Van Patten et al v. Leach et al

Filing 147

OPINION and ORDER - The County's Cost Bill 143 is DENIED. IT IS SO ORDERED. DATED this 24th day of August, 2017, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
MELISSA VANPATTEN, Personal
Representative for the Estate of Melinda
Van Patten,

Case No. 3:15-cv-0891-AC
OPINION AND ORDER

Plaintiff,
v.

WASHINGTON COUNTY, by and through
the Washington County Sheriffs Office,
Defendant.
ACOSTA, Magistrate Judge:
Introduction

This case is before the court on defendant Washington County's ("the County") cost bill.
(ECF No. 143.) Plaintiff Melissa Van Patten ("Plaintiff') filed this lawsuit in 2015, alleging
federal civil-rights violations and state-law causes of action. (ECF No. 1.) Following a grant of
partial summary judgment in favor of the County and a jury verdict on Plaintiffs remaining
claim, the court entered final judgment for Washington County on all claims. (ECF No.142.)

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Plaintiff objects generally to the taxation of costs in this matter based on her financial
circumstances, the chilling effect on future civil-rights litigants, and the closeness and
importance of the issues raised in the lawsuit. (ECF No. 146.) Plaintiff also objects specifically
to certain costs claimed by the County. (Id.) For the reasons explained below, the court denies
the County's bill of costs in full. 1
Background
In 2013, Sheriffs Deputies Dylan Leach and Leanne Stoneberg and Reserve Deputy
Melinda Purvis (collectively, "the Deputies"), employees of the County, responded to a
domestic-violence call at the home of Melinda Van Patten and Ken Van Patten. Van Patten v.
Leach, No. 3:15-cv-0891-AC, 2016 WL 5928803, at *1 (D. Or. Oct. 11, 2016). The Deputies
did not arrest Ken Van Patten. Id. at* 2. On the following day, Ken Van Patten shot Melinda
Van Patten twice, killing her, before committing suicide. Id. at * 1. Plaintiff, as personal
representative of Melinda Van Patten's estate ("the Estate"), filed this lawsuit against the
Deputies and the County, alleging claims under 42 U.S.C. § 1983 and Oregon tort law. (First
Am. Comp!. (ECF No. 1) ifif 32-72.)

The parties vigorously contested Plaintiffs claims and the County's defenses.

The

County filed a motion for summary judgment which was thoroughly briefed by all parties. (See
ECF Nos. 27, 35, 36, 40.) The court granted partial summary judgment against Plaintiff on Van
Patten's §1983 claims and some state-law claims.

Van Patten, 2016 WL 5928803, at * 1.

Plaintiffs remaining claim for statutory liability under the mandatory-arrest provision of
Oregon's Abuse Prevention Act, ORS § 133.055, went to trial.

Following a three-day trial, a

1

The parties have consented to jurisdiction by magistrate judge in accordance with28 U.S.C.
§ 636(c).
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jury concluded that the County was not liable because the Deputies did not have probable cause
to arrest Ken Van Patten. (ECF No. 140.)

Legal Standard
Under Federal Rule of Civil Procedure ("Rule") 54( d), costs generally are awarded to the
prevailing party in a civil action as a matter of course unless the court directs otherwise. Rule
54(d) creates a presumption in favor of awarding costs to the prevailing party.

Ass 'n of

Mex.-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en bane). The types of
costs that courts may award under Rule 54(d) are enumerated in 28 U.S.C. §§ 1920 and 1821.
District courts have discretion to refuse or reduce an award of costs, but must provide a reason
for doing so. Escriba v. Foster Poultry Farms, Inc., 743 F. 3d 1236, 1247-48 (9th Cir. 2014).
The Ninth Circuit identifies the following a non-exhaustive list of 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 plaintiffs limited financial
resources, and (5) the economic disparity between the parties." Id. (citing Ass'n of Mex.-Am.

Educators, 23 l F.3d at 592-93). The factors are only a starting point for analysis, and do not
require any specific conclusion. Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016).

Analysis
The County requests $9,879.42 in costs. (ECF No. 143, at 2.) Plaintiff first argues that
taxation of costs is inappropriate and inequitable under the circumstances of this lawsuit, and
alternatively contends that specific costs requested were not reasonable and necessary for use in
the case.
I. Limited financial resources.

Plaintiff first objects to taxation of costs because of her limited financial resources.
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Plaintiff submits a sworn declaration regarding the financial assets of the Estate and her own
financial circumstances. (Deel. of Melissa Van Patten (ECF No. 146, ex. 1).) First, the Estate
has no assets other than this now-dismissed lawsuit. (Id

if 2.) Thus, Plaintiff would be fully

responsible for the taxation of costs. Second, Plaintiff was laid off in 2016 and is currently
unemployed. (Id.
(Id.

if 4.) She is also the parent of two minor children, one of whom has autism.

if 3.) Although Plaintiff has some liquid assets, she is also financially responsible for the

additional care which one of her child needs due to his developmental disability. (Id '1['1[ 3, 5.)
She has expended approximately $5,000 in her own litigation costs. (Id.

if 6.) Plaintiff asserts

that paying the cost bill would be a substantial financial burden on her and her family. (Id. '1['1[ 5,
7.)
Taxing costs is inappropriate where the award would render a party indigent, considering
a party's financial resources. Escriba, 743 F.3d at 1248; Stanley v. Univ. ofS. Cal., 178 F.3d at
1079.

For example, awarding costs was an abuse of discretion against a plaintiff who was

incarcerated, unemployed, had no bank account, assets, or other income, and owned thousands of
dollars in restitution. Draper v. Rosario, 836 F.3d 1072, 1089 (9th Cir. 2016). The Ninth
Circuit held that the plaintiffs indigency was independently sufficient to rebut the presumption
in favor of taxing costs. Id.

Here, Plaintiffs financial circumstances are not so dire as the

Rosario plaintiff, due to her liquid assets and lack of substantial debt. Plaintiffs financial
resources nonetheless weigh against granting the cost bill.
substantial financial obligations as to her children.

She is unemployed, and has

Persuasive authority for considering a

plaintiffs family obligations exists in the Ninth Circuit's unpublished and non-precedential
decision in Guitron v. Wells Fargo Bank, NA, 619 F. App'x 590, 592 (2015) (considering a
plaintiffs status as a single mother of two children in ordering a reduction in an award of costs).
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Accordingly, Plaintiffs financial circumstances weigh against allowing the County's cost bill.
II. Chilling effect and importance of issues.
Plaintiff also asserts that taxation of costs would have a chilling effect on future civilrights plaintiffs. Plaintiff notes that her original complaint asserted federal civil-rights claims,
and argues that her claim that went to trial was "grounded on the same facts [as her civil-rights
claims] and carried the same essence as a civil rights claim." (Mot. for Disallowance of Cost
Bill (ECF No. 146) at 4.) Although some chilling effect may result, Plaintiffs arguments
regarding the potential for a chilling effect does not differentiate this civil-rights lawsuit from
any other lawsuit filed under § 1983 or against law-enforcement. There is no blanket prohibition
on taxing costs against unsuccessful civil-rights litigations.

Instead, the chilling-effect

consideration is better understood as closely related to the importance, closeness, and novelty of
the issues raised in the lawsuit. In discussing the potential for a chilling effect on other civilrights plaintiffs, the Ninth Circuit noted the importance of "civil rights litigants who are willing
to test the boundaries of our laws" in achieving progress after Brown v. Board of Education, 347
U.S. 483 (1954). Stanley, 178 F.3d at 1080. Thus, the potential for a chilling effect is greater
when a plaintiff asserts novel civil-rights claims or claims addressing important societal issues.
This case indeed presented novel and important issues. Plaintiffs claims involved issues
of first impression regarding the scope and nature of the mandatory-arrest provision of the Abuse
Prevention Act. The resolution of these novel issues was not obvious, particularly because the
lack of precedent interpreting ORS § 133.055 and complexity of the issues required recourse to
legislative history.

Moreover, the underlying issue of the appropriate response to domestic

violence is an issue of national importance. Domestic violence is not a new problem in our
society, but public discussion of prevention of and appropriate response to domestic violence is
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only increasing. This lawsuit fell squarely within that public discussion. Although Plaintiff did
not prevail on her claims, she raised important questions regarding law enforcement's role in
preventing and responding to domestic violence.
Rule 54(d) "vests in the district court discretion to refuse to award costs."

Ass'n of

Mex.-Am. Educators, 231 F.3d at 591. The close, important issues presented in this lawsuit and
Plaintiffs limited financial resources are sufficient for the court to exercise such discretion.
The court therefore does not address

Accordingly, the court denies the County's cost bill.
Plaintiffs objections to taxing specific costs.

Conclusion
The County's Cost Bill (ECF No. 143) is DENIED.
IT IS SO ORDERED.
DATED this 24th day of August, 2017.

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