Free Bill of Costs - Obj/Ans/Resp - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Objections to the Bill of Costs submitted by Defendant Mannie L. Jackson. These objections are submitted pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule of Civil Procedure 54.1(b). Defendant Jackson's request to the clerk to tax his costs in the amount of $9,151.28 should be denied, as Defendant Jackson is not the prevailing party in this action. As a result, Defendant Jackson should not be awarded any of his costs. I. DEFENDANT MANNIE JACKSON IS NOT THE PREVAILING PARTY IN THIS ACTION AND AS A RESULT IS NOT ENTITLED TO ANY OF HIS COSTS. The only party entitled to request an award of its taxable costs pursuant to Fed.R.Civ.P. 54(d), is the "prevailing party." Rule 54(d) states: "...costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs;..." (emphasis added).
Case 2:04-cv-00299-DGC Document 618 Filed 03/13/2007 Page 1 of 10

Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

OBJECTIONS TO BILL OF COSTS FOR DEFENDANT MANNIE L. JACKSON

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

In general, a party in whose favor judgment is rendered by the district court is the prevailing party . . . Although a plaintiff may not sustain his entire claim, if judgment is rendered for him he is the prevailing party. Hines v. Perez, 242 F.2d 459, 466 (9th Cir. 1957). Therefore, a plaintiff recovering is 'the prevailing party,' entitled to costs, even though he failed to sustain his entire claim. Id., see also Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1335 (9th Cir. 1978)(costs are generally awarded to the successful party even if he is not awarded his entire claim). Furthermore, for the purposes of Rule 54(d) the term "prevailing party" has traditionally been interpreted to mean the party who won at trial, whether or not that party prevailed on all issues, and regardless of the amount of damages awarded. See, e.g., American Ins. Co. v. El Paso Pipe & Supply Co., 978 F.2d 1185, 1192-93 (10th Cir. 1992). In addition, the "prevailing party" is the party who prevails as to the substantial part of the litigation. Testa v. Village of Mundelein, 89 F.3d 443, 447 (7th Cir. 1996). The trial in this matter originally began with seven total plaintiffs. The trial in this matter was on plaintiffs' claim that Defendants GTFM, LLC, Harlem Globetrotters International, Inc., and Mannie Jackson violated their rights of publicity under Arizona law. Prior to the conclusion of the trial, Defendants settled with six of the seven plaintiffs, leaving only Plaintiff Lemon remaining in the lawsuit. At the conclusion of trial, the jury returned a verdict in favor of Plaintiff finding that Defendants had violated his right of publicity, and awarding Plaintiff all of his requested compensatory damages. Judgment was entered in this case on February 12, 2007 as follows: "IT IS ORDERED AND ADJUDGED that pursuant to the Jury Verdict of February 8, 2007, judgment is entered in favor of plaintiff Meadowlark Lemon
Case 2:04-cv-00299-DGC -2Document 618 Filed 03/13/2007 Page 2 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

against defendants Harlem Globetrotters International Inc. and GTFM, LLC in the sum of $783,900.00 for violation of the right of publicity. Judgment also entered in favor of defendant Mannie Jackson against plaintiff on the claim for violation of the right of publicity." As a result of the jury verdict and judgment entered in this case, it is clear that Plaintiff is the prevailing party in this action, not Defendant Jackson. That becomes even more clear when one realizes that, in fact, Defendant Jackson was the owner and CEO of Harlem Globetrotters International, Inc. Although judgment may not have been entered in favor of Plaintiff against Defendant Mannie Jackson personally, judgment was entered in favor of Plaintiff against Defendant Mannie Jackson as an officer of the corporation by way of the jury verdict in favor of Plaintiff and against Defendant Harlem Globetrotters International, Inc. Not only was

Defendant Jackson present throughout the entire trial in his personal capacity, but also as the corporate representative of Defendant Harlem Globetrotters International, Inc. Furthermore, since the inception of this case, Defendant Jackson was represented by the same attorneys representing Defendant Harlem Globetrotters International, Inc. (in fact, he was represented by HGI's corporate counsel). Merely because the jury chose not to "pierce the corporate veil" and allow Plaintiff to collect against Defendant Jackson personally does not make Defendant Jackson the prevailing party in this lawsuit, especially in light of the fact that judgment was essentially entered against Defendant Jackson for his actions in his corporate capacity as the owner and CEO of Defendant Harlem Globetrotters International, Inc. Furthermore, it is Plaintiff that is the prevailing party in this action, not Defendant Jackson, because Plaintiff "prevailed as to a substantial part of the litigation." See Testa v. Village of Mundelein, 89 F.3d 443, 447 (7th Cir. 1996). In addition, although Plaintiff may not
Case 2:04-cv-00299-DGC -3Document 618 Filed 03/13/2007 Page 3 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

have sustained his entire claim ­ in that he succeeded in recovering all requested compensatory damages against all Defendants except as to Defendant Jackson personally ­ Plaintiff is still the prevailing party because judgment was rendered for him. See Hines v. Perez, 242 F.2d 459, 466 (9th Cir. 1957). At trial, Plaintiff was victorious in his only claim that Defendants violated his right of publicity, and recovered $783,900 in compensatory damages from Defendants, which was every penny that Plaintiff asked for. Therefore, Defendant Jackson is not entitled to recover his taxable costs because he is not the "prevailing party" as required under Fed.R.Civ.P. 54(d) to recover costs. Instead, it is clearly Plaintiff that was the prevailing party. As a result, Defendant Jackson is not entitled to recover any costs. II. SHOULD THE COURT DISAGREE WITH PLAINTIFF THAT DEFENDANT JACKSON IS NOT THE PREVAILING PARTY AND THEREFORE IS ENTITLED TO NOTHING, DEFENDANT JACKSON IS ONLY ENTITLED TO HIS TAXABLE COSTS IN THE TOTAL AMOUNT OF $913.24. Should this Court disagree with Plaintiff that Defendant Jackson is not the prevailing party in this action, and instead decide to award Defendant Jackson his costs, Defendant Jackson would not be entitled to all amounts set forth in his Bill of Costs. Although Defendant Jackson requests taxable costs in the total amount of $9,151.28, Defendant Jackson would, at most, only be entitled to taxable costs against Plaintiff Meadowlark Lemon in the total amount of $913.24. Defendant Jackson's taxable costs should be reduced for the following reasons. First, Defendant Jackson attempts to recover costs in the total amount of $3,686.81 for court reporter fees to obtain transcripts of the jury trial (apparently to use in drafting Defendants Motion for a New Trial and Motion for Judgment as a Matter of Law). (See Exhibit B attached
Case 2:04-cv-00299-DGC -4Document 618 Filed 03/13/2007 Page 4 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

to Bill of Costs for Defendant Mannie L. Jackson). However, costs for obtaining trial transcripts are not recoverable as taxable costs pursuant to Fed.R.Civ.P. 54(d). Local Rule 54.1(e)(2) states: "(2) Fees Incident to Transcripts ­ Trial Transcripts. The cost of the originals of transcripts of trials or matters prior to or subsequent to trial, is taxable...when either requested by the Court, or prepared pursuant to stipulation...Copies of transcripts for counsel's own use are not taxable in the absence of a special order of the Court." (emphasis added). The trial transcripts ordered by Defendant Jackson was for defense counsel's own use, and defense counsel did not obtain a special order of the Court, thus the cost for those transcripts are not taxable. Furthermore, the trial transcripts were not prepared upon request by the Court, nor pursuant to stipulation. As a result, Defendant Jackson is not entitled to recover any of the $3,686.81 cost for the trial transcripts. Second, Defendant Jackson attempts to recover a portion of the witness fees for Colleen Olson for the costs of four nights stay at the Scottsdale Marriott Suites in the amount of $1,002.80. (See Exhibit E attached to Bill of Costs for Defendant Mannie L. Jackson).

However, Colleen Olson only appeared to testify for a few hours on the second day of trial, January 24, 2007, and was then dismissed by the Court. Ms. Olson was not in attendance, nor was she required to be present, on any other days of the trial. However, it appears Ms. Olson made a vacation out of her visit to Arizona, staying five days and four nights (Saturday to Wednesday ­ although she was only required to be in attendance as a witness on Wednesday) and now seeks to have Plaintiff pay for the costs.

Case 2:04-cv-00299-DGC

-5Document 618

Filed 03/13/2007

Page 5 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Local Rule 54.1(e)(4) states, "Witness fees and subsistence are taxable only for the reasonable period during which the witness is within the district." Furthermore, 28 U.S.C. § 1821 states: "Per diem and mileage generally; subsistence. ... (d)(1) A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed for the residence of such witness as to prohibit return thereto from day to day." Witness Colleen Olson chose to stay at a Scottsdale Marriott Suites for five days and four nights, at a rate of $250.70 per night, for her appearance as a witness at the trial, which only lasted for a few hours on one day ­ the day of her departure. The three previous nights stay were not necessary for her appearance in this case. At most, she was required one over-night stay to accommodate her appearance. Five days and four nights is not a "reasonable period." (emphasis added).

Therefore, Defendant Jackson's requested $1002.80 in subsistence fees for Colleen Olson is improper. At most, her subsistence fees should be $250.70 ­ the cost of one night's stay. Therefore, the new total reflected on Exhibit E to the Bill of Costs of Defendant Jackson should be $447.50, with Defendant Jackson's ½ share in the cost being only $223.75. Lastly, since Defendant Mannie Jackson's costs arose from defending this action against seven separate Plaintiffs (i.e., this is not a class action lawsuit), Plaintiff should only be responsible for one-seventh of Defendant Mannie Jackson's remaining costs allowable under Local Rule 54.1(e). Plaintiff Lemon should not be penalized because Defendants settled with the other six Plaintiffs after only two days of the six-day trial. As a result, Plaintiff Lemon should only be responsible for 1/7 of Defendant Jackson's remaining properly claimed taxable
-6Document 618

Case 2:04-cv-00299-DGC

Filed 03/13/2007

Page 6 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

costs. Therefore, if this Court disagrees with Plaintiff and ultimately finds that Defendant Jackson is entitled to his taxable costs, Plaintiff Lemon should only be responsible for the total amount of $913.24, which represents the following amounts (set forth in the same order as presented in the Bill of Costs of Defendant Jackson): Fees of the Clerk (1/7 of Defendant Jackson's requested share of $50.00) = $7.14 $0.00

Fees of the court reporter for all or any part of the transcript = necessarily obtained for use in the case (i.e., costs of defense counsel obtaining copies of trial transcript for counsel's own use) Fees for Deposition Transcripts (1/7 of Defendant Jackson's = requested share of $4,162.53) Fees and disbursement for printing (although Defendant = Jackson discounted the total cost of $3,912.86 by two thirds "relating to Neal Plaintiffs" and only assessed 1/3 to Plaintiff Lemon (see chart attached to Exhibit D of Bill of Costs), this is error and Plaintiff Lemon should only be assessed 1/7 of the total cost of $3,912.86, which is $558.98, and Defendant Jackson's ½ share would only be $279.49) Fees for Witnesses (given that Defendant Jackson is only = entitled to recover hotel costs for one night stay for witness Colleen Olson, instead of four nights, the subsistence fee would only be $250.70 instead of $1,002.80 (see chart attached to Exhibit E of Bill of Costs), and the new total for witness fees would only be $447.50, with Defendant Jackson's ½ share of that total being $223.75, and Plaintiff Lemon would then only be responsible for 1/7 of that, which is $31.96 ) TOTAL =

$594.65 $279.49

$31.96

$913.24

Case 2:04-cv-00299-DGC

-7Document 618

Filed 03/13/2007

Page 7 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

III.

CONCLUSION. Based on the foregoing, Defendant Jackson is not entitled to any of his costs because he

was not the "prevailing party" as required by Fed.R.Civ.P. 54(d).

Therefore Plaintiff

respectfully request this Court deny Defendant Jackson's request to tax costs against Plaintiff. However should this Court disagree with Plaintiff and instead find that Defendant Jackson is entitled to his taxable costs, at most, Defendant Jackson could recover taxable costs against Plaintiff in the total amount of $913.24. RESPECTFULLY SUBMITTED this 13th day of March 2007.

ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Attorney for Plaintiff Meadowlark Lemon

Case 2:04-cv-00299-DGC

-8Document 618

Filed 03/13/2007

Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC

CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on March 13th , 2007, a true and correct copy of the foregoing OBJECTIONS TO BILL OF COSTS FOR DEFENDANT MANNIE L. JACKSON was delivered via first-class mail to the following parties: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. Jason Leonard The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260
-9Document 618 Filed 03/13/2007 Page 9 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC -10Document 618 Filed 03/13/2007 Page 10 of 10

Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Karl M. Tilleman P. Bruce Converse Jason Sanders Steptoe & Johnson LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 13th day of March 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer