Opinion
3:16-cv-02305-YY
09-11-2023
THE ESTATE OF MARJORY GAIL THOMAS OSBORN-VINCENT, Plaintiff, v. AMERIPRISE FINANCIAL SERVICES, INC., a Delaware Corporation, and RIVERSOURCE LIFE INSURANCE COMPANY, a Minnesota Corporation, Defendants.
FINDINGS & RECOMMENDATIONS FINDINGS
Youlee Yim You United States Magistrate Judge.
Defendants Ameriprise Financial Services, Inc. and Riversource Life Insurance Company are the prevailing parties in this action. See ECF 235, 236. Defendants filed a Motion for Attorney Fees and Costs after judgment was entered in their favor. ECF 237. The court denied defendants' motion for attorney fees, ECF 258, 266, but reserved ruling on the motion for costs because the record submitted in connection with that motion was “insufficient to determine which costs defendants are lawfully entitled to recover under 28 U.S.C. § 1920,” and allowed defendants the opportunity to submit a new bill of costs and supporting documentation. Order (May 19, 2023) 3, ECF 257; see also Opinion and Order (July 28, 2023), ECF 266. Defendants subsequently filed a new bill of costs and both parties have submitted additional briefing. See ECF 261, 264, 265.
“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 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).
28 U.S.C. § 1920 provides the following categories of costs that may be taxed against the losing party:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Defendants here seek $8,490.10 in costs associated with “Fees for Transcripts,” “Fees for Printing and Witnesses,” and “Costs of Making Copies.” Bill of Costs 2, 4, ECF 261. Defendants have provided an exhibit detailing each charge, the amount and date of the charge, and what each charge was for, along with a supplemental declaration explaining in more detail certain charges and attesting that the listed costs “are correct, have been necessarily incurred in the case, and that the services for which fees have been charged were actually and necessarily performed,” as the court had previously requested. Larsen Decl. Ex. 3, ECF 238; Larsen Decl. ¶¶ 1-11, ECF 262.
Plaintiff objects that defendants still have not demonstrated with sufficient specificity that they are entitled to recover many costs, in particular those connected with making copies. Resp. Bill of Costs 2-3, ECF 264. To the contrary, defendants have complied with the requirements of Local Rule 54-1 regarding bills of costs and have provided sufficient detail for the court to determine that they are entitled to the claimed costs for making copies, especially given the scope and complexity of the case-both of which in many ways were exacerbated by plaintiff's litigation strategy. See Adidas Am., Inc. v. Herbalife Int'l, Inc., No. 3:09-cv-00661-MO, 2012 WL 13051118, at *3 (D. Or. Sept. 5, 2012) (“[I]t would not be possible in a large, complex case ‘for a law firm to track the nature of each copy and report the information on a per copy basis to the court in a bill of costs.' ”) (quoting Adidas Am., Inc. v. Payless Shoesource, Inc., No. 3:01-cv-01655-KI, 2009 WL 302246, at *4 (D. Or. Feb. 9, 2009)). Defense counsel has represented that the printing costs were necessarily incurred, and plaintiff offers no basis to doubt the truthfulness of counsel's assertions.
Plaintiff's other objections to the Bill of Costs-including that the costs associated with defendants' (eventually successful) efforts to secure an order from the District of Minnesota that the class action settlement and release of all claims in the Benacquisto class action settlement was enforceable as to plaintiff's claims in this suit, or that defendants unnecessarily delayed in seeking to enforce the Benacquisto settlement, are not well-taken. Resp. Bill of Costs 3-5, ECF 264; see also Benacquisto v. American Express Fin., No. 0:00-cv-01980 (DSD/DTS), 2019 WL 13114420, at *4 (D. Minn. May 31, 2019). The issue whether the Benacquitso settlement applied to plaintiff's claims here became a central issue in this case, and the ruling from the District of Minnesota was the primary, indeed the sole, basis upon which summary judgment was granted in defendants' favor. See ECF 213, 235. The costs associated with those efforts are recoverable.
Finally, defendants have adequately explained why the costs relating to the videotaped depositions of two witnesses, Jameson Wakefield and Kristi Muetzel, were necessarily incurred to defend against plaintiff's motion for sanctions, which “put the behavior of the witnesses and legal counsel” during the depositions at issue. Bill of Costs 5-6; see also ECF 115 (order reflecting that plaintiff's motion for sanctions was denied on the record at the Nov. 5, 2018 hearing). The prevailing party has “the burden of demonstrating why the video deposition was needed and why a written transcript would not have sufficed.” Brown v. Cascade Mgmt., Inc., No. 3:15-cv-01585-HZ, 2018 WL 4207097, at *11 (D. Or. Sept. 4, 2018). The prevailing party must provide at least one reason why video depositions were necessary for “this case and for these witnesses.” Skedco, Inc. v. Strategic Operations, Inc., No. 3:13-cv-00968-HZ, 2016 WL 8678445, at *15 (D. Or. Apr. 1, 2016) (emphasis omitted). Defendant has done so here, and therefore the requested costs associated with those videotaped depositions are recoverable.
RECOMMENDATIONS
To the extent the court reserved ruling on the costs requested in defendants' Motion for Attorney Fees and Costs (ECF 237), that motion for costs should now be granted, and defendants' Bill of Costs (ECF 261) should also be granted. Defendants should be awarded $8,490.10 in costs.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, September 25, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.