Concord Boat Corp. v. Brunswick Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 01-3580
___________

Concord Boat Corporation; Galaxie *
Boat Works, Inc.; Sea Arrow Marine, *
Inc.; Mariah Boats, Inc.; Harris Kayot, *
Inc.; Armada Manufacturing Company, *
Inc.; Baha Cruisers/FRP Industries, *
Inc.; Campion Marine, Inc.; Caravelle *
Boats, Inc.; KCS *
International/Cruisers, Inc.; Mirage *
Holdings, Inc.; Play Time *
Manufacturing by Ohio Marine *
Distributor, Inc.; Powerquest Boats, *
Inc., Silverton Marine Corporation; *
Independent Boat Builders, Inc.; *
WTYS No. 4 Inc., doing business as * Appeal from the United States
Thompson Boat Company; Century * District Court for the Eastern
Craft Industries, Ltd., formerly * District of Arkansas.
known as Vanguard Industries; Avenger *
Manufacturing; G W Invader; *
Malibu Boats West, Inc.; Weeres *
Industries Corporation; Doral *
International, Inc.; Albemarle Boats, *
Incorporated, *
*
Plaintiffs-Appellees, *
*
v. *
*
Brunswick Corporation, a Delaware *
corporation, *
*
Defendant-Appellant. *
 ___________

Submitted: September 9, 2002
Filed: October 25, 2002
___________

Before HANSEN, Chief Judge, LAY, and MURPHY, Circuit Judges.
___________

MURPHY, Circuit Judge.

After the antitrust judgment in favor of plaintiff boat companies was
overturned in Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1063 (8th
Cir.), cert. denied, 531 U.S. 979 (2000), appellant Brunswick Corporation returned
to the district court seeking an award of costs as the prevailing party. Brunswick
requested $2,041,743.68 in costs, including $619,598.031 as reimbursement for its
copying expenses. The district court awarded it $913,917.80 in costs, which included
$371,858.65 for copies, but declined to impose joint and several liability. On its
appeal, Brunswick only challenges the amount of costs awarded for photocopying and
the allocation of costs among the boat companies. After the initial briefing by the
parties, we remanded to the district court for further consideration and findings.
Concord Boat Corp. v. Brunswick Corp., 17 Fed. Appx. 491, 493–94 (8th Cir. 2001)
(per curiam). The district court then issued a more detailed order awarding the same

1
The record contains more than one figure for the amount of Brunswick's
photocopying cost request. The district court used three different figures without
explanation: in its initial order on costs it stated that the amount requested was
$619,764.43, but in its supplemental order it both stated that the request was
$610,598.03 and elsewhere that it was $619,598.03. The latter figure is the same
amount requested in the supplemental affidavit submitted by Brunswick, and it
appears from the record to be the amount requested. (Brunswick App. at A99
(Supplemental Affidavit of Robert F. Finke.))

-2-
amount of copying costs and using the same percentages to apportion liability. We
reverse.

I.

In its initial briefing, Brunswick argued that the district court had abused its
discretion by apportioning costs among the boat companies instead of holding them
jointly and severally liable. It also attacked the use of a percentage basis for
allocation which was derived from the damage calculations of plaintiffs' trial expert,
whose opinion lacked foundation. Brunswick asserted that the court had abused its
discretion in not awarding its requested copying costs in contrast to the way plaintiffs'
cost request had been handled when they were the prevailing parties. The boat
companies responded to these arguments by saying that the district court had not
abused its discretion. In light of the general rule for joint and several liability and the
abbreviated nature of the order apportioning costs and reducing copying costs, we
remanded for further consideration and findings by the district court.

The district court issued a supplemental order. The court stated that it would
be unfair to award costs on a joint and several basis because that approach would
have a disproportionate impact on those plaintiffs who would have recovered less
than others under the damage calculations of their expert, Dr. Robert Hall. It
reasoned that apportioning costs on an individual basis would result in each plaintiff
being responsible for an amount of costs corresponding to its participation in the
antitrust action and that Dr. Hall's allocation of damages among the boat companies
had not been invalidated. The district court identified a number of factors it relied on
in reducing the photocopy award: insufficient documentation, Brunswick's
comparatively larger copying costs and number of attorneys and paralegals, and
Brunswick's failure to make a reduction from its charged cost and for copies related
to unsuccessful pretrial work.

-3-
 In its supplemental briefing, Brunswick again asserts that the district court
abused its discretion in apportioning costs and in sharply cutting the amount of its
photocopy requests. Brunswick argues that the district court identified no rational,
nonarbitrary reason to reject joint and several liability and no reason why Dr. Hall's
opinion provides a valid basis for allocating costs. It argues that apportioning costs
among the boat companies would make collection very difficult and possibly
impossible for substantial portions of the award. Brunswick also argues that no
sound reason has been given for such a large reduction to photocopy costs,
particularly in light of the court's earlier treatment of plaintiffs' cost request. The boat
companies respond that costs are within the discretion of the district court and that,
for the reasons given by the district court, it did not abuse that discretion.

II.

A.

We review the district court's decision to allocate costs on an individual basis
for an abuse of discretion. See In re Paoli R.R. Yard PCB Litig., 221 F.3d 449,
468–69 (3d Cir. 2000); cf. Southern Agency Co. v. La Salle Cas. Co., 393 F.2d 907,
915 n.7 (8th Cir. 1968) (pro rata apportionment of costs in parallel cases involving
same prevailing party should be reviewed for an abuse of discretion). A district court
abuses its discretion when, among other things, it fails to consider "a relevant factor
that should have been given significant weight." Verizon Communications, Inc. v.
Inverizon Int'l, Inc., 295 F.3d 870, 872–73 (8th Cir. 2002) (quoting Kern v. TXO
Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Joint and several liability for costs is the general rule unless equity otherwise
dictates. In re Paoli, 221 F.3d at 469. The district court's reason for allocating costs
individually—that the boat companies sought varying amounts of damages—is not
a sufficient reason to depart from this rule. Since individual plaintiffs frequently do

-4-
not seek the same amount of damages, this approach would create an exception that
swallows the rule. Moreover, all the plaintiffs in this case were represented by the
same counsel, had common theories of liability, and sought the same discovery. They
also all asked for the same powerful equitable relief in addition to damages—an order
divesting Brunswick of several of its businesses and enjoining it from employing
particular business practices. See Concord Boat, 207 F.3d at 1048. In these
circumstances, it cannot be said that any individual plaintiff generated more costs
than others. Cf. White v. Sundstrand Corp., 256 F.3d 580, 586 (7th Cir.), cert.
denied, 122 S. Ct. 666 (2001) (individual costs awards may be appropriate when
"different groups of plaintiffs raise distinct issues that give rise to segregable costs
of litigation") (emphasis added); Walker v. U.S. Dept. of Hous. & Urban Dev., 99
F.3d 761, 773 (5th Cir. 1996) (joint and several liability for attorney fees appropriate
where parties had joint legal team and shared witnesses). Indeed, there has been no
showing that Dr. Hall's testimony about each plaintiff's share of the total amount of
damages relates in any way to costs generated. Correlating costs only to the amount
of damages a party hoped to recover is not a useful model, for there are additional
factors which are relevant in considering a party's role in the litigation.

Other equities also favor joint and several liability. Imposing only individual
liability here would be inconsistent with the presumption embodied in Rule 54(d) of
the Federal Rules of Civil Procedure that a prevailing party is entitled to recover all
of its costs. See Blake v. J.C. Penney Co., Inc., 894 F.2d 274, 281 (8th Cir. 1990).
The expense of collection and the potential insolvency of several parties make it
likely that Brunswick would not recover a substantial portion of its award without
joint and several liability. In the absence of strong opposing considerations, it would
be inequitable to place the risk of noncollection on the prevailing party. Joint and
several liability should not unfairly force any boat company to bear the costs alone,
however. The companies could allocate the risk of costs among themselves, or any
party satisfying the judgment could seek contribution from the others. See Prestidge
v. Prestidge, 810 F.2d 159, 162 (8th Cir. 1987) (citing Thorsen v. Poe, 184 S.W. 427,

-5-
428 (Ark. 1916) ("[W]here several parties are equally liable for the same debt, or
bound to the discharge of an obligation, and one is compelled to pay or satisfy the
whole of it, he may have contribution against the others to obtain payment for their
respective shares.")).

In these circumstances it was an abuse of discretion not to take into account all
relevant factors and to depart from the general rule for joint and several liability.

B.

Brunswick challenges the forty percent discount applied to its copying cost
request. It points out that its request already included a voluntary fifteen percent
reduction to account for convenience copies. This corresponded to the percentage
reduction imposed by the district court in its earlier order awarding costs to the
plaintiffs.

Expenses for photocopies "necessarily obtained for use in the case" are
recoverable by the prevailing party as costs. 28 U.S.C. § 1920 (2000). Rule 54(d)
directs that costs, such as necessary photocopies, "shall be allowed as of course to the
prevailing party unless the court otherwise directs." Fed. R. Civ. P. 54(d). In
determining whether a photocopy expense is necessary so as to be taxable as a cost
and whether to award that cost to the prevailing party, the district court enjoys
discretion so long as it does not act arbitrarily. See In re Paoli, 221 F.3d at 458
(award); Kropp v. Ziebarth, 601 F.2d 1348, 1358 n.27 (8th Cir. 1979) (award);
Kemart Corp. v. Printing Arts Research Labs., 232 F.2d 897, 905 (9th Cir. 1956)
(necessity of photocopy expenses). An abuse of discretion occurs when, among other
things, the district court "'consider[s] and give[s] significant weight'" to "'an irrelevant
or improper factor'" or "'commits a clear error of judgment'" when it exercises its
discretion. Verizon, 295 F.3d at 872–73 (quoting Kern, 738 F.2d at 970).

-6-
 After carefully reviewing the record, we conclude that several of the factors to
which the district court gave significant weight in reducing the award do not support
its decision. The court believed that Brunswick was charged a higher copy cost than
plaintiffs and that it should therefore have voluntarily reduced the amount it
requested. When an expense is taxable as a cost, however, there is a strong
presumption that a prevailing party shall recover it "in full measure." In re Paoli, 221
F.3d at 462, 468; see Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir.
1997). The "losing party bears the burden of making the showing that an award is
inequitable under the circumstances." In re Paoli, 221 F.3d at 462–63. The court
appeared to accord no significance to this presumption in favor of the prevailing
party, but instead based the reduction on an assumption about the rate Brunswick was
charged for copies. The burden was on the boat companies to show that Brunswick's
request was inequitable, not on the prevailing party, and Brunswick had indicated its
willingness to provide further information. Another reason given for reducing the
costs request was for dismissal or abandonment of claims or damage theories before
trial, a reason used to discount the plaintiffs' earlier request in light of numerous
pretrial setbacks. It is not disputed, however, that none of Brunswick's counterclaims
was dismissed before trial and the only damage theory it abandoned was a minor
subpoint to the antitrust counterclaim later submitted to the jury. This basis to reduce
copy costs therefore lacks support in the record as applied to Brunswick. The district
court also penalized Brunswick for the comparatively large size of its legal team, but
as plaintiffs' counsel admitted at oral argument, Brunswick had more at risk in the
litigation. Finally, the court deemed the documentation provided by Brunswick to be
insufficient, but it appears to have been comparable to that supplied by the plaintiffs,
who were awarded eighty five percent of their adjusted request as opposed to sixty
percent for Brunswick (adjustments reflecting the deduction for convenience copies).

Most of the district court’s reductions to Brunswick’s costs request were not
challenged on appeal, but we conclude that the court abused its discretion in relying
on several unsupported factors to reduce copying costs to the extent it did. Based on

-7-
our review of the record, we conclude that it supports no more than a fifteen percent
reduction to Brunswick's request for copy costs and that Brunswick is entitled to an
award of $526,658.33 for its photocopy costs. This amount added to the undisputed
costs awarded by the district court ($542,059.15) results in a total cost award of
$1,068,717.48.

III.

Accordingly, we reverse, vacate the costs judgment, and remand to the district
court for entry of an order awarding costs in favor of Brunswick in the amount of
$1,068,717.48, to be assessed against plaintiffs jointly and severally.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-8-