CIANCI v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (2025)

ORDER

On January 25, 2025, Plaintiff Michael Cianci filed a Motion to Voluntarily Dismiss Complaint for Mootness pursuant to Federal Rule of Civil Procedure 41(a)(2) (Doc. 32), to which Defendant responded (Doc. 33), and Plaintiff replied (Doc. 34). For the reasons set forth below, the Court will grant the Motion to the extent it seeks dismissal without prejudice, with each party bearing its own attorneys’ fees and costs. However, the Motion will be denied to the extent it asks the Court to redefine Freedom of Information Act (“FOIA”)-related administrative fees as “costs.”

I. Background

Plaintiff, who is proceeding pro se, initiated this action by filing a Complaint asserting claims under the Privacy Act, 5 U.S.C. § 552a, and FOIA, 5 U.S.C. § 552. (Doc. 1.)¹ In his Motion to Voluntarily Dismiss Complaint for Mootness, Plaintiff asserts that Defendant's record production has adequately addressed his inquiries, thereby rendering his claims moot. (Doc. 32.) Plaintiff's accompanying Proposed Order includes language specifying that “[a]ll parties” shall “bear their own costs and attorneys fees.” (Doc. 32-1.) The Proposed Order further states that “[c]osts include any production of records costs, including any search, review[,] copying or other administrative fees incurred by [D]efendant.” (Id.)²

In its Response, Defendant contends that Plaintiff's proposed definition of “costs” lacks a legal basis and does not align with Ninth Circuit precedent. (Doc. 33 at 1.) Quoting Moskowitz v. American Savings Bank, F.S.B., 37 F.4th 538, 543-44 (9th Cir. 2022), Defendant asserts that costs typically include only “ ‘charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees.’ ” (Id. at 1-2.) Defendant further notes that Plaintiff failed to present any argument on this issue in his Motion. (Id. at 2.) Defendant urges the Court to reject Plaintiff's request to redefine costs and to instead issue a standard dismissal without prejudice, with each party bearing its own costs. (Id.)

In his Reply, Plaintiff argues that FOIA-related administrative fees should be categorized as “costs” under 28 U.S.C. § 1920(3) and (4), which reference fees for printing, witnesses, exemplification, and making necessary copies. (Doc. 34 at 2.) Plaintiff asserts that FOIA cases inherently involve the production of records, making such fees central to the statute's scope. (Id.) Plaintiff further contends that (1) his proposed language is “necessary to avoid having to come right back to Court when [D]efendant attempts to punitively assess exorbitant fees,” (2) the Ninth Circuit's decision in Moskowitz is inapplicable, (3) Defendant failed to provide timely notification of estimated costs, and (4) Defendant's regulations prohibit it from seeking costs related to producing records. (Id.) Plaintiff emphasizes that many of the records produced are irrelevant, heavily redacted, or do not directly pertain to his requests. (Id. at 4.) Finally, Plaintiff asserts that he qualifies as the “prevailing party” for purposes of recovering costs. (Id. at 7.)

II. Relevant Law

“Costs” in the context of Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920 are “limited by statute” and confined to “relatively minor, incidental expenses as is evident from § 1920.” Taniguchi v. Kan P. Saipan, Ltd., 566 U.S. 560, 573 (2012). District courts generally do not have the discretion to expand the definition of costs beyond the items expressly listed in § 1920. See id. (“we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in § 1920”). Section 1920 specifies that a court may tax:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920; see also LRCiv 54.1(e) (similarly listing taxable items).

III. Discussion

Having reviewed the parties’ briefs and the relevant law, the Court can find no legal basis to support Plaintiff's assertion that FOIA-related administrative fees should be categorized as costs under § 1920. Plaintiff has not cited any controlling authority within the Ninth Circuit or elsewhere that extends § 1920 to include such fees, and both the Supreme Court and Ninth Circuit have firmly rejected expansive interpretations of taxable costs. See, e.g., Taniguchi, 566 U.S. at 573 (noting that “[t]axable costs” represent a “fraction of the nontaxable expenses borne by litigants,” and thus, “almost always amount to less than the successful litigant's total expenses in connection with a lawsuit”) (internal quotations omitted).³

Furthermore, in In re Online DVD-Rental Antitrust Litigation, the Ninth Circuit clarified that § 1920(4) should be narrowly construed to limit copying costs to the physical preparation and duplication of documents, rather than including the intellectual or broad electronic discovery efforts involved in their production. 779 F.3d 914, 929 (9th Cir. 2015). The Court further emphasized that detailed descriptions are required to determine whether costs are for making copies, and generic terms such as “document production” are insufficient. Id. at 928. This case contradicts Plaintiff's request to broadly categorize FOIA-related administrative fees as “costs” and suggests that Ninth Circuit precedent does not support Plaintiff's argument.⁴

Plaintiff is correct that Moskowitz involved a different procedural context. See Moskowitz, 37 F.4th at 542–43 (9th Cir. 2022) (addressing the definition of court costs under Federal Rule of Civil Procedure 41(d), which “allows a court to award ‘costs’ incurred in litigation to a party if the plaintiff dismissed that litigation and then filed another suit based on the same claims, against the same defendant”). However, as relevant here, Moskowitz emphasizes that costs under § 1920 are generally confined to statutory categories. Id. (“ ‘Costs’ is a term which has a long-standing definition: the items which are listed in 28 U.S.C. §§ 1920, 1923.”) (citing Black's Law Dictionary (11th ed. 2019) (defining “costs” as “[t]he charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees.”)). Plaintiff's reliance on § 1920(3) and (4) is unpersuasive, as those provisions do not contemplate the inclusion of FOIA-related fees within their scope.

For the foregoing reasons, the Court declines to adopt Plaintiff's proposed definition of “costs.” Accordingly,

IT IS ORDERED that Plaintiff's Motion to Voluntarily Dismiss Complaint for Mootness (Doc. 32) is granted in part and denied in part. Pursuant to Federal Rule of Civil Procedure 41(a)(2), the Motion is granted to the extent that Plaintiff's claims are dismissed without prejudice, with each party to bear its own attorneys’ fees and costs as described herein. The Motion is denied to the extent it seeks to define FOIA-related administrative fees as “costs.” The Clerk of Court is directed to close this case and term all pending motions.

FOOTNOTES

1.   Plaintiff is a licensed attorney in Arizona. (Doc. 1 at 9.)

2.   Plaintiff's Motion to Voluntarily Dismiss Complaint also includes the following footnote:Agency FOIA regulations limit all administrative fees and copying fees an agency may charge to an amount a requestor agrees to pay. The Privacy Act regulations do not authorize any costs for administrative search, review, or processing fees. Plaintiff requested waiver of all fees. The agency's FOIA/PA portal until sometime after the lawsuit was filed reflected Plaintiff would consent to pay no more than $25.00 in fees. 45 C.F.R. Part 5 (Sec. 5.51); 45 C.F.R. Part 5b (5b.13).(Doc. 32 at 4, n.1.)

3.   The Court notes that Defendant is correct that Plaintiff failed to provide any argument in his initial Motion to Voluntarily Dismiss to support his proposed definition of costs. See LRCiv 7.2(b) (mandating that a memorandum accompanying a motion include the points and authorities relied upon to support the motion to ensure all parties have adequate notice and an opportunity to respond to the arguments presented).

4.   Additionally, this Court is concerned that expanding the definition of costs to encompass FOIA-related administrative fees could complicate future litigation and enable plaintiffs to evade these expenses by reclassifying them as court costs in voluntary dismissals.

Rosemary Márquez, United States District Judge