1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 KYLE BRAGER, No. 2:19-cv-00044-DJC-CSK 10 Plaintiff, 11 v. ORDER 12

COSTO WHOLESALE

13 CORPORATION, et al. 14 Defendants. 15

16 17 Plaintiff Kyle Brager filed this action on December 4, 2018, alleging he was 18 subjected to sexual orientation harassment while employed by Defendant Costco 19 Wholesale Corporation (“Costco”). (See ECF No. 1.) Costco filed for summary 20 judgment on Plaintiff’s claims on September 15, 2020, and the Court granted 21 summary judgment except as to Plaintiff’s claims for sexual orientation harassment 22 and failure to prevent sexual orientation harassment. (ECF No. 14.) Trial began on 23 December 9, 2024, on Plaintiff’s remaining claims, and the jury returned a verdict in 24 favor of Costco on December 12, 2024. (ECF Nos. 103, 112.) Judgment was entered 25 that same day. (ECF No. 111.) 26 Costco filed their Bill of Costs on December 26, 2024, seeking $19,894.34. 27 (ECF No. 118.) Plaintiff filed Objections on January 4, 2025, asking the Court to deny 28 Defendants’ requested costs in their entirety based the importance of his case and his 1 financial status. (See ECF No. 119 at 2–4.) Plaintiff also objected to specific 2 “unauthorized” costs. (Id. at 5–9.) 3 As discussed further below, the Court will grant Costco’s request for costs. 4 However, the Court finds it appropriate to reduce the requested costs by 50% to 5 lessen any potential chilling effect of the costs award and in recognition of the Parties’ 6 financial disparity. Thus, the Court will award Costco $9,947.17 in costs. 7 LEGAL STANDARD 8 Federal Rule of Civil Procedure 54(d)(1) provides that, “[u]nless a federal 9 statute, these rules, or a court order provides otherwise, costs—other than attorney’s 10 fees—should be allowed to the prevailing party.” “By its terms, the rule creates a 11 presumption in favor of awarding costs to a prevailing party, but vests in the district 12 court discretion to refuse to award costs.” Ass'n of Mexican-Am. Educators v. 13 California, 231 F.3d 572, 591 (9th Cir. 2000). Given this presumption, “it is incumbent 14 upon the losing party to demonstrate why the costs should not be awarded.” Stanley 15 v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999) (citation omitted). 16 A district court need not give affirmative reasons for awarding costs. Save Our 17 Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). However, if a court declines 18 to award costs to the prevailing party, it must explain “why, in the circumstances, it 19 would be inappropriate or inequitable to [do so].” Ass'n of Mexican-Am. Educators, 20 231 F.3d at 593. “Appropriate reasons for denying costs include: (1) the substantial 21 public importance of the case, (2) the closeness and difficulty of the issues in the case, 22 (3) the chilling effect on future similar actions, (4) the plaintiff’s limited financial 23 resources, and (5) the economic disparity between the parties.” Escriba v. Foster 24 Poultry Farms, Inc., 743 F.3d 1236, 1247–48 (9th Cir. 2014) (citing Ass'n of Mexican- 25 Am. Educators, 231 F.3d at 592–93). “This is not ‘an exhaustive list of “good reasons” 26 for declining to award costs,’ but rather a starting point for analysis.” Id. at 1248 27 (quoting Ass'n of Mexican-Am. Educators, 231 F.3d at 593).

28 //// 1 DISCUSSION 2 Plaintiff argues the Court should deny Costco’s requested costs because 3 (1) Plaintiff’s claims promoted an important public interest, combatting homophobia 4 in Costco’s workplace; (2) the issues were both close, as Plaintiff survived summary 5 judgment on several key claims, and difficult, as the Parties contested whether Costco 6 should be liable for the “egregious” harassment Plaintiff suffered after his termination; 7 (3) taxing costs against Plaintiff could chill future claims of sexual orientation 8 harassment, claims which are already difficult for many victims to bring forward; 9 (4) Plaintiff has very limited resources as his primary source of income is making 10 deliveries for Instacart; and (5) the economic disparity between Plaintiff and Costco is 11 vast, as Costco is worth over $200 billion. (ECF No. 119 at 2–4.) The Court will weigh 12 each factor in turn. 13 Substantial Public Importance. The Ninth Circuit has found substantial public 14 importance in cases that carry implications beyond the immediate parties involved. 15 For instance, in Association of Mexican-American Educators, plaintiffs raised an issue 16 of substantial public importance because “the action affect[ed] tens of thousands of 17 Californians and the state’s public school system as a whole.” 231 F.3d at 593. 18 Similarly, in Escriba, the court noted evidence suggesting that the plaintiff’s claim 19 under the Family and Medical Leave Act was of the type that could “establish the 20 parameters of what constitutes sufficient employee notice” and furthermore 21 “potentially had a much broader application to the workplace.” 743 F.3d at 1248 22 (cleaned up). Plaintiff makes no clear demonstration here that the outcome of his 23 claims carried wider consequences for the public. As such, Plaintiff’s claims do not 24 exceed the bounds of a controversy between the involved parties. See Mosavi v. Mt. 25 San Antonio Coll., No. LACV-15-04147-VAP-AFMX, 2018 WL 6219864, at *3 (C.D. Cal. 26 Nov. 15, 2018) (“[T]his case amounted to a dispute between two people about 27 whether sexual assault, religious harassment, retaliation, and violence took place. 28 Although every case alleging a potential civil rights violation is important, the present 1 case is not ‘extraordinary’ as defined by the Ninth Circuit.”). Thus, this factor weighs 2 against Plaintiff. 3 Closeness and Difficulty of the Issues. Courts have found close and difficult 4 issues under a variety of circumstances. For instance, a case may be close and difficult 5 because it necessarily turns on a close factual or legal determination. See e.g., Draper 6 v. Rosario, 836 F.3d 1072, 1088 (9th Cir. 2016); Escriba, 743 F.3d at 1248. Surviving 7 summary judgment, though not determinative, is also evidence of a close and difficult 8 issue. Compare Economus v. City & Cnty. of San Francisco, No. 18-CV-01071-HSG- 9 DMR, 2019 WL 3293292, at *3 (N.D. Cal. July 5, 2019), report and recommendation 10 adopted, No. 18-CV-01071-HSG, 2019 WL 3290761 (N.D. Cal. July 22, 2019) (noting 11 that “[t]he fact that Defendants prevailed at the summary judgment stage does not 12 mean the issues presented were not close or difficult”) with Hamilton v. Yavapai Cmty. 13 Coll. Dist., No. CV-12-08193-PCT-GMS, 2022 WL 504474, at *2 (D. Ariz. Feb. 18, 2022) 14 (concluding that the “case was far from an easy one” because “[t]he litigation lasted for 15 the better part of a decade, and several of Plaintiff’s claims survived motions to 16 dismiss, for judgment on the pleadings, and for summary judgment”). Here, given 17 that two of Plaintiff’s claims survived summary judgment, the Court finds that this 18 factor weighs slightly in his favor. 19 Chilling Effect. Litigation is not without its risks and “liability for costs is a 20 normal incident of defeat.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). 21 Yet the Ninth Circuit recognizes a countervailing policy to not unduly discourage “civil 22 rights litigants who are willing to test the boundaries of our laws.” Stanley v. Univ. of S. 23 Cal., 178 F.3d 1069, 1080 (9th Cir. 1999). While Plaintiff’s claims ultimately failed, it is 24 possible awarding costs in this unsuccessful but non-frivolous suit could cause other 25 individuals to hesitate to bring their own meritorious claims. It is true that the costs 26 Costco seeks are not extraordinarily high. Cf. Ass'n of Mexican-Am. Educators, 231 27 F.3d at 591, 593 (concluding that costs in the amount of $216,443.67 were 28 “extraordinarily high”). But “even modest costs can discourage potential plaintiffs who 1 . . . earn low wages.” Escriba, 743 F.3d at 1249. Thus, this factor weighs somewhat in 2 favor of Plaintiff. 3 Plaintiff’s Limited Financial Resources. “Costs are properly denied when a 4 plaintiff ‘would be rendered indigent should she be forced to pay’ the amount 5 assessed.” Escriba, 743 F.3d at 1248 (quoting Stanley v. Univ. of S. Cal., 178 F.3d 6 1069, 1080). A plaintiff seeking to avoid paying costs is not required to “provide any 7 evidence of her financial situation, but she does have the burden of demonstrating 8 that [the] general presumption in favor of Defendants' costs does not apply.” Greene 9 v. Buckeye Valley Fire Dep’t, No. CV-11-02351-PHX-NVW, 2013 WL 12160997, at *1 10 (D. Ariz. July 16, 2013). A plaintiff’s mere declaration of financial hardship may be 11 insufficient to carry the burden. Id. Plaintiff argues that requiring him to pay Costco’s 12 costs would cause him financial hardship. (ECF No. 119 at 4.) Although bearing 13 Costco’s costs may financially strain Plaintiff, he has not demonstrated that paying 14 such costs would render him indigent. Accordingly, this factor weighs against Plaintiff. 15 Economic Disparity Between the Parties. As a general principle, “financial 16 disparity almost always exists between individual plaintiffs litigating against . . . large 17 defendants such as corporations or governments.” Van Horn v. Dhillon, No. 08-CV- 18 01622-LJO-DLB, 2011 WL 66244, at *4 (E.D. Cal. Jan. 10, 2011). Accordingly, 19 “disparity alone is insufficient to overcome the presumption in favor of awarding 20 costs.” Ayala v. Pac. Mar. Ass’n, No. C08-0119-TEH, 2011 WL 6217298, at *2 (N.D. Cal. 21 Dec. 14, 2011). Nevertheless, disparity is a consideration. Undoubtedly, there is a 22 substantial economic disparity between Plaintiff and Costco. This factor weighs in 23 favor of Plaintiff. 24 Balancing these factors, the Court finds that Plaintiff has failed to demonstrate 25 that this is an extraordinary case such that Costco should be denied their costs 26 outright. Yet the Court recognizes the potential chilling effect that awarding costs 27 may produce, as well as the economic disparity between parties. These factors are 28 sufficient to warrant a reduction in costs. See Cornfield v. Pickens, No. CV-16-00924- 1 PHX-ROS, 2018 WL 8262770, at *3 (D. Ariz. Mar. 22, 2018), aff'd sub nom. Cornfield v. 2 | Thompson, 765 F. App’x 387 (9th Cir. 2019) (reducing costs in a meritless claim solely 3 | because plaintiffs had limited financial means and awarding over twenty-thousand 4 | dollars in costs “would have a disproportionate chilling effect on civil rights litigants”). 5 | As discussed above, the costs involved here are not extraordinary but still sufficient to 6 | deter similarly positioned litigants from pursuing similar claims. Reducing costs is an 7 || appropriate measure to “strike[ ] the proper balance between the presumption in 8 | favor of awarding [a prevailing party's] costs and the discretionary factors” militating 9 | against granting costs. Magdaluyo v. MGM Grand Hotel, LLC, No. 2:14-CV-01806- 10 | APG-GWF, 2018 WL 3429684, at *4(D. Nev. July 16, 2018). In this instance, the Court 11 | finds that reducing Costco’s costs by 50% strikes the appropriate balance. 12 CONCLUSION 13 Accordingly, IT IS HEREBY ORDERED that Costco Wholesale Corporation’s 14 | request for $19,894.34 in costs (ECF No. 118) is GRANTED in part. The Court will 15 || award Costco 50% of their requested costs, or $9,947.17. 16 17 IT IS SO ORDERED. 18 | Dated: _ February 18, 2025 “Daal A CoO □□□□ Hon. Daniel alabretta 19 UNITED STATES DISTRICT JUDGE 20 21 | DJca - Brager19cv44.BillCosts 22 23 24 25 26 27 28

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