Opinion
NO. CIV. S-06-1043 LKK/DAD.
May 3, 2011
ORDER
Defendants in the above captioned case have moved for costs following the entrance of judgment in their favor. Specifically, defendant Sylvia Lopez seeks $7,993.16 in costs and defendant Sheridan Miyamoto, R.N., seeks $12,173.79 in costs. Plaintiffs are minors and their parents. They brought a civil rights action against defendants. Ultimately, this case was dismissed because plaintiffs' counsel failed to follow court orders and submit pretrial documents. Counsel continued this unacceptable conduct by failing to file objections to the bills of costs.
Costs are awarded to the prevailing party in civil actions as a matter of course absent express statutory provision, "unless the court otherwise directs." Fed.R.Civ.P. 54(d). In deciding whether to award costs, district courts may consider the plaintiff's ability to pay, the amount of the costs involved, and the possibility that an award may leave the plaintiff indigent.See Wrighten v. Metropolitan Hosps., Inc., 726 F.2d 1346, 1358 (9th Cir. 1984), Moore v. Hughes Helicopters, Inc., 708 F.2d 474, 486 (9th Cir. 1983). The Ninth Circuit has repeatedly held that such concerns, particularly in civil rights cases, are an appropriate basis for denying defendants' recovery of costs outright. See Nation Organization of Women v. Bank of California, 680 F.2d 1291, 1294 (9th Cir. 1982) (District court did not abuse its discretion in denying costs on basis of "plaintiffs' limited budgets."); Stanley v. University of Southern California, 178 F.3d 1069, 1079-81 (9th Cir. 1999) (reversing district court's award of costs to defendants, "conclud[ing] that the district court abused its discretion, particularly based on the district court's failure to consider two factors: [plaintiff's] indigency, and the chilling effect of imposing such high costs on future civil rights litigants.").
The court has serious concerns about the ability of plaintiffs to pay the costs sought by defendants. Nonetheless, the court has no way of determining plaintiffs' financial situation because of their counsel's failure to file objections to the bills of costs. Furthermore, this case was dismissed as a sanction due to counsel's failure to follow court orders, and not due to conduct of plaintiffs. Rather, plaintiffs' complaint was far from frivolous and raised issues sufficient to withstand summary judgment. If the court could order costs to be paid by counsel, and not her clients, it would not hesitate to do so. But as it cannot, under the totality of the circumstances, the court finds it inappropriate to saddle plaintiffs with the sins of their attorney.
Plaintiffs' original counsel drafted the complaint and opposed summary judgment. While the conduct of the original counsel was far from ideal, it did not demonstrate the persistent disregard of court orders and ethical duties of the current counsel.
For the foregoing reasons, defendants Lopez's and Miyamoto's requests for awards of costs (Doc. Nos. 153, 154) are DENIED.
IT IS SO ORDERED.
DATED: May 2, 2011.