Free Bill of Costs - Response to 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 DREIER LLP 499 Park Avenue New York, New York 10022 (212) 328-6100 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.
RESPONSE TO OBJECTIONS TO BILL OF COSTS FOR HARLEM GLOBETROTTERS INTERNATIONAL, INC,

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

Case 2:04-cv-00299-DGC

Document 631

Filed 03/23/2007

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1.

HGI' Bill of Costs is Timely. S HGI' bill of costs is timely because the partial summary judgment ruling in its s

favor was not a " final judgment" that triggered the time to file a bill of costs. Bills of costs must be filed " within ten (10) days after entry of final judgment." L. R. Civ. P. 54.1(a) (emphasis added). Entry of partial summary judgment is not final judgment.

See Fed. R. Civ. P. 56, committee'note to 1946 amendment to 56(d) (" s Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary ` judgment' not a final is judgment." (emphasis added). See also Cheng v. C.I.R., 878 F.2d 306, 309 (9th Cir. ) 1989) (" is axiomatic that orders granting partial summary judgment, because they do It not dispose of all claims, are not final appealable orders" ). As in this case, where there are multiple claims and multiple parties and some of the claims are disposed of on summary judgment, the Court " may direct the entry of final judgment . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed. R. Civ. P. 54(b). The Court in this case never made an express determination with Rule 54(b) language that there was " just reason for delay." Nor did the Court ever direct " no entry of judgment"on the claims disposed of on summary judgment. See Aleut Tribe v.

U.S., 702 F.2d 1015, 1020 (Fed. Cir. 1983) (pursuant to Rule 54(b), the trial judge must make an express determination that there is no just reason for delay, and an express direction for the entry of judgment). Therefore, until entry of final judgment on

February 12, 2007, there was no final judgment entered in this matter to commence the time for filing a bill of costs. Because HGI Prevailed on Almost All of Plaintiff' Claims, HGI is Entitled s to a Portion of its Costs. It is undisputed that HGI is the prevailing party on five of the six claims that plaintiff alleged in this case, including plaintiff' claim for punitive damages. (Dkt. # s 76, 425, 594, 596) Plaintiff erroneously claims that because a jury verdict on one claim was entered in his favor, the verdict forecloses the possibility that HGI was the
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prevailing party with regard to all the other claims he brought. That is simply not the law. In situations where the allegedly 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 " partial" success. Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234 (10th Cir. 2001) (" cases in which the prevailing party has been only partially in successful, some courts have chosen to apportion costs among the parties or to reduce the size of the prevailing party' award to reflect the partial success" Other courts s ). 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) (" the event of a In 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' decision to deny costs to either party where entitlement s unclear) (cited by plaintiff); Testa v. Village of Mundelein, Illinois, 89 F.3d 443, 447 (7th Cir. 1996) (affirming trial court' exercise of discretion to deny costs to both s parties) (cited by plaintiff). In this case, all six claims, including punitive damages, were actively litigated through depositions and written discovery. All six claims, including punitive damages, were heavily briefed on summary judgment and HGI won summary judgment with regard to four of the six claims and later prevailed at trial on plaintiff' punitive s damages claim. To say that the costs associated with the claims on which HGI

prevailed should be disregarded ignores that plaintiff' prosecution of these claims s increased the costs associated with this litigation exponentially and led to many of the costs HGI now seeks to recover.

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3.

HGI'Request for Costs is Reasonable. s HGI has been extraordinarily reasonable in its request for its taxable costs.

Because HGI and Mr. Jackson shared costs for transcripts, HGI recognizes that it is not entitled to request more than half of those costs. HGI further reduced its half by another 50% to reflect the fact that it did not prevail on all of plaintiff' claims. s Accordingly, HGI has requested only ¼ of the total cost of deposition transcripts.1 Plaintiff claims that HGI'award of taxable costs should be reduced to 1/7 of its s taxable costs because plaintiff was only one of seven plaintiffs in this case and he should only be held responsible for 1/7 of HGI'taxable costs. Plaintiff overlooks the s fact that in preparing its bill of costs, HGI already eliminated all of the costs associated with the deposition transcripts of witnesses not related to HGI' defenses against s plaintiff. (See HGI'Bill of Costs) Specifically, HGI did not seek any costs associated s with the deposition transcripts of former plaintiffs Marques Haynes, Dallas Thornton, Larry Rivers, Robert Hall, James Sanders, or Fred Neal. Nor did HGI seeks any costs for the deposition transcripts of witnesses Oliver Phipps or Peter Gallo (even though Phipps ended up testifying live at trial on behalf of plaintiff and Gallo testified via his deposition transcript). Nor did HGI seek any additional costs for the DVD recordings of the videotaped depositions of Mannie Jackson, Michael Syracuse, Colleen Lenihan Olson, Oliver Phipps or Peter Gallo. These unrequested transcript costs alone total an additional $4,494.42. HGI also reasonably requests the recovery of witness fees for HGI trial witness Colleen Lenihan Olsen. Ms. Olson testified at the trial and would have done so even if the other six plaintiffs had never been parties to this lawsuit. (Id., Ex. E) Plaintiff takes issue with the number of nights that Ms. Olson had to spend in Phoenix for the trial. Three weeks before trial, plaintiffs informed Defendants that Ms. Olson would be

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HGI' request for its taxable costs is not duplicative of GTFM' request because s s GTFM is a separate defendant, was represented by separate counsel at trial, and independently incurred its own, separate costs.
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called in their case as their second witness on the first day of trial (January 23, 2007). (Ex. 1) Plaintiffs later confirmed that they intended to call Ms. Olson on the first day of trial. (Ex. 2) Ms. Olson lives in Illinois and had to travel to Arizona to be present for trial. Ms. Olson traveled to Arizona on Saturday, January 20, 2007 and met with defense counsel on January 21 and 22, 2007 to prepare for her testimony scheduled for January 23, 2007. (Exs. 1, 2) Plaintiffs subsequently changed the order of their witnesses and, at no fault of the Defendants, did not call Ms. Olson as a witness until January 24, 2007. (Dkt. # 582, Minute Entry Jury Trial Day 2) Accordingly, Ms. Olson had to remain in Phoenix longer than she had expected. Ms. Olson' stay in Phoenix was s driven entirely by plaintiff' pre-trial disclosure of witnesses and subsequent decision s to change the order of witnesses. HGI'request for the costs associated with her stay is s thus more than reasonable. Plaintiff does not take issue with HGI'request for fees of the Clerk or fees and s disbursements for printing. Accordingly, HGI respectfully requests an award of its taxable costs in the amount of $2,732.23.2

2

HGI believes it obtained the trial transcripts pursuant to a stipulation with the plaintiffs, but upon further review, HGI was unable to confirm that the parties documented that agreement in writing. Accordingly, HGI withdraws its request for Court Reporter Fees totaling $1,843.40.
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Case 2:04-cv-00299-DGC Document 631 6 Filed 03/23/2007 Page 6 of 7
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DATED this 23rd day of March 2007. STEPTOE & JOHNSON LLP By: /s/ P. Bruce Converse Karl M. Tilleman P. Bruce Converse Jason Sanders 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 [email protected] [email protected] [email protected] Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DREIR LLP

By:

/s/ Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 [email protected]

Attorneys for Defendant GTFM, LLC

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Case 2:04-cv-00299-DGC

CERTIFICATE OF SERVICE 1. I hereby certify that on the 23rd day of March 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: [email protected] Florence M. Bruemmer: [email protected] Edward R. Garvey: [email protected], Christa O. Westerberg: [email protected] [email protected] Robert Williams Goldwater III: [email protected] Ray Kendall Harris: [email protected] [email protected] Joel Louis Herz: [email protected], [email protected] Alec R. Hillbo: [email protected] [email protected] Brandon Scott Peters: [email protected] [email protected] [email protected] Anders V. Rosenquist , Jr: [email protected] Ira S. Sacks: [email protected] Clay M. Townsend: [email protected] [email protected] [email protected] Jason R. Leonard: [email protected]
[email protected] [email protected]

By: /s/ P. Bruce Converse P. Bruce Converse

Document 631 7 Filed 03/23/2007

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