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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 K.J.P. a minor, and K.P.P., a minor, Case No.: 15-cv-02692-H-MDD 12 individually, by and through their mother, 13 LOAN THI MINH NGUYEN, who also ORDER GRANTING IN PART sues individually and as successor in PLAINTIFFS’ MOTION TO RE-TAX 14 interest to her now deceased husband COSTS 15 Lucky Phounsy, and KIMBERLY NANG CHANTHAPHANH, individually, [Doc. No. 201.] 16 Plaintiffs, 17 v. 18 COUNTY OF SAN DIEGO et al., 19 Defendants. 20

21 Now before the Court is Plaintiffs’ motion to re-tax costs. On August 7, 2019, 22 Plaintiffs filed a motion to re-tax costs and asked this Court to “stay any award of costs to 23 Defendant pending resolution of Plaintiffs’ appeal.” (Doc. No. 201.) Santee and Lakeside 24 Defendants both opposed the motion. (Doc. Nos. 202 and 203.) Plaintiffs replied to 25 Defendants’ oppositions on September 3, 2019. (Doc. No. 203.) The Court, pursuant to its 26 discretion under Local Rule 7.1(d)(1), determines that Plaintiffs’ motion to re-tax costs is 27 appropriate for resolution without oral argument, submits the motion on the parties’ papers, 28 1 and vacates the hearing currently scheduled for September 9, 2019. The Court, in its 2 discretion, finds this is the kind of extraordinary case that warrants denying costs and 3 therefore GRANTS in part the motion to re-tax costs. Accordingly, each party must bear 4 their own costs in this case. 5 Background 6 The Court assumes the parties’ familiarity with the facts and procedural history of 7 this case, which are set forth in detail in the Court’s April 12, 2019 Opinion and Order. 8 (Doc. No. 171.) In that opinion the Court granted summary judgment for the Santee and 9 Lakeside defendants. Subsequently on May 24, 2019, the Court entered judgment pursuant 10 to Federal Rule of Civil Procedure 54(b) in favor of Santee and Lakeside Defendants. (Doc. 11 No. 180.) 12 On May 29, 2017, Santee Defendants filed their bill of costs in the amount of 13 $29,599.04. (Doc. No. 182.) On June 7, 2019 Lakeside Defendants filed their bill of costs 14 in the amount of $22,229.14. (Doc. No. 191.) That same day, Plaintiff filed a notice of 15 appeal. (Doc. No. 185.) On July 5, 2019 an opposition to the bill of costs was filed by 16 Plaintiffs. (Doc. 195.) 17 On July 9, 2019 the Clerk of Court presided over a hearing regarding taxation of 18 costs. (Doc. No. 199.) On August 2, 2019 the clerk awarded costs in the amount of 19 $18,705.64 for the Lakeside Defendants and $23,282.54 for the Santee Defendants. (Doc. 20 Nos. 199 and 200.) 21 Discussion 22 I. LEGAL STANDARD 23 The district court reviews the Clerk’s Bill of Costs de novo. Jardin v. DATAllegro, 24 Inc., No. 08-CV-1462-IEG WVG, 2011 U.S. Dist. LEXIS 117517, 2011 WL 4835742, at 25 *1 (S.D. Cal. Oct. 12, 2011). “Unless a federal statute, these rules, or a court order provides 26 otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” 27 Fed. R. Civ. P. 54(d)(1); see also 28 U.S.C. § 1920; CivLR 54.1(a). This rule creates a 28 presumption in favor of awarding costs to the prevailing party. Champion Produce, Inc. v. 1 Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 2003). 2 The Court may, however, deny costs at its discretion, in cases where it would be 3 “inappropriate or inequitable to award costs.” Ass’n of Mexican-Am. Educators v. 4 California, 231 F.3d 572, 593 (9th Cir. 2000). “Proper grounds for denying costs include 5 (1) a losing party’s limited financial resources; (2) misconduct by the prevailing party; and 6 (3) the chilling effect of imposing . . . high costs on future civil rights litigants, as well as 7 (4) whether the issues in the case were close and difficult; (5) whether the prevailing party’s 8 recovery was nominal or partial; (6) whether the losing party litigated in good faith; and 9 (7) whether the case presented a landmark issue of national importance.” Quan v. Comput. 10 Scis. Corp., 623 F.3d 870, 888-89 (9th Cir. 2010) (internal quotation marks omitted) 11 (quoting Champion Produce, 342 F.3d at 1022), abrogated on other grounds by Fifth Third 12 Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014). If a court refuses to award taxable costs 13 to the prevailing party, the court must provide its reasons for doing so. Produce, Inc., 342 14 F.3d 1016, 1022 (9th Cir. 2003) 15 II. MOTION TO RETAX COSTS 16 Plaintiffs argue, and the Court agrees, that costs should not be assessed because (1) 17 the issues in this case were “close and complex”; (2) assessing costs under these 18 circumstances would chill future civil rights litigation; and (3) Plaintiffs have very limited 19 financial resources. (Doc. No. 201-1 at 4-5.) 20 A. Whether the Issues in the Case were Close and Complex 21 Plaintiffs argues that because the issues of this case were “close and complex” that 22 the Court should decline to award fees. Although there is no uniform standard as to what 23 makes a case “close and difficult,” courts have employed a variety of approaches in making 24 this determination. For instance, one court found a case “close and difficult” after taking 25 into account the length of the decision (ninety-six pages) and the large number of parties 26 involved in the case (twenty-three plaintiffs). Rivera v. NIBCO, 701 F. Supp. 2d 1135, 27 1144 (E.D. Cal. 2010). Another court suggested that a case might properly be deemed 28 “close and difficult” if it involved a “long and complicated trial” or turned on a 1 “determination of credibility at trial.” Jardin, 2011 U.S. Dist. LEXIS 117517, 2011 WL 2 4835742, at *3. In this case the determination of qualified immunity was complex and 3 involved complicated questions of law and fact. This factor favors the Plaintiffs. 4 B. Potential Chilling Effect on Future Civil Rights Litigants 5 Plaintiffs have demonstrated that costs of $41,988.18 would inflict an undesirable 6 chilling effect on future civil rights litigants. While there is no bright-line rule defining 7 what precise amount of costs would produce a chilling effect, the amount at issue here is 8 substantial. See Kidd v. Pacific Bell Telephone, 2013 U.S. Dist. LEXIS 69997, 2013 WL 9 2146924, at *2 (S.D. Cal. May 16, 2013) ("The amount of costs [of $5,147.23] sought is 10 reasonable and not exorbitant. Therefore, the suggestion that an award of costs would chill 11 further civil rights litigation is not persuasive in this instance."). Compare Save Our Valley, 12 335 F.3d at 946 (stating that costs of $5,310.55 is a "relatively small sum"), with Ass'n of 13 Mexican—Am. Educators, 231 F.3d at 593 (affirming the district court's denial of 14 $216,443.67 in costs to a prevailing defendant because the "extraordinarily high" costs 15 "might have the regrettable effect of discouraging potential [civil rights] plaintiffs"). The 16 amount of $41,988.18 strikes this Court as excessive and could serve as an inappropriate 17 threat to discourage serious civil rights claims in the future if granted.

18 C. Limited Financial Resources 19 Plaintiffs have limited financial resources and would be hard pressed to pay the 20 $41,988.18 in costs. Ms. Nguyen is unable to work and social security benefits are their 21 sole means of support. (Doc. No. 204-2.) Accordingly, Plaintiffs have shown that this is 22 one of the “the rare occasion[s] where severe injustice will result from an award of costs.” 23 Save Our Valley, 335 F.3d at 945. 24 Based on the foregoing reasons, Plaintiffs have overcome the presumption in favor 25 of awarding costs to the prevailing party. See Save Our Valley, 335 F.3d at 946. The Court 26 denies the Clerk's Bill of Costs in its entirety. 27 28 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiffs’ motion to re-tax costs. 3 || Plaintiffs’ motion to stay the award of costs is DENIED as moot. 4 5 IT IS SO ORDERED. 6 || DATED: September 4, 2019 | | lal |. | | MARILYN\. HUFF, Distri ge 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28