United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (ECF NO. 77)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Ruben Herrera is a civil detainee proceeding pro se
and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff initiated this
action on February 6, 2014. (ECF No. 1.) On March 20, 2019,
the Court denied Plaintiff's cross-motion for summary
judgment, granted Defendant Jacob Redding's motion for
summary judgment, and entered judgment in favor of Defendant.
(ECF No. 68.)
April 2, 2019, Defendant Redding submitted a bill of costs
seeking $498.37 for costs in defending this action. (ECF No.
70.) On August 9, 2019, the Clerk of Court taxed costs in the
amount of $277.35 against Plaintiff. (ECF No. 76.)
before the Court is Plaintiff's motion for
reconsideration of the Court's order to pay bill of costs
for electronically recorded transcripts, filed on October 15,
2019. (ECF No. 77.) For the following reasons,
Plaintiff's motion for reconsideration must be denied and
the imposition of costs is confirmed.
Rule of Civil Procedure 60(b)(6) permits the Court to relieve
a party from an order for any reason that justifies relief.
Rule 60(b)(6) “is to be used sparingly as an equitable
remedy to prevent manifest injustice and is to be utilized
only where extraordinary circumstances” exist.
Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)
(internal quotation marks and citation omitted). “A
party moving for relief under Rule 60(b)(6) must demonstrate
both injury and circumstances beyond [their]
control[.]” Id. (internal quotation marks and
citation omitted). Additionally, Local Rule 230(j) requires
that, when a party makes a motion for reconsideration, the
party must show “what new or different facts or
circumstances are claimed to exist or were not shown upon
such prior motion, or what other grounds exist for the
motion” and “why the facts and circumstances were
not shown at the time of the prior motion.” “A
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotation marks and citation omitted).
Therefore, “[a] party seeking reconsideration must show
more than a disagreement with the Court's decision, and
recapitulation of the cases and arguments considered by the
[C]ourt before rendering its original decision fails to carry
the moving party's burden.” United States v.
Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.
Cal. 2001) (internal quotation marks and citation omitted).
Plaintiff moves for reconsideration of the imposition of
costs on two grounds. First, Plaintiff argues that costs
should not have been taxed against him because he was granted
in forma pauperis status in this action. Second,
Plaintiff argues that costs should not have been taxed
against him because this action is still pending on appeal
before the Ninth Circuit Court of Appeal.
Rule of Civil Procedure 54(d)(1) provides that “costs
… should be allowed to the prevailing party.”
Fed.R.Civ.P. 54(d)(1). “Rule 54(d) creates a
presumption for awarding costs to prevailing parties; the
losing party must show why costs should not be
awarded.” Save Our Valley v. Sound Transit,
335 F.3d 932, 944-45 (9th Cir. 2003). Eastern District of
California Local Rule 292(b) states that a prevailing party
may serve and file a bill of costs “[w]ithin fourteen
(14) days after entry of judgment or order under which costs
may be claimed[.]” “The party against whom costs
are claimed may, within seven (7) days from the date of
service, file specific objections to claimed items with a
statement of grounds for objection.” Local Rule 292(c).
“If no objection is filed, the Clerk shall proceed to
tax and enter costs.” Local Rule 292(d). “On
motion filed and served within seven (7) days after notice of
the taxing of costs has been served, the action of the Clerk
may be reviewed by the Court as provided in Fed.R.Civ.P.
54(d).” Local Rule 292(e).
case, while Defendant filed his bill of costs within fourteen
days after entry of judgment, Plaintiff failed to file
objections to Defendant's bill of costs or file a motion
for review by the Court within seven days after costs were
taxed. Nevertheless, the Court will consider the merits of
Plaintiff's motion for reconsideration.
while Plaintiff argues that costs should not have been taxed
against him because he was granted in forma pauperis
status in this action, “a plaintiff proceeding in
forma pauperis is not protected from the taxation of
costs to which a prevailing defendant is entitled.”
Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir.
1994). Further, “[i]t is within the Court's
discretion to proceed or defer the taxation of costs while an
appeal on the merits is pending.” Lasic v.
Moreno, No. 2:05-cv-0161-MCE-DAD, 2007 WL 4180655, at *1
(E.D. Cal. Nov. 21, 2007). To the extent that Plaintiff is
asking the Court to stay the taxing of costs pending the
appeal, “[t]he prevailing party has an interest in
prompt payment of its taxable costs[, ]” Emblaze
Ltd. v. Apple Inc., No. 5:11-cv-1079-PSG, 2015 WL
1304779, at *2 (N.D. Cal. Mar. 20, 2015), and case law
establishes that the potential reversal of the taxation of
costs following an appeal is “not a sufficient …
basis to stay taxation of costs[.]” Jones v. City
of Orange Cove, No. 1:08-cv-0775 DLB, 2010 WL 4875681,
at *2 (E.D. Cal. Nov. 23, 2010).
the costs imposed reflect that Plaintiff was taxed $277.35
for fees for printed or electronically recorded transcripts
necessarily obtained for use in this case. (ECF No. 76.)
Plaintiff has not established that the amount of costs
imposed is inaccurate, or that an amount exceeding the costs
imposed was deducted from his prison trust account.
Therefore, the Court finds that there are no new facts or
circumstances to warrant reconsideration, and that the
$277.35 in costs was properly assessed against Plaintiff as
the non-prevailing party. Accordingly, ...