Free Bill of Costs - Response to Objection - 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. HARLEMGLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his response to Defendants' Objections to Plaintiff's Bill of Costs. Plaintiff respectfully requests that he be awarded all of his requested costs in the amount of $20,275.19 as set forth in his Bill of Costs. I. PLAINTIFF IS ENTITLED TO ALL OF HIS REQUESTED COSTS BECAUSE HE WAS THE PREVAILING PARTY AT TRIAL, REGARDLESS OF WHETHER DEFENDANTS' PREVAILED ON SOME CLAIMS AT SUMMARY JUDGMENT. First, Defendants continue to assert, "HGI and GTFM prevailed on five of the six claims brought by Plaintiff." However, as the complaint clearly shows and as Defendants are aware, Plaintiff only originally brought five total claims against Defendants. Despite that fact, Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC RESPONSE TO DEFENDANTS' OBJECTIONS TO PLAINTIFF'S BILL OF COSTS

Defendants continue to overstate the number of claims upon which they claim to have `prevailed.'
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Second, Defendants claim that "All six claims, including plaintiff's demand for punitive damages, were heavily briefed on summary judgment..." Again, Plaintiff only brought five claims against Defendants. However, what is more important is that Defendants are completely wrong in stating that the issue of punitive damages was heavily briefed on summary judgment. In fact, as Defendants are well aware, the issue of punitive damages was not briefed during summary judgment and Defendants never requested summary judgment on that issue. Plaintiff's prosecution of the claims that were disposed of in summary judgment did not "exponentially" increase the costs associated with this litigation. Instead, all discovery conducted in this case prior to the dismissal of some of Plaintiff's claims, was necessary for the prosecution of Plaintiff's right of publicity claim for which he prevailed at trial. All depositions and documents received during discovery were used by Plaintiff and/or Defendants during the trial on Plaintiff's right of publicity claim. Whether or not Plaintiff's other claims were initially pled and pursued had no effect on the time and amount of discovery, and the costs therefore. It is undisputed that all of Plaintiff's original claims stemmed from the exact same incident. All of Plaintiff's original claims had substantially the same underlying facts and evidence that the parties were required to pursue during discovery. The course and costs of this litigation would have been exactly the same regardless of whether Plaintiff originally pursued all of his five claims, or only the right of publicity claim, because all claims hinged on whether Defendants had the authority to use Plaintiff's name in the manner they did. Furthermore, even after summary judgment and during settlement Defendants continued to assert that Plaintiff was entitled to nothing on his claim of right of publicity. Defendants even pursued dismissal of Plaintiff's right of publicity claim at

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summary judgment, although they were obviously unsuccessful, which suggests that even the costs incurred for summary judgment briefing would not have been different as Defendants would have sought summary judgment even if Plaintiff originally pursued only his claim of right of publicity. Therefore, it was Defendants attitude that Plaintiff's claim of right of publicity had no merit that was the cause of the increased costs, not the number of claims Plaintiff originally pursued. Lastly, the law does not `require' that the Court apportion the costs among the parties or reduce the size of Plaintiff's costs simply because some of the claims were disposed of in summary judgment. The law clearly allows for Plaintiff to be awarded all of his requested costs because he was the prevailing party at trial. 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). 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). Because Plaintiff was the prevailing party at trial, he is presumptively entitled to his costs. However, by each filing a bill of costs themselves, Defendants seem to be implying that they are the prevailing parties in this litigation. Their assertion is incorrect, as judgment was entered against them after trial (this includes Mr. Jackson, in his corporate capacity as owner and CEO of HGI). Since Defendants are not the `prevailing parties' Plaintiff cannot be required to share in, or shoulder all of, their costs. See Hall v. State

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Farm Fire & Casualty Co., 937 F.2d 210, 216 (5th Cir. 1991)(court may order each party to bear his own costs, but cannot, however, order prevailing party to share, or shoulder all of, the costs of the nonprevailing party unless the costs serve as a sanction). II. ALL OF PLAINTIFF'S REQUESTED COSTS ARE RECOVERABLE AS PRESENTED IN HIS BILL OF COSTS. Defendants claim that Plaintiff is not entitled to all of the costs requested in his Bill of Costs because "Plaintiff's bill of costs requests some costs that are not recoverable at all...requests other costs for which no supporting documentation is provided...[and] also drastically overstates other costs to which he may be entitled." However, all of Plaintiff's requested costs are recoverable, Plaintiff has provided the required supporting documentation, and Plaintiff's actual requested costs are understated, not overstated. A. Computerized Legal Research Can Be A Taxable Cost.

Defendants incorrectly assert that a prevailing party may never be entitled to costs for legal research because such costs are not listed in Rule 54(d)(1). However "the Court may, in its discretion, award non-statutory costs reasonably incurred." Schmid v. Frosch, 609 F.Supp. 490, 492 (D.C. 1985); See also Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964)(the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute). Therefore, even though Plaintiff's request for taxation of costs incurred for legal research on Lexis and PACER is not specifically listed in Rule 54(d)(1) as a taxable cost, it is in the discretion of the court to allow those costs, which were reasonably incurred by Plaintiff. In fact, the costs requested by Plaintiff for legal research totals only $2,223.76 (a rather small amount for a complex case that has lasted over three years) and is a
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mere fraction of the total costs of $20,275.19. As a result, Plaintiff's requested costs for legal research is reasonable and should be awarded. B. Plaintiff's Request To Recover Witness Fees For Oliver Phipps Is Supported By The Documentation Submitted By Plaintiff.

Defendants only reason for requesting denial of Plaintiff's witness costs for Oliver Phipps is their claim that Plaintiff has not submitted any supporting documentation to support his request. However, Defendants are incorrect. Although such documentation was not specifically attached to Plaintiff's Bill of Costs, Defendants received that documentation attached to Plaintiff's Motion for Award of Attorney's Fees and the supporting affidavits submitted therewith. Since that documentation amounted to nearly 100 pages, Plaintiff attempted to save the court and all parties time by not attaching the exact same documentation to both Plaintiff's Bill of Costs and Plaintiff's Motion for Award of Attorney's Fees. Defendants and the Court both have that supporting documentation in their possession. However, given Defendants objection that it was not specifically attached to Plaintiff's Bill of Costs, Plaintiff will again attach that documentation and again file it with this response. The invoice of Oliver Phipps is a detailed accounting of all expenses incurred by Plaintiff in securing Mr. Phipps attendance at trial and supports Plaintiff's request of witness costs for Mr. Phipps in the amounts of $9.90 and $1,503.76. C. Plaintiff Is Entitled To All Of His Requested Costs For Photocopies Because He Has Provided Over 84 Pages Of Documentation, Which Includes Detailed Documentation Of Dates, Numbers Of Copies, And Costs.

Again, Defendants only reason for requesting denial of Plaintiff's costs for copies is their claim that Plaintiff has not submitted any supporting documentation to support this request. However, Defendants are again incorrect. As stated above, although such documentation was not
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specifically attached to Plaintiff's Bill of Costs, Defendants and the Court received that documentation attached to Plaintiff's Motion for Award of Attorney's Fees and the supporting affidavits submitted therewith. Again, given Defendants objection that it was not specifically attached to Plaintiff's Bill of Costs, Plaintiff has again attached that documentation and will again file it with this response. Within Plaintiff's over 84 pages of billing invoices, specific records were kept of dates, numbers of copies, and costs thereof. Plaintiff's detailed documentation comports with the requirements of Rule 54 and supports Plaintiff's request for taxable costs in the amount of $4,397.37 for copies. In fact, the billing invoices account for copying costs quite higher than the actual copying costs requested by Plaintiff as Plaintiff has only requested approximately ¼ of his total copying costs, which Plaintiff feels is a reasonable estimate of the costs of copies for trial. As a result, Plaintiff's request is greatly reduced and reasonable. D. Plaintiff Is Entitled To Recover His Costs For Service Of Process.

Again, Defendants assert that Plaintiff has not submitted documentation to support his request for costs for service of process. Again, that documentation is contained within the billing statements that were attached to Plaintiff's Motion for Award of Attorney's Fees and the supporting affidavits submitted therewith. Again, given Defendants objection that it was not specifically attached to Plaintiff's Bill of Costs, Plaintiff has again attached that documentation and will again file it with this response. Within the billing statements, Plaintiff has specifically delineated the costs for service of process. Plaintiff is a bit puzzled by Defendants complaint that Plaintiff has not "indicated who was served" or "described the nature of the process served." Of course, Plaintiff served Defendants. If

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Defendants are worried that Plaintiff may have included the costs for service of the complaint on Third-Party Defendants, Plaintiff has not included those costs and has only included the costs incurred by Plaintiff to serve Defendants. Also, Defendants should remember how Plaintiff served them, but if they do not recall (since it was back in February 2004) Plaintiff served them the complaint by way of a process server. E. All Of Plaintiff's Requested Transcript Costs Are Taxable.

Lastly, Defendants claim that Plaintiff should not be entitled to recover the costs for deposition transcripts of Marques Haynes, Curly Neal, or Catherine Jackson, and that the remaining deposition costs should be reduced by 2/3. However, the costs of those transcripts were necessary for use at trial and were reasonable. All transcripts were necessary for Plaintiff's claims and case. As former players whose names and likenesses were also being used by Defendants, the depositions of both Haynes and Neal were necessary for Plaintiff's claims. Furthermore, it was not until after the second day of trial that Defendants offered a settlement to Plaintiffs Haynes and Neal, which was subsequently settled. Until that date, both were Plaintiff's in this case and were expected to testify at trial. It would have been malpractice for Plaintiff not to obtain their transcripts and become informed as to what their testimony would be at trial. Furthermore, Plaintiff cannot control the fact that Defendants decided to offer a settlement proposal to Plaintiffs Haynes and Neal during the trial and not to Plaintiff. Also, Plaintiff's request for deposition transcript costs for Mrs. Jackson is warranted. The claims against Mrs. Jackson were not dismissed until after trial. Mrs. Jackson's deposition was necessary to determine whether she was a proper defendant in this litigation, as well as to support

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Plaintiff's claims again Mr. Jackson in his personal capacity. The Court ruled at summary judgment that Mrs. Jackson was in fact a proper party and refused to dismiss her. It was not until after the trial that she was dismissed as a Defendant. Therefore, it was necessary to take her deposition at the time of discovery, and the transcript was necessary prior to and during trial. Lastly, Plaintiff's requested deposition transcripts should not be arbitrarily reduced by 1/3 as requested by Defendants. First, Defendants seem to have pulled that fraction randomly out of the air. Second, all of the deposition transcripts were necessary for Plaintiff's claim of right of publicity, were used at the trial, and portions were introduced at trial. Therefore, as the prevailing party at trial on his claim of right of publicity, Plaintiff is entitled to recover all of his costs for those deposition transcripts. III. CONCLUSION. WHEREFORE, based on the foregoing, as well as the information presented in Plaintiff's Bill of Costs, Plaintiff is entitled to recover his costs in the total amount of $20,275.19. RESPECTFULLY SUBMITTED this 12th day of April 2007.

ROSENQUIST & ASSOCIATES By: /s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys 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 April 12th RESPONSE TO DEFENDANTS' OBJECTIONS TO PLAINTIFF'S BILL OF COSTS was delivered via electronic filing 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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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 12th day of April 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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