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

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

OBJECTIONS TO BILL OF COSTS FOR DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC.

Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Objections to the Bill of Costs submitted by Defendant Harlem Globetrotters International, Inc (hereinafter "Defendant HGI"). These objections are submitted pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule of Civil Procedure 54.1(b). Defendant HGI's request to the clerk to tax its costs in the amount of $4,575.63 should be denied for the following reasons. I. DEFENDANT HGI'S BILL OF COSTS WAS NOT SUBMITTED WITHIN THE TIME LIMITS PRESCRIBED BY LOCAL RULE OF CIVIL PROCEDURE 54.1(a). Defendant HGI begins its Bill of Costs by stating, "Summary judgment having been granted in the above entitled action in favor of defendant Harlem Globetrotters International, Inc. ("HGI") and against plaintiff Meadowlark Lemon on claims of unfair competition,
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defamation, false light invasion of privacy, and unjust enrichment on June 27, 2006..." (emphasis added). Apparently Defendant HGI is claiming that it should be awarded its taxable costs incurred in defending the claims disposed of at summary judgment, and is just now submitting its taxable costs associated with those claims. The Order entered on June 27, 2006 regarding summary judgment is the only order/judgment disposing of the claims of unfair competition, defamation, false light invasion of privacy, and unjust enrichment; therefore it constitutes a "final judgment" as contemplated by Local Rule 54.1(a). The judgment and verdict entered on February 12, 2007 only addresses and disposes of Plaintiff Lemon's claim for invasion of the right of publicity. Summary judgment is still the entry of `judgment' and pursuant to Local Rule 54.1(a) Defendant HGI had ten (10) day from the entry of that judgment on June 27, 2006 to file its Bill of Costs and request that Plaintiff pay its taxable costs associated with the claims disposed of at that time. As a result, Defendant HGI's Bill of Costs is

approximately eight (8) months late and as such should be denied in its entirety. II. DEFENDANT HGI IS NOT THE PREVAILING PARTY IN THIS ACTION AND AS A RESULT IS NOT ENTITLED TO ANY OF ITS COSTS. Defendant HGI next claims that it should be awarded its taxable costs because the jury found "for defendant HGI on plaintiff's claim for punitive damages." However, Plaintiff still prevailed, and judgment was entered in favor of Plaintiff and against Defendant HGI, regarding the issue of liability on Plaintiff's claim of invasion of the right of publicity, and Plaintiff was awarded every penny in compensatory damages that was requested. Merely because the jury did not award Plaintiff punitive damages does not make Defendant HGI the `prevailing party' in this litigation, which is a prerequisite to an award of taxable costs.
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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). 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), 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)(emphasis added). The determination of who is the prevailing or successful party is based upon success upon the merits, not upon damages. American Ins. Co. v. El Paso Pipe & Supply Co., 978 F.2d 1185, 1193 (10th Cir. 1992)(emphasis added). A "prevailing party" is one "in whose favor a judgment is rendered, regardless of the amount of damages awarded." Firefighters' Inst. for Racial Equal. v. City of St. Louis, 220 F.3d 898, 905 (8th Cir. 2000). To that extent, a court may award costs under Rule 54(d) to a successful party even where that party recovers only nominal damages. See Coleman v Turner, 838 F2d 1004 (8th Cir. 1988).

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The trial in this matter originally began with seven total plaintiffs. The trial 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 Defendant HGI 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 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. Defendant HGI's argument that it should be awarded its costs because the jury did not award Plaintiff Lemon punitive damages fails even under an expansive interpretation of "prevailing party." Because the prevailing party is not determined based upon damages, and instead is determined based upon who was successful on the merits at trial regardless of the amount of damages awarded, it is clear that Plaintiff is the prevailing party and the only party entitled to recover his taxable costs. As a result, Defendant HGI's Bill of Costs should be denied in its entirety. III. SHOULD THE COURT DISAGREE WITH PLAINTIFF THAT DEFENDANT HGI IS NOT THE PREVAILING PARTY AND THEREFORE IS ENTITLED TO
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NOTHING, DEFENDANT HGI IS ONLY ENTITLED TO ITS TAXABLE COSTS IN THE TOTAL AMOUNT OF $456.62. Should this Court disagree with Plaintiff that Defendant HGI is not the prevailing party in this action, and instead decide to award Defendant HGI its costs, Defendant HGI would not be entitled to all amounts set forth in its Bill of Costs. Although Defendant HGI requests taxable costs in the total amount of $4,575.63, Defendant HGI would, at most, only be entitled to taxable costs against Plaintiff Meadowlark Lemon in the total amount of $456.62. Defendant HGI's taxable costs should be reduced for the following reasons. First, Defendant HGI attempts to recover costs in the total amount of $1,843.40 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 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 HGI were 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 HGI is not entitled to recover any of the $1,843.40 cost for the trial transcripts.
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Second, Defendant HGI 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 HGI). 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. 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 HGI's requested $1002.80 in subsistence fees for Colleen Olson is
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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 HGI should be $447.50, with Defendant HGI's ¼ share in the cost being only $111.88. Furthermore, it should be pointed out that Defendant HGI and Defendant Mannie Jackson were represented by the same counsel, who filed all pleadings on behalf of both Defendants, throughout this entire litigation. Even though Defendants HGI and Jackson are not the

prevailing parties in this action, Defendant Jackson submitted a Bill of Costs requesting to recover ½ of his taxable costs, and Defendant HGI submitted a Bill of Costs requesting to recover ¼ of the exact same costs submitted by Defendant Jackson. The Bill of Costs For Defendant HGI "double dips" into the same taxable costs requested by Defendant Jackson. The costs for defending HGI and Jackson were exactly the same, and through the Bill of Costs of HGI and the Bill of Costs of Jackson, defense counsel is seeking to recover a total of ¾ of their taxable costs, even though Plaintiff Lemon is the prevailing party in this action. Lastly, since Defendant HGI'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 HGI'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 HGI's remaining properly claimed taxable costs. Therefore, if this Court disagrees with Plaintiff and ultimately finds that Defendant HGI is entitled to his taxable costs, Plaintiff Lemon should only be responsible for the total amount of $456.62, which represents
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the following amounts (set forth in the same order as presented in the Bill of Costs of Defendant HGI): Fees of the Clerk (1/7 of Defendant HGI's requested share of $25.00) = $3.57 $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 HGI's requested share of $2,081.26) =

$297.32 $139.75

Fees and disbursement for printing (although Defendant = HGI 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 HGI's ¼ share would only be $139.75) Fees for Witnesses (given that Defendant HGI 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 HGI's ¼ share of that total being $111.88, and Plaintiff Lemon would then only be responsible for 1/7 of that, which is $15.98 ) TOTAL =

$15.98

$456.62

III.

CONCLUSION. Based on the foregoing, Defendant HGI is not entitled to any of its costs because

Defendant HGI's Bill of Costs is late to the extent it seeks to recover taxable costs associated
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with the entry of summary judgment, and because Defendant HGI was not the "prevailing party" as required by Fed.R.Civ.P. 54(d). Therefore Plaintiff respectfully request this Court deny Defendant HGI's request to tax costs against Plaintiff. However should this Court disagree with Plaintiff and instead find that Defendant HGI is entitled to its taxable costs, at most, Defendant HGI could recover taxable costs against Plaintiff in the total amount of $465.62 RESPECTFULLY SUBMITTED this 13th day of March 2007.

ROSENQUIST & ASSOCIATES

By:

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

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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. , 2007, a true and correct copy of the foregoing 2. I hereby certify that on March 13th OBJECTION TO BILL OF COSTS OF DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC. 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
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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