Tempest Publishing, Inc. v. Hacienda Records & Recording Studio, Inc.

141 F. Supp. 3d 712, 92 Fed. R. Serv. 3d 1672, 2015 U.S. Dist. LEXIS 143227, 2015 WL 6394414
CourtDistrict Court, S.D. Texas
DecidedOctober 21, 2015
DocketCivil Action No. H-12-736
StatusPublished
Cited by13 cases

This text of 141 F. Supp. 3d 712 (Tempest Publishing, Inc. v. Hacienda Records & Recording Studio, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tempest Publishing, Inc. v. Hacienda Records & Recording Studio, Inc., 141 F. Supp. 3d 712, 92 Fed. R. Serv. 3d 1672, 2015 U.S. Dist. LEXIS 143227, 2015 WL 6394414 (S.D. Tex. 2015).

Opinion

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

Tempest Publishing, Inc., sued Hacienda Records and Recording Studio, Inc., Hacienda Records, L.P., and Latin American Entertainment, LLC (together, “Hacienda”), alleging infringement of the copyrights to four songs under the federal Copyright Act, 17 U.S.C. § 101 et seq. The court granted Hacienda’s motion for partial summary judgment, dismissing Tempest’s claims to two of the songs, Bus-cando un Cariño and Morenita de Ojos Negros. (Docket Entry No. 103). The court held a bench trial on the remaining two songs, Mi Amor es Tuyo and Somos Dos Gatos. At the close of. Tempest’s case, the court granted a directed verdict in Hacienda’s favor on one of the songs, Mi Amor es Tuyo. The court found that Hacienda infringed Tempest’s copyright for Somos Dos Gatos, that the infringement was not innocent and was willful, and that Hacienda owed Tempest $5,000 in damages. (Docket Entry No. 129).

The court entered judgment on March 18, 2015. (Docket Entry No. 130). Tempest moved for an award of costs, (Docket Entry No. 131), which Hacienda opposed, (Docket Entry No. 133). Hacienda also moved for an award of costs, (Docket Entry No. 132), which Tempest opposed, (Docket Entry No. 134). On August 31, 2015, Tempest filed an amended bill of costs, (Docket Entry No. 138), which Hacienda opposed, (Docket Entry No! 139). The motions raise questions about awarding costs under § 505 of the Copyright Act.

Based on the parties’ arguments and submissions, and the applicable law, the court grants Tempest’s motions in part and denies Hacienda’s motion, awarding $7,701.35 in costs to Tempest. The reasons are explained below.

I. The Applicable Law on Costs

“Unless a federal statute, these rules, or a court order provides otherwise, costs — -other than attorney’s fees — should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “[T]he word ‘should’ makes clear that the decision whether to award costs ultimately lies within the sound discretion of the district court.” Marx v. Gen. Revenue Corp., — U.S. -, 133 S.Ct. 1166, 1172, 185 L.Ed.2d 242 (2013). Even if a federal statute does not specifically authorize recovery of costs in a particular case, “Rule 54(d)(1) independently authorizes district courts .to award costs to prevailing parties” unless a statute or rule precludes it. Id. at 1174 n. 5. The Rule “does not require courts to award costs to prevailing [parties].” Id. at 1178 n. 9. Rather, it gives the court discretion based on the circumstances each case presents.

A federal statute “defines the term ‘costs’ as used in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). Under 28 U.S.C. § 1920, a district court may tax as costs:

[717]*717(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the1 copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; [and]
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

If the party against whom costs are sought does not object, a presumption arises that the costs were necessarily incurred and will be taxed. See Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F.Supp. 415, 417 (N.D.Tex.1997) (“[I]n the absence of a specific objection, deposition costs will be taxed as having been necessarily obtained for use in the case.”). An objection shifts that burden to require the party seeking costs to show that the costs were necessary. Jerry v. Fluor Corp., No. 10-1505, 2012 WL 4664423, at *2 (S.D.Tex. Oct. 2, 2012) (citing Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir.1991)).

The Copyright Act provides that, in any infringement action, “the court-.in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof.... [T]he court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. Only a prevailing party may recover costs under § 505. Alameda Films S.A. de C.V. v. Authors Rights Restoration Corp. Inc., 331 F.3d 472, 484 n. 37 (5th Cir.2003). “The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). A material alteration must have the “necessary judicial imprimatur.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Enforceable judgments on the merits are sufficient for prevailing-party status. Id. at 604, 121 S.Ct. 1835. “Prevailing plaintiffs and prevailing defendants are to be treated alike” under § 505. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994).

II. Who Is the Prevailing Party?

Tempest and Hacienda both argue that they, are the prevailing party. Tempest obtained a judgment that Hacienda infringed Tempest’s copyright to Somos Dos Gatos and was awarded $5,000 in damages. Hacienda obtained a judgment that it had not infringed the copyright in the other three, songs, Buscando un Cariño, Morenita de Ojos Negros, ,-and Mi Amorres Tuyo. In its Memorandum.and Opinion setting out proposed findings of fact and conclusions of law, the court did not decide which party prevailed and instead found, after weighing the Lieb factors, that neither Tempest nor Hacienda should be awarded attorney’s fees. (Docket Entry No. 129 at p. 22-30).1 This is a case in which the plaintiff has succeeded on some of its claims but not others. Rule [718]

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141 F. Supp. 3d 712, 92 Fed. R. Serv. 3d 1672, 2015 U.S. Dist. LEXIS 143227, 2015 WL 6394414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tempest-publishing-inc-v-hacienda-records-recording-studio-inc-txsd-2015.