United States District Court

For the Northern District of California

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NOT FOR CITATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES ex rel. DONNA M.

McLEAN and THE STATE OF CALIFORNIA

ex rel DONNA M. McLEAN,

Plaintiffs,

 v.

THE COUNTY OF SANTA CLARA, THE

DEPARTMENT OF FAMILY AND

CHILDREN’S SERVICES OF SANTA CLARA

COUNTY, KENNETH BORELLI,

LAWRENCE GALLEGOS, EPIFANIO (“J.R.”)

REYNA, TANYA BEYERS, DR. DEE

SCHAFFER, DR. TOMMIJEAN THOMAS,

DR. RICHARD PERILLO and DOES 1-100,

Defendants. /

No. C05-01962 HRL

ORDER DENYING RELATOR’S

MOTION FOR REVIEW OF CLERK’S

TAXATION OF COSTS

[Re: Docket No. 406]

Relator Donna McLean filed this qui tam action against the County of Santa Clara

(County) and others under the federal False Claims Act (31 U.S.C. § 3729, et seq.) and the

California False Claims Act (Govt. Code § 12651, et seq.), alleging that defendants defrauded

the federal and state governments with respect to child welfare funds. Defendants filed a

counterclaim asserting that, by filing the instant action, McLean breached the parties’ settlement

agreement resolving several prior lawsuits filed by McLean against the County of Santa Clara. 

Several years after this action was filed, the claims brought on behalf of the State of California

were voluntarily dismissed. McLean eventually obtained summary judgment on defendants’

Case 5:05-cv-01962-HRL Document 413 Filed 09/28/12 Page 1 of 4
United States District Court

For the Northern District of California

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1 Before filing the instant motion, plaintiff filed a notice of appeal as to the

order granting summary judgment for defendants on her qui tam claims. Nevertheless,

awards of fees and costs are considered collateral issues over which the district court

normally retains jurisdiction even after an appeal divests the court of jurisdiction over the

merits. See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (“The award of fees

and costs is a collateral issue.”).

2 See Lorenze v. Valley Forge Ins. Co., 23 F.3d 1259, 1261 (7th Cir. 1994)

(concluding that the time limit of Rule 54(d)(1) has no jurisdictional significance).

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counterclaim. Defendants ultimately prevailed at summary judgment on the federal qui tam

claims.

Defendants then filed a Bill of Costs seeking $12,667.60 from McLean. The Clerk of

the Court entered an award allowing $8,232.40 in costs. McLean seeks review of that award,

arguing that neither side is a prevailing party entitled to its costs. Defendants oppose the

motion. The matter was deemed submitted without oral argument. Upon consideration of the

moving and responding papers, this court denies the motion.1

“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). 

“The clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the court

may review the clerk’s action.” Id. McLean’s motion for review of the clerk’s taxation of costs

was filed one day too late. But, even if this court were to consider the matter on the merits,2

 it

finds that the award of costs is appropriate.

The Ninth Circuit has “construed Federal Rule of Civil Procedure 54(d)(1) to create a

presumption in favor of awarding costs to the prevailing party.” Amarel v. Connell, 102 F.3d

1494, 1523 (9th Cir. 1997). The reasonableness of an award of costs is a matter within the

court’s discretion. And, in cases involving a mixed judgment, the court has discretion to require

each party to bear its own costs. Amarel, 102 F.3d at 1523 (citation omitted). But, it is not

necessary for a party to prevail on all of its claims to be found the prevailing party. San Diego

Police Officers’ Ass’n v. San Diego City Employees’ Retirement Sys., 568 F.3d 725, 741 (9th

Cir. 2009) (citing K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 477 (9th Cir. 1974)).

Here, as borne out by the record in this matter, the vast majority of the time and effort in

this litigation concerned McLean’s qui tam claims, which were significantly more complex than

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defendants’ counterclaim. By contrast, relatively little time was spent litigating and resolving

defendants’ counterclaim, which concerned only the issue whether McLean’s claims were

barred by the parties’ prior settlement agreement. Accordingly, this court finds that defendants

are prevailing parties entitled to recoup their costs incurred in defending against the qui tam

claims, and McLean’s motion for an order vacating the costs award is denied. See, e.g.,

Scientific Holding Company, Ltd. v. Plessey Inc., 510 F.2d 15, 28 (2d Cir. 1974) (“District

courts have held that a defendant who successfully fends off a large claim may be awarded costs

despite failure to prevail on a counterclaim.”).

Nevertheless, the court also declines defendants’ request to revisit the taxation of costs

to reinstate sums disallowed by the Clerk of the Court. Defendants did not timely request such

a review. Nor have they provided this court with any argument as to why they believe they are

entitled to the sums originally requested.

SO ORDERED.

Dated: September 28, 2012

 

HOWARD R. LLOYD

UNITED STATES MAGISTRATE JUDGE

Case 5:05-cv-01962-HRL Document 413 Filed 09/28/12 Page 3 of 4
United States District Court

For the Northern District of California

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5:05-cv-01962-HRL Notice has been electronically mailed to:

Gordon Wayne Renneisen grenneisen@cornerlaw.com, amiclut@cornerlaw.com

Jeremy L. Friedman jlfried@comcast.net

Julia Ann Clayton julia.clayton@doj.ca.gov

Melissa R. Kiniyalocts melissa.kiniyalocts@cco.co.scl.ca.us,

marylou.gonzales@cco.sccgov.org

Sara McLean sara.mclean@usdoj.gov

Sara Winslow sara.winslow@usdoj.gov, kathy.terry@usdoj.gov

Stephen H. Schmid stephen.schmid@cco.co.santa-clara.ca.us,

marylou.gonzales@cco.sccgov.org 

William C Dresser loofwcd@aol.com

Counsel are responsible for distributing copies of this document to co-counsel who have not

registered for e-filing under the court’s CM/ECF program.

Case 5:05-cv-01962-HRL Document 413 Filed 09/28/12 Page 4 of 4