United States District Court, N.D. California, Eureka Division
ORDER ON MOTION OF SHELLY ADCOCK TO REVIEW
CLERK'S AWARD OF COSTS RE: DKT. NO. 940
NANDOR
J. VADAS United States Magistrate Judge
On
March 14, 2016, judgment was entered in favor of Defendants
against Plaintiff Shelly Adcock. (Doc. 913.) On March 28,
2016, Defendants filed a Bill of Costs seeking costs of $7,
726.32. (Doc. 920.) Plaintiff Adcock objected and on April
29, 2016, the Clerk reduced the recoverable costs to $5,
065.25. (Doc. 936.) Plaintiff Adcock now petitions the court
to disallow certain costs as unrecoverable under the law.
Federal
Rule of Civil Procedure 54 imposes a presumption in favor of
awarding costs to prevailing parties. 28 U.S.C. § 1920
"define[s] the full extent of a federal court's
power to shift litigation costs absent express statutory
authority to go further." W.Va. Univ. Hosps., Inc.
v. Casey, 499 U.S. 83, 86, 111 S.Ct. 1138 (1991);
Taniguchi v. Kan.Pacific Saipan, Ltd., __U.S. __,
132 S.Ct. 1997, 2006 (2012). A district court abuses its
discretion if it does not apply the correct law or if it
rests its decision on a clearly erroneous finding of material
fact. Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir.
2011) (internal quotation marks and citation omitted). The
Ninth Circuit reviews the threshold question of whether the
district court has the authority to award costs de novo.
Russian River Watershed Protection Comm. v. City of Santa
Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998).
In
addition to objections pursuant to Local Rule 54 and 28
U.S.C. § 1921, a number of Plaintiff Adcock's
objections to Defendants' Bill of Costs are based on the
particular circumstances of this case. This case was filed as
a putative class action in 2003. Plaintiff Adcock joined the
case on July 5, 2005, with the filing of the Fourth Amended
Complaint. (Doc. 153.) The Plaintiffs' Motion for Class
Certification was denied by Judge Hamilton on March 20, 2012,
and the case proceeded with the ten named Plaintiffs. (Doc.
452.) Defendants moved for a judgment on the pleadings as to
three of the Plaintiffs, Raisa Jeffries, Shelly Adcock, and
Lisa Boyd, on the ground that these Plaintiffs had failed to
exhaust their administrative remedies under Title VII of the
Civil Rights Act of 1964. (Doc. 528.) The court granted
Defendants' motion on August 27, 2013, and the three
Plaintiffs were dismissed from the action. (Doc. 566.)
The
case proceeded regarding the claims of the seven remaining
named Plaintiffs. The claims of six of the seven Plaintiffs
were settled prior to trial. The settling Plaintiffs were the
Estate of Judy Longo, Marta Hastings, Sophia Curry, Karen
Currie, Kimberley Morin, and Patricia Moreira. It is
undisputed that each of the settlement agreements of the six
settling Plaintiffs contained an identical provision (with
the exception of the settling plaintiff's name) that
provided:
Each party will bear her, his or its costs and attorney fees
in connection with the ACTION and all matters arising out of
or pertaining thereto, including this settlement. DEFENDANTS
agrees that she, he or it will not seek to recover costs
and/or attorney fees attributable to litigation between
[SETTLING PLAINTIFF] and DEFENDANTS from any other
non-settling plaintiffs as costs and/or attorney fees in this
ACTION. The costs attributable to the settling plaintiffs
shall be determined by identifying and calculating the
deposition, document production and expert witness expenses
associated with the defense of the settling plaintiffs'
claims, deducting that amount from the gross amount of the
defense costs and then dividing the remaining amount by
1/10th and deducting the 1/10 amount from the gross amount of
the costs. DEFENDANTS agree to provide proof to any
nonsettling Plaintiff's counsel that it has excluded any
costs and/or attorneys' fees attributable to PLAINTIFF
from any claim for costs and/or attorneys' fees prior to
filing any claim, including but not limited to a bill of
costs.[1]
Plaintiff
Adcock asserts that the purpose of the above provision was to
ensure that none of the Defendants' costs attributable to
a settling party could be charged to a non-settling party.
She logically argues that this is the reason Defendants are
first required to deduct any of their costs attributable to
each settling Plaintiff from their total costs. Plaintiff
Adcock further argues that the costs remaining after
deducting all costs attributable to these six Plaintiffs and
that are not attributable to the particular non-settling
Plaintiff are then divided by 10 and the 1/10 share assessed
against each non-settling Plaintiff.
Defendants
argue that the settlement agreements contemplate that each of
the ten Plaintiffs is responsible for 1/10 of the joint costs
incurred in the case from its inception until each Plaintiff
was dismissed, settled, or received an unfavorable jury
verdict. They argue that all of the Plaintiffs are also
responsible for 100% of the costs related to their own case.
The
court finds Defendants' argument to be unsupported by,
and indeed, directly contrary to, the provision of the
settlement agreements cited by the parties. Defendants appear
to ignore the plain language of the provision requiring the
deduction from the gross amount of the defense costs
"the costs attributable to the settling
plaintiffs."
The
court also rejects Defendants' contention that "[a]s
class representatives, each plaintiff incurred 1/10 of the
joint costs in the class action litigation no matter when the
plaintiff joined the class." This contention proceeds
from a false premise. This case was never a class action;
Chief Judge Hamilton denied class certification on March 20,
2012. The court further rejects Defendants' related claim
that Plaintiffs incurred 1/10 of the joint costs related to
the case through the date their involvement with the case was
completed. Not only is this claim unsupported, it contravenes
the express language of the settlement agreements entered
into between Defendants and the settling Plaintiffs requiring
the deduction from the gross amount of the defense costs
"the costs attributable to the settling
plaintiffs."
Under
the provision of the settlement agreements relied on by the
parties, Defendants agreed to provide proof to the
non-settling Plaintiffs' counsel that they have excluded
costs attributable to each settling Plaintiff before filing a
bill of costs seeking recovery from the non-settling
Plaintiff. Plaintiff Adcock is clearly one of the
non-settling Plaintiffs for whose benefit this provision was
agreed to by the parties. Plaintiff Adcock claims that it
appears that a number of the items in Defendants' bill of
costs are attributable to one of the settling Plaintiffs, in
violation of this provision in the settlement agreements.
Plaintiff Adcock claims, and Defendants do not dispute, that
despite the repeated requests of Plaintiff's counsel,
Defendants did not comply with the requirement that they
provide proof to Plaintiff's counsel that they have not
included a cost attributable to a settling Plaintiff.
It is
Plaintiff Adcock's position that both categories of costs
- those clearly attributable to a settling Plaintiff and
those for which the required proof was not furnished - must
be excluded from an award of costs. Thus, she argues, a
non-settling Plaintiff such as herself can only be assessed
those costs clearly attributable to her. Plaintiff Adcock
concedes that the following costs are clearly attributable to
her while she was a Plaintiff:[2]
Service Fees, (p. 40 items 4-7; p. 41, item ...