2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DONALD J. BURKE, et al., Case No. 3:23-cv-00184-MMD-CSD

7 Plaintiffs, ORDER v. 8 LEWIS INVESTMENT COMPANY OF 9 NEVADA, LLC, et al.,

10 Defendants.

11 I. SUMMARY 12 Plaintiffs Donald J. Burke (“Burke Sr.”) and Donald W. Burke (“Burke Jr.”) sued 13 Defendants Lewis Investment Company of Nevada, LLC (“Lewis”), Kiley Ranch Six 14 Apartments, LLC, and Luke Dragovich for alleged copyright infringement and unjust 15 enrichment regarding the development of an apartment complex known as Kiley Ranch 16 in Sparks, Nevada that allegedly infringed on copyrighted architectural plans developed 17 by Plaintiffs. (ECF No. 1.) Defendants counterclaimed that Plaintiffs’ copyrights were 18 invalid and not infringed by Kiley Ranch and moved for summary judgement. (ECF Nos. 19 11 at 8-11; 39.) The Court granted Defendants’ motion for summary judgement and partial 20 declaratory relief. (ECF No. 64 at 16.) Before the Court is Defendants’ motion for 21 attorneys’ fees and costs seeking $838,675.00 in fees and $127,631.82 in costs from 22 Plaintiffs and Plaintiffs’ counsel (“Counsel”). (ECF Nos. 75 (“Motion”); 74; 81 at 2.)1 23 Defendants also filed a Bill of Costs (ECF No. 74), which Plaintiffs and Counsel object to. 24 (ECF No. 97, 98.)2 Because the Court finds Plaintiffs and Counsel did not act in bad 25 26 27 1Plaintiffs and Counsel responded to the Motion respectively (ECF Nos. 99, 96.) 28 Defendants filed a reply. (ECF No. 101.) 2 and Counsel’s objections to the Bill of Costs. 3 II. BACKGROUND 4 The Court incorporates the facts recited in the order addressing Defendants’ 5 motion for summary judgment. (ECF No. 64 at 2-3.) As relevant to the Motion, Plaintiffs 6 filed this lawsuit in 2023. (ECF No. 1.) For nearly a year and a half, Plaintiffs and 7 Defendants engaged in extensive discovery and failed settlement negotiations. (ECF No. 8 96 at 7-17.) In May 2024, Defendants sent an offer of judgement letter to Plaintiffs. (ECF 9 No. 78-3.). Plaintiffs declined the offer. (ECF No. 76-1 at 7.) In September, Defendants 10 moved for summary judgement. (ECF No. 39.) The Court granted Defendants’ motion, 11 including partial declaratory judgement. (ECF No. 64.) In February 2025, Defendants 12 moved for attorneys’ fees and costs. (ECF No. 75.) 13 III. DISCUSSION 14 “[T]he general rule in the United States” is that “litigants must pay their own 15 attorney's fees.” Christiansburg Garment Co. v. EEOC,

(1978) (citation 16 omitted). “Congress has provided only limited exceptions to this rule ‘under selected 17 statutes….’”

(citation omitted). Among these limited exceptions is section 505 of the 18 Copyright Act. See

. Additionally, Rule 68 of both the Federal and Nevada 19 Rules of Civil Procedure allow a party who made a rejected offer of judgment to obtain 20 post-offer costs and expenses. See Fed. R. Civ. P. 68(e)(d); Nev. R. Civ. P. 68(f)(1)(B). 21 Federal courts also possess the inherent authority “not conferred by rule or statute,” to 22 sanction a party through imposition of the opposing party’s legal fees and costs." 23 Goodyear Tire & Rubber Co. v. Haeger,

, 107 (2017). Finally, the Court is 24 authorized by statute to hold a party’s counsel personally liable for “excess costs, 25 expenses, and attorneys’ fees.”

. As elaborated below, the Court finds 26 that none of these grounds for awarding attorneys’ fees are applicable here. As 27 authorized by statute and Local Rules, the Court or clerk may tax certain litigation costs 28 2 addresses below Plaintiffs’ and Counsel’s objections to Defendants’ filed Bill of Costs. 3 A. The Copyright Act 4 The Court may “in its discretion” award attorneys’ fees and costs to the prevailing 5 party in copyright claims. See

. In Fogerty v. Fantasy, Inc., the Supreme 6 Court outlined factors that “may be used to guide courts’ discretion” in determining 7 whether to award fees and costs.

, 534 n.19 (1994). These non-exclusive 8 factors include “frivolousness, motivation, objective unreasonableness (both in the factual 9 and in the legal components of the case), and the need in particular circumstances to 10 advance considerations of compensation and deterrence.”

(quoting Lieb v. Topstone 11 Indus., Inc.,

(3rd Cir. 1986)). The Ninth Circuit instructs district courts 12 to also consider, “the degree of success obtained, the purposes of the Copyright Act, and 13 whether the chilling effect of attorneys’ fees may be too great or impose an inequitable 14 burden on an impecunious plaintiff.” Perfect 10, Inc. v. Giganews, Inc.,

, 675 15 (9th Cir. 2017) (citation omitted). The Court reviews each factor in turn. 16 1. Frivolousness3 17 A frivolous claim favors awarding attorneys’ fees. See Fogerty,

18 n.19. “[A] frivolous claim under the Copyright Act is one that, in either the factual or legal 19 assertions, is clearly baseless, involving fantastic or delusional scenarios. Put another 20 way, a case is deemed frivolous only when the result is obvious or the arguments are 21 wholly without merit.” Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098-AB (SHX), 22

, at *8 (C.D. Cal. Mar. 24, 2015), aff'd,

(citations omitted). 23 3Defendants address frivolousness and objective reasonableness together, citing 24 Glacier Films (USA), Inc. v. Turchin. (ECF No. 75 at 13);

(9th Cir. 2018) (analyzing reasonableness and frivolousness under the same heading). But 25 there, the Ninth Circuit ultimately held the district court abused its discretion in applying these factors partly because the lower court did not analyze objective reasonableness 26 separately. Glacier Films, F.3d at 1042-43; see also Mattel, Inc v. MGA Ent., Inc.,

(9th Cir. 2013) (distinguishing the objective reasonableness, 27 frivolousness, and bad faith factors). While “courts have not articulated precisely” the difference between the two, “the standard for objective unreasonableness is somewhat 28 lower than that for complete frivolity.” Perfect 10 v. Giganews,

, at *11, 2 time-barred from the outset. (ECF No. 75 at 13-14) (emphasis in original). While 3 Defendants effectively persuaded the Court that the 2019 discovery responses from 4 Pacific West Contractors demonstrated at least constructive knowledge triggering the 5 statute of limitations, this does not prove that either Plaintiffs or Counsel knew their claim 6 was time-barred and frivolously continued litigated regardless. (ECF Nos. 64 at 6-9; 96 at 7 19-20; 99 at 4-66.) Similarly, Defendants claim Plaintiffs and Counsel “knew the claims 8 were fatally flawed” because they had access to the various contracts which the Court 9 ultimately determined demonstrated Defendants’ ownership over the intellectual property 10 at issue. (ECF No. 75 at 14.) But access to and knowledge of the documents the Court 11 relied on in issuing its opinion does not prove Plaintiffs or Counsel brought this action 12 frivolously. In his briefing, Counsel explains the rationale behind pursuing these claims 13 despite these factual grounds. (ECF No. 96 at 4-7.) As he acknowledges, the Court was 14 not persuaded by his arguments. (ECF No. 96 at 2, 19 n.10.) But while Defendants may 15 have outlined their own persuasive legal arguments to Plaintiffs, the Court does not find 16 Plaintiffs’ arguments to be “so obviously without merit as to be frivolous.” Perfect 10 v. 17 Giganews,

, at *8, aff'd,

. Therefore, this factor ultimately 18 weighs against awarding fees. 19 2. Motivation 20 Improperly motivated litigation weighs towards awarding attorneys’ fees. See

at 21 *9 (citing Fogerty,

). A party that litigates with the subjective motivation of 22 “forc[ing] a settlement” qualifies as improper motivation under the Copyright Act. See 23 Shame On You Prods., Inc. v. Banks,

(9th Cir. 2018). Actions such as 24 “obstructionist conduct during discovery and failure to confer in good faith” may denote 25 this improper motive.

26 Defendants argue “all the evidence indicates” that Plaintiffs and Counsel “pursued 27 this action for the [improper] purpose of extracting a settlement.” (ECF No. 75 at 15.) To 28 support this argument, Defendants cite to Plaintiffs’ prior settlement in the Pacific West 2 (Id.) The Court is not persuaded that the evidence here demonstrates a “bad faith 3 purpose.” (Id.) 4 First, the previous settlement does not tend to show Plaintiffs brought this suit with 5 the improper motive of extracting an unwarranted settlement agreement here. Plaintiffs 6 did not file this lawsuit until over a year and a half after reaching the Pacific West 7 Contractors settlement. (ECF Nos. 1; 96-5). This timeline does not suggest, as 8 Defendants claim, that Plaintiffs turned around after this settlement in search of “deep[er] 9 pockets.” (ECF No. 75 at 3, 6 n.10.) Second, Defendants incorrectly state the amount of 10 Plaintiffs’ initial settlement offer. (Compare ECF No. 75 at 5, 21 n.28 (“[T]he Burkes’ initial 11 settlement demand totaled approximately $1.4 Million….”) with ECF No. 75-3 (“[T]he 12 Burkes are willing at this time only to accept $538,800.”)). The record of settlement 13 negotiations indicates an ultimately failed back-and-forth between the parties, not the 14 hyperbolic extraction described by Defendants. (ECF Nos. 75 at 6-8; 96 at 7-10.) 15 Plaintiffs’ and Counsel’s interest in resolving the dispute through settlement does not 16 imply an improper motivation. (ECF Nos. 75 at 7; 96 at 9.) Finally, Plaintiffs’ discovery 17 requests to the multiple defendants, which Defendants answered and never previously 18 objected to, do not qualify as “abusive” such that that they imply improper motivation. 19 (ECF Nos. 75 at 3, 6-7, 15, 18; 96 at 11-13.) 20 Defendants point to Plaintiffs’ failure to produce the Pacific West Contractors 21 settlement agreement as further evidence of “[i]mproper [p]urpose.” (ECF No. 75 at 10.) 22 But this is distinguishable from the failure to produce relevant documents in Shame on 23 You Productions v. Banks, which led the Ninth Circuit to affirm the district court’s finding 24 of improper motive.

. There, the plaintiff violated Federal Rule of Civil 25 Procedure 26(a)(1)(A)(ii) and a court order by failing to produce the relevant document. 26

Here, the prior settlement was verbally requested with evidence of only one follow-up 27 email. (ECF Nos. 75 at 10; 75-1 at 8-9.) If Defendants truly believed the waiver provision 28 applied broadly and released Plaintiffs’ claims, they could have requested production 2 to comply. (ECF No. 96 at 16.) Counsel’s failure to produce the prior settlement 3 agreement until now may be negligent but does not indicate subjective bad faith.4 4 Therefore, this factor weighs against granting attorneys’ fees. 5 3. Objective Unreasonableness 6 The objective unreasonableness factor is given "substantial weight,” although it 7 remains “only an important factor…not the controlling one.” Kirtsaeng v. John Wiley & 8 Sons, Inc.,

, 208-10 (2016). Objective unreasonableness contemplates both 9 factual and legal components of the case. Fogerty,

n.19. 10 Defendants point to the factual components of both the prior knowledge of 11 infringement and the MCA as making Plaintiffs’ continued litigation objectively 12 unreasonable. The Court agrees. Plaintiffs argue they acted reasonably because they 13 subjectively believed neither their prior knowledge of infringement nor the MCA barred 14 their claims. (ECF No. 99 at 5-6.) But this factor requires an objective inquiry. As the Court 15 identified in its ruling, the Plaintiffs’ asserted alternative date for notice was factually 16 “unreasonable.” (ECF No. 64 at 7.) So was Plaintiffs’ failure to further investigate and their 17 delay in pursuing Defendants (Id. at 8, 9, 10). This substantial factor therefore weighs in 18 favor of granting attorneys’ fees. 19 4. Compensation and Deterrence 20 The final factor from Fogerty is “the need in particular circumstances to advance 21 considerations of compensation and deterrence.”

n.19. This factor 22 overlaps significantly with frivolousness, motivation, and objective reasonableness. See 23 Michael Grecco Prods. Inc v. ImageSelect B.V., No. LA CV22-07398 JAK (JPRX), 2024

, at *6 (C.D. Cal. Dec. 4, 2024) (“Having previously determined that 25 [Plaintiff's] claim was neither frivolous nor objectively unreasonable, the Court cannot 26 conclude that [Plaintiff] should have been deterred from pursuing it.”) (citation omitted); 27

28 4Counsel included a copy of the prior settlement agreement in his response to the 2 served by awarding fees against a party who had litigated an objectively unreasonable 3 claim, or who had brought a claim in bad faith.”). “[D]eterring non-meritorious lawsuits 4 against defendants seen as having ‘deep pockets' and compensating parties that must 5 defend themselves against meritless claims are both laudable ends.” Perfect 10 v. 6 Giganews,

, at *12, aff'd,

(citation omitted). But courts 7 must also be careful not to discourage creators “from defending copyrights in original 8 works due to the threat of attorneys’ fees.” Brod v. Gen. Pub. Grp., Inc.,

, 9 236 (9th Cir. 2002). 10 The Court here finds Plaintiffs’ suit was not frivolous or in bad faith, but it was 11 objectively unreasonable and therefore merits deterrence. But the Court does not want to 12 deter other creators from defending their “life’s work.” (ECF No. 96 at 19.) Additionally, 13 while Defendants spent significant funds defending this suit, they also had “ample 14 incentive to litigate this issue without the added incentive provided by a possible recovery 15 of attorney’s fees.” Michael Grecco,

, at *6 (citing Epikhin v. Game 16 Insight N. Am., No. 14-CV-04383-LHK,

, at *8 (N.D. Cal. Mar. 31, 17 2016)). As Defendants note, they vigorously litigated this case not only to clarify 18 intellectual property rights for the Kiley Ranch Project, but for all their future projects as 19 well. (ECF No. 75 at 21-22 n. 28; 101 at 9.) The Court ultimately concludes this factor is 20 neutral and does not weigh in favor or against granting attorneys’ fees. 21 5. The Degree of Success in Litigation 22 The degree of success the moving party obtained in the litigation weighs in favor 23 of granting attorneys’ fees. See Perfect 10 v. Giganews,

. Defendants 24 near complete victory is undisputed. In the motion for summary judgment, the Court found 25 for Defendants on three alternative and sufficient legal bases: the statute of limitations, 26 laches, and contractual rights. (ECF No. 64 at 6-15.) The Court also found for Defendants 27 on Plaintiffs’ unjust enrichment claim. (Id. at 15.) The Court went on to grant Defendant’s 28 counterclaim for declaratory judgment regarding non-infringement. (Id. at 15-16.) The 2 did not reach those arguments, which the Court determined “d[id] not warrant discussion 3 as they d[id] not affect the outcome of the motions before the Court.” (Id. at 16.) 4 Accordingly, Defendants practically achieved “complete success” which weighs in favor 5 of granting attorneys’ fees. Gashtili v. JB Carter Props. II, LLC, No. 2:12-CV-00815-MMD, 6

, at *2 (D. Nev. Jan. 24, 2014). 7 6. Purposes of the Copyright Act 8 “The most important factor in determining whether to award fees under the 9 Copyright Act, is whether an award will further the purposes of the Act.” SOFA Ent., Inc. 10 v. Dodger Prods., Inc.,

(9th Cir. 2013) (quoting Mattel,

1111.). The Copyright Act’s “ultimate aim is ... to stimulate artistic creativity for the general 12 public good.” Mattel,

(citation omitted). “[A] successful defense of a 13 copyright infringement action may further the policies of the Copyright Act every bit as 14 much as a successful prosecution of an infringement claim by the holder of a copyright.” 15 Fogerty,

. “While the burden of defending frivolous and objectively 16 unreasonable litigation may be deleterious to the objectives of the Copyright Act, it is not 17 the purpose of the Copyright Act ‘to deter litigants from bringing potentially meritorious 18 claims, even though those claims may be ultimately unsuccessful.’” Michael Grecco, 2024

, at *4 (citations omitted). 20 This factor tracks closely with compensation and deterrence, discussed above. 21 Considering the Court finds Plaintiffs’ claims to be non-frivolous but also objectively 22 unreasonable, this factor does not weigh in either direction. 23 7. Chilling Effect and Inequitable Burden 24 Finally, the last factor to consider is “whether the chilling effect of attorney’s fees 25 may be too great or impose an inequitable burden on an impecunious plaintiff.” Perfect 26 10 v. Giganews,

. (citation omitted). This factor considers the “relative 27 financial strength of the parties, and whether the amount requested is excessive in light 28 of the losing party’s resources.” Perfect 10 v. Giganews,

, at *12, aff'd, 2 at *3 (C.D. Cal. Feb. 10, 2005)). 3 Defendants themselves emphasize their “relative strength, including financial 4 strength” compared to Plaintiffs. (ECF No. 74 at 5 n.10.) Lewis has built and managed 5 58,000 homes, 13,000 apartments and 24 million feet of retail, office and industrial space. 6 (Id.) They employ up to 1,000 people. (Id. at 6 n.10.) By contrast, Plaintiffs are a father 7 and son team. (ECF No. 1 at 2-4.) After seeking and failing to obtain compensation for 8 their “life’s work” through this copyright lawsuit, they are now facing nearly one million 9 dollars in legal fees and costs. (ECF No. 96 at 19). This would impose an inequitable 10 burden on Plaintiffs and potentially chill future efforts by copyrighted creators. Therefore, 11 this factor weighs against awarding attorneys’ fees. 12 In summary, the various factors point in different directions. While Defendants 13 prevailed over Plaintiffs’ objectively unreasonable copyright claims, Plaintiffs’ claims were 14 not frivolous or improperly motivated and the fees would impose an inequitable burden 15 and potentially chilling effect on Plaintiffs. Weighing all these factors together, the Court 16 finds that Defendants are not entitled to fees under the Copyright Act. 17 B. Rule 68 18 Both Federal and Nevada Rules of Civil Procedure allow for recovery of costs 19 against a party that rejects an offer of judgement and ultimately obtains a less favorable 20 outcome. See Fed. R. Civ. P. 68(d); Nev. R. Civ. P. 68(e). Under the Nevada state law 21 rule, a prevailing defendant may seek an award of fees and costs against a plaintiff. See 22 Cheffins v. Stewart,

(9th Cir. 2016); NRS § 17.117. But this is not 23 possible under the federal rule. See Delta Air Lines v. August,

(1981); 24 UMG Recordings, Inc. v. Shelter Capital Partners Ltd. Liab. Co.,

, 1035 25 (9th Cir. 2013); MRO Commc'ns, Inc. v. AT&T Co.,

(9th Cir. 1999). 26 When a district court exercises subject matter jurisdiction over a state law claim, the 27 governing state rule applies. See Cheffins,

(citation omitted). But for 28 2

. 3 In MRO Communications, the Ninth Circuit allowed a prevailing defendant to seek 4 fees and costs under state law, even though the lawsuit raised federal law claims and 5 only supplemental state law claims. See

. But it only did so for 6 carefully separated costs defending the relevant state law claims at issue.

at 1279 7 (“The attorney’s fees sought by Defendant AT&T do not include work relating to MRO’s 8 federal statutory claims on which AT&T also prevailed.”). 9 Here, Plaintiffs brought both a federal copyright claim as well as a state unjust 10 enrichment claim. (ECF No. 1.) Plaintiffs and Defendants agree that the federal copyright 11 claims are inseparable from the supplemental state law unjust enrichment claims. (ECF 12 No. 75 at 13; 99 at 3.) Because it is not possible to separate out the state law claims, and 13 because federal law bars awarding costs to prevailing defendants, the Court denies 14 awarding costs or fees pursuant to the rejected offer of judgment.5 15 C. Inherent Authority 16 Federal courts maintain inherent power, not conferred by rule or statute, "to 17 manage their own affairs so as to achieve the orderly and expeditious disposition of 18 cases." Goodyear Tire & Rubber, 581 U.S. at 107. That inherent authority includes "the 19 ability to fashion an appropriate sanction for conduct which abuses the judicial process," 20 including "an assessment of attorney's fees." Id. To impose sanctions pursuant to its 21 inherent authority, the court must find the offending party acted in bad faith. See 22 Rodriguez v. United States,

(9th Cir. 2008) (quoting Chambers v. 23 NASCO, Inc.,

(1991)). Recklessness alone is insufficient and must be 24 combined with “an additional factor such as frivolousness, harassment, or an improper 25

5Moreover, Fed. R. Civ. P. 68 only allows for recovery of costs, not attorneys’ fees, 26 in copyright cases like this where attorneys’ fees were not “properly awardable” under 27 section 505. UMG Recordings, Inc. v. Shelter Cap. Partners LLC,

, 1033- 34 (9th Cir. 2013); MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co.,

(9th 28 Cir. 1999) (citing Beattie v. Thomas,

, 274 n.5 (1983)). 2 Cir. 2001)). 3 The Court here already finds Plaintiffs’ litigation was not frivolous or for an improper 4 purpose. See III.A.1., III.A.2. Because Plaintiffs did not act in bad faith, the Court declines 5 to exercise its inherent power to impose sanctions. 6 D. Section 1927 7 Section 1927 “authorizes federal courts to punish barratry by requiring offending 8 lawyers personally to satisfy their opponents’ litigation debts.” Schutts v. Bently Nev. 9 Corp.,

(D. Nev. 1997);

. Sanctions under 10 section 1927 “must be supported by a finding of subjective bad faith,” which “is present 11 when an attorney knowingly or recklessly raises a frivolous argument or argues a 12 meritorious claim for the purpose of harassing an opponent.” New Alaska Dev. Corp. v. 13 Guetschow,

, 1306 (9th Cir. 1989); Estate of Blas Through Chargulaf v. 14 Winkler,

(9th Cir. 1989) (citations omitted). The Ninth Circuit gives 15 district courts “much discretion in determining whether and how much sanctions are 16 appropriate.” Haynes v. City & Cnty. of San Francisco,

(9th Cir. 2012) 17 (quoting Trulix v. Barton

(9th Cir. 1995)). 18 As discussed, the Court does not find Plaintiffs or Counsel acted in bad faith when 19 bringing this litigation. Therefore, the Court declines to order an award of fees under 20 section 1927. 21 E. Bill of Costs 22 The Federal Rules of Civil Procedure creates a presumption that the prevailing 23 party should be awarded its costs. See Fed. R. Civ. P. 54(d)(1); Stanley v. Univ. of S.

F.3d 1069, 1079 (9th Cir. 1999) (citation omitted). Taxable costs are 25 enumerated by statute.

. The Local Rules further defines taxable and 26 non-taxable costs. See LR 54-1 through LR 54-11. However, the Court retains discretion 27 to refuse to award costs to the prevailing party provided the Court specifies its reasons 28 2 v. State of California,

(9th Cir. 2000). 3 Defendants filed a Bill of Costs for a total of $966,306.82. (ECF No. 74.) Attorneys’ 4 fees represent the majority of those costs (ECF No. 74-2 at 3-4.) Defendants cite to the 5 same grounds identified in their Motion, which the Court already addressed and denied. 6 (Id.) Additionally, Defendants withdrew their request for $4,571.00 in costs associated 7 with obtaining copies of copyright registrations. (ECF Nos. 100 at 6; 100-1.) Therefore, 8 the only remaining disputed costs are the expert witness fees, the Litigation Discovery 9 Group invoice, and the copies of deposition exhibits. The Court resolves each dispute in 10 turn. 11 1. Expert Witness Fees 12 Defendants include Expert Costs and Fees in their Bill of Costs. (ECF No. 74-2 at 13 4-5.) Expert witness fees are generally not recoverable costs under statute or Local 14 Rules. See LR 54-11(h). As Defendants identify, the only grounds for awarding the expert 15 costs of $108,011.22 is the Court’s inherent authority to award the costs as a sanction 16 against Plaintiffs. (ECF Nos. 100 at 3; 74-2 at 4-5.) For the same reasons discussed 17 above, the Court declines to invoke its inherent authority to sanction Plaintiffs. See III.C. 18 Therefore, the Court finds these costs are not taxable. 19 2. Litigation Discovery Group Invoice 20 Defendants include in their bill of costs a $1,335.46 invoice from a legal vendor 21 called Litigation Discovery Group. (ECF No. 74-4.) The invoice includes the cost of 22 printing, tabbing, and hole-punching documents as well as three binders and after hour 23 labor and rush delivery fees. (Id.) The documents were the 127 exhibits used in deposing 24 the Plaintiffs. (ECF No. 100 at 4.) 25 Defendants argue this invoice is taxable under section 1920(4) and Local Rule 54- 26 6. (ECF No. 100 at 4);

; LR 54-5. Section 1920(4) allows for taxation of 27 “[f]ees for exemplification and the costs of making copies of any materials where the 28 copies are necessarily obtained for use in the case.”

(4). While these 2 Id.; see Palma v. Safe Hurricane Shutters, Inc.,

(S.D. Fla. 3 2012) (finding documents “used as exhibits for depositions…fall within the type of 4 photocopy costs that are recoverable under § 1920.”). But the Local Rules provide greater 5 detail on what “exemplification” and “copies” are and are not taxable. See LR 54-6. The 6 Rules permit taxation for copies of trial exhibits provided to the judge and opposing parties 7 as well as exhibits attached to a filed document. See LR 54-6(a)(1), (a)(2). As Plaintiffs 8 note, these deposition exhibits do not fall within either one of these categories. (ECF No. 9 98 at 5.) Moreover, the Local Rules explicitly state that any “copies obtained for an 10 attorney’s own use” are not taxable. LR 54-6(b). Defendants printed out these binders of 11 exhibits to facilitate their own deposition of the witnesses. (ECF No. 100 at 4); see Minden 12 v. Allstate Prop. & Cas. Ins. Co., No. 2:21-CV-00151-APG-BNW,

, at 13 *16 (D. Nev. Sept. 3, 2025) (declining to award costs for copies of exhibits used in 14 depositions under LR 54-6, finding they “‘appear to have been provided for the 15 convenience of the attorneys’ and were thus not necessary and not taxable.”) (quoting 16 Daniel v. Ford Motor Co., Civ. No. 2:11-02890 WBS EFB,

, at *4 (E.D. 17 Cal. Apr. 26, 2018)). Accordingly, the Court finds this invoice is not taxable. 18 3. Deposition Exhibit Copies 19 Defendants include $13,714.14 in costs related to deposition transcripts in their 20 Bill of Costs. (ECF No. 74-2 at 2-3.) Plaintiffs object to three invoices within this category 21 for a total of $208.64. (ECF Nos. 98 at 2, 5-6; 74-6; 74-7; 74-8.) These three invoices 22 related to three different depositions and include a “Transcript Fee” as well as a charge 23 for “Exhibits” and “Exhibit Printing.” (ECF Nos. 74-6; 74-7; 74-8.) 24 Defendants argue these objected to costs are taxable under section 1920(2) and 25 Local Rule 54-4. (ECF Nos. 100 at 5; 74-2 at 2-3.) Section 1920(2) identifies “[f]ees for 26 printed or electronically recorded transcripts necessarily obtained for use in the case” as 27 taxable.

(2). Neither party disputes this applies to deposition transcripts. 28 (ECF Nos. 100 at 6; 97 at 4.) The Local Rules more specifically detail the type of 2 defines deposition transcripts as a taxable cost. See LR 54-4(a)(1). But they specifically 3 do not allow for any “expenses in arranging for taking a deposition,” or any “special 4 formatting or production of deposition transcripts.” LR 54-4(b)(1), (b)(3). It appears these 5 costs relate to the generation and printing of Defendants’ own exhibits in order to take the 6 relevant depositions. Accordingly, they fall within the category of excluded costs under 7 the Local Rules. See Minden,

, at *16 (declining to award costs for 8 copies of exhibits used by the prevailing party in deposition). Therefore, the Court finds 9 these objected costs of $208.64 to be non-taxable. 10 Plaintiffs do not dispute the remaining deposition costs. (ECF No. 100 at 6.) As 11 Defendants correctly identify, failure to object “may constitute a consent to the award of 12 all costs included….” (Id.); LR 54-1(d). Accordingly, the remaining deposition-related 13 costs, totaling $13,505.50, are taxable costs. 14 IV. CONCLUSION 15 The Court notes that the parties made several arguments and cited to several 16 cases not discussed above. The Court has reviewed these arguments and cases and 17 determines that they do not warrant discussion as they do not affect the outcome of the 18 Motion before the Court. 19 It is therefore ordered that Defendants’ motion for attorneys’ fees (ECF No. 75) is 20 denied. 21 It is further ordered that Plaintiffs and Counsel’s objections to Defendants’ Bill of 22 Costs (ECF Nos. 97, 98) are sustained. The following items of costs from the Bill of Costs 23 (ECF No. 74) are not taxable: (1) attorneys’ fees ($838,675.00), (2) copies of copyright 24 registrations ($4,571.00), (3) expert witness fees and costs ($108,011.22), (4) Litigation 25 Discovery Group Invoice ($1,335.46), and (5) deposition exhibit costs ($208.64). 26 Defendants are directed to submit an amended bill of costs consistent with this order 27 within seven days for the Clerk of Court to tax. 28 /// 1 The Clerk of Court is then directed to kindly issue a memorandum regarding 2 || taxation of costs consistent with this order after Defendants’ filing of the amended bill of 3 || costs. 4 5 DATED THIS 19" Day of September 2025. 6 7 8 MIRANDAM.DU- ——“‘“COC™~™~:C~S 9 UNITED STATES DISTRICT JUDGE

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