1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Gina Rosado, No. 2:22-cv-02302-KJM-CKD 12 Plaintiff, ORDER 13 v. Leprino Foods Company, 1S Defendant. 16 17 The court granted defendant Leprino Food Company’s motion for summary judgment in a 18 | previous order and entered judgment in Leprino’s favor. Order, ECF No. 22; Judgment, ECF 19 | No. 23. Leprino then submitted a bill of costs. ECF No. 24. Plaintiff Gina Rosado objects to the 20 | bill of costs. ECF No. 25. She argues California law applies to this question, and she contends 21 | California law does not permit a court to tax a defendant’s costs in a case like this one unless the 22 | plaintiffs claims were “unreasonable, frivolous, meritless or vexatious.” /d. at 3 (emphasis 23 | omitted). She argues her claims do not fit that description, but rather were reasonable, albeit 24 | unsuccessful in the end. See id. at 3-4. In the alternative, she asks the court to exercise its 25 | discretion not to tax costs under Rule 54, see id. at 4-6, or to postpone any award of costs until 26 | after any appeal, see id. at 6. 27 Although state law supplied the substantive legal rules that this court followed in its 28 | previous order, this court must follow federal procedural rules, such as Federal Rule of Civil

1 Procedure 54, which allows a federal court to tax costs at the conclusion of a civil action. See 2 Champion Produce, Inc. v. Ruby Robinson Co.,

(9th Cir. 2003); Aceves v. 3 Allstate Ins. Co.,

(9th Cir. 1995). A federal court refers to a relevant state 4 rule only if that rule is “substantive in nature,” for example if it defined litigation costs as a 5 component of damages. See Clausen v. M/V New Carissa,

(9th Cir. 2003). 6 Rosado argues this court should employ the relevant California rules on costs and fees, but 7 she relies primarily on cases in which federal courts were deciding whether to award attorneys’ 8 fees, not costs, to a prevailing defendant. See Objections at 2–3 (citing Rodriguez v. City of 9 Colton,

(9th Cir. 2016) (unpublished), aff’g No. 07-00303,

12203017 (C.D. Cal. Oct. 15, 2013)). Leprino has not asked for an award of the attorneys’ fees it 11 incurred, so the court need not decide whether federal or California law would permit a defendant 12 to obtain attorneys’ fees in this situation. 13 On the question of costs, the Ninth Circuit appears not to have decided in any binding 14 opinion whether the state law at issue in a case—here, the California Fair Employment and 15 Housing and Family Rights Acts, more commonly known as the “FEHA” and “CFRA,” 16 respectively—define costs or fees in the “substantive” sense. The Circuit has confronted this 17 question in only a nonbinding, unpublished memorandum disposition; it decided the state’s cost 18 rules were procedural, not substantive. See Duran v. Stock Bldg. Supply W., LLC,

777, 779 (9th Cir. 2017). District courts within California are divided, but the majority has 20 reached the same conclusion as the panel did in Duran. Compare, e.g., Olvera v. Quest 21 Diagnostics, No. 19-06157,

, at *2 (C.D. Cal. Oct. 22, 2020) (“[T]he costs 22 provision in FEHA is not substantive.”); Jones v. Cnty. of El Dorado, No. 17-02128,

363916, at *3 (E.D. Cal. Jan. 22, 2020) (“[C]osts are not substantive in nature and federal law 24 governs.”); and Buhl v. Abbott Lab’ys, No. 17-04244,

, at *1–2 (N.D. Cal. 25 Oct. 16, 2019) (following Duran and awarding costs under the federal rule rather than applying 26 the state rule) with Villalobos v. TWC Admin. LLC, No. 15-2808,

, at *1 (C.D. 27 Cal. June 8, 2016) (applying state rule in rejection of defense contention it was procedural rather 28 than substantive). This court adopted the majority position in a previous case and declines to 1 revisit that decision now. See Cosby v. Autozone, Inc., No. 08-00505,

, at *11– 2 13 (E.D. Cal. Apr. 25, 2016). In other words, Leprino may seek costs under Rule 54 even if 3 Rosado’s claims were not “unreasonable, frivolous, meritless or vexatious” under California law. 4 At the same time, as Rosado correctly points out, federal district courts do have discretion 5 not to award costs to a prevailing defendant under Rule 54. See Objections at 4 (citing Escriba v. 6 Foster Poultry Farms, Inc.,

(9th Cir. 2014)). “That discretion is not 7 unlimited. A district court must ‘specify reasons’ for its refusal to award costs.” Ass’n of 8 Mexican-Am. Educators v. California,

, 591 (9th Cir. 2000) (en banc) (quoting 9 Subscription Television, Inc. v. S. Cal. Theatre Owners Ass’n,

(9th Cir. 1978)). 10 The Ninth Circuit has listed several reasons that might support a district court’s decision not to 11 tax costs, including “the substantial public importance of the case,” the need to resolve “close” or 12 “difficult” issues, “the chilling effect” an award of costs might have on “similar actions,” the 13 plaintiff’s “limited” resources, and any disparity between the parties’ financial resources. 14 Escriba, 743 F.3d at 1247–48. The Circuit emphasized this is not an exhaustive compilation, “but 15 rather a starting point for analysis.” Id. at 1248. 16 This case did not include any difficult, particularly close or complex legal or factual 17 issues. As the court summarized in its previous order, state and federal courts have confronted 18 similar disputes in many previous cases. See Order (Apr. 4, 2025) at 6–7. The evidentiary record 19 also was straightforward and undisputed in all relevant respects. See id. at 2–3, 8–9. Although 20 the resolution of this case undoubtedly was important to the parties involved in it, nothing in the 21 record shows it had any unusually important or broader implications. There is no evidence, for 22 example, that federal or state regulators believed this case would “establish the parameters” for 23 future litigation or that the defendant believed it would have a “much broader application to the 24 workplace,” as was true in Escriba.

. Nor does Rosado cite evidence to support 25 her assertion that she has “had to rely on Social Security, California disability benefits, and 26 unemployment,” or quantify that assertion, for example with information about her income, 27 expenses, debts and similar matters. Objections at 5. Despite that lack of evidence, there appears 28 to be no dispute Rosado has limited resources—lesser resources than Leprino, in any event—and 1 that an award of costs in this case might dissuade other plaintiffs from pursuing claims under the 2 FEHA and CFRA. Litigation is expensive, and even “modest costs can discourage potential 3 plaintiffs” with limited means. Escriba,

. 4 If district courts have discretion to reject a bill of costs entirely based on the factors listed 5 above, such as a plaintiff’s limited resources, then district courts also must have discretion merely 6 to reduce an award of costs if the same factors do not justify an outright rejection. See In re Paoli 7 R.R. Yard PCB Litig.,

, 469 (3d Cir. 2000) (“[A] district court, in exercising its 8 equitable discretion, may apportion costs between the prevailing and non-prevailing parties as it 9 sees fit.”). Rule 54 also implies a district court can award less than all costs incurred by the 10 prevailing party. It broadly grants district courts discretion to order “otherwise.” Fed. R. Civ. P. 11 54(d)(1). Because the record and law clearly favored Leprino at the summary judgment stage, the 12 court declines to reject Leprino’s bill of costs outright; but because Rosado has only limited 13 resources, and because a significant award of costs would likely deter claimants with potentially 14 meritorious claims, the court also declines to tax the full amount of Leprino’s costs. The court 15 will therefore impose a fifty percent reduction on any award of costs that would be proper under 16 Rule 54(d). Although the court will reduce the award in this way, it will not postpone that award 17 given that the court has already issued final judgment. 18 Turning then finally to Rule 54, Leprino is entitled only to “costs,” as that word is defined 19 in

. See Crawford Fitting Co. v. J. T. Gibbons, Inc.,

, 441–42 20 (1987). That statute defines “costs” as expenses for clerk and marshal fees, printing, recording, 21 transcripts, docketing, and court-appointed experts. See

(1)–(6). It does not 22 permit the taxation of fees paid to expert witnesses retained by the parties, airfare, hotels or 23 similar expenses. See Cosby,

, at *12. 24 Leprino requests reimbursement of the following costs: 25  Court fees: $1,272.00 26  Service of Summons and Subpoena: $409.90 27  Deposition Transcripts and Videography: $12,341.50 28  Expert Witnesses: $5,625.00 1  Copies: $339.10 2  Docketing Fees under

: $20.00 3  Attorney Travel Costs: $535.48 4 The court denies Leprino’s request for reimbursement of expert witness fees and attorney 5 travel expenses, as those types of expenses are not defined as “costs” in § 1920. The remaining 6 costs are appropriately taxed under Rule 54(d). In total, those costs amount to $14,382.50. After 7 imposing the fifty percent discretionary reduction described above, the court awards Leprino 8 costs of $7,191.25. 9 IT IS SO ORDERED. 10 DATED: May 14, 2025.