     Case: 09-11027 Document: 00511388646 Page: 1 Date Filed: 02/21/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                              February 21, 2011

                                 No. 09-11027                      Lyle W. Cayce
                             cons. w/No. 10-10024                       Clerk



DARREL RUNDUS,

                                           Plaintiff - Appellant
v.

CITY OF DALLAS, TEXAS; STATE FAIR OF TEXAS,

                                           Defendants - Appellees




                Appeals from the United States District Court
                     for the Northern District of Texas


Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      This appeal arises out of Darrel Rundus’s insistence on distributing free
Bible tracts at the annual Texas State Fair (the “Fair”). He has twice had his
efforts thwarted by the private corporation, the State Fair of Texas (“SFOT”),
that runs the Fair. Shortly after his second failed attempt, Rundus filed this
suit under 42 U.S.C. § 1983 against the City of Dallas (the “City”) and SFOT,
alleging that they had violated his First Amendment rights. The trial court held
that no state action was involved in preventing Rundus from distributing the
tracts, and therefore it did not reach the First Amendment question. The trial
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court also assessed against Rundus the costs incurred by Appellees in
responding to his voluminous discovery requests. Rundus appeals.
                                             I.
       The Fair is held annually at Fair Park, a parcel of land that the City has
owned since 1904. As we have said, Rundus has twice attempted to distribute
Bible tracts at the Fair. Standing in his way is SFOT, the private corporation
that runs the Fair, and its Exhibitor Rule 9 (“the restriction”).1                SFOT is
governed by an Executive Committee; no government employees, officials, or
appointees serve on the Committee,2 SFOT does not receive any payments from
the City, and SFOT pays the City rent and a marketing fee. SFOT uses its Fair
revenues to improve Fair Park, but it improves only the areas it utilizes during
the Fair, and cannot make any improvements without prior written consent from
the City.3 SFOT is also required to maintain a reserve fund of at least $4.5
million, in order to ensure that the Fair is held during times of financial
instability.
       Since 1904, the Fair has been run by private organizations. SFOT is
responsible for running the Fair pursuant to a contract it has with the City--the
Fair Park Contract (“FPC”). Under the FPC, in non-Fair time, the City has
primary control over Fair Park; under an earlier version of the FPC, SFOT had
year round control. During the Fair, however, SFOT has primary control over


       1
        In 2004, SFOT officials informed Rundus that he could not distribute the Bible tracts
unless he rented a booth. In 2006, he was prevented from entering Fair Park with the tracts.
       2
        The Committee is appointed by a Board of Directors. The City is represented on the
Board by its Head of Parks and Recreation, but that representative is a non-voting member.
       3
         The City also funds such improvement, drawing on the fees paid to it by SFOT.
Appellees also collaborate on grant applications for Fair Park. All work done at Fair Park,
whether funded by the City or SFOT, occurs pursuant to a long range plan for Fair Park that
Appellees work together to formulate, fund, and implement. For example, SFOT and the City
agreed to improve the Cotton Bowl, the stadium located in Fair Park. Under this agreement,
SFOT funded $19.5 million in improvements in exchange for a $13.9 million rent abatement.

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the grounds, and it also decides who to admit into Fair Park in the days
immediately preceding and following the Fair. A ticket is required for admission
to the Fair, and ticket prices are within SFOT’s sole discretion. SFOT also
enacts its own rules and regulations, including the restriction--which prohibits
the distribution of literature without a booth rental. Rundus has declined to
rent a booth.
      The City assigns around 160 police officers to work the Fair. They enforce
applicable laws, including criminal trespass, but do not enforce SFOT’s rules and
regulations. SFOT attempts to remove unwelcome individuals without police
intervention, involving the police only if the individual refuses to leave.
      After his most recent rebuffed attempt to distribute tracts, Rundus
brought suit against the City and SFOT under 42 U.S.C. § 1983, alleging that
the restriction violates his First Amendment rights. During discovery, Rundus
requested voluminous documents, ostensibly so he could examine Appellees’
historical relationship.   In response to these requests, SFOT and the City
produced copies of the requested documents.
      The case was tried to the bench on stipulated facts. The trial court held
that SFOT is not a state actor. The trial court also assessed certain costs
against Rundus, including the costs Appellees incurred in making copies to
respond to his discovery requests. Rundus appeals.
                                       II.
      Rundus argues that his First Amendment rights have been violated.
There is a hurdle to overcome first, however. Thus, Rundus first argues that the
trial court erred in finding that no state action was involved in the prevention
of his distribution of religious tracts.     Consequently, before turning to the
constitutional question, we will address whether state action is involved in the
claims Rundus presents, for state action is a prerequisite for bringing an action
under Section 1983. See, e.g., Miss. Women’s Med. Clinic v. McMillan, 866 F.2d

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788, 792-93 (5th Cir. 1989). We review de novo the trial court’s determination
that no state action was involved in enforcement of the restriction. See Eugene
v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1303 (5th Cir. 1995).
       In order to show that there is state action, Rundus must show that either:
1) The restriction represents an official City policy or custom, see Monell v. Dept.
of Soc. Servs., 436 U.S. 658, 691 (1978) or 2) SFOT’s conduct in enacting and
enforcing the restriction is “fairly attributable” to the City.                  See Lugar v.
Edmondson Oil, 457 U.S. 922, 937 (1982). Rundus focuses solely on the latter
theory, so we must ask whether SFOT, although a private corporation, acts
under color of state law, and is thus a state actor for Section 1983 purposes.4
       The attribution test has not been precisely defined, as the Supreme Court
has addressed it on a case by case basis. See, e.g., Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n., 531 U.S. 288, 295-96 (2001). In Brentwood, the
Court held that, although in form the Athletic Association was a private
corporation separated from the state and its agencies, it nevertheless was a state
actor, because it was created to govern public school athletics; its members were
mostly public schools; its employees were treated as state employees, and were
eligible for state retirement benefits; and it was supported by gate receipts from
games played between public schools and from membership fees paid by those
schools. Id. at 299-300. Although Tennessee deleted its rule that had officially
recognized the Association as its regulator in the field of interscholastic
athletics, the Court determined that this change was merely formulaic. Id. at
300-01.



       4
        The City argues that the restriction is not a municipal policy, in that it was not
enacted by the City Council, its official policy-maker, see Bolton v. City of Dallas, 541 F.3d 545,
550-51 (5th Cir. 2008); thus, the City argues that it is not liable under Section 1983. If,
however, we should determine that the City has delegated relevant policy-making authority
to SFOT, it, along with SFOT, might be held liable for any violation of Rundus’s First
Amendment rights. See City of St. Louis v. Praprotnik, 485 U.S. 112, 128-30 (1988).

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       Rundus, relying heavily on Brentwood, contends that SFOT is a state actor
when it runs the Fair, and that it therefore must meet constitutional standards
when it restricts speech. He argues that the Appellees, by virtue of the FPC, are
entwined in a joint venture, which is demonstrated by their financially
interdependent relationship. He contends that this financial entwinement is
established under the factual analysis endorsed in Brentwood, i.e., the Appellees
mutually commit substantial financial sums to improve Fair Park; SFOT pays
a portion of the police officers’ wages earned during the Fair; and SFOT is
required to maintain a reserve fund to ensure that the Fair will be held in times
of financial distress.         Rundus essentially argues that SFOT is a shell
corporation, allowing the City to run the Fair and inject funds into Fair Park
while avoiding liability. SFOT counters that Brentwood is not this case, because
the overlapping leadership structure, financial dependence, and overall
symbiosis, so essential to that holding, are not present. See 531 U.S. at 298-301.
SFOT further argues that it is not financially dependent on the City, and,
indeed, it receives no payments from the City. Moreover, SFOT says the FPC
is representative of a long term commercial lease, a lease formalized only after
extensive negotiations.5
       Insisting that state action is present here, Rundus directs us to decisions
in which other circuits, when presented with similar facts, have found state
action present. See, e.g., Wickersham v. City of Columbia, 481 F.3d 591, 599 (8th
Cir. 2007); Parks v. City of Columbus, 395 F.3d 643, 652-53 (6th Cir. 2005). Not
to be outdone, SFOT diverts us to competing precedent indicating that running


       5
         Rundus argues that the government cannot insulate itself from constitutional
obligations by placing a public park into a private entity’s hands. See Evans v. Newton, 382
U.S. 296, 302 (1966). He similarly contends that the government does not shield itself from
constitutional scrutiny by allowing a private corporation to run its affairs. Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 392 (1995). These points do little to resolve the question here--
whether SFOT is a state actor. Indeed, if SFOT was shielded from constitutional scrutiny
merely because it is a private corporation, we would not perform any further analysis.

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a public event like the Fair does not automatically amount to state action.
Lansing v. City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000); Reinhart v. City
of Brookings, 84 F.3d 1071, 1073 (8th Cir. 1996). That each side attempts to
confound us with colorable support for its position is not surprising, given that
the Supreme Court has held that fact-intensive inquiries are necessary in
Section 1983 cases. Brentwood, 531 U.S. at 298-99 (quoting Lugar, 457 U.S. at
939). Although the cases from other circuits that we have cited do not bind us,
we can draw from them for our decision today; indeed, the Supreme Court has
said that “[a]midst such variety, examples may be the best teachers.” Id. at 296.
      We turn first to the Sixth Circuit. In Lansing, a private corporation--with
city officials on its board and with city funding--ran a festival on the streets of
Memphis, Tennessee. 202 F.3d at 830-34. The Sixth Circuit held that the
corporation was not a state actor, even though it cooperated with--and provided
economic benefit to--the city. Id. at 831. Thus, faced with significantly more
compelling evidence of state funding and involvement than Rundus has
provided, the Sixth Circuit rejected the notion of state action.
      In Parks, however, the Sixth Circuit held that there was state action in the
operation of an arts festival on the riverfront in Columbus, Ohio. 395 F.3d at
653. It found particularly important that the city aided the private event
organizers in enforcing their speech restrictive regulations. Id. It is worth
noting that the event organizers held a permit, and were not the city’s tenants,
id. at 645; as such, they did not hold the same legal rights that a private tenant
like SFOT does.
      The Eighth Circuit cases present a similar dichotomy. In Reinhart, the
court held that a privately run arts festival was not a state actor, even though
the festival took place on public property. 84 F.3d at 1072-73. The private event
organizers adopted and enforced a literature distribution rule that required
anyone seeking to distribute literature to obtain a booth. Id. A candidate for

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political office who wished to distribute literature in support of his campaign was
forced to leave the park, as he had no booth, and, indeed, could not have
obtained one, as the private committee categorically refused to give booths to
political candidates. Id. at 1072.
       In Wickersham, the Eighth Circuit held that a Memorial Day air show,
held at the city’s airport and run by a nonprofit corporation, involved state
action. 481 F.3d at 599. The court said: “[T]he city [of Columbia] not only
provided critical assistance in planning and operating the show, but also played
an active role in enforcing the particular speech restrictions. . . .” Id. at 598. In
the court’s judgment, these facts merited departure from Reinhart, because
“[t]here, the city had no role in planning, advertising, or managing the festival.”
Id.   This description of Reinhart cogently summarizes the Fair as well.
Furthermore, the Eighth Circuit observed, “[t]he contributions of the Columbia
police go beyond the kind of neutral assistance that would normally be offered
to private citizens in enforcing the law of trespass.” Id.
       Rundus, referring to Parks and Wickersham, draws an analogy to these
cases, pointing out that Dallas police officers provide security at the Fair. There
is a difference, however. During the Fair, Dallas police enforce only criminal
statutes and ordinances that provide “neutral assistance.”6 SFOT is not a state
actor merely because it takes advantage of law enforcement services provided to
the public. See Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485
(1988) (“Private use of state-sanctioned private remedies or procedures does not

       6
         Rundus emphasizes that the police make no independent investigation to determine
whether a criminal trespass has occurred, instead relying on SFOT”s characterization of
events. He argues that, under our precedent, if the police arrest individuals upon the
command of a private actor, without investigation, state action exists. Cf. White v. Scrivner
Corp., 594 F.2d 140, 143 (5th Cir. 1979) (state action exists if police arrest individuals for
shoplifting solely due to allegation of store owner). Unlike shoplifting, however, criminal
trespass is complete at the moment the defendant is on private property and refuses to leave,
and thus it does not require any further investigation. See Thompson v. State, 12 S.W.3d 915,
920 (Tex. Ct. App. 2000).

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rise to the level of state action.”); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173
(1972) (converting a private actor into a state actor merely because the private
entity uses state services would destroy the distinction).
      We hold that the facts here clearly indicate SFOT is not a state actor; it
runs a private event on public property. The pervasive entwinement present in
Brentwood is not presented in the facts before us. The City has no say in SFOT’s
internal decision making, and had no role in enacting or enforcing the restriction
on distribution of literature. Nor are we convinced by Rundus’s argument that
Appellees’ mutual commitment to improve Fair Park demonstrates state action,
because SFOT improves only the portions of Fair Park that will attract more
fairgoers.   In short, the facts presented are not sufficiently analogous to
Brentwood to conclude that SFOT is a state actor. We thus need not address
whether the restriction meets constitutional muster, and will proceed directly
to address whether the trial court erred in assessing costs against Rundus.
                                        III.
      Rundus argues that the trial court erred in ordering him, under F ED. R.
C IV. P. 54, to repay Appellees costs they incurred--$14,547.23 by SFOT and
$6,410.10 by the City--in responding to his discovery requests. Specifically,
Rundus objects to the assessment of costs Appellees incurred in copying
documents that he requested them to produce. To succeed, he must overcome
the provision of F ED. R. C IV. P. 54(d)(1). “Unless a federal statute, these rules,
or a court order provides otherwise, costs-other than attorney’s fees-should be
allowed to the prevailing party.” F ED. R. C IV. P. 54(d)(1).
                                         A.
      Rundus’s primary argument is that the Supreme Court has held that,
under the Federal Rules of Civil Procedure, costs incurred in preparing discovery
responses cannot be assessed. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
358 (1978). Rundus does not identify any specific rule of procedure that, by its

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text, establishes this point.7 Instead, he says “Article V of the Federal Rules of
Civil Procedure,” which is the Article containing all the discovery rules, “creates
an obligation to comply with discovery requests made under [that] article and
bear the costs of compliance.” Rundus’s argument that the Federal Rules of Civil
Procedure forbid a trial court from awarding discovery costs is subject to de novo
review. See Romaguera v. Gegenheimer, 162 F.3d 893, 895 (5th Cir. 1998)
(interpreting the Rules is a legal question).
       The Supreme Court has held that “the responding party must bear the
burden of responding to discovery requests.” Oppenheimer Fund at 358
(emphasis added). Appellees concede that parties must bear their own costs
initially when actually responding to discovery, but they argue the trial court
clearly has the authority to shift such costs at the litigation’s conclusion.
       In Oppenheimer Fund, the Court was faced with a dispute over which
party should bear the costs of providing notice to potential class members in a
class action suit. Id. To answer that question, the Court drew an analogy to the
discovery rules. Id. Nowhere in the opinion does the Court mention, much less
analyze, Rule 54. Id. Oppenheimer Fund thus does not purport to address the
question here--whether, at the conclusion of the trial stage of litigation,
discovery costs can be assessed against the losing party. In a case that does
address that precise question, we have expressly held that the trial court can
assess such costs. See Harrington v. Texaco, Inc., 339 F.2d 814, 822 (5th Cir.
1964). In Harrington, we said that “the authority of the trial court to assess
“necessary and reasonable” costs incurred during discovery “can hardly be



       7
         Rundus discusses FED . R. CIV . P. 26 and 34, but fails to explain why either rule
prohibits cost shifting. His argument appears to be that the Appellees should have moved for
a protective order, rather than to have made copies of the documents that he requested. This
argument, whatever its merit, does not affect our analysis. We are not addressing discovery
disputes, but are addressing the legal question of whether discovery costs can be awarded
under Rule 54(d)(1).

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doubted.” Id. Rundus has presented no authority from this court that suggests
that this holding was in error, and his argument is therefore rejected.
                                        B.
      Rundus advances an alternative argument. He says that the trial court
abused its discretion in assessing the copying costs because the documents were
not “necessarily obtained for use in the case.” We have previously held that
“whether a deposition or copy was necessarily obtained for use in the case is a
factual determination to be made by the district court. We accord great latitude
to this determination.” Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir.
1993).
      Rundus predicates his argument on the Supreme Court holding that the
only costs that are recoverable under Rule 54 are those listed in 28 U.S.C. §
1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).
In turn, Section 1920(4) authorizes the assessment of “the costs of making copies
of any materials where the copies are necessarily obtained for use in the case.”
      Rundus then urges us to interpret Section 1920(4) in the same way that
we have interpreted Section 1920(2). Section 1920(2), in relevant part, contains
language identical to that of Section 1920(4), and allows the assessment of “[f]ees
for printed or electronically recorded transcripts necessarily obtained for use in
the case.” In interpreting Section 1920(2), and, more specifically, the operative
phrase--“necessarily obtained for use in the case”--we have held that costs
incurred “merely for discovery” do not meet that standard. See Fogleman v.
ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991) (internal citations and quotation
marks omitted). We further held, however, that such costs are recoverable if the
party making the copies has a reasonable belief that the documents will be used
“during trial or for trial preparation.” 920 F.2d at 285. Finally, as we have
indicated, the determination of whether such copies are reasonably necessary is
best made by the district court, and we give great deference to its decision. The


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trial court did not abuse this broad discretion by assessing copying costs against
Rundus.
                                       IV.
      We have held that SFOT, as a private corporation performing the
operation of the Fair, is not a state actor. We have further held that the trial
court did not commit error by assessing copying costs against Rundus. The trial
court’s judgment is, therefore, in all respects,
                                                                     AFFIRMED.




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