1 –OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MATTEO BRUNOZZI, as an individual, No. 3:14-cv-01131-MO

 Plaintiff, OPINION AND ORDER

v. 

CABLE COMMUNICATIONS, INCORPORATED, 

a foreign corporation, 

 Defendant.

MOSMAN, J., 

On July 9, 2015, I granted summary judgment in favor of Cable Communications, Incorporated 

(“CCI”)[58]. On July 23, 2015, CCI filed a Motion for Attorney Fees and Costs [60], seeking $64,225 

in attorney fees, $2,268.25 in expenses, and $967.65 in costs. Plaintiffs objects to these attorney fees 

and costs [65]. I have determined that an award of attorney fees and costs is not appropriate in this 

matter. Therefore, I DENY Defendant’s Motion for Attorney Fees and Costs. 

I. Costs 

Rule 54(d)(1) 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.” Based on this 

rule, there is a presumption that costs will be awarded in favor of the prevailing party. Stanley v. Univ. 

of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999) (citing Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 

1471-72 (9th Cir. 1995)). However, the Ninth Circuit has recognized that Rule 54(d)(1), “vests in the 

district court discretion to refuse to award costs.” Ass’n of Mexican-Am. Educ. v. State of Cal., 231 F.3d 

572, 591 (9th Cir. 2000) (en banc) (citing Nat’l Info. Servs., Inc. at 1471). This discretion is “not 

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unlimited” and requires a district court denying such costs to “‘[specify] reasons’ for its refusal to award 

costs.” Id. (citing Subscription Television, Inc. v. S. Cal. Theatre Owners Ass’n, 576 F.2d 230, 234 (9th 

Cir. 1978)). 

As a starting point for analysis, the Ninth Circuit has noted at least five “appropriate reasons” for 

denying costs. They include: “(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 v. Foster 

Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014) (citing Ass’n of Mexican-Am. Educ. at 592–

93). 

In this case, Plaintiffs’ claims addressed an issue of first impression and one that required careful 

thought on the provisions at issue. Only after the rigorous briefing of the parties to the case and close 

analysis of the legal questions presented was I able to resolve the case. Although I ultimately granted 

CCI’s motion for summary judgment, the issues were complex and the claims were not frivolous. That 

the issues were close and the claims not without merit is a heavy factor weighing against the imposition 

of costs on the Plaintiff. 

Additionally, I have taken into account Plaintiffs’ limited financial resources. Mr. Brunozzi has 

been unemployed for virtually all of the time since the events that gave rise to his claim. Pl. Decl. ¶¶2-3. 

He had an income of about $14,000 in 2014. Id. Of that, about a quarter came from unemployment 

benefits. Id. Since “[i]ndigency is a factor that the district court may properly consider in whether to 

award costs,” Stanley, 178 F.3d at 1079, I recognize the Plaintiff’s difficult financial situation as another 

factor weighing against the imposition of costs. 

Finally, the economic disparity between the parties supports finding costs should not be imposed 

on Plaintiff. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014) (citing 

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Ass’n of Mexican-Am. Educ. at 592–93). Plaintiff is an individual struggling to support himself, while 

Defendant is a large corporation with various forms of capital and income. Due to this disparity in 

income, Plaintiff’s limited financial resources, and the close questions on important public policy 

questions I find that the imposition of costs would be inappropriate in this case. 

II. Attorney Fees

Defendant moves for attorney fees citing three statutes ORS 653.055, ORS 659A.8885 and ORS 

20.105 [60]. The first two statutes cited by Defendant are discretionary, while the third is mandatory 

only if there was no “objectively reasonable basis for asserting claim, defense or grounds for appeal.” 

Or. Rev. Stat. § 20.105 (2013). None of the three statues provides grounds for recovery of attorney fees 

in this case. 

ORS 653.055 and ORS 659A.8885 both state that the court may impose attorney fees only after a 

balancing of factors in ORS 20.075 and a determination that those factors weigh in favor of awarding 

attorney fees. Or. Rev. Stat. §§ 653.055, § 659A.8885 (2013). The factors in ORS 20.075 include (a) the 

conduct of the parties; (b) the objective reasonableness of the claims and defenses asserted by the 

parties; (c) the extent an award would deter other good faith claims in similar cases; (d) the extent an

award would deter others from asserting meritless claims; (e) the objective reasonableness of the parties 

and the diligence of the parties in pursuing settlement of the dispute; (g) the amount that the court has 

awarded as a prevailing party fee under ORS 20.190; and h) Such other factors as the court may 

consider appropriate under the circumstances of the case. Or. Rev. Stat. § 20.075 (2013). 

In examining the factors that apply to this case, it is clear that an award of attorney fees is not 

appropriate. As stated above in my discussion of costs, I believe that Plaintiff made his claims in good 

faith and that they were objectively reasonable. Plaintiff’s conduct in the case was unexceptionable. 

Awarding attorney fees in this case would deter future litigants from bringing good faith claims while 

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doing little to deter future litigants from bringing meritless claims. Therefore, under the ORS 20.075 

factors and in the discretion of this court, attorney fees are inappropriate in this case. 

Finally, attorney fees are not required under ORS 20.105, the other statute that Defendant offers,

because ORS 20.105 does not apply to this case. ORS 20.105 mandates attorney fees only when there 

was no “objectively reasonable basis for asserting claim, defense or grounds for appeal.” Or. Rev. Stat. § 

20.105 (2013). Since there was an objectively reasonable basis to bring the claims, I am not bound by 

the mandatory component of this statute. 

For the reasons stated above, I have determined that an award for costs and attorney fees would 

not be appropriate in this matter, and therefore, I DENY Defendant’s Motion for Attorney Fees and 

Costs [60]. 

IT IS SO ORDERED.

DATED this 16th day of September, 2015. 

/s/ Michael W. Mosman____ 

MICHAEL W. MOSMAN

United States District Judge

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