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Jimenez v. Sambrano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 22, 2010

ALBERTO VERA JIMENEZ, PLAINTIFF,
v.
R. SAMBRANO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION

On February 18, 2010 Plaintiff filed an Ex Parte Application for Review of Bill of Costs by Court. A hearing on Defendants' Bill of Costs is currently set before the Clerk of Court for February 23, 2010. For the reasons which follow, Plaintiff's Ex Parte Application is DENIED.

Plaintiff requests a court review of Defendants' Bill of Costs. Federal Rule of Civil Procedure 54(d)(1) provides for taxing of costs by the clerk, and gives the party dissatisfied with the clerk's action the opportunity to file a motion for review by court. In this case, a hearing before the clerk is scheduled for February 23, 2010; therefore, no clerk action has yet issued. Although Plaintiff may be correct in his argument that Defendants should not recover costs, he has not cited any legal authority for the proposition that Defendants' Bill of Costs must forego clerk's action and be considered by the court in the first instance. While The Association of Mexican-American Educators v. State of California, relied upon by Plaintiff, holds that the district court has discretion not to award costs, it does not address the procedural issue raised here -- whether or under what circumstances the clerk's action can be avoided altogether. 231 F.3d 572, 579, 591-93 (9th Cir. 2000) (en banc). Accordingly, the Ex Parte Application is DENIED.

IT IS SO ORDERED.

20100222

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