Johnson v. Gibson et al

Filing 73

OPINION and ORDER - Defendants' Cost Bill 66 in the amount of $6,514.48 is DENIED. DATED this 8th day of April, 2013, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

EMILY JOHNSON,

Case No.: 3:11-CV-432-AC
Plaintiff,

OPINION AND ORDER

v.
SCOTT GIBSON and ROBERT
STILLSON,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Presently before the court is a cost bill filed by defendants Scott Gibson (“Gibson”) and
Robert Stillson (“Stillson”) (collectively “Defendants”). Defendants seek to recover a total of
$6,514.48 in costs from plaintiff Emily Johnson (“Johnson”). Johnson opposes the imposition of
any costs based on her financial status and inability to pay, as well as the considerable merit of her
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case and her good faith in bringing the action. Alternatively, Johnson objects to the reasonableness
of many of the requested costs. The court finds1 that Johnson in financially unable to bear the burden
of Defendants’ costs and denies Defendants’ cost bill in its entirety.
Background
Johnson filed a negligence action against Defendants seeking to recover damages for injuries
she sustained while jogging in Tom McCall Waterfront Park. Defendants, employees of the City of
Portland, were responsible for the conditions that resulted in Johnson’s injuries. The court denied
Defendants’ motion to dismiss for lack of diversity jurisdiction on August 3, 2011, finding that
Johnson was domiciled in the State of Washington at the time she filed this action. Johnson v.
Gibson, No. 3:11-CV-00432-AC, 2011 WL 3359974 (D. Or. Aug. 3, 2011). Then, on January 14,
2013, the court granted summary judgment in favor of Defendants. Johnson v. Gibson, No. 3:11CV-432-AC, 2013 WL 145812 (D. Or. Jan. 14, 2013). The court found, as a matter of first
impression, that Defendants were properly characterized as “owners” under Oregon’s Public Use
Land Act and entitled to protection under the Act, and that providing immunity to Defendants under
the Public Use Land Act did not violate the “remedy clause” found in Article I, section 10, of the
Oregon constitution. Defendants filed their cost bill on January 28, 2013.
Legal Standard
The specific items a prevailing party may recover as costs are listed in 28 U.S.C. § 1920, and
include:
(1)

Fees of the clerk and marshal;

1

The parties have consented to jurisdiction by magistrate in accordance with 28 U.S.C.
§ 636(c)(1).
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(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.
Costs “should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1)(2012). This rule
creates a presumption in favor of awarding costs to the prevailing party; if a district court departs
from that presumption, it must provide an explanation so that the appellate court can determine
whether the district court abused its discretion. See, e.g. Ass’n of Mexican- American Educators v.
California, 231 F.3d 572, 592-93 (9th Cir. 2000)(en banc)(if disallowing costs, the district court
should “explain why a case is not ‘ordinary’ and why, in the circumstances, it would be inappropriate
or inequitable to award costs.”). See also Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th
Cir. 2003)(district court “need only find that the reasons for denying costs are not sufficiently
persuasive to overcome the presumption in favor of an award.”). Courts, however, are free to
construe the meaning and scope of the items enumerated as taxable costs in § 1920, Taniguchi v.
Kan Pacific Saipan, Ltd., 633 F.3d 1218, 1221 (9th Cir. 2011); Aflex Corp. v. Underwriters Lab.,
Inc., 914 F.3d 175, 177 (9th Cir. 1990)(per curiam), and even if a party satisfies the definition of
prevailing party, the district court retains broad discretion to decide how much to award, if anything.
Farrar v. Hobby, 506 U.S. 103, 115-16 (1992). See also Arboireau v. Adidas Salomon AG, No. 01105-ST, 2002 WL 31466564, at *4 (D. Or. June 14, 2002)(trial judge has wide discretion in
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awarding costs under FRCP 54(d)(1)). In exercising this discretion, the court may consider the
amount of costs involved; a plaintiff’s ability to pay the costs, including the possibility that the award
may leave the plaintiff indigent; and the potential chilling effect on any future civil rights litigants
if the costs were imposed. Stanley v. Univ. of S. California, 178 F.3d 1069, 1079 (9th Cir. 1999).
Additionally, a finding that the issues in the case were close and complex may provide further
justification for the denial of costs. Mexican- American Educators, 231 F.3d at 593. Ultimately, it
is “incumbent upon the losing party to demonstrate why the courts should not be awarded.” Id.
Discussion
In a declaration filed with her objections to Defendants’ cost bill, Johnson, who is legally
blind, represents that she is unemployed and that her sole source of income is social security
disability benefits of $1,000 per month. (Johnson Decl. ¶ 3.) She lives in a rented apartment with
her new husband and baby, and has no assets other than an older-model, specially-equipped
computer for legally blind individuals which has a value of less than $3,000. (Johnson Decl. ¶¶ 3,
7.) Johnson represents that all of the costs incurred by her in this action have been advanced by her
attorney and that liens have been filed against her for medical costs not covered by medical
insurance. (Johnson Decl. ¶¶ 4-5.)
The court finds that an award of costs against Johnson would be unduly burdensome in light
of her limited financial resources, her disability, and her injuries. While the amount requested by
Defendants appears reasonable by federal litigation standards, it represents a significant financial
burden for Johnson, especially when viewed in light of her pending financial obligations to her
attorney and medical providers resulting from the accident. In addition, Johnson’s negligence claim
against Defendants raised close and complex novel issues requiring construction of Oregon’s
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constitution and statutes. Under the circumstances, the court exercises its discretion to deny an
award of costs to Defendants.
Conclusion
Defendants’ cost bill in the amount of $6,514.48 is DENIED.
DATED this 8th day of April, 2013.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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