Marylon Boyd v. City and County of San Francis

FILED
NOT FOR PUBLICATION SEP 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARYLON MARIE BOYD, individually No. 08-16934
and as Executor of the Estate of Cammerin
Boyd, deceased; et al., D.C. No. 3:04-cv-05459-MMC
Plaintiffs - Appellants,
MEMORANDUM *
v.
CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted August 23, 2010 **
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Marylon Boyd, Isabel Gonzales, and Kanani Boyd (collectively “plaintiffs”)
appeal from the district court’s post-trial award of costs to defendants as prevailing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
parties in plaintiffs’ civil rights action for excessive force. We have jurisdiction
under 28 U.S.C. § 1291. We review for abuse of discretion, Miles v. California,
320 F.3d 986, 988 (9th Cir. 2003), and we affirm.
The district court did not abuse its discretion in finding that plaintiffs waived
their right to challenge the award of costs. Plaintiffs neither filed timely objections
to defendants’ bill of costs, nor met and conferred beforehand as required by then-
applicable local rules. See N. D. Cal. Civ. L.R. 54-2 (2008). Moreover, they
subsequently failed to comply with the deadline for filing a timely motion to
review the clerk’s taxation of costs. See Fed. R. Civ. P. 54(d)(1) (2008); N.D. Cal.
Civ. L.R. 54-5 (2008); Walker v. California, 200 F.3d 624, 625-26 (9th Cir. 1999)
(per curiam) (party may demand judicial review of a cost award only if it filed a
proper motion to review within five days after the clerk’s notice of taxation of
costs under former Federal Rule of Civil Procedure 54(d)(1)).
To the extent that we have discretion to consider plaintiffs’ challenge to the
costs award, we conclude that, on this record, they do not overcome the strong
presumption favoring an award of costs to the prevailing party. See Fed. R. Civ. P.
54(d)(1) (“Costs other than attorneys’ fees shall be allowed as of course to the
prevailing party unless the court otherwise directs.”); Save Our Valley v. Sound
Transit, 335 F.3d 932, 944-45 (9th Cir. 2003) (losing party must establish reason
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to deny costs by overcoming “[t]he presumption [which] itself provides all the
reason a court needs for awarding costs”).
Plaintiffs’ motion for judicial notice is granted. Their remaining contentions
are unpersuasive.
AFFIRMED.
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