 U.S.C. § 1983, as well as state law claims for 22 battery, negligence, and violation of California Civil Code section 52.1. See Doc. No. 1. 23 The Court ultimately entered judgment in favor of Defendants County of San Diego, San 24 Diego Sheriff’s Department, and San Diego Sheriff William D. Gore, as well as 25 Defendant San Diego Sheriff’s Deputies Drew Beatty, Adrien Carrillo, Roland Garza, 26 Joseph Kodadek, John Robledo, Scott Rossall, Frank Stalzer, and Scott Winter 27 (collectively “Defendants”). See Doc. Nos. 89, 90. Thereafter, Defendants submitted a 28 bill seeking reimbursement for costs totaling $36,306.26. See Doc. No. 91. The Clerk of 1 Court taxed costs in the amount of $24,026.16, over Plaintiffs’ objection. See Doc. Nos. 2 96, 99. 3 Plaintiffs now move to retax costs pursuant to Federal Rule of Civil Procedure 4 54(d). See Doc. No. 100. Plaintiffs seek to reduce the taxable costs significantly and 5 argue that costs should not be taxed against minor plaintiff A.B. Defendants filed a 6 response in opposition, to which Plaintiffs replied. See Doc. Nos. 101, 102. For the 7 reasons set forth below, the Court GRANTS IN PART and DENIES IN PART 8 Plaintiffs’ motion. 9 DISCUSSION1 10 The Clerk determined Defendants to be the prevailing parties in this litigation 11 pursuant to the Court’s October 1, 2020 Order and Judgment (Doc. Nos. 89, 90) and Civil 12 Local Rule 54.1.f. See Doc. No. 99 at 2.2 Accordingly, as relevant here, the Clerk taxed 13 Plaintiffs with $4,247.91 in costs for service of document subpoenas and deposition costs 14 in the amount of $18,732.52. Id. at 4-5. 15 Plaintiffs move to retax costs on several grounds. First, Plaintiffs argue that 16 Defendants should not be entitled to an award of costs because they are not the prevailing 17 parties in this litigation. Second, Plaintiffs take issue with the Clerk of Court’s 18 calculation of costs. Plaintiffs argue that the Clerk “taxed against Plaintiffs at least 19 $7,598.30 in deposition costs that Defendants did not necessarily incur.” Doc. No. 100-1 20 at 2. Plaintiffs further contend that the Clerk erroneously taxed Plaintiffs for costs related 21 to the service by Defendants of certain document subpoenas. Third, Plaintiffs request the 22 Court decline to award costs against minor plaintiff A.B. Plaintiffs assert that any such 23 award would be inequitable due to A.B.’s status as an indigent minor. 24 25

26 1 Based on the parties’ and the Court’s familiarity with the facts of this case, the Court does not set forth 27 a detailed recitation of the facts herein.

28 1 Defendants oppose Plaintiffs’ motion in all respects. Defendants argue that they 2 are the prevailing parties pursuant to the judgment entered by this Court in their favor. 3 Defendants assert that the Clerk properly taxed the deposition and service costs pursuant 4 to statute and this district’s Civil Local Rules. Defendants further contend that Plaintiffs 5 fail to substantiate their claim of indigency on A.B.’s behalf.3 6 1. Legal Standard 7 Federal Rule of Civil Procedure 54(d) provides the applicable legal standard: 8 “Unless a federal statute, these rules, or a court order provides otherwise, costs—other 9 than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 10 54(d)(1). The rule creates a strong presumption in favor of awarding costs to a prevailing 11 party, but vests in the district court discretion to refuse to award costs. See Save Our 12 Valley v. Sound Transit, 335 F.3d 932, 944–45 (9th Cir. 2003); Ass’n of Mexican- 13 American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000). In light of 14 this presumption, a trial court “need not give affirmative reasons for awarding costs” to 15 the prevailing party in rendering its decision on a motion to retax. Save Our Valley, 335 16 F.3d at 945. And as the Supreme Court has noted, “[b]ecause costs are usually assessed 17 against the losing party, liability for costs is a normal incident of defeat.” Delta Air 18 Lines, Inc. v. August, 450 U.S. 346, 352 (1981). 19 “Section 1920 [of Title 28] enumerates expenses that a federal court may tax as a 20 cost under the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T. 21 Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Taxable costs include: (1) filing fees and 22 other court fees, (2) fees for transcripts “necessarily obtained for use in the case;” (3) 23 costs of exemplification and copies also “necessarily obtained,” (4) certain fees for 24

25 26 3 Defendants urge the Court to “grant the amount requested in Defendants’ Memo of Costs (less travel expenses of $1,167.26), or grant the full amount ordered by the Clerk.” Doc. No. 101 at 6. The Court 27 declines to consider the former request as improperly raised in an opposition brief. If Defendants wished to challenge the Clerk’s taxation of costs, they should have moved or cross-moved for such 28 1 printing and witnesses, (5) docket fees, and (6) costs of court-appointed experts or 2 compensation for interpreters. 28 U.S.C. § 1920. The Local Rules of Practice for the 3 United States District Court for the Southern District of California provide for taxation by 4 the Clerk of Court subject to judicial review, and expound upon the nature of allowable 5 statutory taxable costs, see, e.g., CIVLR 54.1.b. District courts in this circuit review a 6 Clerk’s taxation of costs de novo. See, e.g., Lopez v. San Francisco Unified Sch. Dist., 7 385 F.Supp.2d 981, 1001 (N.D. Cal. 2005). 8 2. Analysis 9 As an initial matter, the Court notes that Defendants invoke Federal Rule of Civil 10 Procedure 68 as legal authority for an award of costs in their favor. See generally Doc. 11 No. 91-1; see also Doc. No. 101 at 2. Under Rule 68, a defendant may make an offer of 12 judgment to a plaintiff on specified terms. See Fed. R. Civ. P. 68(a). Defendants did so 13 in this case. See Doc. No. 91-1 at 63-65. If the plaintiff rejects the offer, as Plaintiffs in 14 this action did, and then ultimately obtains a judgment that is “not more favorable than 15 the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” 16 Fed. R. Civ. 68(d). However, by its plain terms, “Rule 68 is inapplicable in a case in 17 which the defendant obtains judgment. Where a defendant prevails after making an offer 18 of judgment, the trial judge retains his Rule 54(d) discretion.” MRO Communications, 19 Inc. v. American Tel. & Tel. Co., 197 F.3d 1276, 1280 (9th Cir. 1999) (citing Delta Air 20 Lines, Inc., 450 U.S. at 351-52 (“In sum, if we limit our analysis to the text of the Rule 21 itself, it is clear that it applies only to offers made by the defendant and only to judgments 22 obtained by the plaintiff.”)); see also United States v. Trident Seafoods Corp., 92 F.3d 23 855, 859 (9th Cir. 1996) (“Under Rule 68, if a plaintiff rejects a defendant’s offer of 24 judgment, and the judgment finally obtained by plaintiff is not more favorable than the 25 offer, the plaintiff must pay the costs incurred subsequent to the offer.”) (emphasis 26 added). Accordingly, Rule 68 does not entitle Defendants to a non-discretionary award 27 of costs in this case because, as detailed below, Defendants prevailed after making an 28 unaccepted offer of judgment to Plaintiffs. 1 Turning to the merits of Plaintiffs’ motion, Plaintiffs first argue that Defendants are 2 not prevailing parties. This contention is wholly without merit. As stated above, and as 3 the Clerk correctly determined when taxing costs against Plaintiffs, Defendants are the 4 prevailing parties in this litigation. They successfully obtained judgment in their favor as 5 to Plaintiffs’ federal civil rights claims. d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886 6 (9th Cir. 1977) (“A party in whose favor judgment is rendered is generally the prevailing 7 party for purposes of awarding costs under Rule 54(d).”); CivLR 54.1.f (“The defendant 8 is the prevailing party upon any termination of the case without judgment for the plaintiff 9 except a voluntary dismissal under Fed. R. Civ. P. 41(a).”). The Court declined to retain 10 supplemental jurisdiction over Plaintiffs’ state law claims and dismissed the entirety of 11 the action; it is of no moment that dismissal of Plaintiff’s state law claims was without 12 prejudice to refiling those claims in state court. See, e.g., Jones v. City of Orange Cove, 13 No. 1:08CV0775 DLB, 2010 WL 4875681, at *2 (E.D. Cal. Nov. 23, 2010) (noting that 14 “in cases in which courts have granted judgment in favor of defendants on federal claims 15 and declined to exercise jurisdiction over remaining state claims, courts have determined 16 that defendants were the prevailing parties for purposes of Rule 54(d).”) (citing Ogborn 17 v. United Food and Commercial Workers Union, 305 F.3d 763, 770 (7th Cir. 2002); 18 Head v. Medford, 62 F.3d 351, 353 (11th Cir. 1995)). 19 Plaintiffs next argue that the Clerk erred in taxing the cost of deposition transcripts 20 obtained by Defendants of ten (10) witnesses deposed by Plaintiffs. Plaintiffs assert that 21 these costs were incurred only for the “convenience” of defense counsel and thus are not 22 reimbursable. Plaintiffs suggest that Defendants could have relied upon affidavits of 23 counsel and secondhand narration of the deposition testimony in lieu of the costly 24 transcripts. These contentions are also without merit. As the Clerk correctly determined, 25 the transcripts were not obtained merely for the convenience of counsel; Defendants 26 introduced the transcripts of the deposition testimony into evidence in support of their 27 motions for summary judgment. See Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 28 175, 177 (9th Cir. 1990) (holding that the cost of “obtaining copies of depositions taken 1 by the opposing party may be considered necessary in certain instances.”). As such, the 2 allowable amount of “copies were necessarily obtained by Defendants to properly defend 3 and support” their motions for summary judgment.4 Young v. Actions Semiconductor 4 Co., No. 06CV1667-MMA (AJB), 2010 U.S. Dist. LEXIS 164273, at *4 (S.D. Cal. Jan. 5 26, 2010); CIVLR 54.1.b.3.a (“Depositions need not be introduced in evidence or used at 6 trial to be taxable so long as at the time it was taken it could reasonably be expected that 7 the deposition would be used for trial preparation, rather than mere discovery.”). 8 Likewise, the Clerk properly taxed the cost of service of document subpoenas 9 pursuant to Civil Local Rule 54.1.b.1, which provides that the “[c]osts for service of 10 subpoenas are taxable as well as service of summonses and complaints.” However, the 11 Court in its discretion declines to award the costs of service “where the subpoena did not 12 result in production of documents.” Flores v. Bakersfield, No. 1:17-CV-01393 JLT, 2020 13 WL 433093, at *3 (E.D. Cal. Jan. 28, 2020). Defendants ultimately cancelled service of 14 four document subpoenas and no responsive records were produced by the subpoenaed 15 entities. See Doc. No. 98 at 2. Accordingly, the Court reduces Defendants’ award of 16 costs by $722.84, the total cost of the four cancelled subpoenas. See Doc. No. 91-1 at 96- 17 99; 106. 18 Finally, Plaintiffs argue that costs should not be taxed against A.B., an indigent 19 minor.5 Defendants argue that Plaintiffs have not provided the Court with sufficient 20

21 22 4 The Court notes that pursuant to this district’s Civil Local Rules “[c]ounsel’s copies (whether paper or electronic), in excess of the original and one copy are not taxable, regardless of which party took the 23 deposition.” CIVLR 54.1.b.3.a (emphasis added). Thus, Plaintiffs are correct when they state that convenience copies for counsel are not taxable to the extent that those copies are in excess of the two 24 allowed by the local rule and not obtained for use in the case. Here, the Clerk properly taxed Plaintiffs 25 for “the cost of an original and one copy of any deposition (including videotaped depositions) necessarily obtained for use in the case.” Id. 26 5 The Court also notes that in this circuit, trial courts ordinarily consider whether “the imposition of . . . 27 costs on losing civil rights plaintiffs of modest means may chill civil rights litigation in this area.” Stanley v. University of Southern California, 178 F.3d 1069, 1080 (9th Cir. 1999). Plaintiffs do not raise 28 1 evidence to support a finding of indigency on A.B.’s behalf. In reply, Plaintiffs note that 2 A.B. is ten years’ old and incapable of earing an income. See Doc. No. 102 at 3-4. 3 Plaintiffs also submit a declaration of counsel indicating that the costs of litigation on 4 A.B.’s behalf have been advanced by counsel. See Doc. No. 102-1 at 2, Fattahi Decl. ¶ 3. 5 As noted above, the Court may exercise its discretion and deny costs where, under 6 the circumstances, an award “would be inappropriate or inequitable.” Champion 7 Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003). 8 “Indigency is a factor that the district court may properly consider in deciding whether to 9 award costs.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Courts in 10 this circuit have also considered a plaintiff’s status as a minor and concomitant indigency 11 when deciding whether to award costs in favor of a prevailing defendant. See, e.g., 12 Flores v. Shephard, No. 04CV2337-IEG (NLS), 2009 WL 587701, at *2 (S.D. Cal. Mar. 13 5, 2009) (declining to award costs “against the minor Plaintiffs, who have no ability to 14 sue on their own behalf.”); Hayes by & through Hayes v. Cty. of San Diego, No. 15 07CV1738 DMS (JMA), 2009 WL 10668673, at *1 (S.D. Cal. July 10, 2009) (“Plaintiff 16 has no documentation by which to prove her indigency, as she is a minor with no 17 financial history. It is reasonable to presume that a fifteen-year-old is unable to pay a 18 $9,471.54 bill without requiring “substantial documentation.’”). Here, the Court finds 19 that it would be inequitable to award Defendants costs against minor plaintiff A.B and 20 thus exercises its discretion to decline to do so. 21 // 22 // 23 // 24 // 25 // 26

27 an award of costs sua sponte. In any event, Plaintiffs bear the burden on a motion to retax and have not 28 1 CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 3 || Plaintiffs’ motion to retax costs . The Court DECLINES to award taxable costs in 4 || Defendants’ favor against minor plaintiff A.B. The Court REDUCES the award of 5 taxable costs in Defendants’ favor against plaintiffs Michael and Catherine Birtcher to 6 || $23,303.32. 7 IT IS SO ORDERED. 8 || DATE: January 12, 2021 Madkuh Ul {elills— 9 HON. MICHAEL M. ANELLO United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28