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Mulligan v. Yang

United States District Court, C.D. California

March 2, 2017

JENNY YANG, Defendants.



         Presently 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 Order.

         I . BACKGROUND

         Plaintiff 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.)

         Defendants 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. 70.)


         Federal 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 costs.”).

         Local 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.


         As an 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).

         Plaintiff, 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)).

         Turning 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 factors.

         First, 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, 2006).

         Plaintiff 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 ...

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