Powell v. Adlerhorst International, Inc., et al

Filing 192

Opinion re Bill of Costs (Defendant's) 186 , Order regarding Bill of Costs (Defendant's) 186 . Signed on 04/12/2017 by Judge Michael W. Mosman. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

NATHAN POWELL,
No. 3:14-cv-01827-MO
Plaintiff,
v.

OPINION AND ORDER

ADLERHORST INTERNATIONAL,
INC., a California corporation,
Defendant.

MOSMAN, J.,
This matter comes before me on Adlerhorst International, Inc.’s Bill of Costs [186]. Mr.
Powell objects to an award of costs in general, as well as to specific costs claimed by Adlerhorst.
For the reasons set forth below, Mr. Powell has only partially satisfied his burden of overcoming
the presumption that Adlerhorst, as the prevailing party, is entitled to costs. Accordingly,
Adlerhorst is entitled to a reduced fee award of $1,250.00.
BACKGROUND
Mr. Powell sued Adlerhorst after he was attacked by Azi, a dog that Adlerhorst sold to
Mr. Powell’s employer, the Sherwood Police Department. In December 2015, the matter went to
trial on Mr. Powell’s theories of strict liability and negligence. The jury concluded that Azi was
not unreasonably dangerous, thereby precluding Mr. Powell’s recovery on the basis of strict
liability. The jury’s verdict on negligence, however, was irreconcilable and created the need for a

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second trial. After being significantly narrowed to a negligent failure to warn theory, the case
went to trial for a second time in December 2016. The jury in the second trial concluded that
Adlerhorst had not acted negligently, and accordingly, judgment was entered in favor of
Adlerhorst. Adlerhorst now seeks to recover the costs it incurred from the first and second trials.
LEGAL STANDARD
Federal Rule of Civil Procedure 54 provides that “[u]nless a federal statute, these rules, or
a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). This rule creates a presumption in favor of awarding
costs to a prevailing party, meaning that “the losing party must show why costs should not be
awarded” in any particular case. Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th
Cir. 2003). The district court has discretion to refuse to awards costs, but if it does, it must
provide specific reasons for doing so. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
1247 (9th Cir. 2014) (citing Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 593
(9th Cir. 2000) (en banc)). Ultimately, a district court’s decision regarding costs is reviewed for
abuse of discretion. See Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016).
DISCUSSION
In Escriba, the Ninth Circuit provided five appropriate reasons for denying costs: “(1) the
substantial public importance of the case, (2) the closeness and difficulty of the issues in the
case, (3) the chilling effect on future similar actions, (4) the plaintiff's limited financial resources,
and (5) the economic disparity between the parties.” Escriba, 743 F.3d at 1247-48. These reasons
provide “a starting point for the analysis,” and a losing party does not need to demonstrate all
five factors for a court to deny costs. Draper, 836 F.3d at 1087 (citing Escriba, 473 F.3d at
1248).

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Here, Mr. Powell relies on several of these reasons in arguing that I should exercise
discretion and deny Adlerhorst’s Bill of Costs in its entirety. Alternatively, Mr. Powell argues
that I should deny Adlerhorst’s request for particular costs, such as those pertaining to certain
witnesses and transcripts not referenced during trial.
I.

Adlerhorst’s Bill of Costs in Its Entirety
Mr. Powell relies on several of the reasons from Escriba to argue that Adlerhorst’s Bill of

Costs in its entirety should be denied. I briefly address each of the reasons from Escriba,
recognizing that they are merely a starting point for the analysis.
A. Public Importance
Mr. Powell does not argue that this case is of substantial public importance. In any event,
this case concerns a common law tort rather than the types of civil rights at issue in cases where
the Ninth Circuit has found the denial of costs to be appropriate. See, e.g., Draper, 836 F.3d at
1088; Escriba, 743 F.3d at 1248; Ass’n of Mexican-Am. Educators, 231 F.3d at 593.
B. Closeness and Difficulty of the Issues Presented
Mr. Powell includes only one reference to the issues being close. Specifically, he asserts
“the issues in the case, especially as to negligence, were close.” Mr. Powell provides no
explanation, let alone support, however, as to why the issues were particularly close or
complicated. It is possible that Mr. Powell is correct and that the issues related to negligence in
this case were close. But Mr. Powell made no arguments on this point, and none comes
immediately to mind if I were inclined to make them for him.
C. Chilling Effect on Future Similar Actions
Similar to his argument regarding the closeness of the issues, Mr. Powell makes one
assertion regarding the potential chilling effect of granting costs in this case. He argues that

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forcing “an injured plaintiff to pay for a defendant corporation’s costs . . . could chill future
plaintiffs from pursuing their good faith claims against corporate defendants.” Unlike
Association of Mexican-American Educators, Escriba, or Draper, however, this case does not
involve a “specific class[] of litigants who would be particularly vulnerable to an award of costs
following litigation with an effect beyond the individual litigant.” Redwind v. W. Union, LLC,
No. 3:14-cv-01699-AC, 2017 WL 1025184, at *6 (D. Or. Mar. 16, 2017). Although there is an
inherent chilling effect in awarding costs to Adlerhorst, Mr. Powell has not demonstrated that
such effect is the “type meriting a denial of costs.” Id. The facts of each tort suit are unique, and
the outcome in this case will not likely deter potential plaintiffs who allegedly suffer injuries at
the hands of corporate defendants in the future from bringing their own suits.
D. Mr. Powell’s Limited Financial Resources
Mr. Powell also asserts that awarding costs in this case would impose “a severe financial
burden” upon him and his family. As noted above, a plaintiff’s financial status is an appropriate
consideration when determining whether to award costs to a prevailing defendant. See Escriba,
743 F.3d at 1248. In conducting this inquiry, a district court generally looks at the plaintiff’s
employment status, income, assets, and debts. Redwind, 2017 WL 1025184, at *4. A court may
deny costs “when a plaintiff ‘would be rendered indigent should she be forced to pay’ the
amount assessed.” Escriba, 743 F.3d at 1248 (quoting Stanley v. Univ. of S. Cal., 178 F.3d 1069,
1080 (9th Cir. 1999).
In this case, although Mr. Powell claims the award would impose a severe financial
burden upon him and his family, he provides no information as to his income, assets, or debts
demonstrating that such is the case. Typically, without any supporting financial information, Mr.
Powell cannot overcome the presumption in favor of awarding costs to Adlerhorst. But two jury

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trials in this case have provided me with some minimal insight into Mr. Powell’s financial
picture, enough to support some reduction in costs in light of this factor tipping in Mr. Powell’s
favor.
E. Economic Disparity Between the Parties
Finally, Mr. Powell argues that the economic disparity between the parties supports
denying Adlerhorst’s Bill of Costs. Despite Adlerhorst’s contention that it is a “small, California
corporation,” there is no doubt some economic disparity between Mr. Powell, an individual, and
Adlerhorst, a corporation. And Adlerhorst’s protestation of being small is somewhat belied by
the economic evidence presented in this case. But economic disparity alone is not necessarily
sufficient to overcome the presumption in favor of awarding costs. See Redwind, 2017 WL
1025184, at *4. If it were, every case that involved economically disparate parties would warrant
the denial of costs, making the presumption somewhat meaningless. See id. Here, the relatively
modest economic disparity warrants only a minor cost reduction.
F. Additional Reasons to Deny Costs
In addition to the reasons from Escriba, Mr. Powell argues that I should deny costs
because (1) he brought his claims in good faith, and (2) Adlerhorst refused to settle the case.
Both of these reasons are unconvincing. The fact that Mr. Powell acted in good faith in bringing
these claims does not relieve him of “the obligation under Rule 54(d) to compensate his
opponent for reasonable costs.” Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1472 (9th Cir.
1995), overruled on other grounds by Ass’n of Mexican-Am. Educators, 231 F.3d 572; see also
Nelson v. Fiskars Brands, Inc., No. 3:14-cv-00685-SB, 2015 WL 7306426, at *2 (D. Or. Nov.
19, 2015). Similarly, Adlerhorst’s decision to pursue an affirmative defense and not settle cannot

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serve as a valid reason to deny its costs. These additional reasons are insufficient to overcome
the presumption in favor of awarding costs.
II.

Objections to Specific Costs Claimed by Adlerhorst
As an alternative to his argument that I should deny Adlerhorst’s Bill of Costs in its

entirety, Mr. Powell raises several objections pertaining to specific costs claimed by Adlerhorst.
Ultimately, these objections are unconvincing.
First, Mr. Powell asserts that Adlerhorst should not be able to recover costs related to the
first trial because Adlerhorst did not “prevail” in the first trial. I disagree. In the abstract, I might
hesitate to award costs relating to a first trial to a party who prevailed in a second trial following
a mistrial the first time. But our case does not involve a complete mistrial. After the first trial, the
jury concluded that Adlerhorst was not strictly liable for Azi’s attack on Mr. Powell. Even
though the jury’s finding on negligence necessitated a second trial, the strict liability finding
stuck and prevented Mr. Powell from advancing that theory at the second trial. When viewed in
this context, the result in the first trial had a preclusive effect on the proceedings for the
remainder of the case that was beneficial to Adlerhorst. Thus, Adlerhorst was the prevailing
party at the first trial and is presumably entitled to costs associated with that trial.
Additionally, Mr. Powell argues that costs relating to several witnesses, including
subpoena and witness fees, were unnecessary because Mr. Powell subpoenaed those witnesses
for his case in chief. The fact that Mr. Powell subpoenaed the witnesses does not relieve him
from having to reimburse Adlerhorst for its actual costs associated with those same witnesses.
Adlerhorst could not necessarily rely on Mr. Powell’s subpoena of these individuals and should
not be punished for ensuring that the witnesses were present for trial.

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Finally, Mr. Powell asserts that Adlerhorst is not entitled to costs for deposition
transcripts, trial transcripts, and copies because such items were either not introduced at trial or
not necessary for trial. Generally, a prevailing party is entitled to fees for “printed or
electronically recorded transcripts,” and “copies of any materials” when such items are
“necessarily obtained for use in the case.” 28 U.S.C. § 1920(1)-(4). This does not mean that such
items must be introduced at trial, but if the items were “merely useful for discovery then they
[are] not taxable.” Indep. Iron Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963).
Here, Mr. Powell argues that the deposition transcripts were not necessary because “all of
the deposed witnesses were available for – and testified at – trial.” This argument is unavailing,
however, because deposition transcripts may also be important for purposes of impeachment. See
id. Mr. Powell’s objections relating to the trial transcripts and copies are likewise unconvincing
because, other than making unsupported assertions, he does not demonstrate that such costs were
unnecessary for the second trial. Therefore, I decline to prevent Adlerhorst from recovering these
specific costs.
CONCLUSION
For the reasons above, I find that Mr. Powell has only partially satisfied his burden of
demonstrating that Adlerhorst, as the prevailing party, is not entitled to costs. I find the stated
costs to be reasonably necessary for trial but subject to reduction as explained above. Therefore,
Adlerhorst is entitled to costs in the amount of $1,250.00.
IT IS SO ORDERED.
12
DATED this ______ day of April, 2017.

/s/ Michael W. Mosman
____________________________
MICHAEL W. MOSMAN
Chief United States District Judge

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