govinfo:USCOURTS-azd-2_21-cv-01089-4

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Marcella Fox, 
 
Plaintiff, 
 
v. 
 
State of Arizona, et al., 
 
Defendant. 
No. CV-21-01089-PHX-MTL 
 
ORDER 
 
 
 
 Before the Court is Plaintiff’s Objection to Defendants’ Bill of Costs (Doc . 192), 
to which Defendant McClelland filed a Reply in Support of Bill of Costs (Doc. 193). The 
Court rules as follows. 
I. BACKGROUND 
 In 2022, Plaintiff filed an Amended Complaint (Doc. 33) alleging claims for assault, 
battery, false imprisonment, intentional infliction of emotional distress, negligence, and 
violation of equal protection under Section 1983 against the State of Arizona, Jason 
McClelland, and Jeffrey Van Winkle. The claims arose out of Plaintiff’s allegation that 
Defendant McClelland sexually assaulted her while they were both employed at the 
Arizona Department of Correction, Rehabilitation, and Reentry prison facility. 
(Id. ¶¶ 107-52.) 
On July 3, 2023, the Court dismissed Plaintiff’s claims of assault and battery, false 
imprisonment, and intentional infliction of emotional distress against Defendant State of 
Arizona. (Doc. 165.) On November 7, 2023, the Court entered summary judgment in favor 

 
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of Defendants , thereby dispensing with Plaintiff’s sole surviving claims. (Doc. 177.) 
Defendant McClelland then filed a bill of costs totaling $9,850.64 and Defendants State of 
Arizona and Van Winkle filed a joint bill of costs totaling $6,763.45. (Docs. 181, 183.) On 
December 4, 2023, Plaintiff filed objections to the bill of costs . (Doc. 192 .) Defendant 
McClelland replied on December 11, 2023. (Doc. 193.) 
II. LEGAL STANDARD 
 28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax several 
classes of enumerated costs. Taxable costs include: 
(1) Fees of the clerk and marshal; (2) Fees for printed or 
electronically recorded transcripts necessarily obtained for use 
in the case; (3) Fees and disbursements for printing and 
witnesses; (4) Fees for exemplification and the costs of making 
copies of any materials where the copies are necessarily 
obtained for use in the case; (5) Docket fees under 28 U.S.C. § 
1923; (6) Compensation of court appointed experts, 
compensation of interpreters, and salaries, fees, expenses, and 
costs of special interpretation services under 28 U.S.C. § 1828. 
28 U.S.C. §1920. 
Pursuant to Federal Rule of Civil Procedure 54(d)(1), authorized costs “should be 
allowed to the prevailing party unless a court, federal statute, or the federal rules otherwise 
direct.” Thus, “the rule creates a presumption in favor of awarding costs to a prevailing 
party, but vests in the district court discretion to refuse to award costs.” Ass’n of Mexican-
Am. Educators v. State of Cal ., 231 F.3d 572, 591 (9th Cir. 2000 ). But the “discretion is 
not unlimited.” Id. Therefore, “[a] district court must specify reasons for its refusal to award 
costs.” Id. (cleaned up). The requirement to “give reasons for denying costs is, in essence, 
a requirement that the court explain why a case is not ‘ordinary’ and why, in the 
circumstances, it would be inappropriate or inequitable to award costs.” Id. at 593. 
 Appropriate 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 plaint iff's limited financial resources, and 
(5) the economic disparity between the parties. ” Escriba v. Foster Poultry Farms, Inc. , 
743 F.3d 1236, 1247 -48. These indicators are “not an exhaustive list of good reasons for 

 
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declining to award costs, but rather a starting point for analysis.” Id. at 1248 (cleaned up). 
Ultimately, the losing party bea rs the burden of demonstrating why costs should not be 
awarded to the prevailing party. Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th 
Cir. 2003). 
III. ANALYSIS 
A. Taxable Costs 
1. Substantial Public Importance 
 The Ninth Circuit has found substantial public importance in cases that carry 
implications beyond the immediate parties involved. For instance, in Association of 
Mexican-American Educators, plaintiffs raised an issue of substantial public importance 
because “ the action affect[ed] tens of thousands of Californians and the state’s public 
school system as a whole.” 231 F.3d at 593. Similarly, in Escriba, the court noted evidence 
suggesting that the plaintiff’s claim under the Family and Medical Leave Act was of the 
type that could “establish the parameters of what constitutes sufficient employee notice” 
and furthermore “potentially had a much broader application to the workplace” 743 F.3d 
at 1248 (cleaned up). 
Plaintiff asserts that she brought her claim in part to “prevent others working in 
Arizona prisons from experiencing sexual harassment in the workplace.” (Doc. 192 at 7.) 
The prevention of such wrongs is, of course, important. But Plaintiff’s claims lack the sort 
of far-reaching implications evident in Association of Mexican -American Educators and 
Escriba necessary to invoke an issue of substantial public importance. 
 In a similar case, an employee of a Florida jail filed civil rights claims against her 
employer stemming from allegation s of sexual harassment. Valdez v. Miami-Dade Cnty., 
Fla., No. 19 -20647-CIV, 2020 WL 6140472, at *1 (S.D. Fla. June 23, 2020), report and 
recommendation adopted sub nom. Valdez v. Miami-Dade Cnty., No. 19-20647-CIV, 2020 
WL 6114879 (S.D. Fla. July 16, 2020). Having prevailed at the summary judgment stage, 
the defendant sought costs pursuant to Fed. R. Civ. P. 54(d)(1) . Id. The District Court, 
considering Ninth Circuit law, rejected the plaintiff’s argument that her status as a female 

 
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employee working in the jail system “should be deemed of high public importance to rebut 
the presumption favoring costs .” Id. at *2. Noting that the issues raised in Association of 
Mexican-American Educators concerned “vital civil rights for women in the workplace” 
the court found that, by comparison, the plaintiff provided no “compelling reason to deny 
Defendant’s rightful award of costs in a straightforward employment case that had little 
consequences outside of the immediate parties involved.” Id. 
 Here, Plaintiff’s claim s carried some potential to affect the practices of Arizona 
prisons. But the same could be said anytime a claim of a similar nature is brought against 
a government employer. Absent a clearer demonstration that the outcome of Plaintiff’s 
claims carried wider consequences for the public, Plaintiff’s claim s do not exceed the 
bounds of a controversy between the involved parties. See Mosavi v. Mt. San Antonio Coll., 
No. LACV-15-04147-VAP-AFMX, 2018 WL 6219864, at *3 (C.D. Cal. Nov. 15, 2018) 
(“[T]his case amounted to a dispute between two people about whether sexual assault, 
religious harassment, retaliation, and violence took place. Although every case alleging a 
potential civil rights violation is important, the present case is not ‘extraordinary’ as 
defined by the Ninth Circuit.”). Thus, this factor weighs against Plaintiff. 
2. Closeness and Difficulty of the Issues 
 Courts have found close and difficult issues under a variety of circumstances . For 
instance, a party may have raised an issue of first impression within a Circuit . See e.g., 
Mansourian v. Bd. of Regents of Univ. of California at Davis, 566 F. Supp. 2d 1168, 1172 
(E.D. Cal. 2008). A case may be close and difficult because it necessarily turns on a close 
factual or legal determination. See e.g., Draper v. Rosario, 836 F.3d 1072, 1088 (9th Cir. 
2016); Escriba, 743 F.3d at 1248. Surviving summary judgment, though not determinative, 
is also evidence of a close and difficult issue . Compare Economus v. City & Cnty. of San 
Francisco, No. 18 -CV-01071-HSG-DMR, 2019 WL 3293292, at *3 (N.D. Cal. July 5, 
2019), report and recommendation adopted, No. 18 -CV-01071-HSG, 2019 WL 3290761 
(N.D. Cal. July 22, 2019) (noting that “[t]he fact that Defendants prevailed at the summary 
judgment stage does not mean the issues presented were not close or difficult ”) with 

 
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Hamilton v. Yavapai Cmty. Coll. Dist. , No. CV-12-08193-PCT-GMS, 2022 WL 504474, 
at *2 (D. Ariz. Feb. 18, 2022) (concluding that the “case was far from an easy one” because 
“[t]he litigation lasted for the better part of a decade, and several of Plaintiff's claims 
survived motions to dismiss, for judgment on the pleadings, and for summary judgment”). 
 Here, Plaintiff’s claims did not raise an issue of first impression within the Ni nth 
Circuit. See e.g., Mansourian, 566 F. Supp. 2d at 1172. And ultimately, Plaintiff’s last 
surviving claims were defeated at summary judgment. (Doc. 177.) The Court finds that 
Plaintiff’s claims were far from frivolous, and she pursued them in a good faith effort to 
vindicate her rights. But her claims did not raise especially close and difficult issues such 
that this is an extraordinary case. Thus, this factor weighs against Plaintiff. 
 3. Chilling Effect 
 Plaintiff argues that awarding costs in this case will create a chilling effect 
preventing future civil rights litigants from pursuing similar cases. (Doc. 192 at 5.) 
Defendant McClelland counters that an allegation of sexual assault or harassment is not by 
itself a basis to deny costs and moreover that the amount of costs at stake is insufficient to 
deter future litigants. (Doc. 193 at 6.) 
 Litigation is not without its risk s and “ liability for costs is a normal incident of 
defeat.” Delta Air Lines, Inc. v . August, 450 U.S. 346, 352 (1981). Yet the Ninth Circuit 
recognizes a countervailing policy to not unduly discourage “civil rights litigants who are 
willing to test the boundaries of our laws.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1080 
(9th Cir. 1999). While Plaintiff’s claims failed, it is possible that others could bring facially 
similar yet viable claims. Awarding costs in an unsuccessful but non-frivolous claim could 
cause these individuals to hesitate to bring their own meritorious claims. It is true that the 
costs Defendants seek are not extraordinarily high . Cf. Ass’n of Mexican-Am. Educators, 
231 F.3d 572, at 591, 593 (concluding that costs in the amount of $ 216,443.67 were 
“extraordinarily high ”). But “even modest costs can discourage potential plaintiffs 
who . . . earn low wages .” Escriba, 743 F.3d at 1249. Given that g overnment employees 
earning modest salaries are those most likely to bring claims similar to Plaintiff’s, this is 

 
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an especially relevant consideration. Thus, this factor weighs in favor of Plaintiff. 
4. Plaintiff’s Limited Financial Resources 
 “Costs are properly denied when a plaintiff ‘would be rendered indigent should she 
be forced to pay’ the amount assessed.” Escriba, 743 F.3d at 1248 (quoting Stanley v. Univ. 
of S. Cal., 179 F.3d 1079, 1080). A plaintiff seeking to avoid paying costs is not required 
to “provide any evidence of her financial situation, but she does have the burden of 
demonstrating that [the] general presumption in favor of Defendants’ costs does not apply.” 
Greene v. Buckeye Valley Fire Dep’t, No. CV-11-02351-PHX-NVW, 2013 WL 12160997, 
at *1 (D. Ariz. July 16, 2013) . Furthermore, a plaintiff’s mere declaration of financial 
hardship may be insufficient to carry the burden. Id. 
Plaintiff argues that requiring her to pay Defendants ’ costs would create a 
significant financial hardship for her. (Doc. 192 at 4.) She states that she has faced a period 
of unstable employment since the events underlying the subject litigation and consequently 
“lost approximately $28,510.82 in wages or reduced earnings between July 2020 and 
February 2022.” (Id. at 5.) 
Although bearing Defendants’ costs may financially strain Plaintiff, she has not 
demonstrated that payin g such costs would render her indigent. Accordingly, this factor 
weighs against Plaintiff. 
5. Economic Disparity Between the Parties 
To support her contention that she should not have to pay Defendants’ costs , 
Plaintiff points to the vast economic disparity between her and the State of Arizona. (Doc. 
192 at 5.) Defendant Van Winkle was represented by the State of Arizona and these two 
Defendants filed a joint bill of costs. (Doc. 183.) Moreover, Plaintiff asserts that Defendant 
McClelland’s costs were paid by the State, an assertion which Defendant McClelland did 
not contest. (Doc. 192 at 5; Doc. 193.) “[B]y failing to address arguments in an opposition, 
a party effectively concedes a claim.” Thompson v. Isagenix Int’l, LLC, No. CV-18-04599-
PHX-SPL, 2020 WL 1432840, at *4 (D. Ariz. Mar. 24, 2020), aff’d, 849 F. App’x 712 (9th 
Cir. 2021), and aff ’d, 849 F. App ’x 712 (9th Cir. 2021) (citing Jenkins v. County of 

 
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Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)). Thus, the Court considers the State of 
Arizona’s resources for the purposes of assessing economic disparity between parties. 
As a general principle, “financial disparity almost always exists between individual 
plaintiffs litigating against . . . large defendants such as corporations or governments.” Van 
Horn v. Dhillon, No. 08-CV-01622-LJO-DLB, 2011 WL 66244, at *4 (E.D. Cal. Jan. 10, 
2011). Accordingly, “disparity alone is insufficient to overcome the presumption in favor 
of awarding costs.” Ayala v. Pac. Mar. Ass’n, No. C08-0119-TEH, 2011 WL 6217298, at 
*2 (N.D. Cal. Dec. 14, 2011). 
Nevertheless, disparity is a consideration. Undoubtedly, there is a sub stantial 
economic disparity between Plaintiff and the State. This factor weighs in favor of Plaintiff. 
Overall, however, Plaintiff has failed to demonstrate that this is an extraordinary 
case such that Defendants should be denied their costs outright. Yet the Court recognizes 
the potential chilling effect that awarding costs may produce , as well as the economic 
disparity between parties. These factors are sufficient to warrant a reduction in costs. See 
Cornfield v. Pickens , No. CV -16-00924-PHX-ROS, 2018 WL 8262770, at *3 (D. Ariz. 
Mar. 22, 2018), aff’d sub nom. Cornfield v. Thompson , 765 F. App'x 387 (9th Cir. 2019) 
(reducing costs in a meritless claim solely because plaintiffs had limited financial means 
and awarding over twenty -thousand dollars in costs “would have a disproportionate 
chilling effect on civil rights litigants”). As discussed above, the costs involve d here are 
not extraordinary but still sufficient to deter similarly positioned litigants from pursuing 
similar claims. Reducing costs is an appropriate measure to “strike[] the proper balance 
between the presumption in favor of awarding [a pre vailing part y’s] costs and the 
discretionary factors” militating against granting costs. Magdaluyo v. MGM Grand Hotel, 
LLC, No. 2:14-CV-01806-APG-GWF, 2018 WL 3429684, at *4 (D. Nev. July 16, 2018). 
In this instance, the Court finds that reducing the Defendants’ costs by 50% strikes the 
appropriate balance. 
B. Insufficient Documentation 
Plaintiff additionally argues that Defendants violated LRCiv. 54.1 by failing to 

 
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include sufficient documentation to support some taxable costs. (Doc. 192 at 1 -3.) 
Specifically, Plaintiff claims that Defendants failed to support their claim of $539.10 as the 
cost for obtaining Defendant Van Winkle’s deposition transcript because the supporting 
.pdf file containing the invoice is illegible. (Id.) In addition, Plaintif f takes issue with 
Defendants’ claim of docket fees, for which documentation was not provided. (Id. at 3.) 
 Taxable costs are recoverable “‘with strict compliance’ to the Federal Rules of Civil 
Procedure Rule 54(d)(1), Local Rules of Civil Procedure Rule 54.1(a), and 28 U.S.C. 
section 1920.” Felix v. Pic-N-Run, Inc., No. CV-09-8015-PCT-JAT, 2012 WL 551645, at 
*5 (D. Ariz. Feb. 21, 2012). LRCiv. 54.1(a) requires a party to file a bill of costs within 
fourteen days of entry of final judgment. The bill of costs “shall include a memorandum of 
the costs and necessary disbursements, so itemized that the nature of each can be readily 
understood, and, where available, documentation of requested costs in all categories must 
be attached.” LRCiv. 54.1(a). Plaintiff is correct that the referenced .pdf file appears to be 
damaged and therefore is impossible to read. As a result, the transcript costs are not 
properly supported with documentation. Furthermore, Defendants State of Arizona and 
Van Winkle failed to remedy the defect within the fourteen -day period allotted to claim 
costs. Thus, Defendants did not strictly comply with the local rules. Therefore, the Court 
will strike the $539.10 claimed for obtaining Defendant Van Winkle’s deposition transcript 
from Defendants’ taxable costs. 
 The $5 docket fee at issue is set by statute. See 28 U.S.C. §1923(a). Defendants are 
not required to attach additional documentation. Thus, the docket fee is properly claimed. 
Accordingly, Defendants State of Arizona and Van Winkle will be awarded 
$3,112.18 to reflect the elimination of the ineligible transcript cost and the 50% reduction 
while Defendant McClell and will be awarded $4,925.32 in accordance with the 50% 
reduction also applicable to his costs. 
…. 
…. 
…. 

 
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V. CONCLUSION 
 Accordingly, 
 IT IS ORDERED that Plaintiff’s Objection to Defendants’ Bill of Costs (Doc. 192) 
is sustained in part and overruled in part. 
 IT IS FURTHER ORDERED that the Court awards Defendants State of Arizona 
and Van Winkle $3,112.18 in costs and Defendant McClelland $4,925.32 in costs. 
 Dated this 28th day of March, 2024. 
 
 
 
 
 

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