IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 6, 2010
JACQUELINE CONNELL, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Defendant as the prevailing party at trial of this case has submitted a bill of costs in which it requests that the Clerk tax $11,015.78 for costs incurred in this action, the majority of which is attributed to witness fees and fees for printing or electronically recording transcripts. Plaintiff objects to the bill of costs.
Plaintiff filed her complaint in this action in state court, in which she alleged the following claims against her physician, Doctor Frank LiVolsi ("LiVolsi"): (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress ("IIED"); (3) assault and battery; and (4) sexual battery. The action was removed to federal court, and the United States was substituted as defendant in place of Livolsi after the Attorney General certified under 42 U.S.C. § 233 that LiVolsi was an employee of the Public Health Service acting within the scope of his employment during the conduct giving rise to Plaintiff's claims. As a result of this substitution, Plaintiff's claims for assault and battery and sexual battery were dismissed for lack of subject matter jurisdiction. Defendant subsequently filed a motion for summary judgment on Plaintiff's negligent infliction of emotional distress claim, which was granted. (Docket No. 58.) Plaintiff's IIED claim was tried to the bench in a three-day bench trial. The Court issued an order in which it held "plaintiff does not prevail on her IIED claim" because she "has not demonstrated by a preponderance of the evidence that she suffered severe emotional distress." (Docket No. 112 11:15-16, 18-19.)
Federal Rule of Civil Procedure ("Rule") 54(d) prescribes that "costs-other than attorney's fees-should be allowed to the prevailing party" unless a federal statute, Federal Rule of Civil Procedure, or court order provides otherwise. Rule 54(d) "creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs." Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). "[C]osts are to be awarded as a matter of course in the ordinary case." Id. at 592. However, the Ninth Circuit has "approved several factors that would justify a district court's refusal to award costs to a prevailing party: the losing party's limited financial resources; misconduct on the part of the prevailing party; . . . the importance and complexity of the issues; the merit of the plaintiff's case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of imposing high costs." Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (citations omitted).
Plaintiff failed to prevail on her IIED claim because she did not satisfy the element of this claim requiring her to present evidence that she suffered severe or extreme emotional distress. However, in light of Plaintiff's testimony concerning LiVolsi's last statement to her as he exited the examination room following his last examination of Plaintiff, the merits of Plaintiff's claim are such that the court denies Defendant's request for entry of its bill of costs.
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