United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

HARRY WHITLOCK, et al.,

Plaintiffs,

 v.

PEPSI AMERICAS, et al.,

Defendants. /

No. C 08-2742 SI

ORDER GRANTING IN PART

PLAINTIFFS’ MOTION FOR REVIEW

OF TAXATION OF COSTS

Plaintiffs’ motion for review of the Clerk’s taxation of costs is scheduled for a hearing on August

27, 2010. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for

resolution without oral argument, and VACATES the hearing on this matter. 

LEGAL STANDARD

28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax costs. Pursuant to Federal

Rule of Civil Procedure 54(d), costs incurred by the prevailing party may be assessed against the losing

party as of course and may be taxed by the clerk. “Unless a federal statute, these rules, or a court order

provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed.

R. Civ. P. 54(d)(1). “Rule 54(d) creates a presumption in favor of awarding costs to prevailing parties,

and it is incumbent upon the losing party to demonstrate why the costs should not be awarded.” Stanley

v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Taxable costs are listed in 28 U.S.C. § 1920

as follows:

(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded

transcripts necessarily obtained for use in the case; (3) Fees and disbursements for

printing and witnesses; (4) Fees for exemplification and the costs of making copies of

any materials where the copies are necessarily obtained for use in the case; (5) Docket

fees under section 1923 of this title; (6) Compensation of court appointed experts,

Case 3:08-cv-02742-SI Document 140 Filed 08/25/10 Page 1 of 3
United States District Court

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compensation of interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

Civil Local Rule 54-3 provides additional “standards for interpreting the costs allowed under section

1920.” Intermedics v. Ventritex, Co., No. C-90-20233, 1993 U.S. Dist. LEXIS 17803, at *2 (N.D. Cal.

Dec. 2, 1993). Upon motion for review of the Clerk’s taxation of costs, the Clerk’s actions may be

reviewed by the Court. Fed. R. Civ. P. 54(d)(1). The taxation of costs lies within the trial court’s

discretion. In re Media Vision Tech. Secs. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996). 

If the district court wishes to depart from the presumption in favor of awarding costs, it must

gives reasons for doing so by explaining “why a case is not ‘ordinary’ and why, in the circumstances,

it would be inappropriate or inequitable to award costs.” Assoc. of Mexican-American Educators v.

Cal., 231 F.3d 572, 593 (9th Cir. 2000). District courts may consider a variety of factors in determining

whether to exercise their discretion to deny costs to the prevailing party. These factors include great

economic disparity between the parties, and the losing party’s limited financial resources. Id. 

DISCUSSION

In orders filed October 21, 2009 and January 26, 2010, the Court granted summary judgment in

favor of defendants on the claims brought by plaintiffs Melissa Dalton and Leland Chalmers. The Court

held that Ms. Dalton’s claims were barred by the statute of limitations, and that because Mr. Chalmers

worked at the Remco facility and never lived in Willits, his claims were barred by the Workers

Compensation Act. Thereafter, pursuant to 28 U.S.C. § 1920 and Civil Local Rule 54-1, defendants

filed a Bill of Costs seeking reimbursement for taxable costs incurred in this action in the amount of

$1,304.80 from Ms. Dalton and $1,446.25 from Mr. Chalmers. These expenses were related to the costs

of taking those plaintiffs’ depositions. Plaintiffs filed objections to the Bill of Costs, asserting the Clerk

should exercise its discretion and award no costs because of the important nature of this case, and

plaintiffs’ claimed inability to pay. On July 20, 2010, the Clerk issued an order taxing costs in the

amount of $1,279.80 from Ms. Dalton and $1,403.75 from Mr. Chalmers. 

Plaintiffs then filed the instant motion for review of the Clerk’s taxation of costs. Plaintiffs’

motion contends that the Court should deny defendant’s Bill of Costs in its entirety because this case

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 Defendants correctly note that when these declarations were originally filed, they did not

comply with General Order 45 with regard to the signatures. Plaintiffs have since corrected the

problem. In addition, plaintiffs’ counsel did not meet and confer with defense counsel prior to filing

the instant motion. In this case and the related cases, the Court has repeatedly reminded plaintiffs’

counsel of the importance of complying with all applicable rules. The Court declines to find that

plaintiffs have waived their objections. However, counsel is once again admonished to follow all

applicable rules.

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 It is incumbent on counsel to inform their clients of their potential liability for taxed costs in

the event that defendants prevail. If plaintiffs’ counsel has not already done so, the Court directs

counsel to inform all of the plaintiffs in this action of this possibility.

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“raises fundamental civil rights issues” and because plaintiffs are extremely poor. Both plaintiffs have

submitted declarations stating that their only income is Social Security Disability Insurance, and that

after paying for rent, utilities and basic necessities, there is no money remaining. Dalton Decl. ¶ 2;

Chalmers Decl. ¶ 2.1

 Both plaintiffs state that they have no savings or other assets. Dalton Decl. ¶ 4;

Chalmers Decl. ¶ 4. In addition, Ms. Dalton states that she has cancer. Dalton Decl. ¶ 3. Defendants

oppose plaintiffs’ motion on substantive and procedural grounds. 

The Ninth Circuit has recognized that the district court may properly consider the losing party’s

ability to pay in deciding whether to award costs. See Mexican-American Educators, 231 F.3d at 593.

Based upon plaintiffs’ declarations regarding their financial resources, the Court finds it appropriate to

exercise its discretion and reduce the total taxed costs by half, with Mr. Chalmer’s taxed costs at

$733.13 and Ms. Dalton’s taxed costs at $652.40. While the Court is sympathetic to plaintiffs’ position,

the Court does not find it appropriate to entirely deny costs to defendants, as the depositions costs were

incurred and are recoverable the applicable statutes and rules. Further, both plaintiffs were dismissed

on statutory grounds that should have been anticipated by counsel and explained to plaintiffs prior to

filing suit.2

 

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for review of the Clerk’s taxation of costs is

GRANTED IN PART. (Docket No. 134).

IT IS SO ORDERED.

Dated: August 25, 2010 

SUSAN ILLSTON

United States District Judge

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