United States District Court, D. Maryland
The Harry and Jeanette Weinberg Foundation, Inc.
St. Marks Avenue, LLC, et al.
L. Russell, III United States District Judge
before the Court are Defendants St. Marks Avenue, LLC
(“St. Marks”) and William Spivey's
(collectively, the “St. Marks Defendants”) Bill
of Costs (ECF No. 151) and Motion for Leave to File Amended
Crossclaim (ECF No. 171). The Motions are ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will deny awarding the Bill of Costs and grant the
Motion for Leave to File Amended Crossclaim.
November 19, 2015, Plaintiff The Harry and Jeanette Weinberg
Foundation, Inc. (the “Foundation”) sued the St.
Marks Defendants and Stacy Smith, alleging claims for False
Endorsement under Section 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a) (2012) (Count I), Breach of Contract (Count
II), Civil Conspiracy (Count III), and as to Communities
Organized to Improve Life, Inc. (“COIL”) and
Smith only, Accounting (Count IV). (Compl., ECF No. 1). On
July 6, 2017, the Foundation filed a Notice of Voluntary
Dismissal, stating that it is dismissing all of its claims
against the Defendants. (ECF No. 149). The Court approved the
Notice on July 7, 2017. (ECF No. 150).
10, 2017, the St. Marks Defendants filed a Bill of Costs.
(ECF No. 151). They seek $924.20 for costs related to their
deposition of Smith. (Id.). On July 12, 2017, the
Foundation filed an Opposition to the Bill of Costs. (ECF No.
155). On October 26, 2017, the St. Marks Defendants filed
correspondence requesting that the Court rule on their Bill
of Costs and arguing that the Court should award costs to
them. (ECF No. 173). On October 30, 2017, the Foundation
filed correspondence responding that the Court should not
award costs to the St. Marks Defendants. (ECF No. 174).
St. Marks Defendants' Bill of Costs
Marks Defendants contend that the Court should award costs to
them because they are the prevailing party under Federal Rule
of Civil Procedure 54(d). The Foundation responds that the
Court should not award costs because the deposition for which
the St. Marks Defendants seek costs was unrelated to the
Foundation's claims against the St. Marks Defendants. The
Court agrees with the Foundation.
Rule 54(d), “costs-other than attorney's
fees-should be allowed to the prevailing party.” The
district court has discretion to deny an award of costs.
Grochowski v. Sci. Applications Int'l Corp., No.
ELH-13-3771, 2017 WL 121743, at *3 (D.Md. Jan. 12, 2017)
(quoting Ellis v. Grant Thornton LLP, 434
F.App'x 232, 235 (4th Cir. 2011) (per curiam)). In the
Fourth Circuit, however, there is a presumption in favor of
awarding costs. Id. at *2 (quoting Cherry v.
Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.
1999)). As a result, the unsuccessful party must show
“circumstances sufficient to overcome” this
presumption. Id. (quoting Wyne v. Medo Indus.,
Inc., 329 F.Supp.2d 584, 586 (D.Md. 2004)).
district court denies an award of costs, it must
“‘articulat[e] some good reason' for its
denial.” Id. at *3 (alteration in original)
(quoting Ellis, 434 F.App'x at 235). The
following factors justify denying an award of costs:
“(1) misconduct by the prevailing party; (2) the
unsuccessful party's inability to pay the costs; (3) the
excessiveness of the costs in a particular case; (4) the
limited value of the prevailing party's victory; or (5)
the closeness and difficulty of the issues decided.”
Id. (quoting Ellis, 434 F.App'x at
the Court concludes that the Foundation has shown that the
fourth factor-the limited value of the St. Marks
Defendants' victory-justifies denying them costs. While
they correctly point out that they are the “prevailing
party” under Rule 54(d), the St. Marks Defendants
prevailed on only the Foundation's Lanham Act and
conspiracy claims against them. But the deposition of Smith
for which the St. Marks Defendants seek costs was not related
to defending against these claims. Instead, the St. Marks
Defendants deposed Smith about their crossclaim against Smith
and Smith's crossclaim against the St. Marks Defendants.
(Smith Dep. 234-57, Jan. 11, 2017, ECF No, 155-1). Thus, the
limited value of the St. Marks Defendants' victory,
prevailing on the Foundation's Lanham Act and conspiracy
claims, does not justify awarding costs for an unrelated
deposition. Accordingly, the Court will deny awarding the St.
Marks Defendants' Bill of Costs.
for Leave to File Amended Crossclaim
Marks Defendants' Motion for Leave to File Amended
Crossclaim is unopposed. Upon consideration of the Motion,
the Court concludes that it is meritorious. Thus, the Court
will grant the Motion.
in a status report, St. Marks asks the Court to sign an order
“specifically stating that the voluntary dismissal by
the [Foundation] is [w]ith prejudice.” (ECF No. 170).
The Court declines. The Court observes that it granted the
St. Marks Defendants' Motion to Alter the Order of
Voluntary Dismissal. (ECF No. 169). In that Motion, the St.
Marks Defendants moved for the Court to alter its July 7,
2017 Order dismissing the Foundation's claims in this
case so that the dismissal is with prejudice. (ECF No. 156).
Thus, the Court has already altered its July 7, 2017 Order to
dismiss the Foundation's claims with prejudice.
foregoing reasons, the Court DENIES awarding the St. Marks
Defendants' Bill of Costs (ECF No. 151) and GRANTS their
Motion for Leave to File Amended Crossclaim (ECF No.171).
Smith SHALL file a responsive pleading to the ...