United States District Court, M.D. Tennessee, Nashville Division
SAMUEL DAVID MOORE, JOYCE ELLEN MOORE, and THE SJM TRUST, Plaintiffs,
THE WEINSTEIN COMPANY, LLC, doing business as DIMENSION FILMS; METRO-GOLDWYN-MAYER STUDIOS, INC.; GENIUS PRODUCTS, LLC; and CONCORD MUSIC GROUP, INC., Defendant
For Samuel David Moore, professionally known as Legendary Soul Man Sam Moore, The, Joyce Ellen Moore, SJM Trust, The, Plaintiffs: Allison L. Rapp, Arnold P. Lutzker, Jeannette M. Carmadello, Jeannette H. Maurer, LEAD ATTORNEYS, Lutzker & Lutzker LLP, Washington, DC; Sean J. Martin, Martin, Heller, Potempa & Sheppard, Nashville, TN.
For Weinstein Company, LLC, The, doing business as Dimension Films, Defendant: Bertram Fields, LEAD ATTORNEY, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, CA; Heather J. Hubbard, Robb S. Harvey, LEAD ATTORNEYS, Waller, Lansden, Dortch & Davis, LLP (Nashville), Nashville, TN.
For Genius Products, LLC, Concord Music Group, Inc., Defendants: Heather J. Hubbard, Robb S. Harvey, LEAD ATTORNEYS, Waller, Lansden, Dortch & Davis, LLP (Nashville), Nashville, TN.
For Metro-Goldwyn-Mayer Studios, Inc., Defendant: Heather J. Hubbard, Robb S. Harvey, LEAD ATTORNEYS, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN.
ALETA A. TRAUGER, United States District Judge. Magistrate Judge Brown.
ALETA A. TRAUGER, United
States District Judge.
On May 11, 2012, the court granted summary judgment to the defendants. After the Clerk taxed costs against the plaintiffs in the amount of $62,697.45 (Docket No. 383), the plaintiffs filed Objections to the taxation of costs (Docket No. 387), to which the defendants filed a Response in
opposition (Docket No. 391), and the plaintiffs filed a Reply (Docket No. 393). On July 9, 2012, the court referred a ruling on the plaintiffs' specific objections to the Magistrate Judge. (Docket No. 386.) On December 18, 2012, after considering the parties' submissions, the Magistrate Judge found that the defendants' costs are properly taxed at $52,728.67. (Docket No. 402.) The plaintiffs have filed Objections to the Magistrate Judge's ruling (Docket No. 403), to which the defendants have filed a Response in opposition (Docket No. 406). For the reasons explained herein, the court construes the Magistrate Judge's ruling as a Report & Recommendation (" R& R" ). The court will adopt the R& R in part and reject it in part, and the court will tax $18,396.18 in costs against the plaintiffs and in favor of the defendants.
A magistrate judge's rulings on the taxation of post-judgment costs must be treated as a report and recommendation subject to de novo review. The court therefore construes the Magistrate Judge's Order as a Report and Recommendation subject to de novo review under Fed.R.Civ.P. 72(b).
Rule 54(d)(1) creates a presumption in favor of awarding costs to the prevailing party but allows the denial of costs at the discretion of the trial court. Knology, Inc. v. Insight Commc'ns. Co., L.P., 460 F.3d 722, 726 (6th Cir. 2006); White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986) (" Before the district court, it is incumbent upon the unsuccessful party to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party." ) (internal quotation omitted). A denial of costs may be appropriate where taxable expenditures by the prevailing party are unnecessary or unreasonably large, where the prevailing party should be penalized for unnecessarily prolonging trial or for injecting unmeritorious issues, when the prevailing party's recovery is so insignificant that the judgment amounts to a victory for the defendant, or where a case is " close and difficult." White & White, 786 F.2d at 730. The party objecting to the clerk's taxation generally has the burden of persuading the court that it was improper. BDT Prods., Inc. v. Lexmark Int'l., Inc., 405 F.3d 415, 420 (6th Cir. 2005) (abrogated on other grounds) (quoting 1- C. Wright, A. Miller, and M. Kane, Fed. Prac. & Proc Civil 3d § 2679 (1998)); White & White, 786 F.2d at 730. The capacity of an indigent litigant to pay costs and the losing party's good faith are also factors that the court may weigh. See Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989); Knology, 460 F.3d at 728.
Here, the plaintiffs contend that the Magistrate Judge should have denied fees entirely or reduced them even further, because (1) the case was sufficiently " close" or " difficult" to merit denying an award of
costs entirely, (2) certain additional litigation expenses (particularly costs associated with electronic discovery) are non-taxable or should otherwise be excluded, and (3) the plaintiffs are financially unable to pay the costs taxed.
I. Whether Fees Should Be Denied Entirely
The plaintiffs argue that this case was sufficiently " close" to justify denying all costs. In support of this proposition, they cite only to White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 732 (6th Cir. 1986) (hereinafter, " White II " ).
In the underlying lawsuit at issue in White II, the plaintiff brought an antitrust action against the defendant, leading to an 80-day bench trial involving 43 witnesses, 800 exhibits, 15,000 pages of trial transcript, and a 95-page opinion stating the district court's findings of fact and conclusions of law. See White II, 786 F.2d at 732 (citing trial court judgment at 540 F.Supp. 951, 1046 (W.D .Mich. 1982)). On appeal from the district court's initial entry of judgment in favor of the plaintiff, the Sixth Circuit considered the " prodigious compilation" of legal and factual materials in the case, reversed certain of the district's factual and legal findings, and remanded the case for entry of judgment in favor of the defendant. See White & White, Inc. v. Am. Hosp. Supply Corp., 723 F.2d 495 (6th Cir. 1983) (" White I " ). On remand following White I, the district court entered judgment for the defendant but refused to award costs to the defendant under Rule 54(d)(1). See White II, 786 F.2d at 729-730 (discussing trial court ruling). The defendant appealed the denial of costs.
In White II, the Sixth Circuit affirmed the district court's refusal to award costs, noting that " the case involved complex issues requiring protracted litigation," leading to a lengthy trial and the district court's 95-page opinion. The Sixth Circuit stated that " [t]he closeness of a case is not judged by whether one party clearly prevails over another, but by the refinement of perception required to recognize, sift through and organize relevant evidence, and by the difficulty of discerning the law of the case." In light of the remarkably complicated proceedings below, the Sixth Circuit found that the district court had " acted properly in considering the length and difficulty of the case as a factor in denying costs to [the defendant]." Id.
Drawing on the factors that influenced the White II court, many courts apply White II to cases in which " difficult" or " close" factual or technical issues were tried to a jury, or where a particularly difficult legal or constitutional question was presented. See, e.g., McHugh v. Olympia Entm't, Inc., 37 F.App'x 730, 743 (6th Cir. 2002) (noting that " [a] case be characterized as difficult based on the length of the trial, the number of witnesses, and the amount of evidence submitted to the jury," and finding that the trial court did not err in denying costs following a 23-day trial with 40 witnesses involving " difficult" causation issues); Spurlock v. Metro Gov't of Nashville, 2013 WL 6237723, at *1-*2 (M.D. Tenn. Dec. 3, 2013) (refusing to award costs to prevailing defendant, where case involved " protracted" litigation, a seven-day preliminary injunction hearing, an eleven-day trial involving " [m]any witnesses," and an 80-page opinion setting forth the district court's findings of fact and conclusions of law on a difficult constitutional question).
This case is not akin to White II or other cases in which courts have denied
costs entirely. The case certainly took a substantial amount of time to litigate and involved voluminous factual and legal submissions. However, as the defendants correctly point out, the plaintiffs brought a litany of claims, all of which were found to be insufficient to survive either the Rule 12 or Rule 56 standards. The court dismissed two defendants from the case at the Rule 12 stage based on a lack of personal jurisdiction (Docket No. 112 at pp. 7-14), and the court permitted some of the remaining claims to proceed by a thread. As discovery later revealed, the plaintiffs also falsely claimed (apparently to establish Tennessee as a proper forum) that plaintiff The SJM Trust was a Tennessee trust (it was not) and that it owned the purported common law trademarks and publicity rights at issue in this lawsuit (it did not). Furthermore, as detailed in the court's opinion granting summary judgment to the remaining defendants, (1) the plaintiffs failed to establish that two of the three plaintiffs (Joyce Moore and The SJM Trust) had any cognizable interests to assert in the first place ( see Docket No. 375 at pp. 53-54), and (2) summary judgment was warranted on Sam Moore's remaining polyglot of federal and state ...