Morris v. Grecon, Inc.

388 F.Supp.3d 711

Debra MORRIS, Individually and as Representative of the Estate of Kenneth W. Morris; Ashley Morris, Amanda Morris Wright, Jimmy Williams, Rebecca Williams, Orlando Ordaz, Roy McCollough, Plaintiffs,

v.GRECON, INC., Global Asset Protection Services LLC, Defendants.

NO. 9:16-CV-00035-RC

United States District Court, E.D. Texas, Lufkin Division.

Signed June 27, 2019

John Michael Love, Love & Wills, Lufkin, TX, Jane Swearingen Leger, The Ferguson Law Firm, LLP, Beaumont, TX, Jill Swearingen Pierce, Bradley, Steele & Pierce, LLP, Port Arthur, TX, for Plaintiffs.

Jennifer D. Aufricht, Sean R. Hicks, William N. Radford, Thompson Coe, Cousins & Irons, LLP, Dallas, TX, Michael Alan Choyke, Wright & Close LLP, Terry Fitzgerald, Royston Rayzor Vickery & Williams, LLP, Michael Emory Clark, Cameron James Asby, Corey M. Weideman, Duane Morris LLP, Houston, TX, Emily L. Hussey, Mark Albert Bradford, Duane Morris LLP, Tomas Mikel Thompson, Jaszczuk PC, Chicago, IL, Stephanie Paola Chery, Duane Morris LLP, New York, NY, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO REVIEW CLERK'S ACTION AND ENTER COSTS OF COURT

Ron Clark, Senior District Judge

Based on the jury's verdict, the court awarded $642,458.80 to Plaintiff Jimmy Williams and $25,000 to Plaintiff Rebecca Williams (the "Williams Plaintiffs"). Because the amounts that Plaintiffs Debra Morris, Ashley Morris, Amanda Morris Wright, Orlando Ordaz, and Roy McCollough (the "Group Plaintiffs") were each awarded by the jury were less than the amount they had each already received in settlements from others, the court applied the Texas settlement credit statutes ( TEX. CIV. PRAC. & REM. CODE §§ 33.012 & 33.013 ) and ordered in the Final Judgment that they take nothing. Now, Defendant Global Asset Protection Services LLC ("GAPS") asks the court to (1) enter costs of court against the Group Plaintiffs, and (2) vacate or, in the alternative, reduce the costs of court awarded to the Williams Plaintiffs for video and deposition transcripts of Aircon and Grecon personnel and experts. [Dkt. #332].

GAPS is imaginative in its argument, but not so bold as to dispute that the Williams Plaintiffs prevailed in this case. So, the Williams Plaintiffs are entitled to costs. The court rejects GAPS's vague complaints about certain costs and finds that the video and deposition transcripts of Aircon and Grecon personnel and experts were necessarily obtained for use in the case.

As a matter of law, the Group Plaintiffs are also "prevailing parties" in spite of the fact that they received no award in the judgment. But, even if they are not, GAPS provided no evidence or argument that any of the costs awarded were costs that could have been recovered only by one or more of the Group Plaintiffs. So, the full cost bill must be paid by GAPS. Whether the funds go to counsel under a fee agreement because counsel advanced costs, or to the Williams Plaintiffs, or to all of the Plaintiffs is no concern of GAPS.

I. BACKGROUND

Plaintiffs Debra Morris, Ashley Morris, Amanda Morris Wright, Jimmy Williams, Rebecca Williams, Orlando Ordaz, and Roy McCollough brought negligence and gross negligence claims against Defendants Aircon Corporation, Grecon, Inc., Mid-South Engineering Company, and GAPS, for a fire and subsequent explosion at a plywood mill in Corrigan, Texas. Because the other Defendants settled their claims with Plaintiffs prior to trial, only Defendants GAPS and Grecon, Inc. proceeded to trial on October 16, 2017. The jury found for Plaintiffs and determined that GAPS was 5% negligent, and that its negligence was a proximate cause of Plaintiffs' injuries and damages, but that it was not grossly negligent. [Dkt. #305].

After the trial, the court ordered the parties to submit briefing on how the settlement credits should be applied to the jury verdict. In its briefing, Plaintiffs stipulated that as to the Group Plaintiffs, prior settlements exceed the total damages awarded by the jury and that a take-nothing judgment regarding the claims of those Plaintiffs should be entered. [Dkt. #324]. Subsequently, the court entered Final Judgment, which stated that "Plaintiffs Debra Morris, Ashley Bialowas, f/k/a Ashley Morris, Amanda Morris Wright, Orlando Ordaz, and Roy McCollough shall recover NOTHING of and from their claims against Defendant Global Asset Protection Services, LLC." [Dkt. #325 at 2]. The Final Judgment also stated that "costs of court are taxed to Defendant Global Asset Protection Services, LLC." [Dkt. #325 at 2].

Post Final Judgment, Plaintiff Jimmy Williams, on behalf of all Plaintiffs, and Defendant GAPS each filed a Proposed Bill of Costs. The Clerk of Court noted on the docket that Defendant GAPS's Proposed Bill of Costs was "filed in error" as Defendants GAPS must pay the Bill of Costs. [Dkt. #327]. The Clerk of Court subsequently entered a Bill of Costs and taxed $75,357.68 to Defendant GAPS. [Dkt. #328]. Defendant GAPS then filed its Motion to Review Clerk's Action and Enter Costs of Court. [Dkt. #332]. Plaintiffs timely responded. [Dkt. #337].

II. DISCUSSION

a. Plaintiffs are the "prevailing party."

Unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise, "costs—other than attorney's fees—should be allowed to the prevailing party." FED. R. CIV. P. 54(d)(1). " Rule 54(d)(1) contains a strong presumption that the prevailing party will be awarded costs." Pacheco v. Mineta , 448 F.3d 783, 793 (5th Cir. 2006). The Fifth Circuit has held that "the prevailing party is prima facie entitled to costs" and that "denial of costs is in the nature of a penalty." Schwarz v. Folloder , 767 F.2d 125, 131 (5th Cir. 1985) (internal quotations and citations omitted).

"Prevailing party" is a legal term of art and defined as "a party in whose favor a judgment is rendered, regardless of the amount of damages awarded." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), citing Prevailing Party , BLACK'S LAW DICTIONARY (7th ed. 1999) (internal quotations and citations omitted). Rule 54(d)(1) "unambiguously limits the number of prevailing parties in a given case to one because the operative term, ‘prevailing party,’ is singular." Shum v. Intel Corp. , 629 F.3d 1360, 1367 (Fed. Cir. 2010) ; Mobile Telecomm. Tech., LLC v. Samsung Telecomm. Am., LLC , No. 2:13-cv-259-RSP, 2015 WL 5719123, at *1 (E.D. Tex. Sept. 28, 2015) ("For purposes of costs and fees, there can be only one winner.") (quoting Shum , 629 F.3d at 1367 ) (internal quotation marks omitted). To qualify as a prevailing party, "[t]he plaintiff must obtain an enforceable judgment ... or comparable relief through a consent decree or settlement." Farrar v. Hobby , 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). A court must look at the case as a whole to determine the prevailing party. Fogleman v. ARAMCO , 920 F.2d 278, 285 (5th Cir. 1991). Although the district court has discretion to decline awarding costs to the prevailing party, Rule 54(d) does not provide the court with power to award costs to the non-prevailing party. Three-Seventy Leasing Corp. v. Ampex Corp. , 528 F.2d 993, 998 (5th Cir. 1976).

Defendant GAPS argues that the Group Plaintiffs did not prevail, and thus cannot recover costs, because the Final Judgment stated they "shall recover NOTHING of and from their claims against Defendant Global Asset Protection Services, LLC." [Dkt. #325]. Specifically, Defendant GAPS argues that "[a] zero on damages necessarily zeros out ‘prevailing party’ status " and that "Texas courts ... have held that a plaintiff who takes nothing as a result of settlement credits is not a prevailing party." [Dkt. #332 at 3] (original emphasis and alternations).

Defendant GAPS's argument is misplaced and its assertions are overbroad. First, as courts have repeatedly recognized, for purposes of costs and fees, "prevailing party" is a singular term. Here, the prevailing party is "the plaintiff."¹ It is undisputed that the Williams Plaintiffs prevailed. Yet Defendant GAPS requests that the court conduct a piecemeal analysis of the Plaintiffs to determine who is the "prevailing party." Evidently the court should then apply an undescribed pro rata calculation to determine costs to be awarded to each "prevailing party." Defendant GAPS provides no legal authority—nor does the court know of any legal authority—that supports such an analysis and determination.

Second, even if such a piecemeal analysis is permissible, the Group Plaintiffs still prevailed in their own right. Defendant GAPS's reliance on Merritt Hawkins Assocs., LLC v. Gresham , 861 F.3d 143 (5th Cir. 2017), for the assertion that if a party receives zero damages then it cannot be the prevailing party misses the mark. In Gresham , the jury found for plaintiff on its breach of contract claims but declined to award damages for those claims. Because the Gresham plaintiff did not obtain monetary or equitable relief, the district court declined to award it attorneys' fees. Unlike the Gresham plaintiff, the Group Plaintiffs here did obtain monetary relief—in the form of their settlement. See Maher v. Gagne , 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) ("The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees.").

Further, Defendant GAPS's assertion that "Texas courts ... have held that a plaintiff who takes nothing as a result of settlement credits is not a prevailing party" is overbroad. The case Defendant GAPS cites for this proposition, Hamra v. Gulden , 898 S.W.2d 16 (Tex.App.—Dallas 1995, writ dism'd w.o.j.), is specific to the Texas Deceptive Trade Practices Act ("DTPA") and inapplicable here. Generally, a party does not need to obtain a net recovery to prevail under the DTPA. Id. at 19. However, net recovery is required in a DTPA case "in which a consumer has already received payment of an amount...