Opinion
Case No. 18-cv-01071-HSG (DMR)
07-05-2019
ANTHONY ECONOMUS, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' COSTS
Re: Dkt. No. 188
Defendants Flint Paul and City and County of San Francisco ("CCSF") filed a bill of costs following the entry of summary judgment in their favor. [Docket No. 188.] Plaintiff Anthony Economus filed an objection requesting that the court deny costs in their entirety. [Docket No. 192 (Obj.).] On May 2, 2019, the Honorable Haywood S. Gilliam referred this matter to the undersigned for a Report and Recommendation. [Docket No. 191 (MSJ Order).] On May 31, 2019, the undersigned ordered Economus to submit a supplemental declaration regarding his financial circumstances, which he timely filed on June 4, 2019. [Docket Nos. 193, 194-1 (Economus Decl.).] Defendants filed a timely response on June 12, 2019. [Docket No. 196 (Resp.).]
Having considered the parties' submissions, the court recommends denying costs in this matter.
I. BACKGROUND
On July 11, 2017, Economus participated in an annual downhill skateboarding event on Dolores Street in San Francisco. Dozens of skateboarders participated, and police officers from the San Francisco Police Department ("SFPD"), including Paul, were present. Paul directed a park ranger to park his patrol car in a manner that partially blocked the roadway at the bottom of the downhill course. This still left a gap for skateboarders to pass between the car and the sidewalk. Paul was standing near the gap when Economus skateboarded down the hill. Economus attempted to skateboard through the gap and collided with Paul, causing Economus to fall off his skateboard and sustain injuries. Economus alleges that Paul deliberately shoulder-checked him and then walked away without providing assistance.
Economus brought claims against Defendants pursuant to 42 U.S.C. § 1983 for unlawful seizure and excessive force, as well as related state law claims. Economus also asserted a Monell claim for municipal liability against CCSF, although he did not oppose Defendants' motion for summary judgment on that issue. Judge Gilliam concluded that there were genuine issues of fact on Economus's constitutional claims but granted summary judgment in favor of Defendants because Paul was entitled to qualified immunity. MSJ Order at 5-12.
Following the entry of judgment against Economus, Defendants filed a bill of costs in the amount of $17,529.63. [Docket No. 188.] Economus filed an objection, arguing that no costs should be awarded as it would be "inequitable under the circumstances" based on his limited financial means and the importance of the issues he raised in this case. Obj. at 1-2. Defendants contend that Economus has "not justified a departure from the presumption in favor of awarding costs to a prevailing party." Resp. at 1.
II. DISCUSSION
Under Federal Rule of Civil Procedure 54(d), "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Rule 54(d) therefore creates a "presumption for awarding costs to the prevailing party." Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016) (citation and internal quotation marks omitted). However, a district court has "discretion to refuse to award costs." Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc) ("Mexican-American Educators"). "That discretion is not unlimited," and "[a] district court must specify reasons for its refusal to award costs." Id. (citation and internal quotation marks omitted). As explained by the Ninth Circuit, "[a]ppropriate reasons for denying costs 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." Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). This list is not "exhaustive . . . of good reasons for declining to award costs, but rather a starting point for analysis." Id. at 1248 (citation and internal quotation marks omitted).
A. Substantial Public Importance of the Case
Economus contends that the case addressed issues of substantial public importance, including whether an SFPD officer used excessive force or intentionally harmed an innocent man at a "peaceful] assembl[y] of persons." Obj. at 3. In determining whether to deny costs, courts in this district have explained that a case is considered to be of substantial importance "when the claims involved are subject to closer scrutiny or special interest by the court, or the issues raised in the litigation have ramifications beyond the parties and concerns immediately involved in the litigation." Ayala v. Pac. Mar. Ass'n, No. 08-cv-0119-TEH, 2011 WL 6217298, at *3 (N.D. Cal. Dec. 14, 2011).
Numerous courts in this district have found that this factor weighs in favor of civil rights plaintiffs in excessive force cases. See, e.g., Washburn v. Fagan, No. 03-cv-00869-MJJ, 2008 WL 361048, at *2 (N.D. Cal. Feb. 11, 2008) (finding that the plaintiff's excessive force action "raised important issues regarding how the San Francisco Police Department dealt with, and supervised, excessive force incidents"); Godoy v. Cty. of Sonoma, No. 15-cv-00883-WHO, 2016 WL 6663003, at *3 (N.D. Cal. Nov. 10, 2016) (determining that plaintiffs "raised important issues regarding the potential use of excessive force and retaliatory arrests against civil rights protestors by the Sonoma County Sheriffs' department"); Hunter v. City & Cty. of San Francisco, No. 11-cv-4911-JSC, 2013 WL 6088409, at *4 (N.D. Cal. Nov. 19, 2013) (finding for the civil rights plaintiffs on this factor because the case "raised important issues regarding the handling of excessive force complaints within the San Francisco Sheriff's Department"); Lopez v. Nguyen, No. 13-cv-3870-CRB, 2017 WL 512773, at *2 (N.D. Cal. Feb. 8, 2017) (finding that a section 1983 claim of excessive force by a law enforcement officer "is an issue of substantial public importance"). Though Economus did not prevail on the merits of his claims, the issues raised by this case were of substantial public importance with "ramifications beyond the parties and concerns immediately involved in the litigation." Ayala, 2011 WL 6217298, at *3; see Hunter, 2013 WL 6088409, at *3 ("[T]hat a plaintiff is not ultimately successful on the merits of an issue does not mean that the issues the individual sought to redress were insignificant.")
Defendants argue that this case did not involve issues of substantial public importance because the "claims in this case arose from a two-person dispute between Plaintiff and Defendant Paul - whether it was Plaintiff or Paul who caused a skateboarder-pedestrian collision." Resp. at 3 (citing Mosavi v. Mt. San Antonio College, No. 15-cv-4147-VAP, 2018 WL 6219864 (C.D. Cal. Nov. 15, 2018)). The court in Mosavi denied the plaintiff's motion to be relieved from costs, finding that the case did not raise issues of substantial public importance because the "case amounted to a dispute between two people about whether sexual assault, religious harassment, retaliation, and violence took place." 2018 WL 6219864, at *3. The court also noted that "[a]lthough every case alleging a potential civil rights violation is important, the present case is not 'extraordinary' as defined by the Ninth Circuit." Id. (citing Mexican-American Educators, 231 F.3d at 591).
The present case is not a mere two-party dispute between Economus and Paul. The collision happened during a public event with a police presence and was witnessed by a large number of bystanders. Police officers routinely respond to large public gatherings to observe and intervene as necessary, and the public "has an interest in ensuring that police officers perform such a task within constitutional bounds." See Kim v. City of Santa Clara, No. 09-cv-00025 RS, 2010 WL 3184306, at *2 (N.D. Cal. Aug. 11, 2010) (finding that the public has an interest in how police officers perform routine procedures, such as breaking down doors to reach unresponsive individuals). The constitutional limitations on police power, particularly in large gatherings of unarmed civilians, is of substantial public importance, and Economus's claims go to the heart of that issue.
Accordingly, this factor weighs in favor of denying costs.
B. Closeness and Difficulty of the Issues
Defendants argue that the case was not close or difficult because "the Court resolved the single Federal claim at issue on a single summary judgment motion." Resp. at 3. However, the number of issues that were decided at summary judgment is not indicative of whether the entire case was close or difficult. In his order granting summary judgment, Judge Gilliam found that there was a triable issue of fact as to whether Paul's conduct was unconstitutional and noted that "a determination on the merits of this claim require credibility determinations that must be decided by a jury." MSJ order at 8 (quoting Boyd v. City of Hermosa Beach, No. 04-cv-10528-AG, 2007 WL 9717629, at *1 (C.D. Cal. Sept. 11, 2007), aff'd, 321 F. App'x 584 (9th Cir. 2009). Defendants ultimately prevailed on the issue of qualified immunity; however, Judge Gilliam stated that "but for that doctrine, this action would proceed to a jury trial." MSJ Order at 11.
The fact that Defendants prevailed at the summary judgment stage does not mean the issues presented were not close or difficult. See Jefferson v. City of Fremont, No. 12-cv-0926-EMC, 2015 WL 1264703, at *3 (N.D. Cal. Mar. 19, 2015) (finding for the civil rights plaintiffs on this factor after they lost at the summary judgment stage because the issues "involved consideration of complex questions of law and fact" and the plaintiff's claims "had support and were not frivolous"). This case was rigorously litigated, required resolution of numerous discovery issues, and the outcome of the case was not obvious. See Darensburg v. Metro. Transp. Comm'n, No. 05-cv-01597-EDL, 2009 WL 2392094, at *4 (N.D. Cal. Aug. 4, 2009) (finding that the issues presented in a civil rights issue were close and difficult because "[r]esolution of [the] issues was not obvious" and the case was "vigorously litigated").
This factor weighs in favor of denying costs.
C. Chilling Effect on Future Similar Actions
Courts have recognized that imposing costs on losing civil rights plaintiffs may have a chilling effect on civil rights litigation. "Imposing high costs on losing civil rights plaintiffs of modest means may chill civil rights litigation and the vindication of important rights under civil rights laws." Lopez, 2017 WL 512773, at *3. "Without civil rights litigants who are willing to test the boundaries of our laws, we would not have made much of the progress that has occurred in this nation since [Brown v. Board of Education]." Stanley v. Univ. of S. California, 178 F.3d 1069, 1080 (9th Cir. 1999) (internal citation omitted). The chilling effect is particularly concerning where the case raises issues of public importance and where a plaintiff lacks significant resources to prosecute his claims. Hunter, 2013 WL 6088409, at *4 (finding a chilling effect on future civil rights litigation where the plaintiff was of modest means and his "claim of excessive force was significant").
Imposing costs against Economus in this case could result in a chilling effect on civil rights litigation. Economus submitted an affidavit supporting that he has a gross income of approximately $13,000 per year. Economus Decl. ¶ 2. Although Defendants characterize the costs in this case as "modest" and "relatively low," (Resp. at 4), this ignores the fact that the cost bill in this case significantly exceeds a year's worth of Plaintiff's wages. Such an outcome could well discourage other litigants with modest means from pursuing civil rights claims. See Escriba, 943 F.3d at 1247-49 (denying costs of $13,958.16 where the plaintiff's annual income was $11,622 because the amount in the context of the plaintiff's financial status would present a "serious danger" of chilling future civil rights actions).
Accordingly, this factor weighs in favor of denying costs.
D. Plaintiff's Limited Financial Resources
"Indigency is a factor that the district court may properly consider in deciding whether to award costs." Stanley, 178 F.3d at 1079. "A court abuses its discretion when it awards costs against a losing plaintiff without considering the plaintiff's limited financial resources." Darensburg, 2009 WL 2392094, at *3 (citing Mexican-American Educators, 231 F.3d at 592; Stanley, 178 F.3d at 1079-80). "Whether the financial resources in question are of a sufficient level to deny an award of costs can be inferred from the economic circumstances of the plaintiff." Ayala, 2011 WL 6217298, at *2 (citation and internal quotation marks omitted).
In this case, Economus submitted a declaration explaining that he is a twenty-year-old man who lives with his mother and contributes $100 to $200 per month to help pay for bills and rent. Economus Decl. ¶ 3. He works part-time at Petco, and he makes $12.50 per hour. Id. ¶ 2. Economus's gross yearly wages amount to approximately $13,000.
Defendants state that Economus has not addressed whether his change from full-time to part-time employment was by choice, or whether "he has even tried to obtain more gainful employment." Resp. at 5. The court declines to engage in such speculation in light of Economus's sworn statements regarding his income and inability to pay costs. Economus Decl. ¶¶ 2-4. Defendants also point to the fact that Economus paid a $450 filing fee in his state court action. Id. His ability to pay a $450 filing fee has little bearing on his ability to pay over $17,000 in costs.
The court finds that this reason weighs in favor of denying costs.
E. Economic Disparity Between the Parties
CCSF is a public entity with vastly greater resources than Economus, who is an individual citizen with limited financial means. See Hunter, 2013 WL 6088409, at *3 ("[T]here exists a significant economic disparity between Plaintiff and the City and County of San Francisco.") (quoting Washburn, 2008 WL 361048, at *2); Godoy, 2016 WL 6663003, at *2 (finding that the County of Sonoma and its police officers, as "public entities and employees, have significantly more resources" than the minor, indigent plaintiffs) (citing Hunter, 2013 WL 6088409, at *8).
The economic disparity between the parties weighs in favor of denying costs.
III. CONCLUSION
For the foregoing reasons, the court recommends declining to award Defendants' costs in this matter. Any party may file objections to this report and recommendation with the District Judge within 14 days of being served with a copy. See U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a); N.D. Civ. L.R. 72-2.
IT IS SO ORDERED. Dated: July 5, 2019
/s/_________
Donna M. Ryu
United States Magistrate Judge