United States District Court, D. Arizona
Honorable John J. Tuchi, United States District Judge.
issue is Plaintiffs' Motion to Vacate Costs Taxed (Doc.
168, Mot.), to which Defendant filed a Response (Doc. 170,
Resp.) and Plaintiff filed a Reply (Doc. 171, Reply).
filed a Complaint (Doc. 1) in October 2013 alleging that a
prior short sale of their home was later reported as a
foreclosure in Defendant's automated Desktop Underwriter
system (“DU”), resulting in the denial of
Plaintiffs' later applications for home mortgage loans.
After years of litigation in this and related matters, the
Ninth Circuit held in a separate case that Defendant is not a
Consumer Reporting Agency (“CRA”) and thus is not
subject to the relevant provision of the Fair Credit
Reporting Act (“FCRA”). See Zabriskie v. Fed.
Nat'l Mortgage Ass'n, 912 F.3d 1192 (9th Cir.
2019). Based on the Ninth Circuit's ruling in
Zabriskie, the Court granted Defendant's Motion
for Summary Judgment in this case. (Doc. 153.)
March 15, 2019, after considering Plaintiffs' objections,
the Clerk entered judgment on taxable costs against
Plaintiffs in the amount of $4, 898.90-about $2, 000 less
than Defendant originally requested. (Doc. 166). Plaintiffs
now move to vacate the taxable costs in their entirety.
Rule of Civil Procedure 54(d)(1) provides 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.” 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.” Ass'n of
Mexican-American Educ. v. California, 231 F.3d 572, 591
(9th Cir. 2000). The Court's discretion “is not
without limits.” Id. Rather, the Court
“must specify reasons for its refusal to award
costs.” Id. (internal citation omitted).
reasons for the Court to deny 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).
These five indicators are not “‘an exhaustive
list of good reasons for declining to award costs,' but
rather a starting point for analysis.” Id.
(quoting Ass'n of Mexican-American Educ., 231
F.3d at 591).
the Court's review is not necessarily limited to the five
considerations in Escriba, both parties seem to
agree that those are dispositive in this matter, and indeed
the Court reaches its conclusion based on those indicators
Substantial Public Importance
Court finds that the first factor-the public importance of
the case-weighs in Plaintiffs' favor. While Defendant
argues that the case does not reflect an issue of public
importance, in part because “Plaintiffs'
constitutional or civil rights were [not] at issue, ”
that is not a requirement for substantial public importance.
(Resp. at 2.) Cases do not have to pertain to constitutional
or civil rights in order to be a matter of public importance.
See Ass'n of Mexican-American Educ.,
231 F.3d at 593 (“Nor are we attempting to create an
exhaustive list of ‘good reasons' for declining to
also argues that the issue is not of public importance
because “DU was adjusted in 2013 (before
Plaintiffs' lawsuit was filed) to enable lenders to
instruct DU to disregard foreclosure information after
validating the applicant had only a short sale.” (Resp.
at 3.) But while Defendant's decision to change its DU
policy is important in evaluating the third indicator-the
potential chilling effect on future actions-it is not
relevant to the Court's analysis of what constitutes an
issue of substantial public importance. Plaintiffs should not
be prejudiced because a policy that allegedly caused them
harm has since been remedied, at least in part. At the time
of his suit, the DU policy had been a matter of public
importance because it affected other people seeking home
financing in the same way it affected Plaintiffs. While the
Court is not persuaded by Plaintiffs' argument that the
sheer volume of amicus briefs in the pending Ninth Circuit
en banc review renders this matter important, it is
persuaded by the fact that this issue affected many consumers
and, by implication, the nationwide housing market. Thus, the
first indicator weighs in Plaintiffs' favor.
Closeness and ...