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Act 115: Money, Money, Money...

Proving that "it ain't over 'til it's over," Taubman's attorneys are fighting us tooth and nail over our attempt to recover less than $850 in court costs.

A little background on the money situation might be in order here. I believe that I spent about $2,500 on this case, a miniscule amount compared to the hundreds of thousands of dollars that Taubman may have spent. ($2,500 probably takes a bigger bite out of my budget than a couple of hundred thousand dollars takes out of Taubman's, but that's another story.) The main reason my costs were so low, of course, is that Paul Levy of Public Citizen defended me for free. In addition to my actual expenses, I probably lost tens of thousands of dollars in potential billings; as a contract programmer and writer, I bill my clients by the hour, and the hundreds of hours I devoted to the case were definitely not billable. (On the other hand, I picked up a valuable skill – so if you know anybody who wants to hire someone who's real good at being sued, please let me know...)

So, how do I go about getting my money back? After all, Taubman's filings indicated that they planned to ask the judge to have me pay their legal bills if they won the case, so shouldn't they be expected to pay me if they lost?

Of course, technically Taubman didn't "lose," they merely moved to dismiss the case "with prejudice." (According to the SphinxLegal.com Glossary, that's "the formal ending of a lawsuit where the plaintiff is not permitted to file the case again.") But more to the point, it seems that that's not the way it works, anyway: In this country, at least, the loser of a lawsuit does not automatically pay the winner's expenses. Of course, this gives an enormous advantage to big companies who want to sue individuals with limited resources, as the companies know that many individuals can't afford to hire a lawyer, especially since the individuals realize that they'll probably have to foot the legal bill even if they win the case. As we all know, many individuals will do whatever is necessary to avoid being sued, even if they know they're right – in most cases, proving that you're right is simply (and sadly) too expensive to be practical.

Since I'm one of those people who couldn't afford a lawyer, I tried to represent myself – and as I've documented profusely in this website, the results were less than stellar. I contacted the American Civil Liberties Union and the Electronic Freedom Foundation, but neither was interested in representing me (although the ACLU did subsequently file a "friend of the court" brief on my behalf in the Court of Appeals). If someone hadn't recommended that I contact Paul Levy, the outcome of this case would probably have been very different.

So, having said all that: It turns out that there are procedures for recovering your actual court costs (filing fees, printing and copying fees, etc.) – which, in my case, probably amounted to about $500 (and an additional few hundred dollars in costs that were incurred by my attorney). It's not much, but I'll take it.

To recover these fees, my attorney filed a "Bill of Costs" with the Court of Appeals on February 19, 2003, asking for $629.95; on March 3, the Court issued a "mandate" awarding us $504.20. (The difference is primarily due to the fact that we tried to recover the fees for filing the appeals, but it turns out that those fees must be recovered from the District Court instead.) And on March 14, the good folks at Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski, P.C., graciously mailed my attorney a check for that amount.

But when my attorney sent a letter to Taubman's attorneys asking them to agree to reimburse us for the costs that we incurred at the District Court level, he received no reply. And when he called to check on the status of his request, he was rudely (and I mean that quite literally) informed that Taubman wasn't going to give us any more money. And so, on March 12, my attorney filed a "Bill of Cost" with the District Court asking Taubman to pay us an additional $845.78 in court costs.

Determined to try to win something, Taubman's attorney Julie Greenberg filed this "Plaintiff's Response to Bill of Costs" on March 20.

In response to the Bill of Costs submitted by Defendant in this matter, Plaintiff respectfully states no costs are appropriate in the matter, which was settled and resulted in a stipulated dismissal with prejudice, with no judgment entered. The stipulated dismissal is attached hereto as Exhibit A. This is contrary to the sworn statement of Defendant's attorney that there was a "judgment" entered on February 19, 2003.

In view of the nature of the mutually stipulated dismissal, neither party in this case is entitled to its costs relating to the District Court action. Plaintiff does note, however, that it has previously submitted payment to Defendant for its allowable appeal costs (see Exhibit B).

For the reasons set forth above, Plaintiff respectfully requests the court to deny Defendant's Bill of Costs in this now-dismissed action.

View the Original Response (in a separate window)

And so, on March 25, my attorney filed this "Reply in Support of Costs."

Plaintiff objects to any award of costs on the ground that the Court's dismissal order is labeled as a "Dismissal" rather than a "Judgment." We disagree that there is no judgment in the case - under Rule 54(a), the label is unimportant, and the order of dismissal with prejudice amounts to a judgment - but in any event Rule 54(d) requires costs as a matter of course in favor of "the prevailing party." An award of costs thus does not depend on the issuance of a judgment. Here, there is no question that defendants prevailed. Indeed, some of the costs to be taxed are not sought based on Rule 54 of the Federal Rules of Civil Procedure, but on Rule 39(e)(4) of the Federal Rules of Appellate Procedure which requires that costs be taxed "against the appellee," Rule 39(a)(3), regardless of what occurs in the district court on remand.

Notably, plaintiff makes no objection to the specific amounts sought, for the transcript of a deposition that was filed in court and referenced in memoranda both for and against motions to dismiss and for summary judgment, and for copies of pleadings filed in the district court (three copies of 191 pages filed by Mishkoff pro se, and four copies of 620 pages filed by his counsel Mr. Levy and Ms. Harvey) or produced in discovery (invoices were attached). Accordingly, all of these costs should be taxed as well as provided by 28 U.S.C. §§ 1920(2) and (4). National Truck Equip. v. NHTSA, 972 F.2d 669, 674 (7th Cir. 1992); Bonk v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991).

On April 3, the District Court clerk issued a "Taxed Bill of Cost" awarding us $210, the amount of the fees I paid to file my appeals. And on April 8, the folks at Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski mailed us a check for that amount, meaning that we've recovered a total of $714.20 from the Taubman Company...

But, wait! There's more!!

I didn't realize that Judge Zatkoff was reviewing the clerk's decision, but I guess he was – and on May 1 he issued the following order, in which he declared that "there is no question that Defendants are the prevailing party in this matter" and awarded us the entire $845.78 for which we had originally asked!




CASE NO. 01-72987


This matter is before the Court on Defendants' Bill of Costs. Plaintiff objected and Defendants replied. The Court reviewed the materials submitted.

After Defendants were successful on their appeal, Plaintiff voluntarily dismissed this action; Defendants stipulated to the dismissal. This action was dismissed on February l9, 2003. On March 14, 2003, Defendants submitted a bill of costs for $845.78, mostly to cover photocopying costs, as well as court reporter fees. Plaintiff does not object to the specific amount that Defendants request; rather, Plaintiff argues that it is not required to pay costs because there was no "judgment" entered on the matter. Defendants argue that they are entitled to costs because FED. R. CIV. P. 54(d)(1) states: "[C]osts, other than attorneys' fees, shall be allowed as of course to the prevailing party... ." Defendants argue that there is no question that they are the prevailing party, and are thus entitled to costs.

Defendants are the "prevailing party" for the purposes of Rule 54(d). A dismissal with prejudice is sufficient to confer prevailing party status because it is tantamount to winning on the merits. See Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th Cir. 1997) (overruled on other grounds); Schwarz v. Folloder, 767 F.2d 125, 130 (5th Cir. 1985). "[I]n cases not involving a settlement, when a party dismisses an action with or without prejudice, the district court has discretion to award costs to the prevailing party under Rule 54(d)." Cantrell v. International Broth. of Elec. Workers, AFL-CIO, Local 2021, 69 F.3d 456, 458 (10th Cir. 1995). In All American Distributing Co. v. Miller Brewing Co., 736 F.2d 530, 532 (9th Cir. 1984), the Ninth Circuit stated that the defendant was the "prevailing party" because it successful defended a motion for a preliminary injunction; afterwards the plaintiff voluntary dismissal of all accompanying claims. Finally, the Sixth Circuit has held that an opposing party's voluntary dismissal of an action without prejudice was sufficient to grant the party "prevailing party" status, though costs were awarded under FED. R. CIV. P. 41(d). See Rogers v. Wal-Mart Stores, Inc. 230 F.3d 868, 873-74 (6th Cir. 2000). Therefore, there is no question that Defendants are the prevailing party in this matter.

Consequently, for the reasons stated, Defendants' Bill of Costs is GRANTED.


Date: 01 MAY 2003


View the Original Order (in a separate window)

The order seemed to be explicit enough, but a couple of weeks later, we still hadn't received a check from Taubman's attorneys – and so on May 15, my attorney wrote and asked them to let us know when we might "expect to receive a check for the balance." And on May 19, we received this petulant response.

Dear Mr. Levy:

I disagree with your interpretation of the Court's May 1, 2003 order. As you know, the costs in the amount of $367.18 were expressly rejected by the taxation clerk as non-taxable costs.

Notwithstanding our position, our client is not interested in undertaking any further efforts to clarify so trivial a matter. Accordingly, the remainder of the final bill of costs is enclosed herewith.

This should resolve the matter conclusively.

Very truly yours,

Julie A. Greenberg

View the Original Letter (in a separate window)

I was pleased to see that Ms. Greenberg did not resist what I hope will be her final chance to demonstrate how doggedly petty and unpleasant she can be. You'd think that she would have just sent us a check without making a federal case out of it (no, wait, she already lost the federal case...), but no, she had to let us know that she was right and that the rest of us (including the judge) were wrong. And to make sure that we were aware of the fact that the Taubman Company is in considerably better financial condition than I am, she characterized the amount of the check ($635.78) as "trivial," despite the fact that she's been fighting us over a slightly larger amount ($845.78) for more than two months.

Curiously enough, we now find ourselves at the satisfying point where Taubman has paid us a grand total of $1,349.98 – which not only is $84.25 more than the amount that we originally requested, it's also $349.98 more than they could have paid me to settle this entire matter nearly two years ago! And if they had paid the $1,000 settlement (which they proposed, and on which they promptly reneged), they could have saved themselves what may have been hundreds of thousands of dollars in legal fees – and they would have owned the domain name!

In any event, at long last, this entire matter finally appears to be over.

Unless, of course, I decide to initiate some kind of action against them...

Stay tuned.

Next: Fighting Back

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