1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN DAVID PETERSON, an No. 2:19-cv-00949-JAM-JDP individual, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF’S 14 MOTION TO REDUCE DEFENDANTS NEVADA COUNTY, CALIFORNIA, a NEVADA COUNTY, NEVADA COUNTY 15 county government and SHERIFF’S DEPARTMENT, AND operator of the NEVADA COUNTY SHERIFF KEITH ROYAL’S BILL OF 16 SHERIFF’S DEPARTMENT; et al., COSTS 17 Defendants. 18 19 This matter is before the Court on Plaintiff John D. 20 Peterson’s (“Plaintiff”) motion to reduce Defendants Nevada 21 County, Nevada County Sheriff’s Department, and Sheriff Keith 22 Royal (collectively, “Defendants”) bill of costs (ECF No. 120). 23 Mot. to Reduce, ECF No. 124. Plaintiff also filed objections to 24 Defendant’s bill of costs. Obj., ECF No. 122. For the reasons 25 set forth below, the Court GRANTS IN PART and DENIES IN PART 26 Plaintiff’s motion to reduce.1 27 1This matter is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. BACKGROUND 2 Defendants prevailed on their motion for summary judgment 3 (ECF No. 103) on August 1, 2023. Order Granting Defs.’ Mot. for 4 Summary Judgment, ECF No. 105. As the prevailing party, 5 Defendants now seek $13,945.85 in costs from Plaintiff under Rule 6 54(d)(1) of the Federal Rules of Civil Procedure. Bill of Costs, 7 ECF No. 120. In response, Plaintiff filed (1) objections to 8 Defendant’s Bill of Costs, Objections (“Obj.”), ECF No. 122, and 9 (2) a motion to reduce costs, Mot. to Reduce, ECF No. 124. 10 Defendants filed a response to Plaintiff’s objections, Resp., ECF 11 No. 125, and an opposition to Plaintiff’s motion, Opp’n, ECF No. 12 126. Plaintiff filed a reply in support of both filings. Reply, 13 ECF No. 130. 14 II. OPINION 15 A. Legal Standard 16 A prevailing party may be awarded taxable costs, other than 17 attorney’s fees, under Rule 54(d)(1) of the Federal Rules of 18 Civil Procedure. The following is an exhaustive list of the 19 costs that may be taxed against a losing party: (1) fees of the 20 clerk and marshal; (2) fees for printed or electronically 21 recorded transcripts necessarily obtained for use in the case; 22 (3) fees and disbursements for printing and witnesses; (4) 23 copying fees when the copies are necessarily obtained for use in 24 the case; (5) docket fees; and (6) compensation of court- 25 appointed experts and interpreters. 28 U.S.C. § 1920; E.D. Cal. 26 L.R. 292(f). The bill of costs must “itemize the costs claimed 27 and shall be supported by a memorandum of costs and an affidavit 28 of counsel that the costs claims are allowable by law, are 1 correctly stated, and were necessarily incurred.” E.D. Cal. 2 L.R. 292(b). 3 There is a presumption in favor of awarding the prevailing 4 party the costs prescribed by section 1920. Fed. R. Civ. P. 5 54(d)(1); Ass'n of Mexican-Am. Educators v. State of California, 6 231 F.3d 572, 591-92 (9th Cir. 2000) (en banc). However, the 7 Court retains discretion to deny costs under Rule 54(d)(1). Id. 8 at 591. “The burden is on the losing party to demonstrate why 9 the costs should not be awarded.” In re Ricoh Co., Ltd. Pat. 10 Litig., 661 F.3d 1361, 1364 (Fed. Cir. 2011) (“In re Ricoh Co.”) 11 (citing Stanley v. Univ. of S. California, 178 F.3d 1069, 1079 12 (9th Cir. 1999)). The objecting party’s reasons must be 13 “sufficiently persuasive to overcome the presumption in favor of 14 an award.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 15 914, 932 (9th Cir. 2015) (internal quotations omitted) (quoting 16 Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 17 2003)). A court must specify the reasons for its refusal to tax 18 costs against the losing party but not when it follows the 19 presumption in favor of taxing costs. Save Our Valley, 335 F.3d 20 at 945. 21 B. Analysis 22 1. Plaintiff’s Objections, ECF No. 122. 23 Plaintiff makes three objections to Defendants’ Bill of 24 Costs: (1) Defendants do not itemize “other costs;” (2) costs 25 cannot be awarded for deposition transcripts that were not cited 26 in Defendants’ motion for summary judgment; and (3) costs for 27 deposition videography cannot be awarded to the prevailing 28 party. See Obj. 1 a. Costs Entitled “Other Costs” Are Itemized. 2 Plaintiff asserts that he cannot assess the validity of 3 those costs entitled “other costs” because Defendants omit an 4 itemized breakdown. Obj. at 1. The Court disagrees and finds 5 that Defendants have included an itemized breakdown of “other 6 costs” and attach separate invoices for each cost incurred such 7 that these costs are taxable. See Bill of Costs at 25-28. 8 b. Plaintiff Fails To Show Defendants Cannot Recover 9 Costs of Uncited Deposition Transcripts. 10 Plaintiff contends Defendants cannot recover the costs for 11 deposition transcripts that were not cited in Defendants’ motion 12 for summary judgment. Obj. at 2. 13 “Fees for printed or electronically recorded transcripts 14 necessarily obtained for use in the case” may be awarded to the 15 prevailing party. 28 U.S.C. § 1920(2). While depositions 16 “merely useful for discovery” are not recoverable, Indep. Iron 17 Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 18 1963), “Ninth Circuit precedent is clear that a document need 19 not be offered as evidence to have been necessarily obtained for 20 use in the case.” In re Ricoh Co., 661 F.3d at 1369 (citing 21 Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 22 F.2d 587, 588 (9th Cir. 1990)). Simply because Defendants did 23 not cite certain deposition transcripts in their motion for 24 summary judgment does not mean they were not necessarily 25 obtained for use in the case and cannot be recovered as taxable 26 costs under 28 U.S.C. section 1920. Id. Plaintiff has failed 27 to overcome the presumption in favor of awarding these costs. 28 /// 1 c. Deposition Videography Costs Will Not be Taxed. 2 Defendants include two deposition videography fees in their 3 Bill of Costs. Bill of Costs at 3, 6-7, 25, 28. Plaintiff 4 objects that the recovery of video-related deposition expenses 5 cannot be recovered in this circumstance. Obj. at 2-3. 6 Defendants concede and withdraw the costs of two deposition 7 videography fees in the sum of $1,650.00 ($1,105.00 and $545.00) 8 from their Bill of Costs. Resp. at 3. Plaintiff’s objection is 9 therefore moot. 10 Plaintiff further asserts that an additional reduction of 11 Plaintiff’s deposition costs is warranted because Defendants did 12 not seek video and transcript costs separately. See Obj. at 2- 13 3; Reply at 3. To the contrary, Defendants separately itemized 14 video and non-video deposition costs and provided separate 15 invoices. See Bill of Costs at 3, 6-7, 9. Therefore, the Court 16 will subtract only $1,650.00 from the costs sought, rather than 17 adopt Plaintiff’s calculation. 18 In sum, the Court overrules Plaintiff’s first two 19 objections, and the third objection is moot given Defendants’ 20 concession to remove videography costs. Defendants are entitled 21 to $12,295.85 in costs under Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN DAVID PETERSON, an No. 2:19-cv-00949-JAM-JDP individual, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF’S 14 MOTION TO REDUCE DEFENDANTS NEVADA COUNTY, CALIFORNIA, a NEVADA COUNTY, NEVADA COUNTY 15 county government and SHERIFF’S DEPARTMENT, AND operator of the NEVADA COUNTY SHERIFF KEITH ROYAL’S BILL OF 16 SHERIFF’S DEPARTMENT; et al., COSTS 17 Defendants. 18 19 This matter is before the Court on Plaintiff John D. 20 Peterson’s (“Plaintiff”) motion to reduce Defendants Nevada 21 County, Nevada County Sheriff’s Department, and Sheriff Keith 22 Royal (collectively, “Defendants”) bill of costs (ECF No. 120). 23 Mot. to Reduce, ECF No. 124. Plaintiff also filed objections to 24 Defendant’s bill of costs. Obj., ECF No. 122. For the reasons 25 set forth below, the Court GRANTS IN PART and DENIES IN PART 26 Plaintiff’s motion to reduce.1 27 1This matter is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. BACKGROUND 2 Defendants prevailed on their motion for summary judgment 3 (ECF No. 103) on August 1, 2023. Order Granting Defs.’ Mot. for 4 Summary Judgment, ECF No. 105. As the prevailing party, 5 Defendants now seek $13,945.85 in costs from Plaintiff under Rule 6 54(d)(1) of the Federal Rules of Civil Procedure. Bill of Costs, 7 ECF No. 120. In response, Plaintiff filed (1) objections to 8 Defendant’s Bill of Costs, Objections (“Obj.”), ECF No. 122, and 9 (2) a motion to reduce costs, Mot. to Reduce, ECF No. 124. 10 Defendants filed a response to Plaintiff’s objections, Resp., ECF 11 No. 125, and an opposition to Plaintiff’s motion, Opp’n, ECF No. 12 126. Plaintiff filed a reply in support of both filings. Reply, 13 ECF No. 130. 14 II. OPINION 15 A. Legal Standard 16 A prevailing party may be awarded taxable costs, other than 17 attorney’s fees, under Rule 54(d)(1) of the Federal Rules of 18 Civil Procedure. The following is an exhaustive list of the 19 costs that may be taxed against a losing party: (1) fees of the 20 clerk and marshal; (2) fees for printed or electronically 21 recorded transcripts necessarily obtained for use in the case; 22 (3) fees and disbursements for printing and witnesses; (4) 23 copying fees when the copies are necessarily obtained for use in 24 the case; (5) docket fees; and (6) compensation of court- 25 appointed experts and interpreters. 28 U.S.C. § 1920; E.D. Cal. 26 L.R. 292(f). The bill of costs must “itemize the costs claimed 27 and shall be supported by a memorandum of costs and an affidavit 28 of counsel that the costs claims are allowable by law, are 1 correctly stated, and were necessarily incurred.” E.D. Cal. 2 L.R. 292(b). 3 There is a presumption in favor of awarding the prevailing 4 party the costs prescribed by section 1920. Fed. R. Civ. P. 5 54(d)(1); Ass'n of Mexican-Am. Educators v. State of California, 6 231 F.3d 572, 591-92 (9th Cir. 2000) (en banc). However, the 7 Court retains discretion to deny costs under Rule 54(d)(1). Id. 8 at 591. “The burden is on the losing party to demonstrate why 9 the costs should not be awarded.” In re Ricoh Co., Ltd. Pat. 10 Litig., 661 F.3d 1361, 1364 (Fed. Cir. 2011) (“In re Ricoh Co.”) 11 (citing Stanley v. Univ. of S. California, 178 F.3d 1069, 1079 12 (9th Cir. 1999)). The objecting party’s reasons must be 13 “sufficiently persuasive to overcome the presumption in favor of 14 an award.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 15 914, 932 (9th Cir. 2015) (internal quotations omitted) (quoting 16 Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 17 2003)). A court must specify the reasons for its refusal to tax 18 costs against the losing party but not when it follows the 19 presumption in favor of taxing costs. Save Our Valley, 335 F.3d 20 at 945. 21 B. Analysis 22 1. Plaintiff’s Objections, ECF No. 122. 23 Plaintiff makes three objections to Defendants’ Bill of 24 Costs: (1) Defendants do not itemize “other costs;” (2) costs 25 cannot be awarded for deposition transcripts that were not cited 26 in Defendants’ motion for summary judgment; and (3) costs for 27 deposition videography cannot be awarded to the prevailing 28 party. See Obj. 1 a. Costs Entitled “Other Costs” Are Itemized. 2 Plaintiff asserts that he cannot assess the validity of 3 those costs entitled “other costs” because Defendants omit an 4 itemized breakdown. Obj. at 1. The Court disagrees and finds 5 that Defendants have included an itemized breakdown of “other 6 costs” and attach separate invoices for each cost incurred such 7 that these costs are taxable. See Bill of Costs at 25-28. 8 b. Plaintiff Fails To Show Defendants Cannot Recover 9 Costs of Uncited Deposition Transcripts. 10 Plaintiff contends Defendants cannot recover the costs for 11 deposition transcripts that were not cited in Defendants’ motion 12 for summary judgment. Obj. at 2. 13 “Fees for printed or electronically recorded transcripts 14 necessarily obtained for use in the case” may be awarded to the 15 prevailing party. 28 U.S.C. § 1920(2). While depositions 16 “merely useful for discovery” are not recoverable, Indep. Iron 17 Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 18 1963), “Ninth Circuit precedent is clear that a document need 19 not be offered as evidence to have been necessarily obtained for 20 use in the case.” In re Ricoh Co., 661 F.3d at 1369 (citing 21 Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 22 F.2d 587, 588 (9th Cir. 1990)). Simply because Defendants did 23 not cite certain deposition transcripts in their motion for 24 summary judgment does not mean they were not necessarily 25 obtained for use in the case and cannot be recovered as taxable 26 costs under 28 U.S.C. section 1920. Id. Plaintiff has failed 27 to overcome the presumption in favor of awarding these costs. 28 /// 1 c. Deposition Videography Costs Will Not be Taxed. 2 Defendants include two deposition videography fees in their 3 Bill of Costs. Bill of Costs at 3, 6-7, 25, 28. Plaintiff 4 objects that the recovery of video-related deposition expenses 5 cannot be recovered in this circumstance. Obj. at 2-3. 6 Defendants concede and withdraw the costs of two deposition 7 videography fees in the sum of $1,650.00 ($1,105.00 and $545.00) 8 from their Bill of Costs. Resp. at 3. Plaintiff’s objection is 9 therefore moot. 10 Plaintiff further asserts that an additional reduction of 11 Plaintiff’s deposition costs is warranted because Defendants did 12 not seek video and transcript costs separately. See Obj. at 2- 13 3; Reply at 3. To the contrary, Defendants separately itemized 14 video and non-video deposition costs and provided separate 15 invoices. See Bill of Costs at 3, 6-7, 9. Therefore, the Court 16 will subtract only $1,650.00 from the costs sought, rather than 17 adopt Plaintiff’s calculation. 18 In sum, the Court overrules Plaintiff’s first two 19 objections, and the third objection is moot given Defendants’ 20 concession to remove videography costs. Defendants are entitled 21 to $12,295.85 in costs under Fed. R. Civ. P. 54(d)(1) and 28 22 U.S.C. section 1920, subject to any discretionary reduction 23 specified in the following section. 24 2. Plaintiff’s Motion to Reduce Costs, ECF No. 124. 25 Plaintiff next requests the Court exercise its discretion 26 and reduce the costs Defendants seek. Pl.’s Memorandum of 27 Points and Authorities (“Mot.”), ECF No. 124-1.
28 Appropriate reasons for denying costs include: (1) the 1 substantial public importance of the case, (2) the closeness and difficulty of the issues in the case, (3) 2 the chilling effect on future similar actions, (4) the plaintiff’s limited financial resources, and (5) the 3 economic disparity between the parties.
4 Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 5 (9th Cir. 2014) (citing Ass'n of Mexican-Am. Educators, 231 F.3d 6 at 591). Among those factors, the Court must consider 7 Plaintiff’s financial status and whether the imposition of costs 8 would create a chilling effect on future civil rights 9 suits. Stanley, 178 F.3d at 1079-80. Plaintiff argues the 10 foregoing factors support a reduction of costs. See Mot. 11 a. Substantial Public Importance 12 Plaintiff asserts the subject matter of this action 13 justifies the reduction of costs. Mot. at 3. Although medical 14 care provided to pretrial detainees is important in a general 15 sense, Plaintiff does not support his argument with legal 16 authority demonstrating the instant case is so extraordinary 17 that a reduction in costs is warranted. The cases relied on by 18 Plaintiff are distinguishable and unavailing. The Court finds 19 that Plaintiff has failed to meet his burden of showing that the 20 instant case carries the weight of one with substantial public 21 importance. 22 b. Closeness and Difficulty of the Issues 23 Plaintiff contends this factor support the reduction or 24 denial of costs because “the issues presented are important and 25 needed to be resolved through the filing and prosecution of the 26 action.” See Mot. at 4. Plaintiff’s argument misses the mark 27 as this factor concerns the degree to which a party prevails. 28 1 See Draper v. Rosaria, 836 F.3d 1072, 1088 (9th Cir. 2016) 2 (holding this factor weighed against an award of costs because 3 the plaintiff survived summary judgment and the jury deliberated 4 over the course of two days). Plaintiff fails to cite any facts 5 or legal authority in support of his argument. He has not met 6 his burden, and a reduction or elimination of costs under this 7 factor is not warranted. 8 c. Chilling Effect 9 While Courts have held that a high award of costs “may 10 chill civil rights litigation in this area”, Stanley, 178 F.3d 11 at 1080, Plaintiff’s assertion that the amount Defendants seek 12 here would risk chilling future civil rights suits fails. Mot. 13 at 6. Plaintiff’s reliance on Connelly v. Phillips, No. 2:16- 14 CV-01604-JAM-EFB, 2019 WL 1651285 (E.D. Cal. Apr. 17, 2019) is 15 misplaced. Unlike the matter in Connelly, this case did not 16 proceed to trial and have a jury render a verdict. The costs 17 sought here are also significantly less than the costs sought in 18 Connelly ($37,212) and other cases that found an award would 19 chill costs. Opp’n at 4-5 (collecting cases). Plaintiff has 20 once again failed to present a sufficiently persuasive argument 21 that this factor supports reducing costs. 22 d. Plaintiff’s Limited Financial Resources 23 Plaintiff argues his financial condition justifies a 24 reduction of costs. Mot. at 3. Specifically, Plaintiff 25 declares he is unhoused, does not have a regular source of 26 income, is unable to continue working as a concrete worker, and 27 his only asset is an automobile. See Decl. of John D. Peterson 28 (“Decl.”) ¶¶ 2-5, ECF No. 124-2. The Court recognizes that —— mE IE III IER ENO II OIE OEE IE OSE IIE ESS
1 Plaintiff’s lack of housing and irregular income make him 2 susceptible to becoming indigent and this factor weighs in favor 3 of a reduction in the costs award. 4 However, Plaintiff has failed to show his current financial 5 condition warrants a wholesale denial of costs. Although 6 Plaintiff states he can no longer work as a concrete worker, 7 Decl. @ 3, he may have or be able to obtain other employment. 8 Moreover, Plaintiff’s alleged lack of regular income is vague 9 and not equivalent to the actual absence of income. 10 e. Economic Disparity 11 Lastly, comparing Plaintiff’s and Defendants’ economic 12 disparity, in addition to the relatively modest amount of costs 13 sought, this factor also weighs in favor of reducing costs. 14 In sum, applying the above five factors, the Court finds 15 the final two factors justify a reduction in, but not a complete 16 denial of, taxable costs to Defendant. 17 Til. ORDER 18 The Court GRANTS IN PART and DENIES IN PART Plaintiff’s 19 motion to reduce the amount of costs to be taxed and awards 20 Defendants $5,000.00 under Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. 21 section 1920. 22 IT IS SO ORDERED. 23 Dated: October 30, 2023 24 cp, JOHN A. MENDEZ 26 SENIOR UNITED*STATES DISTRICT JUDGE 27 28