District Court’s Fee Entitlement Ruling Was Preclusive On Fees, But Not Necessarily On Routine Costs Recovery.
UMG Recording, Inc. v. Shelter Capital Partners LLC, No. 09-55902 (9th Cir. Mar. 14, 2013) (published) was an affirmance of a district court’s decision to deny recovery of attorney’s fees under the Copyright Act to a “winning” defendant Fed.R.Civ.P. 68 offeror under a “safe harbor” defense. That decision was affirmed, although the decision mainly discussed whether offeror was entitled to routine costs, which required a remand to decide.
Although a defendant’s Rule 68 offer was not beaten by plaintiff, defendant was not entitled to fes as Rule 68 “costs” where the district judge determined that they were not properly awardable under the Copyright Act.
Different matter, altogether, as far as recovery of routine costs. A remand was necessary to determine if defendant could recover routine costs, depending if it could prove (1) the judgment to plaintiff was not pragmatically more favorable than the unaccepted offer, and (2) a judgment was not obtained by defendant as the prevailing party on the whole.