Kuhlken v. County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff moved to re-tax costs two years after the Clerk entered an order taxing costs, arguing financial hardship and public importance. The court denied the motion as waived because it was not filed within the seven-day period required by Local Rule 54.1(h) and Federal Rule of Civil Procedure 54(d)(1).
| What the court decided | The model |
|---|---|
Plaintiff's motion to re-tax costs is denied.“Accordingly, Plaintiff’s motion to re-tax costs is DENIED.” | agree with court The court correctly applied the procedural deadline for challenging cost awards. The order recites that the motion was filed two years after the tax order and nine months after the mandate, far exceeding the seven-day window specified in Local Rule 54.1(h) and Fed. R. Civ. P. 54(d)(1). The court relied on Walker v. California, which holds that failure to file a timely motion waives the right to judicial review of the cost award. The decision follows from the law and the record recited. |
The order itself: sound — The order is sound. It correctly identifies the procedural defect (untimeliness) as dispositive, cites the controlling Ninth Circuit precedent (Walker) and the applicable rules (FRCP 54(d)(1) and Local Rule 54.1(h)), and applies them to the undisputed timeline in the record. The court explicitly states it need not address the merits, which is appropriate given the waiver.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 PAMELA FOX KUHLKEN, Case No.: 3:16-CV-2504-CAB-DHB 11 Plaintiff, ORDER ON PLAINTIFF’S MOTION 12 v. TO RETAX COSTS 13 COUNTY OF SAN DIEGO, SAN DIEGO SHERIFFS DEPUTY D. SMITH [Doc. No. 45] 14 (Id # 1024) and DOES 1-5, 15 Defendants. 16 17 18 On January 16, 2018, the Court granted Defendants’ motion for summary judgment 19 [Doc. No. 32], and the Clerk of Court entered judgment in favor of Defendants [Doc. No. 20 33]. On January 30, 3018, Defendants filed a Bill of Costs totaling $5,147.90 [Doc. No. 21 34], and a hearing was set for February 16, 2018 [Doc. No. 35]. On February 5, 2018, 22 Plaintiff filed a notice of appeal to the Ninth Circuit [Doc. No. 36], but at no point did she 23 file a response or opposition to the Bill of Costs. As a result of the lack of opposition from 24 Plaintiff, the hearing was vacated, and on February 16, 2018, the Clerk of Court entered an 25 order taxing costs of $5,122.90. [Doc. No. 41.] The Clerk’s order called attention to “Local 26 Rule 54.1.h which provides in part that a motion to re-tax by any party, in accordance with 27 Rule 54(d), FRCivP and Local Rule 7.1, shall be served and filed within seven (7) days 28 1 || after receipt of the Order Taxing Costs, or unless within the seven (7) day period the court 2 || permits the motion to be made orally.” [/d. at 2-3.] 3 The Ninth Circuit affirmed the Court’s grant of summary judgment and the mandate 4 || was entered on April 12, 2019. [Doc. No. 42.] Now, two years after the order taxing costs 5 || was entered, and nine months after Plaintiff lost her appeal, Plaintiff has filed a motion to 6 ||re-tax costs, on the grounds of financial hardship and because Plaintiff believes her case 7 ||involved issues of substantial public importance. The Court need not address the merits of 8 || Plaintiffs motion because, by failing to file her motion within seven days, Plaintiff waived 9 right to challenge the cost award. Walker v. California, 200 F.3d 624, 626 (9th Cir. 10 || 1999) (“[W]e hold that a party may demand judicial review of a cost award only if such 11 party has filed a proper motion within the five-day['] period specified in Rule 54(d)(1).”). 12 || Accordingly, Plaintiff’s motion to re-tax costs is DENIED. 13 Itis SO ORDERED. 14 || Dated: March 19, 2020 € 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 The period has since changed to seven days. See Fed. R. Civ. P. 54(d)(1).