Estate of Marjory Gail Thomas Osborn-Vincent v. Ameriprise Financial Services, Inc.

Filing 257

ORDER: Defendants may submit a new bill of costs by June 2, 2023. Any new bill of costs shall be accompanied by a supplemental brief or declaration describing with specificity the costs requested for each of the categories allowed by 28 U.S .C. § 1920 and, where necessary, how those costs were necessarily incurred for the case. Plaintiff shall have 14 days after the filing of any new bill of costs to respond. IT IS SO ORDERED. DATED May 19, 2023, by United States Magistrate Judge Youlee Yim You. (pjg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

THE ESTATE OF MARJORY GAIL THOMAS
OSBORN-VINCENT,
Plaintiff,

Case No. 3:16-cv-02305-YY
ORDER

v.
AMERIPRISE FINANCIAL SERVICES, INC., a
Delaware Corporation, and RIVERSOURCE LIFE
INSURANCE COMPANY, a Minnesota
Corporation,
Defendants.

Defendants have filed a motion for costs. ECF 237. 1 The specific items a prevailing party
may recover as costs include (1) fees of the clerk and marshal, (2) fees and disbursements for
printing and witnesses, (3) fees for printed and electronically recorded transcripts where they
were “necessarily obtained for use in the case,” (4) costs of making copies where they were
“necessarily obtained for use in the case,” and others. 28 U.S.C. § 1920. “Unless a federal
statute, [the Federal Rules of Civil Procedure], 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). “By its

1

Defendants’ motion for attorney fees under O.R.S. § 20.105 is addressed in separate Findings
and Recommendations. See ECF 257.
1 – ORDER

terms, the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in
the district court discretion to refuse to award costs. This discretion, however, is not unlimited. A
district court must specify reasons for its refusal to award costs.” Ass’n of Mexican-Am.
Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (citations omitted).
Defendants seek $11,340.19 in costs. Defs. Mot. Attorney Fees 13, ECF 237. Defendants
have not, however, described or otherwise established how the requested costs are allowed under
the categories set out in 28 U.S.C. § 1920. Defendants did not provide an affidavit or declaration
as required by 28 U.S.C. § 1924 to verify each “item is correct and has been necessarily incurred
in the case and that the services for which fees have been charged were actually and necessarily
performed.” The spreadsheet defendants submitted contains largely generic descriptions of items
such as “Document printing” or “Electronic image” with no explanation as to what these
materials are or whether they were “necessarily incurred.” E.g., Larsen Decl. Ex. 3 at 6, ECF
238; see Old Navy, LLC v. Ctr. Devs. Oreg., LLC, No. CIV. 3:11-472-KI, 2012 WL 3261413, at
*5 (D. Or. Aug. 8, 2012) (denying bill of costs that was not supported by any “documentation
with which to assess the cost per page, the cost for labor, and whether any of the copies were
made for the convenience of the attorneys”). Moreover, defendants also seek costs for items that
are not recoverable under 28 U.S.C. § 1920, such as travel, lodging, and meals. E.g., Larsen
Decl. Ex. 3 at 8, 14, 23–24, ECF 238; see also Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.
1994) (indicating meals and messenger service may not be taxed as costs under § 1920);
Alexander Mfg., Inc. Employee Stock Ownership & Tr. v. Illinois Union Ins. Co., 688 F. Supp. 2d
1170, 1176 (D. Or. 2010) (collecting cases and ruling costs for computerized legal research and
travel expenses are not allowed under § 1920).

2 – ORDER

Although there is a presumption in favor of awarding costs to the prevailing party, the
record before the court is insufficient to determine which costs defendants are lawfully entitled to
recover under 28 U.S.C. § 1920. Therefore, the court orders as follows: Defendants may submit a
new bill of costs by June 2, 2023. Any new bill of costs shall be accompanied by a supplemental
brief or declaration describing with specificity the costs requested for each of the categories
allowed by 28 U.S.C. § 1920 and, where necessary, how those costs were necessarily incurred
for the case. Plaintiff shall have 14 days after the filing of any new bill of costs to respond.
IT IS SO ORDERED.
DATED May 19, 2023.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

3 – ORDER