Concord Boat Corp. v. Brunswick Corp.

• Decision Date: 25 October 2002
• Docket Number: No. 01-3580.,01-3580.
• Citation: 309 F.3d 494
• Parties: 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 Thompson Boat Company; Century Craft Industries, Ltd., formerly 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 494

309 F.3d 494

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 Thompson Boat Company; Century Craft Industries, Ltd., formerly 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.

No. 01-3580.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2002.

Filed: October 25, 2002.

Mark McLaughlin, argued, Chicago, IL (Thomas C. Walsh, William H. Sutton, James M. Simpson, Timothy S. Bishop and Michael A. Scodro, on the brief), for appellant.

Brooks F. Poley, argued, Minneapolis, MN (Laura A. Pfeiffer and Amy Lee Stewart, on the brief), for appellee.

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, 121 S.Ct. 428, 148 L.Ed.2d 436 (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 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.

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 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, ___ U.S. ___, 122 S.Ct. 666, 151 L.Ed.2d 580 (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, 123 Ark. 77, ...