United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE
November 21, 2018, the Clerk of Court filed a memorandum
taxing costs in the amount of $5, 146.05, in favor of the
Defendant, Cummins, Inc., and against the Plaintiff Ross
Mickealson. (Doc. 46). Mickealson filed a timely motion
requesting the Court review the Clerk's decision in
accordance with Local Rule 54.1(a)(6). (Doc. 47). Cummins
opposes Mickealson's motion and asks the Court to uphold
the Clerk's taxation of costs in its entirety. (Doc. 48).
For the reasons set forth below, Mickealson's motion
(Doc. 47) is DENIED.
allows a prevailing party to recover costs, other than
attorney's fees, unless the court otherwise directs.
Fed.R, Civ.P. 54(d). This rule creates a presumption in favor
of awarding costs to the prevailing party, which can only be
overcome when the court exercises its discretion to disallow
costs for specific reasons, which may include punishing
misconduct by the prevailing party or non-punitive but
compelling equitable justifications such as a party's
limited financial resources. Ass'n of Mexican-Am.
Educators v. Cal., 231 F.3d 572, 591-93 (9th Cir.2000);
Champion Produce, Inc. v. Ruby Robinson Co., Inc.,
342 F.3d 1016, 1022 (9th Cir. 2003). The losing party bears
the burden of establishing why costs should not be awarded.
Save Our Valley v. Sound Transit, 335 F.3d 932,
944-45 (9th Cir.2003). In an "ordinary case," costs
will be awarded, and if the losing party meets its burden,
the court must specify reasons for its refusal not to award
costs in spite of the presumption. Id. at 945;
see Trans Container Services (BASEL) A.G. v. Security
Forwarders, Inc., 752 F.2d 483, 488 (9th Cir.1985)
(observing that trial courts must state reasons for the
denial of costs so that the appellate court will be able to
determine whether or not the trial court abused its
Court does not find any compelling reason to deviate from the
presumption in favor of awarding costs to the prevailing
party in this case. The Ninth Circuit has articulated a
variety of reasons for denying costs in Champion Produce
Inc., 342 F.3d at 1022, including: (1) a losing
party's limited financial resources; (1) misconduct by
the prevailing party; (3) the chilling effect of imposing
high costs on future civil rights litigants; (4) the issues
in the case were close and difficult; (5) the prevailing
party's recovery was nominal or partial; (6) the losing
party litigated in good faith; and (7) the case presented a
landmark issue of national importance. Id.
Mickealson argues two of these reasons apply in his case:
that he is indigent and that imposing costs would have a
chilling effect on future litigants. The Court addresses both
arguments in turn.
Mickealson argues that even though he was the non-prevailing
party in this action, he should be absolved from liability
for Cummins' costs because he is indigent. (Doc. 47 at 7)
A non-prevailing party seeking to avoid costs bears the
burden of showing that he is incapable of paying the
prevailing party's costs, not only at the present, but
into the future. See Rivera v. City of Chicago, 469
F.3d 631, 635 (7th Cir.2006). To sustain that burden, the
non-prevailing party must present sufficient evidence about
both income/assets and expenses that makes clear he is indeed
indigent. Rivera, 469 F.3d at 635.
support of his argument, Mickealson states that he has had
trouble acquiring employment that is comparable to his past
employment with Cummins. (Id.) He asserts that
paying costs would be a financial hardship given the limited
compensation from the intermittent employment he has had
since his termination. (Id.) In his affidavit,
Mickealson avers that he is making an entry level salary of
less than $45, 000 a year during his probationary period.
(Doc. 47 at ¶ 5).
Court notes, however, that although Mickealson may not be
able to find work comparable to what he made at Cummins, he
can still work. (See Doc. 47 at ¶ 5).
Accordingly, Mickealson has not sufficiently demonstrated
that he is incapable of paying Cummins' costs of just
over $5, 000 in the future, considering he is able to
continue working making a salary at or around $45, 000 a
year. The Court does not find that this case is "the
rare occasion where severe injustice will result from an
award of costs (such as the injustice that would result from
an indigent plaintiffs being forced to pay tens of thousands
of dollars of her alleged oppressor's legal costs)."
See Save Our Valley, 335 F.3d at 945. Although the
Court is not unsympathetic to Mickealson's limited
financial resources, it does not find that his argument is
sufficiently persuasive to overcome the presumption that a
prevailing party is entitled to its costs under Rule 54(d).
Mickealson also argues that a chilling effect on civil rights
litigants may occur if he is required to pay the costs in
this case. (Doc. 47 at 6-7). But there is no blanket
prohibition on taxing costs against unsuccessful civil-rights
litigations. Instead, the chilling-effect consideration is
better understood as closely related to the importance,
closeness, and novelty of the issues raised in the lawsuit.
discussing the potential for a chilling effect on other
civil-rights plaintiffs, the Ninth Circuit noted the
importance of "civil rights litigants who are willing to
test the boundaries of our laws" in achieving progress
after Brown v. Board of Education, 347 U.S. 483
(1954). Stanley, 178 F.3d at 1080. In other words,
the potential for a chilling effect is greater when a
plaintiff asserts novel civil-rights claims or claims
addressing important societal issues. No such issues were
present in this case. The Court does not find that fees
totaling just over $5, 000 will have a chilling effect on
standard-fare employment law cases in this district.
reasons stated above, the Court DENIES Mickealson's
motion for review of the clerk's ...