The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING DEFENDANT'SMOTION FOR COSTS
Defendant United States of America seeks $2,084.40 for costs ($92.25 for service of summons and subpoena, $1730.65 for transcript fees, and $261.50 for copying). Plaintiff objects, contending (1) she has limited resources; (2) her case was dismissed on a technicality attributable to the negligence of her former attorney; (3) because of the error of an attorney who previously represented Plaintiff, the government avoided a substantial claim for damages attributable to Plaintiff's catastrophic injuries; and (4) the issues of the litigation were close and difficult. After a review of the parties' written arguments, the record as a whole, and applicable law, this Court denies Defendant's motion for costs.
I. Procedural and Factual Background
Plaintiff received multiple serious injuries on May 20, 2006, when the motorcycle she was driving collided with a 1993 Ford ten-wheel dump truck loaded with dirt that had crossed the center line of Road 274 near the town of Bass Lake, California. (Waltz v. United States of America, 1:06-cv-01831-SMS (E.D.Cal.)("Waltz I"), Doc.11). The dump truck was owned by the United States Forest Service and operated by its employee. Id.
On June 21, 2006, in compliance with the Federal Tort Claims Act, 28 U.S.C. 2671-2680 ("FTCA"), Plaintiff filed a claim for property damage and personal injury with the U.S. Department of Agriculture Forest Service. The government did not respond. Accordingly, Plaintiff filed suit against the United States; the U.S. Department of Forestry [sic]; Richard Ernest Bailey, the truck's driver; and twenty-five John Doe Defendants on December 18, 2006 (Waltz I , Doc.1). Waltz I was filed prematurely.*fn1
On February 13, 2007, the Department of Agriculture denied Plaintiff's administrative claim (Waltz v. United States, 1:07-cv-01691-SMS ("Waltz II"), Doc. 20-3).
On February 26, 2007, Defendant answered the complaint, asserting as an affirmative defense that "Plaintiff has failed to exhaust her administrative remedies" (Waltz I, Doc. 15). On October 25, 2007, Defendant moved to dismiss the complaint, contending that the Court lacked subject matter jurisdiction under the FTCA because Plaintiff filed her complaint less than six months after filing her administrative claim, as required by 28 U.S.C. § 2675(a) (Waltz I, Doc. 17).
Plaintiff moved to amend her complaint and opposed the motion to dismiss, contending that since Defendant had previously indicated that it would not assert any defense of issue regarding the timing of the complaint's filing, Defendant should be equitably estopped from asserting the time limitation (Waltz I, Docs. 23, 24 & 31). According to Plaintiff, a former Assistant U.S. Attorney had represented to Plaintiff's attorney that, although the complaint had been filed a few days early, the government would not raise any issues relating to the technically premature filing (Waltz I, Docs. 24 & 31). The Assistant U.S. Attorney denied having made the alleged representations (Waltz I, Doc. 42).
Plaintiff filed a second complaint on November 20, 2007 (Waltz II, Doc. 1).
After this Court heard argument on the opposing motions in Waltz I on January 11, 2008, it concluded that it lacked subject matter jurisdiction and dismissed Plaintiff's first complaint (Waltz I, Doc. 56).
On February 19, 2008, Defendant moved to dismiss the complaint in Waltz II, again contending that the complaint was untimely, in this case because Plaintiff had filed the complaint more than six months after the final denial of her administrative claim on February 13, 2007 (Waltz II, Doc. 20). Defendant also contended that Plaintiff was collaterally estopped from filing a second lawsuit and that Plaintiff could not establish the elements required to equitably toll the statute of limitations to permit the late filing of her complaint (Waltz II, Doc. 20). On March 13, 2008, Plaintiff moved to compel depositions and production of documents (Waltz II, Doc. 24).
On April 4, 2008, this Court heard argument on Plaintiff's motion to compel and stayed Defendant's motion to dismiss (Waltz II, Doc. 36). The Court granted Plaintiff's motion to compel on May 16, 2008, and directed the parties to meet and confer regarding outstanding discovery and scheduling of a discovery status conference and of Defendant's motion to dismiss (Waltz II, Doc. 43). Thereafter, the parties engaged in a period of discovery and discovery disputes.
On December 10, 2008, the then-pending motion to compel initiated by Plaintiff on September 19, 2008 (Waltz II, Doc. 51) was taken off-calendar to permit a status conference to discuss legal and procedural issues in light of Marley v. United States, 548 F.3d 1286 (9th Cir. 2008). By the time of the status conference on January 22, 2009, a petition for rehearing of Marley was pending before the Ninth Circuit (Waltz II, Doc. 60). The Court stayed Plaintiff's motion to compel (Waltz II, Doc. 51) and Defendant's motion to dismiss (Waltz II, Doc. 20), pending the outcome in Marley (Waltz II, Doc. 60).
Following the Ninth Circuit's June 1, 2009 amendment of its decision in Marley v. United States, 567 F.3d 1030 (9th Cir. 2009), the parties agreed that Defendant's motion to dismiss was ripe for a ruling (Waltz II, Doc. 64) and stipulated to a briefing and hearing schedule (Waltz II, Doc. 66). On October 20, 2009, the motion was again stayed, pending resolution of the pending petition for certiorari in Marley (Waltz II, Doc. 75). On December 8, 2009, Defendant filed notice that the Supreme Court had denied Marley certiorari (Waltz II, Doc. 76). Marley v. United ...