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 MANNIE JACKSON

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

Case 2:04-cv-00299-DGC

Document 630

Filed 03/23/2007

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1.

Mannie Jackson Clearly Prevailed On Every One of Plaintiff'Claims. s The Court need only consider the language of the judgment that was entered in

this matter to conclude that Mr. Jackson is the prevailing party with regard to all of plaintiff'claims. The Judgment entered in this case states: " IS ORDERED AND s IT ADJUDGED that pursuant to the Jury Verdict of February 8, 2007, . . . . Judgment is also entered in favor of defendant Mannie Jackson against plaintiff on the claim for the violation of the right of publicity." (Dkt. #596; see also Dkt. #594) All of the other claims that plaintiff asserted against Mr. Jackson had already been disposed of on summary judgment or on motions during the trial. (Id. #425, 587) Plaintiff erroneously claims that because Mr. Jackson is a principal of another defendant, Harlem Globetrotters International, Inc. (" HGI" against whom judgment ), was entered on one claim, Mr. Jackson somehow cannot be considered a prevailing party. Where there are multiple parties, however, there can be more than one

prevailing party with respect to each individual plaintiff or each individual defendant. Compro-Frink Co. v. Valk Mfg. Co., 595 F. Supp. 302, 304 (D.C. Pa. 1982) (plaintiff and defendant were each prevailing parties to the extent each defeated the other' s claim/counterclaim). The fact that plaintiff may have received a verdict against HGI and GTFM on one of his claims does not make him the prevailing party with regard to Mr. Jackson. None of the cases cited by plaintiff remotely supports plaintiff' position. See s Hines v. Perez, 242 F.2d 459, 466 (9th Cir. 1957) (single plaintiff was awarded costs against single defendant against whom judgment was entered); Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1335-36 (9th Cir. 1978) (affirming trial court' decision to s deny costs to either party where entitlement was unclear); American Ins. Co. v. El Paso Pipe & Supply Co., 978 F.2d 1185, 1192-93 (10th Cir. 1992) (awarding costs against both defendants where both defendants were found liable, but only one defendant was found to have caused actual damages to plaintiff); Testa v. Village of Mundelein,

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Illinois, 89 F.3d 443, 447 (7th Cir. 1996) (affirming trial court' exercise of discretion s to deny costs to both parties). 2. Mr. Jackson'Request for Costs is Reasonable. s Mr. Jackson has been extraordinarily reasonable in his request for his taxable costs. Because HGI and Mr. Jackson shared costs for transcripts, Mr. Jackson has only requested half of the total costs of deposition transcripts.1 Plaintiff claims that Mr. Jackson' award of taxable costs should be reduced to s 1/7 of his taxable costs because plaintiff was only one of seven plaintiffs in this case and he should be held responsible for only 1/7 of Mr. Jackson'taxable costs. Plaintiff s overlooks the fact that in preparing its bill of costs, Mr. Jackson already eliminated all of the costs associated with the depositions of witnesses not related to his defense against plaintiff. (See Jackson' Bill of Costs) Specifically, Mr. Jackson did not seek s any costs associated with the deposition transcripts of former plaintiffs Marques Haynes, Dallas Thornton, Larry Rivers, Robert Hall, James Sanders, or Fred Neal. Nor did Mr. Jackson seek 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 Mr. Jackson seek any

additional costs for the DVD recordings of his videotaped deposition or the videotaped depositions of Michael Syracuse, Colleen Lenihan Olson, Oliver Phipps or Peter Gallo. These unrequested transcript costs alone total $4,494.42. Mr. Jackson also reasonably requests the recovery of witness fees for 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
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Mr. Jackson' request for his taxable costs is not duplicative of GTFM' request s s because GTFM is a separate defendant, was represented by separate counsel at trial, and independently incurred its own, separate costs.
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would be 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. Mr. Jackson' request for the costs associated with s her stay is thus more than reasonable. Plaintiff does not take issue with Mr. Jackson' request for fees of the Clerk or s fees and disbursements for printing. Accordingly, Mr. Jackson respectfully requests an award of his taxable costs in the amount of $5,464.47.2

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Defendants believe they obtained the trial transcripts pursuant to a stipulation with the plaintiffs, but upon further review, defense counsel was unable to confirm that the parties documented that agreement in writing. Accordingly, Mr. Jackson withdraws his request for Court Reporter Fees totaling $3,686.81.
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Case 2:04-cv-00299-DGC

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

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