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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mary Chesier, 

Plaintiff, 

v. 

On Q Financial Incorporated, 

Defendant. 

No. CV-17-04034-PHX-DWL

ORDER 

 Pending before the Court is Plaintiff’s motion to review judgment on taxation of 

costs. (Doc. 77.) As explained below, the motion will be granted. 

BACKGROUND 

 This is a Title VII case in which the Plaintiff alleged she was subjected to sexual 

harassment by a supervisor at work. In April 2019, the Court issued an order granting 

Defendant’s motion for summary judgment for the following reasons: 

Although the Court disagrees with On Q’s contention that Middleton’s 

conduct was not “unwelcome” as a matter of law—a rational jury could 

easily find that Chesier was mortified and that the power differential between 

her and Middleton explains why she adopted a playful tone during the 

exchange—the Court agrees with On Q that the conduct was not “sufficiently 

severe or pervasive” to trigger liability under Title VII. This case involves 

in single instance in which a supervisor sent improper messages to a 

subordinate. There was no physical contact. Although it is possible for a 

single incident of harassment to create liability, the Ninth Circuit has 

emphasized that the single incident must involve an “extremely severe” form 

of harassment and has identified rapes and other violent physical assaults as 

the only types of conduct that might qualify. The conduct at issue here—a 
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single string of sexually-charged messages, divorced from any physical 

contact—is simply not enough. 

(Doc. 71 at 2.) 

 Following entry of judgment, Defendant filed a bill of costs that sought $1,735. 

(Doc. 73.) In response, Plaintiff filed written objections, arguing that (1) the Clerk should 

decline to award any costs due to her limited financial resources, the need to avoid chilling 

Title VII litigants from bringing future cases, and the closeness of the issues, and (2) one 

of the particular costs specified in Defendant’s bill of costs, a $606.20 delivery charge, was 

improper. (Doc. 75.) 

 On May 20, 2019, the Clerk of Court issued a taxation judgment in the full amount 

sought by Defendant. (Doc. 76.) 

 On May 22, 2019, Plaintiff filed a motion under LRCiv 54.1(b) seeking review of 

the Clerk’s taxation judgment. (Doc. 77.) 

 Under LRCiv 7.2(c), Plaintiff’s response to this motion was due by June 5, 2019. 

No response has been filed. 

ANALYSIS

 Plaintiff’s motion for review will be granted. As an initial matter, Defendant’s 

failure to respond to the motion provides an independent reason for granting it. See LRCiv 

7.2(i) (“[I]f . . . counsel does not serve and file the required answering memoranda, . . . 

such non-compliance may be deemed a consent to the . . . granting of the motion and the 

Court may dispose of the motion summarily.”). 

 Moreover, the motion should be granted on the merits. Plaintiff has submitted a 

declaration establishing that she’s a stay-at-home mom for whom paying a $1,735 cost bill 

would create a substantial financial hardship. (Doc. 77-1.) Additionally, although Plaintiff 

didn’t prevail in this case, her claims weren’t frivolous—the conduct to which she was 

exposed, while deplorable, simply wasn’t “pervasive or severe” enough to trigger liability. 

The decision whether to award costs under Rule 54(b) is discretionary and the Ninth Circuit 

has recognized that it may be appropriate to decline to award costs in these circumstances. 
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Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-49 (9th Cir. 2014) (upholding 

denial of costs where the plaintiff had “limited financial resources,” the “case was close,” 

and a contrary approach might “discourag[e] potential plaintiffs” from bringing future 

“ultimately unsuccessful civil rights cases”) (citations and internal quotation marks 

omitted). 

 Accordingly, 

IT IS ORDERED that: 

 (1) Plaintiff’s motion to review judgment on taxation of costs (Doc. 77) is 

granted; and 

 (2) The taxation judgment (Doc. 76) is vacated. 

 Dated this 6th day of June, 2019.