Corbello v. DeVito

Filing 822

ORDER Granting 819 Defendant's Motion for Re-Taxation of Costs. The Clerk shall re-tax costs accordingly. Signed by Chief Judge Robert C. Jones on 03/11/2013. (Copies have been distributed pursuant to the NEF - CC: Lia Griffin - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DONNA CORBELLO,
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Plaintiff,
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vs.
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THOMAS GAETANO DEVITO et al.,
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Defendants.
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2:08-cv-00867-RCJ-PAL
ORDER

This case arises out of alleged copyright infringement. Pending before the Court is a

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motion for re-taxation of costs. For the reasons given herein, the Court grants the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Donna Corbello is the widow and heir of Rex Woodard, who assisted Defendant

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Thomas Gaetano “Tommy” DeVito in writing his unpublished autobiography (the “Work”).

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Plaintiff alleges that DeVito and others wrongfully appropriated the Work to develop the

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screenplay for Jersey Boys, a hit musical based on the band The Four Seasons that has played in

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the United States, Canada, England, and Australia.

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In December 2007, Plaintiff sued DeVito in the U.S. District Court for the Eastern

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District of Texas on three causes of action: (1) declaratory judgment; (2) equitable accounting;

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and (3) breach of contract. That court transferred the case to this District in 2008 pursuant to 28

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U.S.C. § 1404(a), without deciding whether it had personal jurisdiction over DeVito, and it

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denied Plaintiff’s motion to reconsider. The Third Amended Complaint, filed in March 2011,

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lists fourteen Defendants and twenty causes of action. The Court has issued two summary

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judgment orders, and the facts of the case are recounted more closely therein. During the first

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round of summary judgment motions, the Court ruled that DeVito and Plaintiff were 50% joint

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owners of the Work, that DeVito had granted Defendants Frankie Valli and Robert “Bob”

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Gaudio a selectively exclusive license to exploit and further license the Work, i.e., a license that

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was exclusive as against DeVito but nonexclusive as against Plaintiff, and that Valli and Gaudio

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had in turn granted a nonexclusive sublicense to Defendant DSHT, Inc. The Court also ruled that

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only DeVito was potentially liable for a direct accounting to Plaintiff. During the second round

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of summary judgment motions, the Court granted summary judgment to all Defendants except

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DeVito, who remains potentially liable on the second through eleventh claims, and Michael

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David, who had moved against the sixteenth and seventeenth claims against him based only upon

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an alleged lack of personal jurisdiction. The Court later granted summary judgment to David and

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denied a motion for fees and costs under § 505 of the Copyright Act, as well as for fees under 28

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U.S.C. § 1927. Based upon this ruling, the Clerk taxed costs in the amount of $0. Defendants

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have asked the Court to re-tax costs.

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II.

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DISCUSSION
Defendants correctly note that the Court did not address costs under Rule 54(d)(1).

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Under that rule, Defendants are presumptively entitled to routine costs. They claim costs in the

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amount of $69,896.08, almost entirely related to written and video transcripts of depositions

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demanded by Plaintiff. The Court did not mean in its previous order to deny routine costs under

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Rule 54(d)(1). This is not an extraordinary case in which the denial of costs to the prevailing

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party would be justified. See Ass’n of Mexican-American Educators v. California, 231 F.3d 572,

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593 (9th Cir. 2000). Plaintiff’s financial condition is not a sufficient reason to overcome the

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presumption in favor of costs. Plaintiff chose to bring this lawsuit and burden Defendants with

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the costs of defending it, which burden will only be partially ameliorated by the award of routine

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costs under Rule 54(d)(1), because non-routine costs and attorney’s fees have been denied. The

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Court need not support an award of routine costs with reasons. See Save Our Valley v. Sound

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Transit, 335 F.3d 932, 945 (9th Cir. 2003).

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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Re-Taxation of Costs (ECF No. 819) is
GRANTED. The Clerk shall re-tax costs accordingly.

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IT IS SO ORDERED.

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Dated this 26th day of October, 2012.
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of March, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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