United States District Court, D. Arizona
Brandon M. Walsh, Plaintiff,
Federal National Mortgage Association, Defendant.
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
issue is Plaintiff's Motion to Vacate Costs Taxed (Doc.
192, Mot.), to which Defendant filed a Response (Doc. 194,
Resp.) and Plaintiff filed a Reply (Doc. 195, Reply).
filed a Complaint (Doc. 1) in April 2015 on behalf of himself
and a putative class of individuals who sold their homes in
short sales that were later reported as foreclosures in
Defendant's automated Desktop Underwriter system
(“DU”), and who allege that they were denied home
mortgage loans as a result. 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 and denied as moot Plaintiff's Motion to
Certify a Class. (Doc. 177.)
March 13, 2019, after considering Plaintiff's objections,
the Clerk entered judgment on taxable costs against Plaintiff
in the amount of $15, 237.88-about $8, 000 less than
Defendant originally requested. (Doc. 190). Plaintiff now
moves 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 Plaintiff's favor. While Defendant
argues that the case does not reflect an issue of public
importance, in part because “Plaintiff's
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 award
also argues that the issue is not of public importance
because “DU was adjusted in 2013 (before
Plaintiff's 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. Plaintiff should not
be prejudiced because a policy that allegedly caused him 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 Plaintiff. While the Court is not
persuaded by Plaintiff's 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 Plaintiff's favor.
Closeness and ...