Zarco v. VWR International, LLC

Background

Emmanuel Zarco sued VWR International, LLC, Avantor, Inc., and Avantor Performance Materials, Inc. He alleged violations of the California Fair Employment and Housing Act and public policy. On May 13, 2021, the court granted Defendants’ motion for summary judgment. Defendants then submitted a memorandum of costs seeking $6,690.86 from Zarco.

Zarco moved to strike that memorandum. The court also ordered supplemental briefing on whether it should use its discretion under Federal Rule of Civil Procedure 54(d) to deny Defendants’ costs.

Governing law

The court held that the issue of costs was procedural, meaning that federal procedural law—not California law—controlled. Federal Rule of Civil Procedure 54(d)(1) generally creates a presumption that costs other than attorney’s fees will be awarded to the prevailing party, but it gives the district court discretion to refuse costs.

The court rejected Zarco’s argument that California Government Code section 12965(b) controlled. That California law generally limits a prevailing defendant’s recovery of fees and costs in Fair Employment and Housing Act cases unless the plaintiff’s action was frivolous, unreasonable, or groundless. The court found that an exception applying state law to damages-related provisions did not apply because costs under the Fair Employment and Housing Act were not linked to a substantive damages provision.

Reasons for striking the cost memorandum

The court considered recognized factors for deciding whether to deny costs:

- Public importance: The factor was neutral. The case involved employment protections and Zarco’s request for unpaid leave while awaiting a heart transplant, but the court did not find that this factor favored either side. - Closeness and difficulty: This factor favored awarding costs to some degree, because summary judgment was granted after the court found that Zarco had not presented a triable issue of fact. But the court emphasized that Zarco’s claims were not frivolous or brought in bad faith. The court also noted that the law did not expressly set a maximum period for leave under the Fair Employment and Housing Act. - Chilling effect: This factor weighed heavily against awarding costs. The court found that a $6,690.86 award could discourage workers, particularly workers with low incomes, from bringing employment-discrimination lawsuits. - Zarco’s financial resources: This factor also weighed heavily against awarding costs. Zarco stated that he had not worked since August 2021, had earned $1,800 per month as a caregiver while the summary-judgment motion was being litigated, struggled to meet living expenses, and could not afford the requested costs. - Economic disparity: This factor weighed heavily against awarding costs. Zarco alleged that Avantor had $868 million in free cash flow in 2020 and that VWR had more than $4 billion in annual revenue. Defendants referred to themselves as “deep-pocketed,” but did not directly address their financial resources in their supplemental brief.

Disposition

The court found that Zarco had adequately rebutted the presumption favoring an award of costs. Judge Haywood S. Gilliam, Jr. granted Zarco’s motion to strike Defendants’ memorandum of costs, Dkt. No. 59.