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. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Objections to the Bill of Costs submitted by Defendant GTFM, LLC (hereinafter "Defendant GTFM"). These objections are submitted pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule of Civil Procedure 54.1(b). Defendant GTFM's Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

OBJECTIONS TO BILL OF COSTS FOR DEFENDANT GTFM, LLC.

request to the clerk to tax its costs in the amount of $5,818.48 should be denied for the following reasons. I. DEFENDANT GTFM'S BILL OF COSTS WAS NOT SUBMITTED WITHIN THE TIME LIMITS PRESCRIBED BY LOCAL RULE OF CIVIL PROCEDURE 54.1(a). Defendant GTFM begins its Bill of Costs by stating, "Summary judgment having been granted in the above entitled action in favor of defendant GTFM, LLC and against plaintiff Meadowlark Lemon on claims of unfair competition, defamation, false light invasion of privacy,
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and unjust enrichment on June 27, 2006..." (emphasis added). Apparently Defendant GTFM 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 GTFM had ten (10) days 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 GTFM's Bill of Costs is approximately eight (8) months late and as such should be denied in its entirety. II. DEFENDANT GTFM IS NOT THE PREVAILING PARTY IN THIS ACTION AND AS A RESULT IS NOT ENTITLED TO ANY OF ITS COSTS. Defendant GTFM next claims that it should be awarded its taxable costs because the jury found "for defendant GTFM, LLC, on plaintiff's claim for punitive damages." However, Plaintiff still prevailed, and judgment was entered in favor of Plaintiff and against Defendant GTFM 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 GTFM 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. 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 GTFM 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 GTFM'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 GTFM's Bill of Costs should be denied in its entirety. III. SHOULD THE COURT DISAGREE WITH PLAINTIFF THAT DEFENDANT GTFM IS NOT THE PREVAILING PARTY AND THEREFORE IS ENTITLED TO NOTHING, DEFENDANT GTFM IS ONLY ENTITLED TO ITS TAXABLE COSTS IN THE TOTAL AMOUNT OF $831.21.
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Should this Court disagree with Plaintiff that Defendant GTFM is not the prevailing party in this action, and instead decide to award Defendant GTFM its costs, Defendant GTFM would not be entitled to all amounts set forth in its Bill of Costs. Although Defendant GTFM requests taxable costs in the total amount of $5,818.48, Defendant GTFM would, at most, only be entitled to taxable costs against Plaintiff Meadowlark Lemon in the total amount of $831.21. Since Defendant GTFM's costs arose from defending this action against seven separate Plaintiffs each asserting a separate claim for invasion of the right of publicity supported by different evidence (i.e., this is not a class action lawsuit), Plaintiff should only be responsible for one-seventh of Defendant GTFM's costs requested in its Bill of Costs. Plaintiff Lemon should not be penalized because Defendants settled with the other six Plaintiffs after only two days of the six-day trial. Therefore, if this Court disagrees with Plaintiff and ultimately finds that Defendant GTFM is entitled to its requested taxable costs, Plaintiff Lemon should only be responsible for the total amount of $831.21, which represents the following amounts (set forth in the same order as presented in the Bill of Costs of Defendant GTFM):

Fees for Deposition Transcripts (1/7 of Defendant GTFM's requested share of $3,665.28) Fees for Witnesses (1/7 of Defendant GTFM's requested share of $2,153.20)

=

$523.61

=

$307.60

TOTAL

=

$831.21

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III.

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

Defendant GTFM's Bill of Costs is eight months late to the extent it seeks to recover taxable costs associated with the entry of summary judgment, and because Defendant GTFM was not the "prevailing party" as required by Fed.R.Civ.P. 54(d). Therefore Plaintiff respectfully

request this Court deny Defendant GTFM's request to tax costs against Plaintiff. However should this Court disagree with Plaintiff and instead find that Defendant GTFM is entitled to its taxable costs, at most, Defendant GTFM could recover taxable costs against Plaintiff in the total amount of $831.21. 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 GTFM, LLC was delivered via firstclass 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