Free Objection - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: 602 257-5200 Facsimile: 602 257-5299 Karl M. Tilleman 013435 P. Bruce Converse 005868 Jason Sanders 018600 Attorneys for Defendants Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson DREIERLLP 499 Park Avenue New York, New York 10022 Telephone: 212 328-6100 Facsimile: 212 328-6101 Ira S. Sacks, admitted pro hac vice Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et aL, Plaintiffs, vs. Harlem Globetrotters International, Inc, et al. Defendants.
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Nos. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANTS' OBJECTIONS TO PLAINTIFF'S BILL OF COSTS

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Defendants Har][em Glohetrotters International, Inc. "HGI", Mannie and Catherine Jackson, and GTFM, LLC "GTFM" collectively "Defendants" object to plaintiff's inflated and unsupported bill of costs pursuant to L. R. Civ, P. 54.1h.' Plaintiff's bill of costs completely ignores the fact that plaintiff did not prevail on five of the six claims he brought against HGI and GTFM, including his demand for punitive damages. It also ignores the fact that plaintiff did not prevail on any of the claims he brought against Mr. and Mrs. Jackson. Accordingly, it is not clear that plaintiff is

entitled to recover any of his taxable costs. To the extent that plaintiff can recover some of his costs as a result of the jury's verdict in his favor on only one of the six claims he brought, he is entitled to recover no more than $6924.53. 1, DEFENDANTS PREVAILED ON ALMOST ALL OF PLAINTIFF'S CLAIMS. HGI and GTFM prevailed, on five of the six claims brought by plaintiff, including his demand for punitive damages. Dkt. # 76, 425, 587, 594, 596 Mr. and Mrs. Jackson did even better. They prevailed on each and every claim brought by plaintiff. The Court dismissed all claims against Mrs. Jackson prior to trial and,

following the jury's verdlict in favor of Mr. Jackson on plaintiff's right of publicity claim, entered final Judgment in favor of Mr. Jackson2 Dkt. # 594, 596 Therefore, it is clear that plaintiff is not the prevailing party with respect to the Jacksons. Plaintiff erroneously claims that because he obtained a jury verdict on one claim, the verdict forecloses the possibility that HGI and GTFM are the prevailing parties as to all of the other claims plaintiff brought. That is simply not the law, In situations where the alleged prevailing party `was only partially successful, courts apportion costs among the parties or reduce the size of the prevailing party's award to reflect that 1Dcfendants previously filed a Motion to Strike Plaintiff's Bill of Costs because it is untimely. Defendants incorporate the arguments made in their Motion to Strike.
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All of the other claims that plaintiff had asserted against Mr. Jackson were disposed of on summary judgment or on motions during the trial. KId. #425, 587 1
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"partial" success. Barber v. T.D,, Williamson, Inc., 254 F.3d 1223, 1234 10th Cir. 2001 "in cases in which the prevailing party has been only partially successful, some courts have chosen to apportion costs among the parties or to reduce the size of the prevailing party's award to reflect the partial success". Other courts have concluded that where each party is partially successful costs should be denied altogether. Amarel v. Connell, 102 F.3d 1494, 1523 9th Cir, 1996 "In the event of a mixed judgment, however, it is within the discretion of a district court to require each party to bear its own costs"; Compro-Frink Co. v. Valk Mfg. Co., 595 F. Supp. 302, 304 D.C. Pa. 1982 "Because there is no way that costs could be fairly allocated on the basis of prevailing issues, rather than as to prevailing parties, neither party should be entitled to costs"; Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1335-36 9th Cir. 1978 affirming trial court's decision to deny costs to either party where entitlement unclear; Testa v. Village of Mundelein, Illinois, 89 F.3d 443, 447 7th Cir. 1996 affirming trial court's exercise of discretion to deny costs to both parties. In this case, all six claims, including plaintiff's claim for punitive damages, were actively litigated through depositions and written discovery. All six claims, including plaintiff's demand for punitive damages, were heavily briefed on summary judgment and HGI won summary judgment on all but one of plaintiff's claims. HGI also later prevailed at trial on plaintiff's punitive damages claim. GTFM likewise won summary judgment on all but one of plaintiff's claims, and during trial the Court granted GTFM judgment as a matter of law on plaintiff's punitive damages claim, To say that the costs associated with the claims on which HGI and GTFM prevailed should be disregarded ignores that plaintifrs prosecution of these claims increased the costs associated with this litigation exponentially. 2. THE OVERWHELMING MAJORITY OF THE COSTS PLAINTIFF SEEKS ARE NOT RECOVERABLE AS PRESENTED. Even if plaintiff had prevailed on all claims against all parties, which he undisputably did not, he is not entitled to recover a majority of the costs listed in his 2
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bill of costs. Plaintiff's bill of costs requests some costs that are not recoverable at all under 28 U.S.C. §1920. It requests other costs for which no supporting documentation is provided. It also drastically overstates other costs to which he may be entitled. Plaintiff is not entitled to recover any costs not specifically identified in 28 U.S.C.

§ 1920. See Crawford Fittings Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 441-42,

107 5. Ct. 2494 1987 a court may decline to award court costs listed in 28 U.S.C.

§

1920, but it may not award costs omitted from the Statute. In addition, plaintiff has the burden of proving his actual costs through a detailed itemization of costs accompanied by supporting documentation, English v. Colorado Dept. of Corrections, 248 F.3d 1002, 1013 10th Cir, 2001 declining to award costs where a party attempted to supports its costs through a spreadsheet containing "a list of names of these service providers, the amounts paid, and a blanket assertion that the costs incurred are among those allowed under

§ 1920"; Mares v.

Credit Bureau of Raton, 801 F.2d 1197, 1208

10th Cir, 1986 requesting parties have the burden "to establish the amount of compensable costs and expenses" and they "necessarily assume the risks inherent in a failure to meet that burden"; Casarez v. Val Verde County, 27 F. Supp. 2d 749, 751 W.D. Tex. 1998 "Those requesting costs bear the burden of furnishing a reasonable accounting detailing the basis for each request". Plaintiff has failed to meet that burden with respect to almosi: all of his requested costs, Those costs are limited to: 1 2 3 4 5 6 Fees of the clerk and marshal; Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; Fees and disbursements for printing and witnesses; Fees for exemplification and copies of papers necessarily obtained for use in the case; Docket fees under section 1923 of this title; and Compensation of court appointed experts, compensation of interpreters. 3
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A.

Computerized Legal Research Is Not a Taxable Cost.

Plaintiff is not entitled to recover for either "Computer-Based ]Legal Research LEXIS" or "PACER Computer Research charges." P1's Bill of Costs at 1 Ninth Circuit case law confirnis that requests for costs for computerized research under Rule 54d1 and 28 U.S.C.

§ 1920 are "rejected out of hand." See Sea Coast Foods, Inc.

v.

Lu-Mar Lobster and Shrimp, Inc., 260 F.3d 1054, 1061 n.2 9th Cir. 2001 upholding decision to award $230 in costs where request for costs was $151,734.67 as almost all of the costs requested were not recoverable under 28 U.S.C.

§ 1920, including

computerized research costs, because "computer research costs are not so listed and were, therefore, properly rejected out of hand". See also Walton v. Autotrol Corp., 1998 WL 531881, at *2 N. D. Tex. Aug. 18, 1998 "Costs for computerized research are not expressly authorized in 28 U.S.C.

§ 1821 or § 1920

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Therefore, this court

will not award Plaintiffs' requested costs for computerized research"; Breitenbach v.
Neiman Marcus Group, Inc., 181 F.R.D. 544, 547 N.D. Ga. 1998 denying recovery

for computerized research costs because "[r]ecovery of such costs is not included in the list of items for which costs can he taxed" under 28 U.S.C. §1920, Plaintiff also fails to provide any supporting documentation to demonstrate that these costs were actually incurred or that they were required for issues presented at trial. English, 248 F.3d at 1013 blanket assertion insufficient; Mares, 801 F.2d at 1.208 requesting party bears the burden to prove costs; Casarez, 27 F. Supp. 2d at 751 requesting party must provide accounting detail to prove costs. Accordingly, plaintiff is not entitled to recover anything for his alleged computerized legal research. B. Plaintiff's Request To Recover Alleged Witness Costs For Oliver Phipps Is Completely Unsupported.

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Plaintiff requests $9.90 for alleged mileage and $1,503.76 for alleged "reimbursed expenses" for Oliver Phipps. Bill of Costs at 1 Plaintiff, however, has not provided a single receipt or any other evidence to support his request, as required by statute. See English, 248 F.3d at 1013; Mares, 801 F.2d at 1208. Indeed, 28 U.S.C. 4

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§ 1821c1 specifically provides that a party is not entitled to recover witness travel
expenses or costs unless that party provides "receipts or other evidence of actual costs."
See Walton, 1998 WL 531881, at `3 "the prevailing party must prove the actual travel

expenses.. .Plaintiffs prod.uced no itemized receipts for the travel expenses. For these reasons, the court will niot award Plaintiffs their requested costs". Plaintiff's request for costs associated with Phipps is unsupported and must be denied. C. Plaintiff ][s Not Entitled To Any Costs For Alleged Photocopies Because He Has Not Provided Any Evidence Establishing His Actual Costs Or That The Copies Were Required For TriaL

Plaintiff's naked request for alleged photocopies is unaccompanied by any supporting evidence demonstrating that the copies were actually made. See Walton, 1998 WL 531881, at *3 denying costs for copies because plaintiff "provided no itemization of copies and no invoice". Nor does plaintiff "come forward with

evidence showing the nature of the documents copied including how they were used or intended to be used in the case. Simply making unsubstantiated claims that such

documents were necessary is insufficient." Breitenbach, 181 F.R,[. at 546-47. See
also Walton, 1998 WL 531881, at *3 denying costs for copies because plaintiff "did

not categorize the photocopies so that the court may reasonably decipher the copies which were necessary and those which were not". unsupported request for copying costs must be denied, D. Plaintiff's Request For Service of Process Costs Is Completely Unsupported. Accordingly, plaintiff's

Plaintiff cannot recover any alleged costs for "Service of Process" because he has failed to provide any supporting documentation or accounting. English, 248 F.3d at 1013 blanket assertion insufficient; Mares, 801 F,2d at 1208 party seeking costs bears the burden to prove costs; Casarez, 27 F. Supp. 2d at 751 party seeking costs must provide reasonable accounting detail to prove costs. Plaintiff has not indicated who was served, Nor has he described the nature of the process served. Accordingly, plaint.iff is not entitled to his service of process costs. 5
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2 U.S.C.

Only a Portion Of Plaintiff's Alleged Transcript Costs Are Taxable. To the extent that plaintiff is entitled to any deposition transcript costs under 28

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§ 1920, plaintiff cannot recover for the deposition transcripts of Marques

Haynes, Curly Neal, or Catherine Jackson. Plaintiff brought claims on his own behalf against Mannie and Catherine Jackson, HGI, and GTFM. The deposition testimony of 6 Marques Haynes and Curly Neal
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two other plaintiffs who brought their own claims

had nothing to do with plaintiff's claims, were unnecessary for plaintiff's case, and

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should not be recoverable. Plaintiff's request should therefore be reduced by $889.95, the total cost claimed for the Haynes and Neal transcripts. Invoice from Brown &

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Toleu Ltd., dated May 3, :2005 and May 10, 2005, attached to plaintiff's bill of costs. Plaintiff also brought claims against Mrs. Jackson solely for community property purposes. Mrs.. Jackson., however, is a resident of Nevada, a non-community property state. Dkt. # 587 ¶1 Therefore, the Court dismissed all claims that plaintiff brought against Mrs. Jackson, Id. Accordingly, jplaintiff should not be entitled to

recover any costs associated with the deposition of Mrs. Jackson because that deposition was unnecessary as a matter of law. Plaintiff's request should therefore be reduced by another $501.45, the total cost claimed for Mrs. Jackson's deposition transcript. Invoice from Legal Video Specialists dated October 2, 2005 and Invoice from Foldy Court Reporting dated October 8, 2005, attached to plaintiff's bill of costs. In addition, plaintiff obtained a verdict on only one of the six claims he brought against HGI and GTFM, and failed completely on all of the claims he brought against Mr. Jackson. Therefore, plaintiff cannot possibly be entitled to more than 2/3 of the costs for the remaining deposition transcripts: Total Transcript Costs Claimed by Plaintiff: Less Costs for the Neal & Haynes Transcripts: Less Costs for Mrs. Jackson's Transcript: Subtotal: Less 1/3 of Remaining Transcript Costs: Maximum Possible Recoverab]Ie Transcript Costs: $11,553.20 -$889.95 _$501.45 $10,161.80 _$387.27
$6774.53

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Based on the fo:regoing, to the extent that the Clerk finds that plaintiff is entitled to recover any of his taxable costs, his maximum recoverable costs as supported by the record, are: Filing Fees Recoverable Transcript Costs: Total: $150.00 $6924.53

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DATED this 2' day of April 2007. STEPTOE & JOHNSON LLP By: /s/ Karl M. Till.ernan Karl.M, Tilleman P. Bruce Converse Jason Sanders 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 icIillemansteptoe.com pbconveIt2tpc,.cn1 1ndersetoe,m Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DREIER LLP

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By:

/s/ Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 .com isacks?Jl

Attorneys for Defendant GTFM, LLC

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CERTI[FICATE OF SERVICE 1 hereby certify that on the
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day of April 2007, a true and

correct copy of the foregoing Motion was electronically transmitted to the Clerk's Office using the CM/ECF System. for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand: snd orc,jcrll .com Florence M. Bruemmer: Edward R. Garvey: Christa 0. West.erberg: Robert Williams Goldwater III: rggoldwaterlaw.co Ray Kendall Harris: fciw.com fflyerfclavv,com Joel Louis Herz: jpijoelherz.com, paralegalhjoelh,z.con Alec R. Hillbo: ahjj]j,fci[aw.com pcjifcliiw.corn Brandon Scott Peters: bpç[email protected] bpetersigoldwaterlaw.com Anders V. Rosenquist Jr: Ira S. Sacks: isareieriiccm Clay M. Townsend: ctowiJflfQrthc.pcopLe.com
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Jason R. Leonard:: joni.leoi,@jrlhelp,,com

By:

/s/ Karl Tilleman Karl Tilleman

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