United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on Adlerhorst International,
Inc.'s Bill of Costs . 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.
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 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.
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).
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).
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.
Adlerhorst's Bill of Costs in Its Entirety
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.
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