Dayna Padula v. Robert Morris;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAYNA PADULA,
Plaintiff - Appellant,
v.
ROBERT MORRIS; et al.,
Defendants - Appellees.
No. 11-17117
D.C. No. 2:05-cv-00411-MCE-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Chief District Judge, Presiding
Argued and Submitted April 16, 2013
San Francisco, California
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Plaintiff Dayna Padula appeals the district court’s award of costs to the
defendants following a jury verdict in favor of the defendants. We reverse and
remand.
FILED
AUG 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Padula argues that the district court erred when it failed to consider her
indigence or inability to pay the award of costs because her declaration was
unsigned. We agree. The record contained another copy of the declaration
opposing costs and an IFP affidavit, both signed under penalty of perjury, when the
district court ruled on costs and denied the IFP motions. Because the district court
incorporated its ruling from the IFP order into the costs order and the IFP motions
included evidence of Padula’s inability to pay, the district court should have
considered her ability to pay costs. See Save Our Valley v. Sound Transit, 335
F.3d 932, 945 (9th Cir. 2003); Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079-80
(9th Cir. 1999). We express no opinion on whether the district court should or
should not tax costs against Padula. The district court has discretion to refuse to
tax costs.
The district court did not abuse its discretion when it held that defendants’
errors in the first bill of costs, which were immediately corrected after Padula’s
objection, did not rise to the level of misconduct that warranted the punishment of
a total denial of costs. Dawson v. City of Seattle, 435 F.3d 1054, 1071 (9th Cir.
2006).
The district court did not abuse its discretion by taxing deposition transcript,
PACER, and copy costs. Disallowance for expenses of depositions not used at trial
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is within the district court's discretion. Wash. State Dep't of Transp. v. Wash.
Natural Gas Co., 59 F.3d 793, 806 (9th Cir. 1995) (citing Economics Laboratory,
Inc. v. Donnolo, 612 F.2d 405, 411 (9th Cir.1979)). Thus, the district court was
permitted to tax the costs in its discretion, even if the materials were not used at
Padula’s trial. Sea Coast Foods, Inc. v. Lu-Mar Lobster & Shrimp, Inc., 260 F.3d
1054, 1061 (9th Cir. 2001).
The district court abused its discretion by taxing $328.00, defendants’ half
of the cost for airline tickets for the Padula and Feri depositions, because the
parties agreed to split these costs. On remand, the district court should consider
earlier agreements between the parties to pay costs if it taxes costs against Padula.
REVERSED AND REMANDED.
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