J. D.H. v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2018
• Docket: 17-16512
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

J.D.H., by and through her legal guardian No. 17-16512 and/or parent Inocente Dominguez; MARIA HERNANDEZ, D.C. No. 2:13-cv-01300-APG-NJK Plaintiffs-Appellees,

v. MEMORANDUM*

LAS VEGAS METROPOLITAN POLICE DEPARTMENT; J. BARKER, Officer; M. PURCARO, Officer,

Defendants-Appellants.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted December 17, 2018** San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and BLOCK,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Defendants the Las Vegas Metropolitan Police Department, Michael

Purcaro, and Jeffrey Barker appeal the district court’s order in favor of Plaintiffs

J.D.H. and Maria Hernandez. The district court denied Defendants’ motion for

attorney’s fees and re-taxed their costs to $0.00. We review the district court’s

decision for abuse of discretion, and we affirm. Schwarz v. Sec’y of Health &

Human Servs., 73 F.3d 895, 900 (9th Cir. 1995).

First, the district court did not abuse its discretion by re-taxing Defendants’

costs to $0.00 under Federal Rule of Civil Procedure 54(d)(1). In denying costs,

district courts may consider, among other factors, plaintiff’s limited financial

resources, the economic disparity between parties, and the chilling effect on future

similar actions. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247–48

(9th Cir. 2014). The district court did not clearly err in finding that those

considerations supported a denial of costs. See P.N. v. Seattle Sch. Dist. No. 1, 474

F.3d 1165, 1168 (9th Cir. 2007) (“[F]actual findings underlying the district court's

decision are reviewed for clear error.”).

Second, the district court did not need to consider whether Defendants were

entitled to costs under Nevada Revised Statute § 18.020. Though “a federal court

exercising supplemental jurisdiction over state law claims is bound to apply the

law of the forum state to the same extent as if it were exercising its diversity

jurisdiction,” Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir.

2 2000), “[a]n award of standard costs in federal district court is normally governed

by Federal Rule of Civil Procedure 54(d), even in diversity cases.” Champion

Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 2003).

Third, the district court did not abuse its discretion in denying Defendants

attorney’s fees under 42 U.S.C. § 1988. Even if Plaintiffs did continue litigating

after it became clear that some of their claims were frivolous, the district court

could conclude that Defendants failed to meet their burden to establish that the fees

were “attributable solely to the frivolous claims.” Harris v. Maricopa Cty.

Superior Court, 631 F.3d 963, 972 (9th Cir. 2011).

AFFIRMED.