                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAYNA PADULA,                                     No. 11-17117

              Plaintiff - Appellant,              D.C. No. 2:05-cv-00411-MCE-
                                                  EFB
  v.

ROBERT MORRIS; et al.,                            MEMORANDUM*

              Defendants - Appellees.


                   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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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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