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Porter v. Secretary of the Navy

January 14, 2009


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


(DOC. 129)


(DOC. 131)

Plaintiff proceeded with counsel in this Court with an action pursuant to Title VII for damages and equitable and injunctive relief concerning alleged employment discrimination; judgment for Defendant was entered on January 11, 2005, and was affirmed by the Ninth Circuit Court of Appeals. The appellate court's mandate issued on or about May 21, 2007. Plaintiff now proceeds pro se in connection with efforts on the part of the Defendant to collection of the amount of costs taxed against Plaintiff.

I. Taxing of Costs

On December 8, 2008, Plaintiff served and filed a motion concerning Defendant's attempts to recover costs that was entitled, "Motion to Obtain Constitutional Right to Due Process and Uphold Separation of Powers." (Doc. 129.) Defendant filed opposition on December 29, 2008. Plaintiff filed a reply on January 9, 2009. By separate order, the hearing on the motion has been vacated, and the matter has been submitted to the Court.

A. Defendant's Entitlement to Costs in this Court

Fed. R. Civ. P. 54(d)(1) provides in substance that unless a federal statute, the rules, or a court order provides otherwise, then costs, other than attorney's fees, should be allowed to the prevailing party.

Title 42 U.S.C. § 2000e-5(k) provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

Thus, pursuant to the rules and the pertinent provision of Title VII, a prevailing defendant is entitled to costs; when the United States is a prevailing defendant, it is entitled to costs except for a reasonable attorney's fee.

Plaintiff incorrectly contends that costs should not be awarded to a prevailing defendant in a Title VII action unless the action is frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. This is the standard for awarding attorney's fees to a prevailing defendant in a Title VII action. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 417, 421 (1978). However, there is no express statutory provision for applying Christiansburg to awards of costs; rather, an award of costs is made in the Court's discretion and is reviewed for abuse of discretion. National Organization for Women v. Bank of California, Nat. Ass'n, 680 F.2d 1291, 1294 (9 th Cir. 1982).*fn1

Plaintiff further argues that there is no court judgment awarding any costs against him, and that he had no notice of any judgment awarding him costs.

The Court's docket reflects that pursuant to Defendant's bill of costs, costs were taxed against Plaintiff in the amount of $1,313.60 on February 7, 2005.

With respect to the need for a judgment, Fed. R. Civ. P. 54(d)(1) permits the taxing of costs on one day's notice. The rule contemplates that in the first instance, application is generally made to the Clerk of the Court rather than to the judge; a request for costs "does not imply a change in the judgment" previously rendered, but "merely seeks what is due because of the judgment. Buchanan v. Stanships, Inc., 485 U.S. 265, 267-68 (1988). A judge might not consider the issue of costs at all unless a losing party makes a timely motion for judicial review pursuant to Rule 54(d). Id. Title 28 U.S.C. § 1920(1) expressly provides that a judge or clerk of any court of the United States may tax as costs specified items, including fees of a court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.

As to Plaintiff's notice of the costs award, the docket reflects that judgment was entered on January 11, 2005, in favor of Defendant. (Doc. 102.) Defendant submitted an itemized bill of costs with attached statements on January 20, 2005, within the ten-day time limit for filing a cost bill under Local Rule 54-292(b); Defendant served the bill by mail on Elaine Wallace, Plaintiff's counsel, at the address for listed on the docket for her, on the same date. No objections to the bill were filed. Pursuant to Local Rule 54-292(d), on February 7, 2005, the Clerk proceeded to tax costs in the amount of $1,313.60, consisting of fees for the court reporter's transcript services. (Doc. 104.) The document taxing costs was served on Plaintiff's counsel through the Court's electronic filing system.

There is no indication that any objection to the cost bill was filed by Plaintiff or by ...

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