United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MICHELLE FANUCCI,

Plaintiff,

v.

ALLSTATE INSURANCE COMPANY, et

al.,

Defendants.

___________________________________/

No. C-08-2151 EMC

ORDER GRANTING PLAINTIFF’S

ADMINISTRATIVE MOTION TO

AMEND AWARD OF COSTS

(Docket No. 143)

Plaintiff has moved for an amendment of the award of costs to Defendant. In her motion,

Plaintiff notes that Defendant agreed to a deduction of $1,909.70 from the award, see Docket No.

126 (Def.’s Resp. at 1 & n.1) (withdrawing request for $1,909.70 for trial transcripts without

prejudice), but that the Clerk of the Court inadvertently failed to make the deduction.

In response, Defendant’s argument is that Plaintiff’s motion is untimely. Defendant points

out that, under Federal Rule of Civil Procedure 54(d), a challenge to a cost award by the Clerk of the

Court must be made within seven days. See Fed. R. Civ. P. 54(d)(1) (providing that “[t]he clerk may

tax costs on 14 days’ notice” and that “[o]n motion served within the next 7 days, the court may

review the clerk’s action”). 

The Court is not persuaded that the time constraint of Rule 54(d) is applicable under the

circumstances presented here -- i.e., where the parties agreed to the deduction such that the Clerk of

the Clerk, in effect, made an administrative error. Moreover, the Court notes that the time limit in

Rule 54(d) is not jurisdictional in nature, and therefore the Court has the authority to consider, in its

discretion, an untimely objection to an award of costs. See, e.g., Lorenz v. Valley Forge Ins. Co., 23

Case 3:08-cv-02151-EMC Document 147 Filed 05/25/10 Page 1 of 2
United States District Court

For the Northern District of California

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F.3d 1259, 1261 (7th Cir. 1994); Soberay Mach. & Equip. Co. v. MRF Ltd., 181 F.3d 759, 770 (6th

Cir. 1999). 

The Court therefore turns to Defendant’s second argument. Defendant’s second argument is

that its agreement to a $1,909.70 deduction in the cost award was “without prejudice to seek such

costs in the event of an appeal or other development expressly denoted in the [Civil] Local Rules.” 

Docket No. 126 (Def.’s Resp. at 1 n.1); see also Civ. L.R. 54-3(b)(1) (providing that “[t]he cost of

transcripts necessarily obtained for an appeal is allowable”). Defendant points out that, before the

Clerk of the Court taxed costs, Plaintiff filed a notice of appeal. See Docket No. 132 (notice of

appeal). Thus, Defendant argues, the Clerk of the Court must have taken the notice of appeal into

account and decided that the $1,909.70 deduction should not have been made. The problem with

this argument is that, in its response to Plaintiff’s objections to the request for costs, Defendant

stated that it would “renew its request for the cost of trial transcripts in the appeal process, if

appropriate.” Docket No. 126 (Def.’s Resp. at 1 n.1) (emphasis added). Given this language, the

Clerk of the Court should have taken the $1,909.70 deduction and then, left any renewed request to a

subsequent process.

Accordingly, the Court hereby GRANTS Plaintiff’s request to amend the cost award. The

award is amended so that the final costs taxed are $8,604.81 (i.e., $10,514.51 ! $1,909.70). This

ruling is without prejudice to Defendant making a renewed request for the cost of trial transcripts

consistent with applicable rules.

This order disposes of Docket No. 143.

IT IS SO ORDERED.

Dated: May 25, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-02151-EMC Document 147 Filed 05/25/10 Page 2 of 2