United States District Court, C.D. California
ORDER DENYING MOTION TO RETAX COSTS [DKTS. 69 &
D. PREGERSON UNITED STATES DISTRICT JUDGE
before the court is Plaintiff Kathleen Mulligan's Motion
to Retax Costs. (Dkts. 69, 70.) After considering the
parties' submissions, the court adopts the following
Kathleen Mulligan brought suit against her employer, the
Equal Employment Opportunity Commission (EEO C), alleging,
inter alia, that the agency unlawfully retaliated against
Mulligan for engaging in protected activity under Title VII o
f t h e Civil Rights Act and the Americans wit h Disabilities
Act (ADA). On November 2, 2016, this Court granted summary
judgment to Defendants on all causes of action. (Dkt. 59.)
then filed an Application to the Clerk to Tax Costs against
Plaintiff in the amount of $6, 281.85. (Dkt. 62.) The
Application was granted in full. (Dkt. 68.) Pursuant to Local
Rule 54-8, Plaintiff filed a motion to this Court to re-tax
costs based upon the record submitted to the Clerk. (Dkt.
Rule of Civil Procedure 54(d)(1) states that “[u]nless
a federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees- should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). There is a presumption in favor of awarding costs
to the prevailing party. Ass'n of Mexican-Am.
Educators v. Cal., 231 F.3d 572, 591 (9th Cir. 2000) (en
banc) (“By its terms, the rule creates a presumption in
favor of awarding costs to a prevailing party, but vests in
the district court discretion to refuse to award
Rule 54-8 provides that a party may seek review of the
Clerk's taxation of costs by filing a motion to retax
costs. C.D. Cal. L.R. 54-8. Such a motion must be filed and
served within seven days of the Clerk's decision. See
Id. The review is limited to the record made before the
Clerk and may encompass only those items specifically
identified in the motion. Id.
initial matter, Defendants oppose the Motion to Retax Costs
on the ground that Plaintiff did not meet and confer pursuant
to Local Rule 7-3 prior to filing the Motion. (Opp'n
1-2.) While parties are ordinarily required to meet and
confer at least seven days prior to filing a motion,
see C.D. Cal. L.R. 7-3, that requirement seems
inapplicable where, as here, a party only has seven days file
the motion in the first place, see C.D. Cal. L.R.
54-8. Even if it were possible to theoretically comply with
both mandates simultaneously without seeking some sort of
extension, the court would nonetheless exercise its
discretion to consider Plaintiff's Motion Retax Costs.
See Mam v. City of Fullerton, No. CV 11-1242 JLS
(MLGx), 2014 WL 12573550, at *2 (C.D. Cal. July 24, 2014)
(declining to deny a motion to retax costs based on a
purported failure to comply with Local Rule 7-3).
likewise, presents a threshold argument that Defendants'
costs are not recoverable as a matter of course because at
least a part of this action arises under the ADA. See
Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir.
2001) (holding that costs may be awarded under the ADA only
“if the plaintiff's action was frivolous,
unreasonable or without foundation”) (citing
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421, (1978)). But, as a federal employee, Plaintiff is
expressly exempted from the ADA. See 42 U.S.C.
§ 12111(5)(b)(i) (“The term ‘employer'
does not include . . . the United States.) Instead,
Plaintiff's claims are governed by the Rehabilitation Act
of 1973, 29 U.S.C. § 791 et seq., and Title VII of the
Civil Rights Act of 1964. Thus, Defendants' request for
costs is governed by the general rule that “costs are
awarded ‘as a matter of course absent express statutory
provision, ‘unless the court otherwise
directs.''” Martin v. California Dep't
of Veterans Affairs, 560 F.3d 1042, 1052 (9th Cir. 2009)
(quoting National Organization for Women v. Bank of Cal.,
N.A., 680 F.2d 1291, 1294 (9th Cir. 1982)).
to the merits, Plaintiff urges the court to exercise its
discretionary authority to deny costs. As the Ninth Circuit
has explained: “Appropriate reasons for denying costs
include: (1) the substantial public importance of the case,
(2) the closeness and difficulty of the issues in the case,
(3) the chilling effect on future similar actions, (4) the
plaintiff's limited financial resources, and (5) the
economic disparity between the parties.” Escriba v.
Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th
Cir. 2014) (citing Ass'n of Mex.-Am. Educators v.
California, 231 F.3d 572 (9th Cir. 2000)). Aside from
the “plaintiff's limited financial resources,
” Plaintiff presents arguments regarding each of these
Plaintiff argues that this case is of substantial public
importance because it attempts to “'establish the
parameters of the law.'” (Opp'n 5 (quoting
Escriba, 743 F.3d at 1248).) In particular,
Plaintiff highlights her efforts to have a federal court
recognize the novel liability theory of “retaliation
per se, ” which the EEOC applies in some of its cases.
(Opp'n 3-5.) While worthy efforts to probe the laws
limits should not be discouraged, Plaintiff's case does
not approach the standard set in Escriba. In
Escriba, the plaintiff was able to point to official
statements from the United States Department of Labor and a
California public official about why a case like hers was of
public importance. Escriba, 743 F.3d at 1248. By
contrast, the majority of Plaintiff's claims were
ordinary discrimination claims and the per se liability
theory has been rejected by all the courts that have
considered it in this Circuit. See Cramblett v.
McHugh, 2014 WL 2093600 at * 14 (D. Ore. May 19, 2014);
E.E.O.C. v. Go Daddy Software, No.
CV-04-2062-PHX-DGC, 2006 WL 1791295, at *7 (D. Ariz. June 27,
next argues that her case presented close and complicated
facts, which counsels against a cost award. In support,
Plaintiff notes various discovery hurdles-e.g., needing to
file a motion to compel before deposing Defendant's Rule
30(b)(6) witness- and the volume of evidence-e.g., thousands
of pages of discovery, 10 depositions. (Mot. 6.) Without
denying the importance of the issues in this case to
Plaintiff personally or downplaying the difficulty of
litigating employment ...