noting 9 case raised “issues of the gravest public importance” regarding public school employment exam 10 with disproportionate failure rates by members of racial minorities
How later courts described this case
- noting 9 case raised “issues of the gravest public importance” regarding public school employment exam 10 with disproportionate failure rates by members of racial minorities
- noting courts have 3 “broad discretionary power to waive the bond requirement if it sees fit”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ALIVECOR, INC., Case No. 21-cv-03958-JSW
8 Plaintiff,
ORDER REGARDING BILL OF COSTS
v.
9
Re: Dkt. Nos. 295, 300, 301
10 APPLE, INC.,
Defendant.
11
12
13 Now before the Court is the Application for Bill of Costs filed by Defendant Apple, Inc.
14 (“Apple”) and objections thereto filed by Plaintiff AliveCor, Inc. (“AliveCor”). The Court finds
15 the matter appropriate for resolution without further briefing or oral argument. See Civ. L.R. 7-
16 1(b).
17 BACKGROUND
18 After hard-fought litigation that included more than 30 depositions, multiple experts on
19 both sides, and cross-motions for summary judgment supported by a record of over 15,000 pages
20 of documents and a hearing which lasted almost three hours, the Court granted summary judgment
21 in favor of Apple. (Dkt. Nos. 285, 293.) Following its summary judgment order, the Court
22 entered judgment in favor of Apple on February 6, 2024. (Dkt. No. 287.) Apple filed an
23 Application for Bill of Costs on February 20, 2024. (Dkt. No. 295.) AliveCor filed a Notice of
24 Appeal on March 6, 2024. (Dkt. No. 298.)
25 Apple originally sought $132,445.64 in costs, consisting of $1,080.19 for service of a
26 deposition subpoena, $110,513.15 for deposition transcripts, $9,379.80 for deposition exhibits,
27 and $11,472.50 for reporting services at depositions. After the meet-and-confer process, Apple
1 serving the deposition subpoena, for a reduction of $7,196.85. (Dkt. No. 300.)
2 AliveCor opposes the imposition of any costs and objects specifically to Apple’s request
3 for costs of deposition videos. (Dkt. No. 297.) AliveCor alternatively requests a stay of
4 enforcement of the cost award without a supersedeas bond. (Id.)
5 The Clerk of Court reviewed the Bill of Costs and found $80,983.10 to be taxable. (Dkt.
6 No. 301.) The parties did not move to review the Clerk’s findings. See Fed. R. Civ. Proc.
7 54(d)(1) (“On motion served within the next 7 days, the court may review the clerk’s action.”).
8 ANALYSIS
9 A. Legal Standards Applicable to Taxation of Costs.
10 Federal Rule of Civil Procedure 54(d)(1) provides that “costs—other than attorneys’
11 fees—should be allowed to the prevailing party.” Fed. R. Civ. Proc. 54(d)(1). Accordingly, “Rule
12 54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show
13 why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th
14 Cir. 2003) (citing Stanley v. Univ. of Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999)).
15 The Court “need not give affirmative reasons for awarding costs; instead, it need only find that the
16 reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of
17 an award.” Id. at 945. The Court may refuse to award costs to a prevailing party on several
18 recognized grounds, including: the losing party’s limited financial resources; misconduct on the
19 part of the prevailing party; the importance and complexity of the issues; the merit of the
20 plaintiff’s case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of
21 imposing high costs. See id. (internal citations omitted); see also Wright & Miller, The Court’s
22 Discretion in Awarding Costs, Fed. Prac. & Proc. Civ. § 2668 (4th ed.).
23 28 U.S.C. section 1920 “enumerates expenses that a federal court may tax as a cost under
24 the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
25 U.S437, 441-42 (1987). Civil Local Rule 54-3 provides additional “standards for interpreting the
26 costs allowed by section 1920.” Intermedics v. Ventritex, Co., No. C-90-20233, 1993 WL 515879,
27 at *1 (N.D. Cal. Dec. 2, 1993).
1 B. The Court Declines to Exercise Its Discretion to Refuse to Award Costs.
2 AliveCor urges the Court to exercise its discretion to deny costs because the case presents
3 issues of public importance and complex and difficult issues. The Court finds that AliveCor’s
4 arguments are insufficient to overcome the presumption in favor of awarding costs.
5 This action, while of interest to the public, is fundamentally a dispute between AliveCor
6 and Apple. AliveCor provides citation only to civil rights cases where the court determined
7 imposing costs on plaintiffs of modest means would risk chilling future civil rights litigation. See
8 Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 593 (9th Cir. 2000) (noting
9 case raised “issues of the gravest public importance” regarding public school employment exam
10 with disproportionate failure rates by members of racial minorities); Darensburg v. Metro. Transp.
11 Comm'n, No. C-05-01597 EDL, 2009 WL 2392094, at *2 (N.D. Cal. Aug. 4, 2009) (noting
12 allegations of race discrimination in transit funding were of public importance). There is no
13 similar public interest or risk of chilling litigation here, where AliveCor represents it has sufficient
14 means to pay costs and where AliveCor’s proposed antitrust market consisted of, at most, three
15 companies.
16 The Court agrees with AliveCor that the issues were close and difficult, but difficulty alone
17 is not enough to justify a denial of costs in this case. As Apple points out, the Court resolved
18 AliveCor’s claims using “previously defined standards” rather than a “novel legal development.”
19 Freyd v. Univ. of Oregon, No. 6:17-CV-00448-MC, 2019 WL 5682512, at *3 (D. Or. Oct. 25,
20 2019); (Dkt. No. 300, at 5). Where the case does not “raise complex or novel legal issues,” a
21 declination to impose costs is not warranted. Fowler v. California Highway Patrol, No. 13-CV-
22 01026-TEH, 2014 WL 3965027, at *6 (N.D. Cal. Aug. 13, 2014).
23 AliveCor’s remaining objection to deposition transcript and recording costs was addressed
24 by the Clerk, who reduced the transcript and recording costs substantially. The Court finds the
25 Clerk’s taxation of prevailing party costs is proper.
26 C. The Court Declines to Enter a Stay.
27 AliveCor requests a stay of enforcement without a supersedeas bond pending appeal. A
1 execution without a bond or alternate form of security. Fed. R. Civ. Proc. 62; Cotton ex rel.
2 || McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999, 1027 (N.D. Cal. 2012) (noting courts have
3 “broad discretionary power to waive the bond requirement if it sees fit”) (quoting Townsend v.
4 || Holman Consulting Corporation, 881 F.2d 788, 796-97 (9th Cir. 1989)). “A waiver of the bond
5 || requirement may be appropriate where: (1) the defendant's ability to pay the judgment is so plain
6 || that the cost of the bond would be a waste of money; and (2) the opposite case, where the
7 || requirement would put the defendant's other creditors in undue jeopardy.” /d. (quoting Olympia
8 || Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir.1986)) (internal marks
9 || omitted).
10 While AliveCor states that it can pay the judgment, it provides no admissible evidence to
11 that effect. AliveCor does not argue that the cost of the bond would waste money, and Apple
12 || protests that AliveCor did not seek its consent to request a stay. In contrast and by way of
13 example, in the case cited by AliveCor, the party requesting a stay without a supersedeas bond
14 || obtained consent from the prevailing party, provided a detailed declaration of its assets, and
3 15 committed to submitting quarterly and annual financial statements while the appeal was pending.
a 16 || Am. Color Graphics, Inc. v. Travelers Prop. Cas. Ins. Co., No. C 04-3518 SBA, 2007 WL
2 17 1520952, at *2 (N.D. Cal. May 23, 2007). AliveCor’s request here lacks any similar support or
Z 18 || reassurances to the Court and Apple. Thus, the Court denies the request.
19 CONCLUSION
20 For the foregoing reasons, the Court awards $80,983.10 to Apple in costs as originally
21 taxed by the Clerk. (See Dkt. No. 301.)
22 IT IS SO ORDERED.
23 || Dated: March 28, 2024 /)
04 \ | A ( f / A
JEEFREY Si WHITE“
25 Uinjted Sjates Distri€t Judge
26 {/ ey
27
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