United States District Court, D. Arizona
G. Campbell United States District Judge
Paul Johnson asks the Court to exercise its discretion and
deny an award of costs to Defendant Federal Express
Corporation pursuant to Federal Rule of Civil Procedure
54(d)(1) and Local Rule 54.1(b). Doc. 172. The motion has
been fully briefed (Docs. 172, 174, 175), and neither party
has requested oral argument. For the reasons set forth below,
the Court will grant Plaintiff's motion in part and
brought claims against Defendant for retaliation and
constructive discharge in violation of the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 et
seq. (“ADEA”), Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et. seq.
(“Title VII”), and 42 U.S.C. § 1981. Doc.
15. The Court granted summary judgment for Defendant with
respect to the constructive discharge claim and four of
Plaintiff's theories of retaliation. Doc. 110. Following
several days of trial, a jury found for Defendant on the
remaining claims. Doc. 164. During the course of litigation,
Defendant filed a motion to dismiss (Doc. 17) and two motions
for judgment as a matter of law under Rule 50, which the
Court denied. Docs. 26, 148, 149.
timely filed a bill of costs, seeking $33, 279.66. Doc. 166.
Plaintiff filed objections (Doc. 168), and the clerk taxed
costs against Plaintiff in the amount of $26, 727.85. Doc.
incurred by a prevailing party may be assessed against the
losing party “[u]nless a federal statute, these rules,
or a court order provides otherwise.” Fed.R.Civ.P.
54(d)(1). The law “creates a presumption in favor of
awarding costs to a prevailing party, but vests in the
district court discretion to refuse to award costs.”
Ass'n of Mexican-Am. Educators v. State of
California, 231 F.3d 572, 591 (9th Cir. 2000). “It
is incumbent upon the party opposing the recovery of costs to
overcome that presumption.” Novak-Scott v. City of
Phoenix, No. CV 05-3147-PHX-JAT, 2009 WL 825813, at *1
(D. Ariz. Mar. 30, 2009). According to the Ninth Circuit:
Proper grounds for denying costs include (1) a losing
party's limited financial resources; (2) misconduct by
the prevailing party; and (3) the chilling effect of imposing
. . . high costs on future civil rights litigants, as well as
(4) whether the issues in the case were close and difficult;
(5) whether the prevailing party's recovery was nominal
or partial; (6) whether the losing party litigated in good
faith; and (7) whether the case presented a landmark issue of
Quan v. Computer Scis. Corp., 623 F.3d 870, 888-89
(9th Cir. 2010), abrogated on other grounds by Fifth
Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459 (2014)
(internal quotation marks omitted). A district court has
discretion to reduce, rather than deny, costs. See
Guitron v. Wells Fargo Bank, NA, 619 F. App'x 590,
592 (9th Cir. 2015).
asks the Court to deny costs to Defendant, citing the
economic disparity between the parties, a possible chilling
effect on civil rights litigation, the importance of the
substantive matters involved in this case, and the merits of
his underlying claim. Doc. 172 at 1. Defendant counters that
Plaintiff “is not so financially hindered that an
assessment of costs would be financially disastrous.”
Doc. 2 at 2. Defendant also argues that Plaintiff's
retaliation claim was without merit, and the fact that it
included allegations of discrimination and retaliation does
not justify a denial of costs. Id. at 3.
is a significant economic disparity between the parties.
Plaintiff, not his attorney, is solely responsible for costs
in this case. Doc. 175-1 at 2. He has not been employed since
February 2014, but receives an annual pension from Defendant
of $57, 831. Id. In contrast, Defendant's annual
revenues exceed $50, 000, 000, 000. Doc. 172-2 at 2. While an
assessment against Plaintiff of $26, 727.85 may not render
him indigent, there is little doubt it would constitute a
severe financial burden. See Stanley v. Univ. of S.
California, 178 F.3d 1069, 1079 (9th Cir. 1999). The
assessed costs would equal almost half of his annual income.
of high costs “on losing civil rights plaintiffs of
modest means may chill civil rights litigation.”
Stanley, 178 F.3d at 1080; Guitron, 619 F.
App'x at 592. Decisions in employment discrimination
cases generally turn on fact-intensive issues that often are
hard to predict. A significant assessment against Plaintiff
could have a chilling effect on victims of employment
discrimination, discouraging them from bringing such claims
in the future.
other hand, although Plaintiff has not worked since 2014, he
resigned from Defendant's employment and currently draws
his annual pension from Defendant. The Court does not find
that Plaintiff's claim had substantial merit or involved
close and difficult issues; nor did it raise issues of
national importance. As noted by Defendant, the jury returned
a unanimous verdict for Defendant following a five-day trial
after only three hours of deliberation. Doc. 174 at 2.
Finally, the Court cannot ignore that the costs incurred by
Defendant resulted solely from Plaintiff's unsuccessful
all relevant factors, the Court concludes that the costs
awarded against Plaintiff should be reduced to mitigate their
harshness, but should not be eliminated. Exercising its
discretion, the Court will reduce the cost award by