Opinion
No. CV-09-8139-PCT-FJM.
October 24, 2011
ORDER
The court has before it defendants' motion for attorney's fees (doc. 141) and memorandum in support (doc. 157), plaintiff's response (doc. 167), and defendants' reply (doc. 170). We also have before us plaintiff's motion to modify clerk's judgment on taxation of costs (doc. 168), defendants' response (doc. 169), and plaintiff's reply (doc. 171).
Plaintiff filed this action against the City of Prescott and individual City employees asserting 13 claims related to his discharge, including wrongful discharge and retaliation in violation of state and federal law, breach of contract, intentional interference with contract, intentional and negligent infliction of emotional distress, and violations of his first amendment and equal protection rights under the United States Constitution. Plaintiff argued that his discharge was in retaliation for his complaining about Fair Labor Standards Act (FLSA) and workplace safety violations. Plaintiff also filed a separate claim for attorney's fees related to a settlement of his FLSA wage claim. He succeeded on this claim only. The 12 other claims were resolved in defendants' favor on summary judgment, directed verdict, or jury verdict following a six-day trial.
Taxation of Costs
The clerk of the court apportioned the taxation of costs, awarding defendants costs in the amount of $9,378.51 and plaintiff costs in the amount of $256.60. Plaintiff now asks us to modify the clerk's judgment on taxation of costs to require each party to bear its own costs. He argues that the City should be awarded no costs because he prevailed on one small aspect of the case regarding attorney's fees on the FLSA settlement.
Under Rule 54(d)(1), Fed.R.Civ.P., costs are awarded to the prevailing party. We have discretion, however, to apportion or deny costs where there is a mixed judgment. Economics Lab., Inc. v. Donnolo, 612 F.2d 405, 411 (9th Cir. 1979) ("The district court has broad discretion in apportioning and taxing costs where, as here, neither party completely prevailed.") (citation omitted). Defendants prevailed on 12 of the 13 claims. They are clearly the prevailing party. We conclude that the clerk of the court reasonably apportioned costs based on each parties' relative success on the claims.
Plaintiff also argues that even if we determine that apportionment is appropriate we should reduce the judgment by certain non-taxable amounts. We reject defendants' argument that these claims were waived because they were not presented to the clerk for consideration. Our review indicates that each issue was raised, albeit broadly, in plaintiff's objections to defendants' bill of costs. See doc. 143.
Plaintiff first argues that $652.12 in witness fees paid to defendant parties testifying in their own behalf are not recoverable and should be omitted from the taxation of costs. See LRCiv 54(e)(4). Defendants argue that they testified as fact witnesses, not party witnesses, after the individual defendants were dismissed from the case. But the individual defendants were not dismissed from the case until after the plaintiff's close of evidence on defendants' motion for judgment as a matter of law.See Minute Entry (doc. 123). At the time the individual defendants were subpoenaed and paid witness fees, they were still defendants in the case. See Defendants' Bill of Costs (doc. 140). We agree with plaintiff that witness fees paid to party defendants in the amount of $652.12 should be subtracted from the clerk's judgment.
Plaintiff also challenges the clerk's taxation of costs for copies of plaintiff's workers' compensation claims file obtained from the Industrial Commission in the amount of $531.25. Plaintiff argues that defendants made no showing that the records were necessarily obtained from a third-party records custodian or were admitted into evidence at trial. See LRCiv 54.1(e)(5). A bill from the Industrial Commission is attached to defendants' bill of costs, sufficiently establishing that these copies were obtained from a third-party custodian. Moreover, it is undisputed that portions of the file were admitted into evidence by both parties. Therefore, this cost was properly taxed to plaintiff.
Finally, plaintiff challenges taxation of a $12.00 fee related to a subpoena for medical records, because the subpoena was issued after discovery had closed. We agree that costs related to out of time discovery are not taxable and accordingly reduce the taxable amount by $12.00.
We therefore reduce the clerk's taxation of costs by a total of $664.12, for a modified cost award to defendants of $8,714.39.
Attorney's Fees
Defendants seek an award of attorney's fees on a variety of legal theories, including 42 U.S.C. § 1988, A.R.S. §§ 12-341, 12-341.01(A), (B), and (C), and Rules 11(a) and 41(a) and (d), Fed.R.Civ.P. They incorrectly argue that as the prevailing party they are entitled to fees under 42 U.S.C. § 1988 "unless special circumstances would render such an award unjust."Memorandum at 4 (citing Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 1937 (1983)). Defendants ignore the well-established rule that fee shifting to a prevailing defendant under § 1988 is available only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978). Defendants have made no showing that plaintiff's federal claims meet this test.
Defendants other purported bases for attorney's fees are similarly inapplicable. A.R.S. § 12-341 is irrelevant because it provides for recovery of taxable costs, not attorney's fees. Rules 11(a) and 41(a) and (d), Fed.R.Civ.P., provide no basis for an award of fees. A.R.S. § 12-341.01(A) and (B) relate to an award of attorney's fees in an action arising out of contract. Although plaintiff originally asserted contract claims, these claims were an insignificant part of plaintiff's action. Defendants make no effort to limit fees to the contract claims or otherwise attempt to support an award of fees under § 12-341.01(A). See Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).
Defendants abandon each of these bases for the recovery of fees by not responding to plaintiff's objections, instead focusing solely on recovery of fees under A.R.S. § 12-341.01(C) in their reply. Section 12-341.01(C) provides for attorney's fees only "upon clear and convincing evidence that the claim . . . constitutes harassment, is groundless and is not made in good faith." Defendants contend that plaintiff's claim that he was wrongfully discharged because he made workplace safety complaints to ADOSH were groundless and not made in good faith. They argue that plaintiff must have known that A.R.S. § 23-425 does not provide for a private cause of action. Not only is this an insufficient showing under § 12-341.01(C), but the argument was raised for the first time in defendants' reply brief. We will not consider an argument raised for the first time in a reply. Gadda v. State Bar of Cal., 511 F.3d 933, 937 n. 2 (9th Cir. 2007).
IT IS ORDERED GRANTING plaintiff's motion to modify clerk's judgment on taxation of costs (doc. 168). Costs are taxed for the defendants in the modified amount of $8,714.39.
IT IS FURTHER ORDERED DENYING defendants' motion for an award of attorney's fees (doc. 141).
DATED this 21st day of October, 2011.