Hoppman v. Liberty Mutual Group Inc.
Filing
55
Opinion and Order. The Court ALLOWS Defendant's Bill of Costs (# 47 ) and AWARDS costs to Defendant in the amount of $4,695.20. IT IS SO ORDERED. Signed on 5/30/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
VALERIE HOPPMAN,
Plaintiff,
v.
3:17-cv-00402-BR
OPINION AND ORDER
LIBERTY MUTUAL INSURANCE
COMPANY, a foreign business
corporation,
Defendant.
CRAIG A. CRISPIN
ASHLEY A, MARTON
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
(503) 293-5770
Attorneys for Plaintiff
JAMES M. BARRETT
KELLY S. RIGGS
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
222 S.W. Columbia St., Suite 1500
Portland, OR 97201
(503) 552-2140
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Defendant Liberty
Mutual Insurance Company’s Bill of Costs (#47).
1 - OPINION AND ORDER
The Court
concludes the record is sufficiently developed and oral argument
is unnecessary.
For the reasons that follow, the Court GRANTS Defendant’s
Motion and AWARDS costs to Defendant in the amount of $4,695.20.
BACKGROUND
Plaintiff filed a Complaint in this Court in which she
alleges Defendant failed to accommodate her disability under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(5)(a),
and the Oregon counterpart to the ADA (referred to hereinafter as
OADA), Oregon Revised Statutes §§ 659A.112 and 659A.118.
On January 12, 2018, Defendant filed its Motion for Summary
Judgment as to each of Plaintiff’s claims.
On April 12, 2018, the Court issued an Opinion and Order
(#45) in which it granted Defendant’s Motion and entered Judgment
(#46) dismissing Plaintiff’s Complaint with prejudice.
On April 25, 2018, Defendant filed a Bill of Costs (#47) and
seeks costs in the amount of $4,695.20.1
On May 9, 2018, Plaintiff filed Objections (#51) to
Defendant’s Bill of Costs.
STANDARDS
Federal Rule of Civil Procedure 54(d)(1) provides:
1
“Unless
Defendant initially sought costs of $5,603.73, but
Defendant conceded in its Reply (#53) that this amount should be
reduced by $908.53 for items not recoverable.
2 - OPINION AND ORDER
a federal statute, these rules, or a court order provides
otherwise, costs—other than attorney's fees—should be allowed to
the prevailing party.”
This rule creates a presumption in favor
of awarding costs to a prevailing party; i.e., “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).
28 U.S.C. § 1920 allows a federal court to tax specific
items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54(d)(1).
Section 1920 provides:
A judge or clerk of any court of the United States
may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
(3)Fees and disbursements for printing and
witnesses;
(4)Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5)Docket fees under section 1923 of this title;
(6)Compensation for court-appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under § 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
The court must limit an award of costs to those defined in
28 U.S.C. § 1920 unless otherwise provided for by statute.
3 - OPINION AND ORDER
Grove
v. Wells Fargo Fin. Ca., Inc., 606 F.3d 577, 579-80 (9th Cir.
2010).
The district court has discretion to refuse to award
costs, but 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. Cal., 231
F.3d 572, 593 (9th Cir. 2000)(en banc)).
DISCUSSION
Plaintiff requests the Court to defer ruling on Defendant’s
Bill of Costs pending resolution of Plaintiff’s appeal to the
Ninth Circuit.
In the alternative, Plaintiff contends the Court
should deny Defendant’s Bill of Costs based on the “chilling
effect” of such an award and the economic disparity of the
parties.
Plaintiff also contends specific items of Defendant’s
Bill of Costs are not recoverable.
I.
Deferral of Ruling Pending Appeal
The Court has the responsibility to “secure the just,
speedy, and inexpensive determination of every action and
proceeding.”
Fed. R. Civ. P. 1.
The Court is unaware of any
authority suggesting that responsibility does not apply to
resolution of both the merits of Plaintiff’s claim and also to
the resolution of Defendant’s presumptive right to recover costs
when it is the prevailing party.
Nonetheless, the Advisory
Committee Notes to Federal Rule of Civil Procedure 54(d), which
governs the resolution of motions for attorneys’ fees and bills
of cost, indicate if an appeal on the merits of a case is taken,
4 - OPINION AND ORDER
“the trial court has discretion to rule on a claim for fees,
defer its ruling, or deny the motion without prejudice” and to
set a new period for filing after the appeal has been resolved.
As noted, the Rule creates a strong presumption in favor of
awarding costs to the prevailing party.
Fed. R. Civ. P.
54(d)(1)(“costs . . . should be allowed to the prevailing
party”).
Accordingly, in the exercise of its discretion, the Court
denies Plaintiff’s request to defer ruling on this issue.2
II.
Award of Costs
As noted, Plaintiff urges the Court to deny Defendant’s
request for costs based on the “chilling effect” of such an award
and the economic disparity of the parties.
A.
The Law
Although Rule 54 creates a presumption in favor of
awarding costs to a prevailing party, the district court has the
discretion to refuse to award costs.
Educators, 231 F.3d at 590.
Ass'n of Mexican–Am.
As noted, however, the court’s
discretion is not unlimited, and the court must “specify reasons”
for its refusal to award costs.
Id. (citing Subscription
Television, Inc. v. So. Cal. Theatre Owners Ass’n, 576 F.2d 230,
234 (9th Cir. 1978)).
In Escriba the Ninth Circuit provided five appropriate
2
The Court notes that if Plaintiff does appeal, it will be
most cost-effective for the court of appeals to have all issues
before it.
5 - OPINION AND ORDER
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.”
1247–48.
743 F.3d at
These reasons provide “a starting point for the
analysis,” and the losing party does not need to establish all
five factors for a court to deny costs.
Draper v. Rosario, 836
F.3d 1072, 1087 (9th Cir. 2016)(citing Escriba, 473 F.3d at
1248).
B.
“Chilling Effect” of Awarding Costs to Defendant
In her Response Plaintiff contends she raised important
issues relating to the scope of Defendant’s obligation to engage
in a good-faith interactive process as part of reasonably
accommodating Plaintiff, and, therefore, the Court should not
award costs to Defendant.
Defendant, in response, contends
Plaintiff did not raise an issue of such “substantial public
importance” to warrant denying costs to Defendant.
In Stanley v. University of Southern California the
Ninth Circuit held the district court abused its discretion when
it denied the losing plaintiff’s motion in a civil-rights case to
re-tax costs without considering the plaintiff’s indigency and
the “chilling effect” of imposing such high costs on future
civil-rights litigants.
178 F.3d 1069, 1079-80 (9th Cir. 1999).
The court noted the plaintiff raised “important issues and that
the answers were far from obvious.”
6 - OPINION AND ORDER
Id. at 1090.
The court also
noted civil-rights litigants who are willing to “test the
boundaries of our laws” are essential to the progress of that
area of law.
Id.
Here Plaintiff alleged she was a qualified individual
with a disability and that Defendant failed to engage in the
interactive process to reasonably accommodate her.
This Court
concluded Plaintiff failed to show that she had a qualifying
disability, and, therefore, Defendant did not have an obligation
to engage in the interactive process.
Here, Plaintiff’s claim
was, in this Court’s experience, typical of ADA failure-toaccommodate claims and did not “test the boundaries of the law”
on this routine issue.
On this record the Court concludes this factor does not
support denying costs to the prevailing-party Defendant.
C.
Economic Disparity of the Parties
Plaintiff also contends the economic disparity of the
parties supports a denial of an award of costs to Defendant.
Plaintiff asserts she suffered “significant economic losses at
the hands of [Defendant]” despite the Court’s conclusion that
Defendant did not act unlawfully.
A plaintiff's financial status is an appropriate
consideration when determining whether to award costs to a
prevailing defendant.
Escriba, 743 F.3d at 1248.
When
conducting this inquiry a district court generally looks at the
plaintiff's employment status, income, assets, and debts.
v. Adlerhorst Int’l., Inc., No. 3:14-cv-01827-MO, 2017 WL
7 - OPINION AND ORDER
Powell
1371269, at *2 (D. Or. Apr. 12, 2017).
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)).
It is clear that there is economic disparity between
Plaintiff and Defendant.
Economic disparity, however, is
inherent in employment cases because employers generally have
greater resources than their individual employees.
To recognize
this disparity without more as constituting an exception to the
presumption that the prevailing party is entitled to an award of
costs would render the presumption meaningless and likely
eliminate any award of costs to employers in virtually every
case.
Redwind v. W. Union, LLC, No. 3:14-CV-01699-AC, 2017 WL
1025184, at *5 (D. Or. Mar. 16, 2017).
Moreover, Plaintiff has not submitted any evidence
regarding her debts or assets or that show she would be
“indigent” if the Court awarded costs to Defendant.
In fact, the
record reflects Plaintiff is currently employed in a position
similar to the position she held with Defendant and earns
approximately $75,000 per year.
On this record the Court concludes Plaintiff has not
established circumstances sufficient to rebut the presumption in
favor of awarding costs as to this factor.
D.
Defendant's Costs for Specific Items
Finally, Plaintiff contends specific items included in
8 - OPINION AND ORDER
Defendant’s Bill of Costs are not recoverable.
In its Reply
Defendant acknowledges $908.53 should be deducted, and,
therefore, Defendant now seeks costs of only $4,695.20.3
The Court has reviewed all of the remaining items
listed in Defendant’s Bill of Costs and concludes they are
properly recoverable under § 1920.
Thus, the Court awards
Defendant costs in the amount of $4,695.20.
CONCLUSION
For these reasons, the Court ALLOWS Defendant's Bill of
Costs (#47) and AWARDS costs to Defendant in the amount of
$4,695.20.
IT IS SO ORDERED.
DATED this 30th day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
3
In its Reply Defendant also conceded a mathematical error
in its Memo in Support of it Motion for Costs that incorrectly
requested costs of $7,346.82.
9 - OPINION AND ORDER
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