Opinion
NO. CIV. S-08-176 LKK/EFB PS.
January 14, 2010
O R D E R
Pending before the court is defendants' request for an award of costs as the prevailing party. On September 28, 2008, the court adopted the findings and recommendations of the magistrate judge assigned to this case, dismissing plaintiff's claims with prejudice. Defendants submitted a bill of costs on October 8, 2008. The primary costs are overnight delivery fees for delivery to plaintiff of correspondence requesting dismissal, of service of the motion to dismiss, and of service of the amended motion to dismiss. These three overnight deliveries cost $88.66.
Plaintiff then filed objections to the bill of costs together with an appeal of the dismissal of her case. Plaintiff's primary objection to the bill of costs is that defendants should not have succeeded on the merits. On December 14, 2009, the Ninth Circuit affirmed the judgment of this court. It is therefore clear that defendants are the prevailing party.
Plaintiff also objects to the use of overnight courier, rather than the regular U.S. First Class mail, to effect delivery and service documents in this case, namely a letter requested dismissal, a motion to dismiss, and an amended motion to dismiss. Defendant argues that these fees are proper as fees for service of process under 28 U.S.C. § 1921(a)(1)(A). Although a process server may be taxed as costs, Alflex Corp. v. Underwriters Lab., 914 F.2d 175, 178 (9th Cir. 1990) (per curiam), courts have on occasion declined to award the costs of express delivery services where "[i]t is unclear why many of the documents served could not have been served through the mail." B H Mfg. Co. v. Bright, No. Civ. 01-6619, 2006 U.S. Dist. LEXIS 12249, *38-39 (E.D. Cal. Mar. 3, 2006) (Ishii, J.). This is true here. The court therefore exercises its discretion and declines to award costs for the $88.66 in overnight delivery fees.
The only remaining cost is $2.40 for photocopying expenses. The court concludes, as an exercise of discretion, that an award of solely $2.40 in costs is unjust, as the burden in collecting this cost necessarily outweighs the cost itself — such collection would merely needlessly prolong the litigation and burden the parties.
Accordingly, defendants are not entitled to an award of costs. This case has already been closed, and no further action is necessary in this case.
IT IS SO ORDERED.