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Art Attacks Ink, LLC v. MGA Entertainment

March 19, 2008


The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Judge


[Docket Nos. 504 & 517]

Now before the Court are Plaintiff Art Attack Ink's motions to re-tax the costs awarded by the Clerk of the Court to Defendants MGA Entertainment, Inc. and Isaac Larian. The Court ordered the motions submitted without oral argument. Civil L.R. 7.1(d)(1). For the reasons stated below, the Court denies the motions.


After the jury returned a verdict in favor of Defendants on the trademark infringement claim but could not reach a verdict on the remaining counts, the Court entered a partial judgment. Defendants submitted their bill of costs to the Clerk and requested one-third of their actual costs. The Clerk overruled Plaintiff's objections and entered a first Order Taxing Costs in the amount of $92,509.32, which reflected the full amount requested by Defendants. [# 500]

In the meantime, Defendants moved for a judgment as a matter of law on those counts on which the jury hung. The Court granted that motion on the trade dress, copyright infringement, and contributory copyright infringement claims and entered a judgment in favor of Defendants. Defendants submitted a second bill for the remaining two-thirds of its costs. Plaintiff repeated its objections and the Clerk of the Court overruled them. The second Order Taxing Costs awarded Defendants the full amount of their request, $185,018.64. [# 516]

Plaintiff filed motions to re-tax the costs in both of those Orders, which total $277,527.06.


Costs "shall be allowed as of course to the prevailing party." Fed. R. Civ. P. 54(d). Recoverable costs are limited to those listed in the statute, including fees for court reporters, printing, witnesses, exemplification, copies of papers, and other items. 28 U.S.C. § 1920; Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440 (1987); Maxwell v. Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988). The items which are customarily taxed in this District are set forth in the Civil Local Rules. Civ. L.R. 54.1(b); see Kohus v. Cosco, Inc., 282 F.3d 1355, 1357 (Fed. Cir. 2002) (in patent case, regional circuit authority governs costs). "A motion to retax shall particularly specify the ruling of the clerk except to." Civ. L.R. 54(h).

At the outset, the Court notes that Defendants submitted a well-organized and properly supported Bill of Costs, with paginated attachments that identified the proper invoice. Defs.' Bill of Costs [#457]. Plaintiff on the other hand failed to assist the Court by filing the identical brief with the Clerk as it did to this Court, even though Defendants filed a reply brief that had responded to the objections with citations to the specific Local Rules and case authorities. Further, Plaintiff made no effort to identify specific amounts and did not cite to any specific pages in the record. But for the Defendants' well-prepared papers, Plaintiff would have shifted the burden to the Court to search the invoices for the underlying information. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in [the record]").

1. Depositions

Plaintiff objects to that part of the bill for transcripts of depositions related to videotaping the testimony of three witnesses. Plaintiff objects to charges for canceling scheduled depositions. Pl.'s Mo. at 3.

The Local Rule expressly covers both the cost of videotaping and the cost incurred to obtain a stenographic transcription of a deposition when the videotaped deposition is used at trial. Civil L.R. 54.1(b)(3)(a), (b). Here, Defendants certified that they taxed the costs of the four videotaped depositions that were played for the jury during the trial, thus, these are recoverable expenses. Transcripts need not be absolutely indispensable; it is enough if they are "reasonably necessary at the time it was taken, without regard to later developments that may eventually render the deposition unneeded at the time of trial." Frederick v. City of Portland, 162 F.R.D. 139, 143 (D. Or. 1995). Because Plaintiff does not document any opposing position and because Defendants certify that the depositions were reasonably necessary at the time they were preparing for trial, the Court sustains the expense. See Evanow v. M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998).

As for the cancellation fees charged, Defendants sought four such fees, Kim Kaneko on August 11, 2005 ($250 and $210) and Byron Mauck on January 13, 2006 ($225 and $150). Defs.' Bill of Costs, Attachment A (citing pages 57-58 & 66-67 of the invoices that list these amounts). These fees might not be recoverable if Defendants were at fault; however, Plaintiffs have not provided any information on that subject. By contrast, Defendants state that the depositions of Mauck and Kaneko were properly noticed but the subpoenaed witnesses failed to appear through no fault of the Defendants. Defs.' Opp. Br. at ...

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