Baker v. Ensign, No. 3:2011cv02060 - Document 196 (S.D. Cal. 2016)
Court Description: ORDER denying Cameron Baker's 180 Motion for Attorney Fees and Costs; denying Jason Ensign's 188 Motion to Re-Tax Costs. Signed by Judge Cynthia Bashant on 5/4/2016. (jah)
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Baker v. Ensign Doc. 196 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CAMERON BAKER, 11 Case No. 11-cv-2060-BAS(WVG) Plaintiff/Counter-defendant, 12 13 ORDER: (1) DENYING MR. BAKER’S MOTION FOR ATTORNEY’S FEES AND COSTS; AND v. 14 JASON ENSIGN, 15 (2) DENYING MR. ENSIGN’S MOTION TO RE-TAX COSTS Defendant/Counter-claimant. 16 AND RELATED COUNTERCLAIM AND THIRD-PARTY COMPLAINT 17 [ECF Nos. 180, 188] 18 19 On September 23, 2015, the Court entered judgment against Jason Ensign and 20 in favor of Cameron Baker in addition to the City of San Diego, William Lansdowne, 21 and David Spitzer (“City Defendants”). Thereafter, on City Defendant submitted a 22 bill of costs requesting $6,250.48. Following a hearing, the Clerk of the Court taxed 23 costs in favor of City Defendants and against Mr. Ensign in the amount of $4,005.14. 24 Now pending before the Court is Mr. Baker’s motion for attorney’s fees and 25 costs under 28 U.S.C. § 1988, and Mr. Ensign’s motion to re-tax costs under Federal 26 Rule of Civil Procedure 54(d). Both motions are opposed. For the following reasons, 27 the Court DENIES both motions. 28 // –1– 11cv2060 Dockets.Justia.com 1 I. Mr. Baker’s Motion for Attorney’s Fees and Costs 2 A. Attorney’s Fees 3 “A prevailing party may be awarded reasonable fees in relation to the 4 prosecution of a federal civil rights claim.” Thomas v. City of Tacoma, 410 F.3d 644, 5 647 (9th Cir. 2005); see also 28 U.S.C. § 1988(b) (“In any action or proceeding to 6 enforce a provision of section [1983 of this title] the court, in its discretion, may allow 7 the prevailing party, other than the United States, a reasonable attorney’s fee[.]”). 8 However, “[a] prevailing defendant may recover an attorney’s fee only where the suit 9 was vexatious, frivolous, or brought to harass or embarrass the defendant.” Henley v. 10 Eckerhart, 461 U.S. 424, 429 (1983) (emphasis added) (citing Christiansburg 11 Garment Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412, 421 (1978)). In 12 other words, for defendants to prevail, they must show that the plaintiff’s action was 13 “meritless in the sense that it is groundless or without foundation. United States ex 14 rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1058 (10th Cir. 2004). But defendants 15 are not required to show subjective bad faith on the part of the plaintiff. 16 Christiansburg Garment, 434 U.S. at 421 (“[A] district court may in its discretion 17 award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that 18 the plaintiff’s action was frivolous, unreasonable, or without foundation, even though 19 not brought in subjective bad faith.”). They need only show that the civil-rights 20 claims were frivolous. Id. 21 “A frivolous case is one that is groundless . . . with little prospect of success; 22 often brought to embarrass or annoy the defendant.” United States v. Manchester 23 Farming P’ship, 315 F.3d 1176, 1183 (9th Cir. 2003). “The case is frivolous when 24 the [plaintiff’s] position was foreclosed by binding precedent or so obviously wrong 25 as to be frivolous.” Id. In determining whether this standard has been met, the district 26 court must assess the claim at the time the complaint was filed, and avoid “post hoc 27 reasoning by concluding that, because a plaintiff did not ultimately prevail, his action 28 must have been unreasonable or without foundation.” Warren v. City of Carlsbad, 58 –2– 11cv2060 1 F.3d 439, 444 (9th Cir. 1995). 2 Mr. Ensign presents several reasons why Mr. Baker is not entitled to attorney’s 3 fees. They all lack merit. The argument that “it is against public policy to assess fees 4 and costs in a federal civil rights case because to do so has a chilling effect on victims 5 who bring such actions to light” is especially egregious. (Baker Opp’n 2:4-9.) United 6 States Supreme Court and Ninth Circuit precedent unequivocally permit prevailing 7 defendants to pursue of attorney’s fees under to 28 U.S.C. § 1988(b) in civil-rights 8 actions under certain circumstances. See Henley, 461 U.S. at 429; Manchester 9 Farming, 315 F.3d at 1183. 10 The circumstances that permit a prevailing defendant to pursue attorney’s fees 11 in civil-rights action require a determination that “the suit was vexatious, frivolous, 12 or brought to harass or embarrass the defendant.” Henley v. Eckerhart, 461 U.S. at 13 429. Mr. Baker fails to carry that threshold burden. He takes that threshold burden 14 for granted. Mr. Baker does not describe Mr. Ensign’s civil-rights action as 15 vexatious, frivolous, or “brought to harass or embarrass the defendant” anywhere in 16 his motion or reply brief. In fact, none of these categories is mentioned even once in 17 Mr. Baker’s moving papers. 18 Reviewing the history of this action despite Mr. Baker’s failure, the Court 19 nonetheless cannot conclude that Mr. Ensign’s civil-rights claims were frivolous such 20 that his “position was foreclosed by binding precedent or so obviously wrong[.]” See 21 Manchester Farming, 315 F.3d at 1183. That is particularly true when assessing the 22 civil-rights claims “at the time the complaint was filed.” See Warren, 58 F.3d at 444. 23 Consequently, the Court DENIES Mr. Baker’s request for attorney’s fees.1 24 25 26 27 28 1 Even if the Court reached the merits of Mr. Baker’s request for attorney’s fees, the fee records provided are in the form of “block billing,” the practice of lumping together multiple tasks, making it impossible to evaluate their reasonableness. Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (citing Role Models Am. Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004)). Where a fee applicant engages in block billing, it is “reasonable for the district court to conclude that [the applicant] failed to carry [his] burden [of documenting the appropriate hours expended], because block billing makes it more difficult to determine how much time was spent on –3– 11cv2060 1 B. Costs 2 An award of taxable costs for a prevailing party in federal district court is 3 governed by Federal Rule of Civil Procedure 54(d) and Civil Local Rule 54.1. Fed. 4 R. Civ. P. 54(d); Civ. L.R. 54.1; see also Champion Produce, Inc. v. Ruby Robinson, 5 Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003); RD Legal Funding, LLC v. Erwin v. 6 Balingit, LLP, No. 08CV597-L(RBB), 2011 WL 90222, at *4 (S.D. Cal. Jan. 10, 7 2011) (Lorenz, J.). “Rule 54(d)(1) creates a presumption in favor of awarding costs 8 to a prevailing party, but the district court may refuse to award costs within its 9 discretion.” Champion Produce, 342 F.3d at 1022. 10 The procedure for seeking costs is as follows: “Within fourteen (14) days after 11 entry of judgment, the party in whose favor a judgment for costs is awarded or 12 allowed by law, and who claims costs, must file with the clerk the bill of costs, 13 together with a notice of when the clerk will hear the application.” Civ. L.R. 54.1(a); 14 see also Fed. R. Civ. P. 54(d)(1) (“The clerk may tax costs on 14 days’ notice). In 15 other words, “a bill of costs is to be decided in the first instance by the Clerk of the 16 Court[.]” D.light Design, Inc. v. Boxin Solar Co., Ltd., No. 13-cv-05988-EMC, 2015 17 WL 7731781, at *6 (N.D. Cal. Dec. 1, 2015) (citing Fed. R. Civ. P. 54(d)(1)); see 18 also Zopatti v. Rancho Dorado Homeowners Ass’n, No. 10CV1091 DMS(WVG), 19 2012 WL 92338, at *1 (S.D. Cal. Jan. 10, 2012) (Sabraw, J.) (“Taxable costs are 20 taxed by the Clerk rather than the Court.”). 21 There is no indication that Mr. Baker filed a bill of costs with the Clerk of the 22 Court as required by Rule 54(d)(1) and Civil Local Rule 54.1(a). Though Mr. Baker 23 filed his motion for attorney’s fees and costs on the fourteenth day following entry 24 of judgment, there is no bill of costs attached to or referenced in the motion. Rather, 25 on October 29, 2015—which is 36 days after entry of judgment—Mr. Baker filed a 26 “supplemental declaration” that had attached to it a bill of costs. (Crook 27 28 particular activities.” Id. –4– 11cv2060 1 Supplemental Decl. Ex. 2, ECF No. 187.) Moreover, Mr. Baker fails to provide any 2 legal authority permitting the Court to override the procedures established by the 3 Federal Rules of Civil Procedure and the Civil Local Rules. 4 Based on Mr. Baker’s procedural deficiencies in requesting costs coupled with 5 his failure to address these deficiencies in his moving papers, the Court DENIES Mr. 6 Baker’s request to tax costs. See Fed. R. Civ. P. 54(d); Civ. L.R. 54.1(a). 7 8 II. Mr. Ensign’s Motion to Re-Tax Costs 9 “A review of the decision of the clerk in the taxation of costs may be taken to 10 the court on motion to re-tax by any party in accordance with Rule 54(d), [the Federal 11 Rules of Civil Procedure], and Civil Local Rule 7.1.” Civ. L.R. 54.1(h). “A motion 12 to retax must particularly specify the ruling of the clerk excepted to and no others 13 will be considered at the hearing, except that the opposing party may, within (3) days 14 of services of the motion to retax, file a cross-motion to retax.” Civ. L.R. 54.1(h)(2). 15 Rule 54(d)(1) provides that costs other than attorney’s fees should be allowed 16 to the prevailing party unless a federal statute, the Rules of Civil Procedure, or a court 17 order provide otherwise. Rule 54(d) also “creates a presumption for awarding costs 18 to costs to prevailing parties; the losing party must show why costs should not be 19 awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). 20 In the civil-rights context, “[a] district court must ‘specify reasons’ for its 21 refusal to award costs.” Ass’n of Mexican-American Educators v. State of Calif., 231 22 F.3d 572, 591 (9th Cir. 2000). The Ninth Circuit has approved several reasons for 23 refusing to award costs to a prevailing party, such as “the losing party’s limited 24 financial resources” and “misconduct on the part of the prevailing party.” Id. at 592. 25 It has also “held that the district court abused its discretion in denying a losing civil 26 rights plaintiff’s motion to re-tax costs without considering (1) the plaintiff’s limited 27 financial resources; and (2) “the chilling effect of imposing such high costs on future 28 civil rights litigants.” Id. (citing Stanley v. Univ. of S. Calif., 178 F.3d 1069, 1079-80 –5– 11cv2060 1 (9th Cir. 1999), cert. denied, 528 U.S. 1022 (1999)). 2 Mr. Ensign requests that the bill of costs be “denied in its entirety,” 3 emphasizing that his exercise of First Amendment rights “is of great public 4 importance” and not re-taxing costs “would have a chilling effect on other victims.” 5 (Ensign’s Mot. 4:1-4.) Mr. Ensign is not wrong that the exercise of one’s 6 constitutional rights is vital to every citizen in our republic. But he overstates the 7 importance of his case in protecting such rights. 8 In the Second Amended Cross Complaint and Second Amended Third Party 9 Complaint, Mr. Ensign makes numerous references to the First Amendment and, to 10 a much lesser extent, free speech. But he never specifies the substance of the speech 11 that was allegedly protected. Evidence later submitted demonstrates that the speech 12 in question consisted of belligerent obscenities and gestures directed at other 13 spectators in the stadium and security guards, including Mr. Baker, creating an unsafe 14 environment. (September 22, 2015 Order 4:10-8:12.) Courts have repeatedly held 15 that curtailing speech when faced with legitimate safety concerns do not rise to the 16 level of a constitutional violation. See Kubanyi v. Covey, 391 F. App’x 620, 621 (9th 17 Cir. 2010) (holding that plaintiff’s First Amendment right to free speech was not 18 violated because officers arrested him to ensure safety in face of plaintiff’s disorderly 19 conduct, not in retaliation for his speech); Dietrich v. John Ascuaga’s Nugget, 548 20 F.3d 892, 896, 900-02 (9th Cir. 2008); Long Beach Area Peace Network v. City of 21 Long Beach, 522 F.3d 1010, 1027 (9th Cir. 2008) (approving ordinance giving 22 officials the discretion to “restrict[ ] events to city sidewalks, portions of a city street, 23 or other public right-of-way,” but only when such restrictions are “necessary to . . . 24 protect the safety of persons and property and to control vehicular and pedestrian 25 traffic” (internal quotation marks omitted) (emphasis altered)). Consequently, based 26 on the circumstances of this case, the Court cannot conclude that imposing costs on 27 Mr. Ensign would have a chilling effect on future civil-rights litigants. 28 // –6– 11cv2060 1 Mr. Ensign also argues that he has limited financial resources, referring to his 2 previous employment as a licensed nurse, earning approximately between $30 and 3 $35 per hour, and being unable to later find work because of the misdemeanor battery 4 charges pending against him. The only evidentiary support provided is Mr. Ensign’s 5 deposition testimony from May 2014. (Ensign’s Mot. Ex. A.) However, nothing 6 provided by Mr. Ensign demonstrates that he has limited financial resources at this 7 time. There are no indications that Mr. Ensign is currently unemployed, heavily in 8 debt as a result of this lawsuit, or has no savings. Even if the May 2014 deposition 9 testimony was relevant to Mr. Ensign’s current circumstances, it merely suggests that 10 a single employer terminated Mr. Ensign as a result of the pending charges. (See 11 Ensign Dep. 152-53.) There are clearly no pending charges now, as Mr. Ensign has 12 repeatedly emphasized that he obtained a finding of factual innocence, and there is 13 no indication that he was precluded from finding employment elsewhere. Therefore, 14 Mr. Ensign fails to demonstrate that he currently has limited financial resources. 15 Because Mr. Ensign fails to demonstrate that taxing costs would have a chilling 16 effect on future civil-rights litigation and that he has limited financial resources, and 17 because he also fails to challenge the Clerk of the Court’s ruling to tax costs with 18 sufficient particularity, he fails to rebut the presumption in favor of taxing costs to 19 the prevailing party, City Defendants. See Fed. R. Civ. P. 54(d); Civ. L.R. 54.1(h). 20 Accordingly, the Court DENIES Mr. Ensign’s motion to re-tax costs. 21 22 23 III. Conclusion & Order2 In light of the foregoing, the Court DENIES Mr. Baker’s motion for attorney’s 24 25 26 27 28 Mr. Ensign also argues both in opposing Mr. Baker’s motion for attorney’s fees and in his motion to re-tax costs that the Court should stay the execution of imposing costs pending the outcome of his appeal. (Ensign’s Opp’n 6:10-7:2; Ensign’s Mot. 5:7-21.) On April 1, 2016, the Ninth Circuit issued an order noting that Mr. Ensign’s counsel “failed to perfect the appeal as prescribed by the Federal Rules of Appellate Procedure,” and dismissing the appeal for “failure to file the opening brief” pursuant to Ninth Circuit Rule 42-1. (ECF No. 195.) With the dismissal of the appeal, Mr. Ensign’s request to stay pending the outcome of the appeal is moot. 2 –7– 11cv2060 1 fees and costs (ECF No. 180), and DENIES Mr. Ensign’s motion to re-tax costs (ECF 2 No. 188). 3 IT IS SO ORDERED. 4 5 DATED: May 4, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –8– 11cv2060
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