Soler v. San Diego, County of

• Court: District Court, S.D. California
• Decided: May 19, 2021
• Docket: 3:14-cv-02470
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES SOLER, Case No. 14cv2470-MMA (RBB)

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO RETAX COSTS

14 COUNTY OF SAN DIEGO, et al., [Doc. No. 259] 15 Defendants. 16 17 Plaintiff James Soler brought this action asserting civil rights violations pursuant to 18 42 U.S.C. § 1983, as well as state law claims for false imprisonment, negligence, and 19 violation of California Civil Code section 52.1. See Doc. No. 1. As relevant here, the 20 Court ultimately entered judgment in favor of Soler against Defendants Lisa Wilkins and 21 Ray Hobbs (“Defendants”). See Doc. No. 223. Thereafter, Soler submitted a bill seeking 22 reimbursement for costs totaling $19,139.24, to which Defendants objected. See Doc. 23 Nos. 226, 247. The Clerk of Court taxed costs against Defendants in the amount of 24 $7,851.09. See Doc. No. 256. Soler moves to retax costs pursuant to Federal Rule of 25 Civil Procedure 54(d) and Civil Local Rule 54.1.h.1 See Doc. No. 259. Soler seeks 26

27 1 In the alternative, Soler requests that the Court award the costs at issue pursuant to 42 U.S.C. § 1988, 28 1 additional reimbursement for costs incurred on appeal and for certain deposition 2 transcripts costs. Defendants filed a response in opposition, to which Soler replied. See 3 Doc. Nos. 268, 274. For the reasons set forth below, the Court DENIES Soler’s motion. 4 DISCUSSION 5 Soler takes issue with the Clerk’s calculation of costs in two respects. First, Soler 6 argues that the Clerk erroneously declined to tax costs incurred on appeal, including the 7 $505 filing fee and $1023.22 in copying costs. Second, Soler contends that he is entitled 8 to reimbursement of an additional $8297.08 in deposition transcript costs which the Clerk 9 declined to tax against Defendants. Defendants oppose Soler’s motion in all respects. 10 1. Legal Standard 11 Federal Rule of Civil Procedure 54(d) provides the applicable legal standard: 12 “Unless a federal statute, these rules, or a court order provides otherwise, costs—other 13 than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 14 54(d)(1). The rule creates a strong presumption in favor of awarding costs to a prevailing 15 party, but vests in the district court discretion to refuse to award costs. See Save Our 16 Valley v. Sound Transit, 335 F.3d 932, 944–45 (9th Cir. 2003); Ass’n of Mexican- 17 American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000). 18 “Section 1920 [of Title 28] enumerates expenses that a federal court may tax as a 19 cost under the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T. 20 Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Taxable costs include: (1) filing fees and 21 other court fees, (2) fees for transcripts “necessarily obtained for use in the case;” (3) 22

23 Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir. 1986), reh’g denied and opinion amended, 808 F.2d 24 1373 (9th Cir. 1987). However, out-of-pocket expenses are distinct from taxable court costs. See 28 25 U.S.C. § 1920 (itemizing types of court costs); United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (explaining under § 1988, “[o]ut-of-pocket litigation expenses are 26 reimbursable as part of the attorneys’ fee, distinct from the costs ... awarded ... under 28 U.S.C. § 1920”); see also 10 Wright & Miller et al., FED. PRAC. & PROC. CIV. § 2666. The items disputed herein 27 fall within the categories of costs contemplated by 28 U.S.C. § 1920. The Court will address the recoverability of any nontaxable out-of-pocket expenses concurrently with Soler’s request for attorneys’ 28 1 costs of exemplification and copies also “necessarily obtained,” (4) certain fees for 2 printing and witnesses, (5) docket fees, and (6) costs of court-appointed experts or 3 compensation for interpreters. 28 U.S.C. § 1920. The Local Rules of Practice for the 4 United States District Court for the Southern District of California provide for taxation by 5 the Clerk of Court subject to judicial review and expound upon the nature of allowable 6 statutory taxable costs. See generally CIVLR 54.1. District courts in this circuit review a 7 Clerk’s taxation of costs de novo. See, e.g., Lopez v. San Francisco Unified Sch. Dist., 8 385 F.Supp.2d 981, 1001 (N.D. Cal. 2005). 9 2. Analysis 10 a) Costs Incurred on Appeal 11 The Court originally dismissed Soler’s claims against Defendants based on lack of 12 personal jurisdiction. See Doc. Nos. 125, 141. Soler appealed and the Ninth Circuit 13 reversed the ruling, thereby reinstituting Soler’s claims against Defendants and 14 remanding the case for further proceedings. See Soler v. Cty. of San Diego, 762 F. App’x 15 383 (9th Cir. 2019) [Doc. No. 188]. Soler argues that the Clerk erroneously declined to 16 tax the costs he incurred on appeal.2 Soler relies primarily upon Yamada v. Snipes, 786 17 F.3d 1182 (9th Cir. 2015), in which the circuit court held that plaintiffs who “prevailed in 18 an interlocutory appeal, and subsequently became prevailing parties after the district 19 court entered judgment in their favor . . . are entitled to attorney’s fees arising from the 20 prior appeal.” Id. at 1210. 21 Defendants’ response is three-fold. First, Defendants argue that the appellate court 22 has settled the matter by providing in its disposition that “[e]ach party shall bear its own 23 costs on appeal.” Doc. No. 188 at 10.3 Second, Defendants argue that Soler forfeited his 24 25 2 Those costs include “the cost of producing necessary copies of a brief or appendix, or copies of 26 records,” as well as “the fee for filing the notice of appeal,” Fed. R. App. P. 39(c), (e)(4), and they are considered taxable costs under 28 U.S.C. § 1920 and this Court’s Local Rules. See CIVLR 54.1.b.12 27 (“Costs incurred on appeal as allowed by the Federal Rules of Appellate Procedure” are taxable).

28 1 entitlement to costs by failing to file a timely bill of costs for consideration by the 2 appellate court in violation of Federal Rule of Appellate Procedure 39 and the 3 corresponding circuit rule. Third, Defendants acknowledge the Yamada case but argue 4 that its holding is limited to an award of attorneys’ fees under section 1988 – not taxable 5 costs under the applicable procedural rules. 6 Pursuant to Rule 39(a)(4), “if a judgment is affirmed in part, reversed in part, 7 modified, or vacated,” as the circuit court did in this case, “costs are taxed only as the 8 court orders.” Fed. R. App. P. 39(a)(4). As Defendants point out, the circuit court 9 ordered the parties to bear their own costs. See Doc. No. 188 at 10. Moreover, any 10 “party who wants costs taxed must—within 14 days after entry of judgment—file with 11 the circuit clerk and serve an itemized and verified bill of costs,” Fed. R. App. P. 12 39(d)(1); a review of the circuit court docket confirms that Soler did not do so. See 13 generally Docket, App. Case No. 17-56270. Nonetheless, Soler argues that under 14 Yamada he is entitled to a belated award of taxable appellate costs now that he is the 15 prevailing party in this litigation. See 42 U.S.C. § 1988(b) (“the court, in its discretion, 16 may allow the prevailing party [in an action brought to enforce 42 U.S.C. § 1983] . . . a 17 reasonable attorney’s fee as part of the costs”). 18 In Yamada, “the Ninth Circuit . . . held that a party who only becomes entitled to 19 fees after the time identified in Rule 39–1.6 can seek fees incurred in connection with the 20 appeal in the district court.” Nat’l Council of La Raza v. Cegavske, No. 12cv316MMD- 21 VPC, 2017 WL 2683683, at *3 (D. Nev. June 21, 2017). The question is whether 22 Yamada – which directly addressed a belated award of attorneys’ fees under 42 U.S.C. § 23 1988(b) – applies equally to a belated award of taxable appellate costs. The Court finds 24 that it does not. 25 Pursuant to section 1988, an award of reasonable attorneys’ fees is allowable “as 26 part of the costs” of litigation. 42 U.S.C. § 1988(b); see also Bravo v. City of Santa 27 Maria, 810 F.3d 659, 668 (9th Cir. 2016) (“attorney fees are a component of costs under 28 42 U.S.C. § 1988”). The subsumption of attorneys’ fees within costs under section 1988, 1 however, does not render the two concepts indistinct. The Ninth Circuit has explicitly 2 held that appellate “‘costs’ under Rule 39 do not include attorney’s fees.” Fam. PAC v. 3 Ferguson, 745 F.3d 1261, 1268 (9th Cir. 2014). With respect to attorneys’ fees awards, 4 this distinction clearly favors a party such as Soler who enjoyed partial success on appeal 5 but did not yet qualify as a “prevailing party” under section 1988. As the court explained 6 in the Family PAC case: 7 Under longstanding circuit practice, we will sometimes direct the parties to pay their own costs when, as here, there is a mixed judgment. This is in 8 keeping with the general policy embodied by Rule 39 linking the taxation of 9 costs with the results of the appeal. In the case of the same mixed result, however, the partially prevailing plaintiff may well be entitled to an award of 10 attorney’s fees under § 1988, because “plaintiffs may be considered 11 ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties 12 sought in bringing suit.” 13 14 Id. (internal citations omitted). In holding taxable appellate costs distinguishable from 15 attorneys’ fees under section 1988, the circuit court noted the distinctive manner in which 16 it addresses Rule 39 costs: “Under our General Orders, we typically address the taxation 17 of costs when we file a disposition resolving an appeal on the merits,” as the circuit court 18 did in this case, and “[a]ttorney’s fees, by contrast, are addressed by motions that are filed 19 and decided later.” Fam. PAC, 745 F.3d at 1269 (internal citation omitted). The Court 20 held that “the term ‘costs’ under Federal Rule of Appellate Procedure 39 does not include 21 attorney’s fees recoverable as part of costs under 42 U.S.C. § 1988 and similar statutes,” 22 and as such, “[t]he district court properly awarded attorney’s fees to Family PAC for the 23 previous appeal,” id. at 1269 (emphasis added), despite having determined in its 24 disposition of the previous appeal that “‘[e]ach party shall bear its own costs of appeal.’” 25 Id. at 1263 (emphasis added). 26 The lesson from Family PAC is that section 1988 attorneys’ fees and Rule 39 27 taxable appellate costs are distinguishable and should be treated as such by courts under 28 the applicable rules. Yamada, decided the year after Family PAC, did not purport to 1 disturb this holding and bore only upon the question of attorneys’ fees under section 2 1988; the court had nothing to say about taxable appellate costs.4 Thus, in light of the 3 circuit court’s previous apportionment of costs on appeal, see Doc. No. 188 at 10, Family 4 PAC’s careful distinction between taxable costs and attorneys’ fees, and Yamada’s 5 resulting irrelevance to the matter at bar, the Court concludes that the costs Soler incurred 6 on appeal should not be taxed against Defendants. 7 b) Deposition Transcript Costs 8 Soler also requests taxation of the costs arising out of nine depositions taken after 9 this Court dismissed his claims against Defendants based on lack of personal jurisdiction, 10 but before the Ninth Circuit reinstated those claims and remanded for further 11 proceedings. Soler argues that each deposition and resulting transcript was necessarily 12 obtained for use in the case, as the nine deponents were “all percipient witnesses and/or 13 provided key testimony about the nature of the procedures and practices underlying the 14 events in San Diego.” Doc. No. 259 at 5. Defendants do not suggest otherwise but 15 respond that the Clerk correctly declined to tax those costs based on Defendants’ 16 dismissal from the litigation at the time Soler incurred the costs. 17 The costs of taking and transcribing depositions are generally awarded to the 18 prevailing party so long as the depositions were reasonably necessary for litigation. See 19 28 U.S.C. § 1920(2) (allowing fees for “printed or electronically recorded transcripts 20 necessarily obtained for use in the case”). Civil Local Rule 54.1 provides in pertinent 21 part: 22 The cost of an original and one copy of any deposition (including videotaped depositions) necessarily obtained for use in the case is allowable. Depositions 23

24 25 4 Indeed, the Yamada plaintiffs’ subsequent motion seeking an award of attorneys’ fees for work performed on the first appeal expressly excluded a request for taxable appellate costs incurred during 26 that appeal due to the circuit court’s previous directive that “[e]ach party shall bear its own costs of appeal.” Doc. No. 34, App. No. 10-17280; see also Doc. No. 67-1 at 11 n.11, App. No. 12-17845 (“[A]s 27 before, [appellants] deduct the appellate ‘costs,’ as they were apportioned by this Court in its Order dismissing the interlocutory appeal.”) (citing Yamada v. Kuramoto, No. 10-17280 (Order granting 28 l need not be introduced in evidence or used at trial to be taxable so long as at the time it was taken it could reasonably be expected that the deposition would be used for trial preparation, rather than mere discovery. 3 4 || CIVLR 54.1.b.3.a. 5 Here, the nine depositions at issue were undoubtedly obtained by Soler for use in 6 || this case. Nevertheless, Defendants assert that because Soler incurred the disputed costs 7 || after dismissal of his claims against them, those costs were not necessarily obtained for 8 Soler’s use in his case against them, specifically, and to the extent that Soler used the 9 || depositions for trial preparation and/or dispositive motion practice, he did so primarily 10 || with respect to the San Diego County defendants. Soler points out in reply that he 11 || provided Defendants with copies of the deposition transcripts in order to facilitate 12 expedited discovery post-remand and therefore Defendants should bear the cost. 13 Both arguments have merit. But, keeping in mind that “[t]he essential goal in 14 || shifting fees (to either party) is to do rough justice, not to achieve auditing perfection,” 15 || Fox v. Vice, 131 S. Ct. 2205, 2216 (2011), the Court ultimately finds that Defendants 16 should not be taxed for deposition costs incurred by Soler after Defendants’ discharge 17 || from the action. See, e.g., Am. Nat. Ins. Co. v. Citibank, F.S.B., 623 F. Supp. 2d 953, 955 18 |/(N.D. IL. 2009) (declining to tax costs when the party “had no notice that it would be 19 || liable for any costs in a lawsuit which it was not prosecuting and to which it was not a 20 || party.”); Anderson v. Jo-Ann Stores, Inc., No. 3:09-1042, 2011 WL 3608560, at *3 (M.D. 21 Tenn. Aug. 15, 2011) (holding that party “may not be assessed for costs that arose prior 22 || to its intervention in this case.”). 23 CONCLUSION 24 Based on the foregoing, the Court DENIES Soler’s motion to retax costs. 25 IT IS SO ORDERED. 26 DATE: May 19, 2021 Vath HDA Mpls 7 HON. MICHAEL M. ANELLO United States District Judge 28