Ledo Pizza System, Inc. et al v. Ledo Restaurant, Inc. et al
Filing
166
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/18/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LEDO PIZZA SYSTEM, INC., et al.
:
v.
:
Civil Action No. DKC 06-3177
:
LEDO RESTAURANT, INC., et al.
:
MEMORANDUM OPINION
Several motions are pending related to requests by both
parties
for
relevant
amendment
issues
have
of
been
the
judgment
briefed
and
in
this
the
case.
court
now
The
rules
pursuant to Local Rule 105.6, no hearing being deemed necessary.
For the reasons that follow, the prior judgment will be amended
to
reflect
$4,620.00
Huntington
an
in
award
favor
City
of
of
attorneys’
fees
Defendants
Ledo
Restaurant,
Inc.,
in
d/b/a
the
amount
Restaurant,
T.J.
of
Inc.,
Elliott’s
Restaurant, Huntington City Enterprises, LLC, d/b/a Expressions
Catering, Thomas E. Marcos, Jr., and James L. Marcos, related to
a prior motion to compel discovery.1
The judgment will also be
amended to reflect that Defendants Ledo Restaurant, Inc., Thomas
E. Marcos, Jr., and James L. Marcos, are jointly and severally
1
Another defendant, Eileen Marcos, was dismissed at a
hearing on February 20, 2007, and summary judgment was granted
in favor of Thomas Marcos, Sr., on March 21, 2008.
liable
for
a
prior
award
of
attorneys’
fees
in
favor
of
Plaintiffs in the amount of $25,000.00.2
I.
Background
Plaintiffs commenced this action on November 27, 2006, by
filing
a
complaint
alleging
breach
infringement, and related claims.
motions
and
amendments
to
the
of
trademark
After an initial flurry of
complaint,
embroiled in a discovery dispute.
contract,
the
parties
became
On March 6, 2007, Defendants
filed a motion to compel Plaintiff Robert M. Beall to answer
deposition
Plaintiff
questions
Garth
Beall,
regarding
an
Plaintiffs in this matter.
certain
attorney
at
communications
the
(ECF No. 47).
firm
with
representing
Defendants sought an
award of attorneys’ fees associated with their motion pursuant
to Federal Rule of Civil Procedure 37(a)(4)(A).3
In response,
Plaintiffs moved to strike Defendants’ motion (ECF No. 48) and
separately opposed the motion to compel (ECF No. 50).
On April 26, 2007, the court issued a memorandum opinion
and
order
granting
Defendants’
Plaintiffs’ motion to strike.
motion
to
compel
(ECF Nos. 53, 54).
and
denying
It found that
2
Plaintiffs are Ledo Pizza System, Inc., Ledo Pizza
Carryouts, Ltd., Robert M. Beall, Margaret K. Beall, Robert G.
Beall, Troy L. Beall, James B. Beall, Garth E. Beall, Robert W.
Beall, Thelma W. Beall, Mildred Beall, and Thelma B. Beall.
3
Shortly after Defendants filed their motion, Rule 37 was
stylistically amended.
The same provision is now codified at
section (a)(5)(A).
2
“Plaintiffs will be ordered to pay the reasonable costs and
attorney’s
fees
incurred
by
Defendants
in
connection
with
bringing the motion to compel” and directed Defendants to “file
the
appropriate
memorandum
and
affidavits
to
support
their
request for attorney’s fees and costs, as set forth by Local
Rule 109.”
(ECF No. 53, at 14).
Plaintiffs promptly filed a
motion for reconsideration (ECF No. 55), which was denied on
March 21, 2008 (ECF Nos. 92, 93).
On the same date, the court
issued a memorandum opinion and order granting summary judgment
in full as to Defendant Thomas Marcos, Sr., and in part as to
the remaining defendants.
(ECF Nos. 94, 95).
Five days later,
the remaining defendants filed the fee petition associated with
their motion to compel.
(ECF No. 96).
The following week, they
filed a motion pursuant to Federal Rule of Civil Procedure 54(d)
seeking taxation of costs as the prevailing party on summary
judgment.
(ECF No. 98).
By a order dated March 26, 2009, the court found that it
was
“most
appropriate
to
defer
resolution”
of
these
motions
“until after all of the issues can be resolved,” indicating that
they
would
“be
(ECF No. 128).
addressed
in
a
comprehensive
opinion
later.”
Thus, Defendants’ fee petition associated with
the motion to compel and bill of costs related to the motion for
summary judgment were denied without prejudice.
3
The
case
Thereafter,
proceeded
the
court
to
a
issued
bench
a
trial
memorandum
in
December
opinion
and
2008.
order
finding two minor breaches of contract and awarding Plaintiffs
nominal damages of one dollar for each.
the
bench
trial
opinion,
the
subject
At the conclusion of
of
“previous
discovery
disputes and fee requests” was addressed:
Earlier in this litigation, as part of
a discovery dispute, attorneys’ fees were
sought by Defendant.
The court deferred
ruling on the matter pending completion of
the proceedings.
Both sides have indicated
[their] intent to seek attorneys’ fees
depending on the ultimate resolution of the
merits of the suit. All fee issues will be
addressed after any additional motions are
briefed.
(ECF
No.
129,
at
27).
Soon
thereafter,
Plaintiffs
motion for attorneys’ fees and a bill of costs.
132).
filed
a
(ECF Nos. 131,
Defendants opposed Plaintiffs’ motions, but did not file
one of their own.4
Meanwhile,
States
Court
appellate
of
brief,
Plaintiffs
Appeals
they
brought
for
the
challenged,
an
appeal
Fourth
inter
in
the
Circuit.
alia,
the
United
In
their
district
court’s “fail[ure] to find [Thomas Marcos, Jr., and James Marcos
(together, “the Marcoses”)] individually liable for trademark
infringement and breach of contract where it found Expressions
4
On July 26, 2011, the clerk taxed costs in favor of
Plaintiffs, as the prevailing party, in the amount of $6,953.91.
(ECF No. 149).
4
Catering
liable
for
such
infringement”;
the
denial
of
their
motion to strike Defendants’ motion to compel; and the summary
judgment ruling with respect to Mr. Marcos, Sr.
(Appellate
brief, 2010 WL 2812205, at *1).
The
Fourth
arguments.
Circuit
Reasoning
restrictions
agreements
on
and
Expressions
use
agreed
that
the
the
Ledo
of
that
with
they
Catering,
held
the
the
first
of
these
Marcoses
were
bound
mark
forth
in
a
set
controlling
appellate
court
by
prior
interest
found
in
that
“Expressions’ use of the Ledo mark constituted a violation of
the agreements by the Marcoses.”
Ledo Pizza System, Inc. v.
Ledo Restaurant, Inc., 407 Fed.Appx. 729, 732 (4th Cir. 2011).
The
court
summarily
dispensed
with
Plaintiffs’
arguments
regarding the summary judgment and discovery rulings, however,
finding with respect to the discovery motion that Plaintiffs had
“given no indication that they were prejudiced by” the denial of
their motion to strike.
Id.
Accordingly, the case was affirmed
in part, vacated in part, and remanded for an assessment of
damages with respect to the improper use of the Ledo mark by
Expressions Catering.
This
court
addressed
the
issues
on
remand,
as
well
as
Plaintiffs’ motion for attorneys’ fees, in a memorandum opinion
and order issued April 12, 2012.
five
instances
in
which
(ECF Nos. 150, 151).
Expressions
5
Catering
It found
improperly
used
Plaintiffs’ mark, awarding nominal damages of one dollar for
each and awarding attorneys’ fees for Plaintiffs in the amount
of $25,000.
Judgment in those amounts was entered in favor of
Plaintiffs and against the Marcoses, and the case was closed.
The
April
2012
decision
was
intended
to
be
the
“comprehensive opinion” promised by the court in March 2009.
Shortly
thereafter,
seeking
rulings
however,
with
Defendants
respect
to
filed
their
prior
correspondence
fee
petition
associated with their motion to compel and bill of costs related
to
their
motion
motions”).
The
for
summary
following
judgment
day,
the
(together,
court
issued
“the
2008
an
order
construing Defendants’ letter as a motion for reconsideration
and, so construed, granting the motion, advising that it would
“review the underlying motion papers and [] issue an opinion and
order in due course.”
(ECF No. 153).
Consequently, the case
was reopened.
Plaintiffs filed motion papers opposing Defendants’ request
for decision on the 2008 motions.
(ECF No. 154).
That was
followed, approximately one week later, by Plaintiffs’ motion to
alter or amend judgment.
(ECF No. 155).
On July 17, Defendants
moved to stay execution of the judgment (ECF No. 161) and, on
September 10, Defendants filed an emergency motion to permit
6
them to deposit the judgment amount in the court’s registry
pending resolution of the remaining issues (ECF No. 163).5
II.
Plaintiffs’ Opposition to Defendants’ Request for Fees and
Costs Associated with Prior Motions
After the court construed Defendants’ request for decision
on the 2008 motions as a motion for reconsideration and granted
that motion, Plaintiffs docketed a “motion for denial of request
for attorneys’ fees related to motion to compel and bill of
costs” (ECF No. 154), in which they argue that Defendants are
not entitled to consideration of the 2008 motions because those
motions were denied without prejudice and never renewed prior to
the
entry
of
judgment.
Observing
that
they
challenged
the
denial of their motion to strike the discovery motion on appeal,
Plaintiffs
related
to
further
the
contend
motion
to
that
an
compel
award
“would
of
attorneys’
clearly
violate
fees
the
Mandate Rule and subject the underlying ruling and the award of
fees to further appellate review.”
(ECF No. 154, at 5).
As Plaintiffs themselves acknowledge, the denial without
prejudice
of
Defendants’
2008
motions
was
an
administrative
measure to prevent the motions from sitting unresolved on the
court’s
docket
envisioned
that
until
a
after
global
related to fees and costs.
trial,
opinion
at
would
which
point
resolve
all
it
was
issues
While it is true that the motions
5
Because those issues are resolved herein, these motions
will be denied as moot.
7
were
denied
without
prejudice
and
not
formally
renewed
by
Defendants prior to judgment, it is equally true that the court
expressly
“defer[red]
resolution”
of
these
issues,
promising
that they would “be addressed in a comprehensive opinion later.”
(ECF No. 128).
Thus, it was reasonable for Defendants to expect
that the memorandum opinion and order issued April 12, 2012,
would address the 2008 motions, as well as Plaintiffs’ motion
for
fees.
Given
the
extended
history
of
the
case
and
the
court’s imprecise language regarding the status of the motions,
Defendants’ failure to renew the motions prior to judgment is
excused.
Despite Plaintiffs’ suggestion to the contrary, the court
has authority to alter or amend its prior judgment.
Courts have
recognized that a motion for reconsideration under Federal Rule
of Civil Procedure 59(e) is proper, inter alia, to correct a
clear error of law or prevent manifest injustice.
See United
States ex rel. Becker v. Westinghouse Savannah River Co., 305
F.3d 284, 290 (4th Cir. 2002) (citing Pacific Ins. Co. v. Am.
Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)).
To the
extent that the court previously indicated it would consider the
2008
motions,
and
failed
to
do
so,
consideration
of
those
motions is warranted here.
Moreover, the mandate rule, which
“foreclose[es]
of
relitigation
issues
expressly
or
impliedly
decided by the appellate court,” United States v. Perez, No. 128
6303, 2012 WL 3642849, at *1 (4th Cir. Aug. 24, 2012) (internal
marks omitted), does not preclude relief because neither the fee
petition related to the motion to compel, nor the bill of costs
associated with the motion for summary judgment was “expressly
or
impliedly
decided”
by
the
Fourth
Circuit.
The
issues
presented in the 2008 motions are not barred from consideration
on
remand
because
appellate court.
they
could
not
have
been
raised
in
the
See Doe v. Chao, 511 F.3d 461, 465 (4th Cir.
2007) (pursuant to the mandate rule, a party waives “any issue
that could have been but was not raised” on appeal).
Insofar as
Plaintiffs argue that they were deprived of the opportunity to
claim prejudice resulting from the denial of their motion to
strike on appeal, they will be free to challenge the propriety
of the court’s ruling with respect to the 2008 fee petition on
appeal from the order accompanying this opinion, if they so
choose.
Accordingly, the court declines to reconsider its order
granting Defendants’ request for decision on the 2008 motions,
and Plaintiffs’ motion requesting that relief will be denied.
III. Fee Award Related to Defendants’ Motion to Compel
In granting the motion to compel, the court determined that
Defendants were entitled to recover associated fees pursuant to
Federal
Rule
of
Civil
Procedure
37(a)(4)(A).
Prior
to
the
December 2007 amendment, that section provided that if a motion
to compel is granted:
9
the
court
shall,
after
affording
an
opportunity to be heard, require the party
or deponent whose conduct necessitated the
motion . . . to pay to the moving party the
reasonable expenses incurred in making the
motion, including attorney’s fees, unless
the court finds that the motion was filed
without the movant’s first making a good
faith effort to obtain the disclosure or
discovery without court action, or that the
opposing party’s nondisclosure, response, or
objection was substantially justified, or
that other circumstances make an award of
expenses unjust.
In
opposing
the
fee
petition,
Plaintiffs
argue
that
Defendants’ motion for attorneys’ fees was untimely, that Robert
Beall’s refusal to answer deposition questions on the ground of
attorney-client privilege was substantially justified, and that
Defendants failed to make a good faith effort to resolve the
dispute prior to filing their motion to compel.
(ECF No. 97).
The latter two arguments were considered by the court in the
opinion granting the motion to compel and denying Plaintiffs’
motion to strike (see ECF No. 53, at 11 (“The on-the-record
discussion
between
counsel
demonstrates
that
defense
counsel
made a good faith attempt to resolve the issue prior to seeking
court intervention”), 14 (“Finding that none of the exceptions
[set
forth
by
Fed.R.Civ.P.
Plaintiffs
will
attorney’s
fees
bringing
the
be
ordered
incurred
motion
to
37(a)(4)(A)]
apply
to
reasonable
by
pay
the
Defendants
compel”))
10
and
in
again
in
this
costs
connection
in
case,
the
and
with
opinion
denying Plaintiffs’ motion for reconsideration (ECF No. 92, at 4
(“Plaintiffs merely reiterate arguments previously advanced in
opposing the motion to compel and do not demonstrate that the
court made a clear error of law”), 6-7 (declining to reconsider
the “imposition of costs and fees pursuant to Fed.R.Civ.P. 37”
on
the
ground
‘substantially
that
Plaintiffs’
justified’”)).
“objection
The
court
of
privilege
declines
to
was
revisit
these issues a third time.
Plaintiffs
further
contend
that
Defendants’
right
to
recover attorneys’ fees has been waived because they waited to
file their fee petition until fourteen days after decision on
the motion for reconsideration, rather than fourteen days after
the initial decision on the motion to compel.
As support for
this argument, Plaintiffs cite language in the motion to compel
opinion directing Defendants “to file the appropriate memorandum
and affidavits to support their request for attorney’s fees and
costs, as set forth by Local Rule 109.”
(ECF No. 53, at 14).
Observing that Local Rule 109.2.a requires that a motion for
attorneys’ fees be filed within fourteen days and that “[n]oncompliance
with
these
time
limits
shall
be
deemed
to
be
a
waiver,” they assert that Defendants have waived their claim in
this regard.
Plaintiffs,
however,
do
not
argue
that
any
prejudice
resulted from the delay in filing the fee petition, nor do they
11
contend that Defendants are not entitled to seek fees associated
with Plaintiffs’ motion to reconsider the decision on the motion
to compel.
As Defendants observe, it would have made little
sense for them to file a fee petition “within fourteen days of
the initial order because they continued to incur related fees
as
a
result
of
Plaintiffs’
Motion
for
Reconsideration,
Opposition and Reply (as well as any hearing there might have
been on the matter).”
(ECF No. 99 ¶ 4).
Moreover, Defendants
filed the fee petition promptly after decision of the motion for
reconsideration.
This practice is entirely consistent with the
spirit, if not the letter, of the court’s initial decision and
the Local Rules.
While
Plaintiffs
do
not
challenge
the
content
of
Defendants’ fee petition, the court must independently assess
the reasonableness of the amount requested.
amount
constitutes
a
reasonable
In determining what
attorneys’
fee,
the
court
employs a hybrid method, which begins with calculation of the
lodestar amount –
i.e.,
the product of the reasonable hours
expended on the litigation multiplied by a reasonable hourly
rate – followed by adjustment, as appropriate, based on the
factors enunciated in Johnson v. Georgia Hwy. Express, Inc., 488
F.2d 714, 717–19 (5th Cir. 1974).
As this court has explained:
Absent circumstances warranting adjustment,
the lodestar figure represents the proper
total fee award. Wileman v. Frank, 780
12
F.Supp. 1063, 1064 (D.Md. 1991) (citing Blum
v. Stenson, 465 U.S. 886, 888, 104 S.Ct.
1541, 79 L.Ed.2d 891 (1984)). In deciding
what constitutes a “reasonable” number of
hours and rate, the district court generally
is guided by the following factors:
“(1) the time and labor expended; (2)
the novelty and difficulty of the
questions
raised;
(3)
the
skill
required to properly perform the legal
services rendered; (4) the attorney’s
opportunity
costs
in
pressing
the
instant litigation; (5) the customary
fee for like work; (6) the attorney’s
expectations at the outset of the
litigation; (7) the time limitations
imposed by the client or circumstances;
(8) the amount in controversy and the
results obtained; (9) the experience,
reputation and ability of the attorney;
(10) the undesirability of the case
within the legal community in which the
suit arose; (11) the nature and length
of
the
professional
relationship
between attorney and client; and (12)
attorneys’
fees
awards
in
similar
cases.”
Brodziak v. Runyon, 145 F.3d 194, 196 (4th
Cir. 1998) (quoting EEOC v. Service News
Co., 898 F.2d 958, 965 (4th Cir. 1990)
(quoting Barber v. Kimbrell’s, Inc., 577
F.2d 216, 226 n. 28 (4th Cir. 1978))).
CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 787
(D.Md. 2000); see also Ass’n of Machinists & Aerospace Workers
v. Werner–Matsuda, 390 F.Supp.2d 479, 490 (D.Md. 2005).
The party seeking fees bears the burden of proving the
reasonableness of the amount sought.
See Robinson v. Equifax
Information Services, LLC, 560 F.3d 235, 243–44 (4th Cir. 2009).
13
“In addition to the attorney’s own affidavits, the fee applicant
must produce satisfactory specific evidence of the prevailing
market rates in the relevant community for the type of work for
which he seeks an award.”
In re Botero–Paramo, No. 11–1886,
2012 WL 2055005, at *8 (4th Cir. June 8, 2012) (quoting Robinson,
560 F.3d at 243) (internal marks and emphasis removed).
Here,
Defendants
$4,620.00.
seek
attorneys’
fees
in
the
amount
of
Their fee petition is supported by the declarations
of attorneys Cary Hansel and Veronica Nannis, which reflect that
Mr. Hansel was in his ninth year of practice and Ms. Nannis was
in her sixth year and attest to the truth and accuracy of the
attached
time
records.
(ECF
Nos.
96-3,
96-4).
The
time
records, which are broken down by specific task, reflect that
Ms. Nannis billed 18 hours of work at a rate of $225.00 per hour
and Mr. Hansel billed 1.9 hours at a rate of $300.00 per hour.
(ECF No. 96-2).
The hourly rates for both attorneys fall within
the presumptively reasonable range in this district for lawyers
with comparable experience, as set forth in Appendix B of the
court’s
Local
duplication
particularly
Rules.
of
work
Moreover,
and
considering
a
the
records
reasonable
that
Defendants
number
had
Plaintiffs’ motion for reconsideration as well.6
6
reflect
no
of
hours,
to
oppose
The requested
Notably, no fees are sought with respect to Plaintiffs’
motion to strike or for preparation of the fee petition.
14
amount
is
accepted
as
the
lodestar
warranting adjustment are presented.
and
no
circumstances
Accordingly, the judgment
will be amended to reflect an award of attorneys’ fees in the
amount
Inc.,
of
$4,620.00
Huntington
in
City
favor
of
Restaurant,
Defendants
Inc.,
Ledo
d/b/a
Restaurant,
T.J.
Elliott’s
Restaurant, Huntington City Enterprises, LLC, d/b/a Expressions
Catering, and the Marcoses.7
IV.
Bill of Costs in Connection with Defendants’ Motion for
Summary Judgment
On March 21, 2008, the court granted summary judgment in
favor of Defendant Thomas Marcos, Sr., reasoning as follows:
As a preliminary matter, Plaintiffs’
complaint asserts liability against Mr.
Marcos on the allegation that he is a
“shareholder and operator” of the Defendant
entities and not based on citation to [the
parties’ agreements].
Recognizing that the
evidence
does
not
show
any
possible
contractual breach by Mr. Marcos, Sr.,
Plaintiffs appear now to cite to the
indemnification provision of the Agreements.
Plaintiffs
appear
to
gloss
over
the
distinction between an agreement to be held
jointly and severally liable on a direct
breach and one to indemnify another party.
Here,
the
Agreement
provides
that
the
relevant
parties
agreed
to
indemnify
7
These are the defendants who filed the motion for
attorneys’ fees related to the motion to compel.
As will be
explained, the defendants who will be liable for payment of the
fee award in favor of Plaintiffs under the amended judgment are
Ledo Restaurant, Inc., and the Marcoses. Because the defendants
are not the same, the court cannot simply offset Plaintiffs’
award by the amount awarded to Defendants with respect to the
motion to compel.
15
Plaintiffs for “liability for the payment of
all liabilities . . . imposed on, incurred
by or asserted against Carryouts or System
as a consequence of or in connection with”
breaches of the Agreement. However, such is
not the case here, where Plaintiffs instead
are
bringing
suit
directly
against
Defendants for breach of the contract and
are not seeking indemnification for a suit
“imposed on, incurred by or asserted against
them.”
Thus, Defendant Thomas Marcos,
Sr.[,] has established that he is entitled
to judgment and his motion for summary
judgment will be granted.
(ECF No. 94, at 6-7 (emphasis in original; footnote omitted)).
Two
weeks
later,
Defendants
filed
a
bill
of
costs,
seeking
taxation of $8,563.42 in “transcript and court reporting fees”
associated with depositions they alleged “were necessary to the
defense of this case and are recoverable under Rule 54 and [28
U.S.C.] § 1920.”
Pursuant
“[u]nless
provides
a
(ECF No. 98-1 ¶ 10).
to
Federal
general
Rule
of
statute,
costs
otherwise,
prevailing party.”
these
.
.
.
Civil
Procedure
rules,
should
or
be
a
54(d)(1),
court
allowed
order
to
the
Taxation of costs is limited, however, to
items enumerated in 28 U.S.C. § 1920, including, as relevant
here, “[f]ees for printed or electronically recorded transcripts
necessarily
obtained
for
use
in
the
case[.]”
28
U.S.C.
§
1920(2).
Local Rule 109.1.a provides, moreover, that unless
otherwise
ordered,
“a
bill
of
costs
shall
fourteen (14) days of the entry of judgment[.]”
16
be
filed
within
In opposing Defendants’ request for costs, Plaintiffs argue
that the motion was premature because judgment had not yet been
entered
and
a
determination
prevailing party.
could
not
(ECF No. 102, at 1-2).
be
made
as
to
the
They further contend
that Defendants made no showing that the transcript costs were
“necessarily obtained for use in the case,” citing § 1920(2).
(Id. at 3).
Insofar as the bill of costs relates to the partial grant
of summary judgment as to defendants other than Mr. Marcos, Sr.,
it was premature.
“A party prevails for purposes of Rule 54(d)
when a final judgment awards it substantial relief.”
Smart v.
Local 702 Intern. Broth. of Elec. Workers, 573 F.3d 523, 525 (7th
Cir. 2009).
The partial grant of summary judgment in favor of
those defendants may arguably have been “substantial relief,”
but it certainly was not a “final judgment.”
Indeed, after the
judgment became final, the clerk entered an order taxing costs
in favor of Plaintiffs as the prevailing party.
(ECF No. 149).
Defendants did not seek review of that decision, nor did they
file a bill of costs of their own.
A final judgment was entered in favor of Mr. Marcos, Sr.,
but, as the above-quoted portion of the summary judgment opinion
illustrates, no factual evidence was necessary to establish his
right to relief.
potentially
Thus, as to Mr. Marcos, Sr., the only person
eligible
for
relief
17
under
Rule
54(d),
Defendants
cannot show that the transcript fees they seek were “necessarily
obtained for use in the case[.]”
28 U.S.C. § 1920(2); see also
American Medical Sec., Inc. v. Larsen, 31 F.Supp.2d 502, 509
(D.Md. 1998) (“the language ‘necessarily obtained for use in
th[e] case’ in 28 U.S.C. § 1920(2) and (4) requires . . . that
costs
be
relevant
and
reasonable”).
Because
the
transcript
costs were not relevant to the grant of summary judgment in
favor
of
Mr.
Marcos,
Sr.,
Defendants
are
not
entitled
to
taxation of costs associated with their prior motion for summary
judgment.
V.
Accordingly, their bill of costs will be denied.
Plaintiffs’ Motion to Alter or Amend
Plaintiffs’ themselves have moved to alter or amend the
April
12,
attorneys’
2012,
fees
judgment,
must
be
arguing
altered
or
that
“[t]he
amended
to
award
of
include
one
additional Defendant, Ledo Restaurant, Inc., as that Defendant
was
also
jointly
and
severally
liable
under
the
contractual
provision requiring the fee award in favor of Plaintiffs.”
No. 155 ¶ 4).
(ECF
In opposing this relief, Defendants presume that
holding only the Marcoses liable for payment of attorneys’ fees
was “a result of the [c]ourt’s careful consideration of the
relative fault of each defendant” and not a “mistake, oversight,
or omission[.]”
(ECF No. 157, at 3).
Unfortunately, Defendants are mistaken.
Given the court’s
interpretation of the scope of the remand regarding liability of
18
the Marcoses for improper use of the Ledo mark by Expressions
Catering, it overlooked that the burden of paying attorneys’
fees should not have been limited to those defendants alone.
Accordingly, Plaintiffs’ motion in this regard will be granted,
and the judgment will be amended to reflect that the Marcoses
and Ledo Restaurant, Inc., are jointly and severally liable for
payment of attorneys’ fees.
VI.
Conclusion
For
the
attorneys’
foregoing
fees
and
reasons,
Plaintiffs’
Defendants’
motion
to
motion
alter
or
for
amend
judgment will be granted; Plaintiffs’ motion opposing decision
on
the
2008
motions
and
Defendants’
bill
of
costs
will
be
denied; and Defendants’ motions to stay execution of judgment
and to deposit funds in the court’s registry will be denied as
moot.
A separate order will follow.
________/s/__________________
DEBORAH K. CHASANOW
United States District Judge
19
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