Adam Trotter v. ExxonMobil Corp. et al

RESPONSE IN SUPPORT of APPLICATION to the Clerk to Tax Costs against Plaintiff Adam Trotter re: Judgment, 142 , 145

C.D. Cal.January 14, 2019

EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. RANDALL OPPENHEIMER (S.B. #77649) roppenheimer@omm.com DAWN SESTITO (S.B. #214011) dsestito@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendants EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, EXXONMOBIL REFINING AND SUPPLY COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ADAM TROTTER, Plaintiff, v. EXXONMOBIL CORP., et al., Defendants. Case No. 2:17-cv-02279-PSG (JCx) Judge: Hon. Philip S. Gutierrez Courtroom: 6A EXXONMOBIL’S RESPONSE TO PLAINTIFF’S OBJECTION TO TAXATION FOR COSTS Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 1 of 7 Page ID #:4329 - 1 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After spending thousands of dollars over the course of almost two years defending meritless litigation brought by Plaintiff Adam Trotter (“Plaintiff”), Defendants Exxon Mobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil Refining and Supply Company (“ExxonMobil”) seek reimbursement of a mere $4,929.70 in reasonable costs. Plaintiff’s Objection to Taxation for Costs (“Objection”) fails to overcome the strong presumption that these costs should be awarded-(1) he cannot prove that ExxonMobil’s costs were “unnecessary”; (2) his public policy arguments are unsubstantiated; and (3) his specific objection to costs sought under Local Rule 54-3.10 does not comport with the law or facts. ExxonMobil’s Application to the Clerk to Tax Costs (“Application”) should be granted in full. I. EXXONMOBIL’S APPLICATION SHOULD NOT BE DENIED IN ITS ENTIRETY. Plaintiff proffers two reasons why the Clerk should deny ExxonMobil’s entire Application. Both lack merit. A. ExxonMobil’s Claimed Costs Were Not Unnecessary. Plaintiff’s Objection first claims that “at least the majority of the Defendants’ claimed costs were apparently unnecessary to date” because Judge Gutierrez’s decision granting summary judgment “apparently was of no consequence or result of the Defendants’ filings to which these proposed costs to tax are being submitted.” Objection at 3-4. As such, Plaintiff appears to be arguing that ExxonMobil is not entitled to any costs incurred outside of its summary judgment briefing.1 Plaintiff’s apparent position is at odds with both Federal Rule of Civil 1 Because Plaintiff did not raise this issue during the parties’ meet-and-confer regarding Plaintiff’s Objection, ExxonMobil is unable to confirm its understanding of Plaintiff’s position. See Declaration of Lauren Kaplan in Support of ExxonMobil’s Response to Plaintiff’s Objection to Taxation for Costs (Kaplan Decl.) at ¶¶ 2-3. Plaintiff’s failure to comply with the Local Rules provides independent grounds to reject this argument. See L.R. 54-2.2 (requiring Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 2 of 7 Page ID #:4330 - 2 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Procedure 54 and Local Rule 54, which clearly allow the “prevailing party” to recover certain costs incurred over the course of litigation. See Fed. R. Civ. P. 54(d); L.R. 54-3 (enumerating various taxable costs); see also United States District Court Central District of California, Bill of Costs Handbook (Dec. 1, 2018) at 1, available at https://www.cacd.uscourts.gov/sites/default/files/documents/Bill_of_Costs_Handbo ok.pdf (“The prevailing party is entitled to reasonable costs incurred during the proceedings.”). Because Judge Gutierrez entered judgment in its favor on December 14, 2018, ExxonMobil is unquestionably the prevailing party and is entitled to recoup its reasonable costs within the parameters set by Local Rule 54- 3.2 See Dkt. No. 142. B. Plaintiff Has Not Overcome the Strong Presumption that Costs Should Be Taxed. Rule 54(d) creates “a strong presumption in favor of awarding costs to the prevailing party.” Miles v. State of Cal., 320 F.3d 986, 988 (9th Cir. 2003). Plaintiff attempts to rebut this strong presumption by relying on factors laid out in Escriba v. Foster Poultry Farms, Inc. that allow district courts discretion to deny costs in certain, extraordinary cases. See Objection at 6; see also Escriba, 743 F.3d “representation that counsel met and conferred in an effort to resolve disagreement about the taxable costs claimed in the bill”). 2 This is true irrespective of Plaintiff’s currently-pending motion for reconsideration. See Robertson v. Qadri, 2009 WL 150952, at *1 (N.D. Cal. Jan. 21, 2009), aff’d, 399 F. App’x 219 (9th Cir. 2010) (denying reconsideration motion regarding dismissal over eight months after clerk issued bill of costs). Any argument that ExxonMobil’s Application should be denied for this reason makes little sense. See, e.g., Objection at 13 (urging denial of Application because reconsideration motion is “still outstanding”). The Local Rules required ExxonMobil to apply for costs within 14 days of the entry of judgment, and make no exception for cases in which reconsideration motions are ultimately filed. See L.R. 54-2.1. If Plaintiff’s pending reconsideration motion were to have any impact on the Clerk’s decision, which it should not, it should dictate deferral, not denial, of ExxonMobil’s Application. Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 3 of 7 Page ID #:4331 - 3 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1236, 1247-48 (9th Cir. 2014) (relevant factors 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”). But, Plaintiff’s Objection fails to demonstrate that this case is anything but an “ordinary case” in which costs should be “awarded as a matter of course.” See Ass’n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 593 (9th Cir. 2000). First, this is not a case of “substantial public importance.” Plaintiff initially tries to prove otherwise by arguing that “a losing plaintiff who is seeking vindication of his civil rights should also precluded from having to pay for the litigation costs of a prevailing party.” See Objection at 6. Ninth Circuit precedent directly contravenes this argument. See Ass’n of Mexican-Am. Educators, 231 F.3d at 593 (“We do not mean to suggest that the presumption in favor of awarding costs to prevailing parties does not apply to defendants in civil rights actions.”). Plaintiff then argues this factor is met because his suit requested injunctive relief and brought civil rights claims premised upon unfounded conspiracy theories. See Objection at 7. But, seeing as Judge Gutierrez easily rejected this relief and the bulk of these claims early on as a matter of law-see Dkt. No. 73, 89-it is hard to say that Plaintiff’s suit involves the kind of “landmark issue of national importance” for which the denial of costs might be merited. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 2003); Luong v. City & Cty. of San Francisco Police Dep’t, 630 F. App’x 691, 695 (9th Cir. 2015) (case involving purported Fourth Amendment violations did not present issues of substantial public importance); Mulligan v. Yang, 2017 WL 826909, at *2 (C.D. Cal. Mar. 2, 2017) (“ordinary discrimination claims” do not meet this standard). Cf. Escriba, 743 F.3d at 1248 (public importance supported by statements from United States Department of Labor and California public official). Second, this case does not involve difficult or close issues. All of the Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 4 of 7 Page ID #:4332 - 4 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants were dismissed after motions practice, and, while litigating the case may have proven difficult for Plaintiff, the issues raised herein were not particularly difficult or out of the ordinary. See Dkt. No. 73 (granting motions to dismiss based upon lack of standing, California Tort Claims Act, and failure to plead injurious policy or deliberate indifference), No. 89 (granting motion for judgment on the pleadings based on California Tort Claims Act and failure to plead injurious policy or deliberate indifference), No. 140 (granting summary judgment for failure of proof regarding causation). Cf. Mam v. City of Fullerton, 2014 WL 12573550, at *1-3 (C.D. Cal. July 24, 2014) (even if civil rights case goes to trial, it does not necessarily present “difficult issues” or mean that “the case was close”). Third, contrary to Plaintiff’s argument, an award of $4,929.70 in reasonable costs will not chill litigation brought by a “plaintiff who is seeking a justified vindication of his civil rights.” See Objection at 10. Many courts have determined that an award of a “relatively modest amount” is “unlikely to chill future civil rights litigants.” See, e.g., Sorgen v. City & Cty. of San Francisco, 2007 WL 521235, at *3 (N.D. Cal. Feb. 15, 2007) (holding that defendants were entitled to $4,987 in costs); Mulligan, 2017 WL 826909, at *2 (concluding that award of $6,281.85 “is well within the normal range awarded by courts in individual plaintiff civil rights cases and unlikely to chill future litigation”). Finally, Plaintiff has failed to demonstrate that he lacks the financial resources to pay the award that ExxonMobil seeks. Plaintiff’s sole showing in this regard is: (1) his own pronouncement that he “is indigent, litigating in a pro se manner, unemployed and until recently was a full-time student” and (2) the fact that his “filing fees were waived by the California Superior Court in Torrance.” Objection at 11. He offers no bank statements, accounting of assets or expenses, or demonstration of his continued inability to find employment, particularly now that he is no longer a full-time student. Plaintiff has thus failed to demonstrate this factor applies here. See, e.g., Rivera v. Cty. of San Diego, 2017 WL 5643151, at Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 5 of 7 Page ID #:4333 - 5 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 *1-3 (C.D. Cal. Nov. 14, 2017) (Gutierrez, J.) (“Plaintiff has not demonstrated an inability to find employment in order to begin paying the Defendants’ costs, nor has she supplied the Court with any information detailing efforts to secure employment in the many months since she made her declaration.”); Chew v. City & Cty. of San Francisco, 714 F. App’x 687, 692-93 (9th Cir. 2017) (affirming $4,399.59 award when “Plaintiff did not submit sufficient evidence to show that this award would impose undue financial hardship”); You v. Longs Drug Stores California LLC, 594 F. App’x 438, 439 (9th Cir. 2015) (affirming $3,790.44 award when the plaintiff “failed to make any evidentiary showing of her current employment status or her financial condition”). Based on the foregoing, Plaintiff has not rebutted the strong presumption that costs should be awarded here.3 II. EXXONMOBIL IS ENTITLED TO ALL COSTS CLAIMED UNDER LOCAL RULE 54-3.10. Plaintiff’s only dispute with the particular costs claimed by ExxonMobil’s Application relates to the $619.50 ExxonMobil seeks pursuant to Local Rule 54- 3.10.4 Plaintiff claims that such costs are not recoverable because ExxonMobil “does not explain how any copy costs were necessary to this case.” See Objection at 3. This is incorrect for two reasons. First, ExxonMobil’s Application does not seek reimbursement for mere miscellaneous copies, but for “the cost of copying and delivering Mandatory Chambers Copies required by the Court”-costs explicitly 3 ExxonMobil concedes that a financial disparity exists between it and Plaintiff, but this factor alone is not sufficient to dictate a denial of costs. See, e.g., Mulligan, 2017 WL 826909, at *2-3 (“As to the financial disparity, Defendant reasonably notes that this factor alone cannot justify denying costs . . . .”); Mam, 2014 WL 12573550, at *3 (“[T]he Court does not find that any economic disparity, by itself, would rebut the strong presumption in favor of awarding costs.”). 4 Again, Plaintiff failed to raise this objection in the parties’ meet-and-confer, thereby rendering it improperly raised here. See Kaplan Decl. at ¶¶ 2-3. Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 6 of 7 Page ID #:4334 - 6 - EM RESP. TO P’S COSTS OBJECTION 2:17-CV-02279-PSG (JCX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allowed by Local Rule 54-3.10. See L.R. 54-3.10. Second, ExxonMobil’s Application explains why these copying and delivery costs were necessary to this case, by citing to Judge Gutierrez’s standing Order, which requires parties to deliver “[m]andatory chambers copies of all filed pleadings.” See Application, Ex. A at 3 (emphasis added). As Plaintiff offers no additional specific objections to the costs ExxonMobil claims, its Application should be granted in its entirety. See L.R. 54-2.2 (“In the absence of a timely objection, any allowable item may be taxed as requested in the application.”). Dated: January 14, 2019 M. RANDALL OPPENHEIMER DAWN SESTITO O’MELVENY & MYERS LLP By: /s/ Dawn Sestito Dawn Sestito Attorneys for Defendants EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, EXXONMOBIL REFINING AND SUPPLY COMPANY Case 2:17-cv-02279-PSG-JC Document 148 Filed 01/14/19 Page 7 of 7 Page ID #:4335