Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VERTICAL BRIDGE DEVELOPMENT, Case No.: 21-cv-02153-AJB-LR LLC, 12 ORDER DENYING PLAINTIFF’S 13 MOTION TO RETAX COSTS Plaintiff, 14 v. 15 (Doc. No. 113) BRAWLEY CITY COUNCIL and THE 16 CITY OF BRAWLEY, CALIFORNIA, 17 and DOES 1 through 5, inclusive, 18 19 Defendants. 20 21 Before the Court is Vertical Bridge Development, LLC’s (“Plaintiff”) motion to 22 retax costs. (Doc. No. 113.) Brawley City Council and the City of Brawley, California 23 (collectively, “Defendants”) filed an opposition, to which Plaintiff replied. (Doc. Nos. 115, 24 116.) For the reasons set forth below, the Court DENIES Plaintiff’s motion. 25 I. BACKGROUND 26 On December 31, 2021, Plaintiff filed a Complaint against Defendants alleging five 27 causes of actions—three federal claims and two state law claims. (Doc. No. 1.) 1 Specifically, Plaintiff alleged federal claims under the Telecommunications Act of 1996 2 (“TCA”) for Lack of Substantial Evidence, Discrimination Between Providers of 3 Equivalent Services, and Declaratory Relief under 28 U.S.C. §§ 2201-2202, and state law 4 claims for Breach of Contract and Breach of Duty of Good Faith and Fair Dealing. (Id.) 5 Upon review of the record and the parties’ briefings on their respective partial 6 motions for summary judgment on the federal claims, the Court granted judgment in 7 Defendants’ favor on the TCA claims (Doc. No. 78), and upon Plaintiff’s motion to 8 voluntarily dismiss the state claims, the Court dismissed the remaining contract claims and 9 ordered the Clerk of Court to enter judgment consistent with its orders (Doc. Nos. 96, 97). 10 Defendants thereafter filed a Bill of Costs with the Clerk, seeking reimbursement of 11 $1,694.90 in costs incurred to provide copies of certain records to opposing counsel and to 12 the Court. (Doc. No. 103.) The Clerk taxed the entirety of the costs requested in 13 Defendants’ favor, finding them taxable under the Local Rules. (Doc. No. 111.) Plaintiff’s 14 motion to retax costs follows. (Doc. No. 113.) 15 II. LEGAL STANDARD 16 Federal Rule of Civil Procedure (“Rule”) 54(d)(1) establishes that costs, other than 17 attorneys’ fees, are to be awarded to a prevailing party “as a matter of course in the ordinary 18 case.” Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 593 (9th Cir. 19 2000). While “the rule creates a presumption in favor of awarding costs to a prevailing 20 party,” it also “vests in the district court discretion to refuse to award costs.” Id. at 591. 21 The court’s “discretion is not unlimited,” and it “must specify reasons for its refusal to 22 award costs.” Id. Reasons for refusing to award costs include: (1) a losing party’s limited 23 financial resources; (2) misconduct by the prevailing party; (3) the chilling effect of 24 imposing high costs on future civil rights litigants; (4) the closeness and difficulty of the 25 issues in the case; (5) the prevailing party’s recovery was nominal or partial; (6) the losing 26 party litigated in good faith; and (7) the case presented a landmark issue of national 27 importance. Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 1 2003). The losing party bears the burden to “show why costs should not be awarded.” Save 2 || Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). 3 DISCUSSION 4 Here, Plaintiff does not contest that Defendants are entitled to costs as prevailing 5 || parties on the TCA claims. Instead, Plaintiff argues that the total amount of costs awarded 6 ||should be reduced by 40% because the contract claims were voluntarily dismissed and 7 || comprise 2/5 of this litigation. Plaintiff, however, cites no authority requiring the Court to 8 ||apportion costs under Rule 54(d)(1) in this way. Nor does Plaintiff reference any of 9 || aforementioned reasons a court could refuse to award costs. See Champion Produce, Inc., 10 || 342 F.3d at 1022. Moreover, Local Rule 54.1.b.6.a allows for taxation of costs for copies 11 ||necessarily obtained for use in a case if the copies “were provided either to the court or to 12 || opposing counsel either by court order, rule or statute,” or “were used as court exhibits, 13 |} either admitted into evidence, or attached to a motion.” Defendants’ counsel submitted a 14 |/declaration and invoices establishing that the $1,694.90 requested comprise costs for 15 || copying and producing documents to Plaintiff's counsel as required by Rule 26, as well as 16 |}documents provided to the Court as part of the Administrative Record for the partial 17 ||motions for summary judgment on the TCA claims. (Doc. Nos. 103-2, 103-3, 103-4.) The 18 || Clerk correctly found these costs necessarily obtained for use in this case and taxable under 19 || Local Rule 54.1.b.6, and Plaintiff raised no specific challenge thereto. 20 Based on the foregoing, the Court does not find that Plaintiff has satisfied its burden 21 “show why costs should not be awarded.” Save Our Valley, 335 F.3d at 945. 22 |TV. CONCLUSION 23 Accordingly, the Court DENIES Plaintiff's motion to retax costs. (Doc. No. 113.) 24 IT IS SO ORDERED. 29 ||Dated: July 22, 2024 Q 1 er : 2 26 Hon. Anthony J.@Battaglia 27 United States District Judge 28