Zenith Insurance v. Breslaw

108 F.3d 205
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 26, 1997
DocketNos. 95-56032, 95-56035 and 95-56041
StatusPublished
Cited by1 cases

This text of 108 F.3d 205 (Zenith Insurance v. Breslaw) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zenith Insurance v. Breslaw, 108 F.3d 205 (9th Cir. 1997).

Opinion

PER CURIAM:

This appeal requires us to consider the claims of both parties that the district court wrongfully denied them “prevailing party” status and, accordingly, an award of costs under Rule 54(d) of the Federal Rules of Civil Procedure. In the litigation that spawned this appeal, Zenith Insurance Company (“Zenith”) sued Drs. Leonard Breslaw, Jamshid Azari, Mehdi Khademi, Marvin Santos, and Lloyd Tom (collectively “the doctor defendants”) for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1994). An eight-day trial yielded a special jury verdict that found a RICO conspiracy by some of the doctor defendants, but found no legal injury to Zenith and awarded it no damages. The district court held that neither party had prevailed and ordered each party to bear its own costs. The doctor defendants appeal, and Zenith cross-appeals.

Zenith’s complaints below alleged a scheme to create, submit, and prosecute fraudulent workers’ compensation claims. Zenith also alleged that the doctor defendants worked as employees of or independent contractors for the Scheffield Medical Group (“Scheffield”) and that Scheffield was a RICO enterprise. The complaints asserted two RICO damage claims, a state law damage claim, and a state law claim for injunctive relief. On July 7, 1993, Zenith filed a separate case against Dr. Michael Lam, Schef-field’s owner. Prior to trial against the doe-tor defendants, Zenith voluntarily dismissed all its state law claims.

Pursuant to a procedure agreed to in advance by the parties, the jury returned a special verdict form with findings of fact on four issues. First, the jury found that none of the doctor defendants had participated in a scheme to defraud in violation of the mail fraud statute, 18 U.S.C. § 1962(c). Next, the jury found that four of the doctor defendants — all but Dr. Tom — had entered into a conspiracy. Notwithstanding the existence of a conspiracy, however, the jury found that the doctor defendants had not caused Zenith any injury and that Zenith was not entitled to recover any damages.

After the return of the special verdict, Zenith and the doctor defendants each submitted proposed forms of judgment identifying themselves as prevailing parties for purposes of recovery of costs under Rule 54(d) of the Federal Rules of Civil Procedure. The district court ultimately signed and entered judgment on a marked-up version of Zenith’s proposed form of judgment. The district court struck the language identifying Zenith as a prevailing party and inserted the following handwritten language: “There is no prevailing party. Each party to bear his or its own fees and costs.” Neither side filed post-trial motions.

On April 8, 1996, the district court dismissed Zenith’s lawsuit against Dr. Lam on the basis of the res judicata effect of the jury verdict finding no damage in the instant action.1 The doctor defendants timely appealed the judgment of no prevailing party, and Zenith cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

In light of the outcome of this case, it is clear that the doctor defendants, who owe no damages to Zenith and are bound by no legal findings, court orders, or even promises as a result of the litigation, prevailed in this lawsuit.2

The district court may have refused to name either side the prevailing party because the jury verdict found that four of the five doctors had entered into a conspiracy. The jury, however, also found that the doctor defendants had not participated in a scheme to defraud in violation of the mail fraud statute, and that the doctor defendants did [207]*207not cause any injury to Zenith. As a result, the jury awarded no damages to Zenith.

To recover under civil RICO, a plaintiff must establish that it was “injured in [its] business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c); see also Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1187 (3d Cir.1993) (“In order to recover under section 1964(c) a plaintiff must plead (1) a section 1962 violation and (2) an injury to business or property by reason of such violation.”). We hold that the jury determination that Zenith suffered no RICO injury establishes, as a matter of law, that the doctor defendants prevailed on Zenith’s RICO claim.

Moreover, Zenith voluntarily dismissed its state law claims before trial. That dismissal was sufficient to confer prevailing party status on the doctor defendants for those claims. We agree with the Fifth Circuit that “[b]ecause a dismissal with prejudice is tantamount to a judgment on the merits, the defendant in this case ... is clearly the prevailing party” on the dismissed claims. Schwarz v. Folloder, 767 F.2d 125, 130 (5th Cir.1985); see also All American Distrib. Co. v. Miller Brewing Co., 736 F.2d 530, 532 (9th Cir.1984) (under Arizona law, party that successfully defended against preliminary injunction and obtained voluntary dismissal of all other claims was entitled to prevailing party status, even though there had been no adjudication on the merits). We find Schwarz and All American applicable to the instant ease, and hold that the doctor defendants prevailed on those claims dismissed by Zenith before trial.

That the doctor defendants are properly the prevailing parties here does not end the Rule 54(d) inquiry. Rule 54(d), though requiring that costs be awarded to a prevailing party “as of course,” contains the caveat “unless the court otherwise directs.” We have construed the rule to create a presumption in favor of awarding costs to the prevailing party. National Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir. 1995). A court may not “otherwise direct” without providing its reasons for denying costs to a prevailing party. United States ex rel. Bartec Indus. v. United Pacific, 976 F.2d 1274, 1280 (9th Cir.1992); accord Schwarz, 767 F.2d at 131; Baez v. United States Dep’t of Justice, 684 F.2d 999, 1004 (D.C.Cir.1982) (en bane) (“Every circuit court that has considered the question, (ten out of twelve) has not only recognized the presumption [in favor of granting costs], but has held that a court may neither deny nor reduce a prevailing party’s request for costs without first articulating some good reason for doing so.”) (citations and emphasis omitted). Rule 54(d) “makes the award of costs to a prevailing party automatic in the absence of an express direction to the contrary by the district court.” National Info. Servs., 51 F.3d at 1472 (emphasis added).

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Zenith Insurance Company v. Breslaw
108 F.3d 205 (Ninth Circuit, 1997)

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Bluebook (online)
108 F.3d 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zenith-insurance-v-breslaw-ca9-1997.