[PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                         ________________________        U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              AUGUST 17, 2001
                               Nos. 00-11309                THOMAS K. KAHN
                               and 00-12842                      CLERK
                         ________________________

                    D. C. Docket No. 95-03237-CV-C-S

UNITED STATES STEEL, LLC,
HEATHERWOOD GOLF CLUB, INC.,

                                   Plaintiffs-Appellants-Counterclaim Defendants,

     versus

TIECO, INC.,
ATOZ MANAGEMENT, INC.,
FLETCHER YIELDING,

                                   Defendants-Appellees-Counterclaim Plaintiffs.

                         ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 17, 2001)

Before BLACK, RONEY and COX, Circuit Judges.

BLACK, Circuit Judge:
      Appellants, the plaintiffs and counterclaim defendants, are United States Steel,

LLC (USX)1 and its subsidiary the Heatherwood Golf Club (Heatherwood).

Appellees, the defendants and counterclaim plaintiffs, are Fletcher Yielding and two

of his corporate entities, TIECO, Inc. (TIECO) and ATOZ Management, Inc. (ATOZ).

TIECO is a vendor of golf course maintenance equipment, light industrial equipment,

and irrigation equipment. ATOZ is the management arm of TIECO. USX operates

a tractor shop, and Heatherwood operates a golf course. Prior to this litigation, USX’s

tractor shop and Heatherwood’s golf course were customers of TIECO.

      Appellants sued Appellees alleging liability under the federal RICO statutes and

state law.    Appellees filed several counterclaims, alleging violations of 42

U.S.C. § 1983 and state law. The district court granted Appellee Yielding summary

judgment on all of Appellants’ claims. The case proceeded to a jury trial. Before

submitting the case to the jury, the district court granted Appellees TIECO and ATOZ

judgment as matter of law on Appellant Heatherwood’s claims.              During jury

deliberations, the district court dismissed Appellant USX’s claims as a sanction for

discovery violations. The jury rendered a verdict in favor of Appellees on the

counterclaims, awarding $6.8 million to TIECO and $375,000 to Mr. Yielding, and



      1
       At the time of trial, United States Steel LLC was constituted as the USX
Corporation.
                                          2
the district court entered judgment accordingly. Subsequently, regarding Appellees’

counterclaims, the district court denied Appellants’ renewed motion for judgment as

matter of law and motion for remittitur. With respect to Appellants’ claims, the court

denied Appellants’ motion for a new trial and to vacate judgment of dismissal. Lastly,

the district court awarded attorney’s fees and costs to Appellees in the total amount

of $1,442,769.27.

      Appellants contend the following rulings from the district court were erroneous:

(1) the grant of judgment as a matter of law to TIECO and ATOZ on Heatherwood’s

claims and the denial of Appellants’ motion for a new trial on Heatherwood’s claims,

(2) the dismissal of USX’s claims as a discovery sanction and the denial of

Appellants’ motion for a new trial on USX’s claims, (3) the judgment awarding $6.8

million to TIECO and $375,000 to Mr. Yielding, (4) the denial of Appellants’

renewed motion for judgment as matter of law on Appellees’ counterclaims or, in the

alternative, the denial of Appellants’ motion for remittitur, and (5) the judgment

awarding $1,442,769.27 in attorney’s fees and costs to Appellees.2




      2
        Appellants raise the first four alleged errors in appeal number 00-11309.
Appellants raise the fifth alleged error in appeal number 00-12842. The two
appeals have been consolidated.
                                          3
      The first two errors claimed by Appellants do not warrant discussion, and we

affirm without opinion pursuant to 11th Cir. R. 36-1.3 In Part I of this opinion, we

address the third and fourth errors claimed by Appellants, both of which concern

Appellees’ counterclaims. In Part II, we address the fifth alleged error, concerning the

award of attorney’s fees and costs.

                       I. APPELLEES’ COUNTERCLAIMS

      Appellees’ counterclaims rest on USX’s cooperation with the Alabama

Attorney General’s Office (AG)4 during a criminal investigation and prosecution of

Appellees. According to Appellees, the manner in which USX cooperated with the

AG violated federal and Alabama law. The jury agreed. It found USX liable,

under federal law, for a violation of 42 U.S.C. § 1983, and, under Alabama law, for

the torts of malicious prosecution, abuse of process, interference with business

relationships, civil conspiracy, and defamation. Except for the defamation tort,

TIECO was the sole counterclaimant. Both TIECO and Mr. Yielding won

damages under the defamation counterclaim. Appellants contend USX was



      3
         An affirmance pursuant to Rule 36-1 has no precedential value. See Va.
Props., Inc. v. Home Ins. Co., 

, 1132 n.2 (11th Cir. 1996).
      4
         When referring to the “AG,” we are alluding to officials who acted
collectively on behalf of the Alabama Attorney General’s Office. We are not
referring to the particular person who held the office of Attorney General.
                                           4
entitled to judgment as matter of law on Appellees’ counterclaims. In addition,

Appellants challenge the judgment on the ground the district court made numerous

errors at trial.

       In subpart A, we set forth the admissible evidence in the record in the light

most favorable to Appellees. Our review of the evidence, however, does not

include any evidence derived from a state judicial opinion which was erroneously

entered into evidence. In subpart B, we explain why the district court’s admission

of the state judicial opinion constituted reversible error. In subpart C, we examine,

as to each of Appellees’ counterclaims, whether USX was entitled to judgment as a

matter of law.

A.     Background

       1. Initial Stages

       The genesis of the USX-AG cooperation was a disclosure by a former

TIECO employee, Marty Colby. By May 1995, Mr. Colby had communicated to

his attorney, Victor Hayslip,5 that TIECO’s accounting practices with respect to

USX were questionable. Essentially, Mr. Colby alleged that TIECO used bogus

invoices and disloyal USX employees to bill USX for materials purchased but


       5
       Mr. Hayslip had represented Mr. Colby and Turfcare Products (TIECO’s
main competitor) in an unrelated lawsuit brought by TIECO over a non-compete
agreement.
                                          5
never received. Mr. Colby admitted misappropriating goods himself. Ironically,

Mr. Hayslip was an attorney with a firm, Burr & Foreman, which had been serving

as USX’s outside counsel for many years. Mr. Hayslip informed the AG and USX

about Mr. Colby’s allegations and arranged a meeting in his office on June 13,

1995.

        Prior to the June 13th meeting, the AG and USX discussed Mr. Colby’s

allegations. At the meeting, the AG and USX interviewed Mr. Colby separately.

Mr. Colby repeated his allegations about TIECO’s accounting practices. USX’s

assistant general counsel questioned Mr. Colby’s credibility. Nonetheless, both

USX and the AG effectively acceded to Mr. Colby’s request (made by Mr.

Hayslip) that they not pursue any criminal or civil remedies against him.

        Although the AG and USX interviewed Mr. Colby separately, they jointly

conferred at the June 13th meeting. When USX signaled its intention to conduct

an internal audit, the AG requested that USX abstain from any actions which

would alert TIECO. Accordingly, USX agreed not to interview any suspected

USX employees or pursue any remedy against TIECO.

        On June 27, 1995, the AG sent a letter to USX requesting any information

possessed by USX about vendors, other than TIECO, who similarly defrauded

USX. USX provided the requested information and indicated it was “very


                                         6
interested” in cooperating with the AG’s investigation of TIECO and other

vendors. Additionally, USX interviewed former TIECO employees, and, on July

18, 1995, forwarded summaries of the interviews to the AG. Lastly, in the summer

of 1995, Mr. Hayslip called the AG on behalf of USX, inquiring repeatedly about

the status of the investigation.

      2. The AG’s Seizure of TIECO’s Records

      On August 30, 1995, the AG applied in state court for a warrant to seize

specific documents and materials from TIECO’s place of business. The affidavit

accompanying the warrant was signed and prepared by the AG’s chief investigator,

and it was reviewed by one of the AG’s criminal prosecutors. According to the

chief investigator, the information in the affidavit was gained from interviews

conducted by the AG of Mr. Colby and four other former TIECO employees.

Finding probable cause, the state court issued the warrant. On August 31, 1995,

led by the chief investigator, the AG seized numerous TIECO documents and

computer tapes.

      No USX official was present during either the issuance or execution of the

warrant. Moreover, the chief investigator, as well as USX, denied that USX was

involved in, or even had knowledge of, the AG’s efforts to procure the search




                                         7
warrant. No evidence in the record rebuts this denial by the chief investigator,

indicates he had a motive to lie, or in any way impeaches his credibility.




                                          8
      3.     USX’s Cooperation with the AG after the Seizure of TIECO’s
             Records

      By the time of the seizure, the AG realized it did not have the expertise or

the resources to fully investigate the seized records and to pursue a criminal

prosecution of TIECO. Accordingly, after the seizure, the AG requested auditors

from victim companies, including USX. In particular, the auditors were asked to

compare their own company’s records with those seized from TIECO. The AG

planned, with USX’s cooperation, to have the auditors serve as expert witnesses in

any criminal proceeding.

      On three separate occasions (October 11-12, 1995, November 7-9, 1995, and

January 31- February 1, 1996), USX auditors visited the AG’s office to review the

seized TIECO records. One of these reviews occurred after USX had filed the

instant lawsuit. The auditors examined all documents related to any USX-TIECO

transaction. The AG did not permit the auditors to photocopy or remove the

records. Instead, the auditors took copious notes, entered data on USX computers,

and created spreadsheets from the data. USX kept the AG apprized of the

information gained from the audit.

      Two of TIECO’s suppliers were also present during portions of these

reviews. At times, USX auditors reviewed documents with TIECO’s suppliers.



                                          9
On at least one occasion, a USX auditor provided an invoice to one of TIECO’s

suppliers.

      In addition to examining records, USX auditors assisted the AG in

deciphering computer tapes seized from TIECO. Duplicate tapes were sent for

reformatting to a California company, which returned the tapes directly to USX

along with software to read the tapes. Although the AG paid the California

company for this service, it intended to seek reimbursement from USX and the

other victim companies. Moreover, because the AG did not have a computer

capable of reading the tapes, USX auditors analyzed the tapes on their own

computer. USX and the AG exchanged results of these analyses and other

information gleaned from the tapes. Once the analyses were complete, USX

maintained some of the data, both on its own computers and in computer printouts.

      The cooperation between USX and the AG extended to other areas. For

instance, six days after the AG’s seizure of TIECO’s records, USX transmitted to

the AG printouts of accounts payable information concerning USX-TIECO

transactions; in the letter accompanying the printouts, USX stated, “[I]f we have

additional ideas on how you might approach the TIECO documents now in your

possession, we will be in touch.” In October 1995, the AG provided USX

information from its interview with a representative of a TIECO supplier. In


                                         10
November 1995, USX mailed to the AG photographs of property owned by a USX

employee suspected of wrongdoing. In December 1995, the AG faxed to USX

inventories of the seized records and copies of some seized records. In mid-

December 1995, Mr. Hayslip, acting on USX’s behalf, sent the AG a summary of

TIECO’s accounts receivable, invoices, pick tickets, and other documents relating

to TIECO-USX and TIECO-Heatherwood transactions.

      The highest level of the AG-USX cooperation occurred with the interviews

of USX employees from the tractor shop and golf course. In November 1995, to

prepare for the interviews, USX auditors drafted a lengthy memorandum to inform

the AG about the allegations USX had unearthed. The memorandum detailed

specifically how each USX employee had participated in the alleged scheme and

provided personal information about each employee. Separately, USX provided to

the AG social security numbers of the suspected employees. USX’s assistant

general counsel circulated a memorandum, dated December 19, 1995, which set

forth the ground rules for interviewing USX employees. The memorandum called

for each employee, without prior warning, to be interviewed twice—once by a

team from the AG and FBI and again by a team from USX. On December 20,

1995, the AG, USX, and FBI met to prepare for the employee interviews; over the

next two days, they conducted interviews of nearly every employee in accordance


                                        11
with the December 19th memorandum. USX threatened disciplinary action and

criminal prosecutions unless the employees cooperated in the investigation.

      4. Appellants’ Lawsuit

      Shortly before the employee interviews, Mr. Hayslip filed the instant lawsuit

on December 15, 1995, on behalf of Appellants. Before filing the suit, USX had

sent Mr. Hayslip information gained from its review of TIECO’s seized records.

Also prior to the lawsuit, Appellants made a settlement demand, giving Appellees

just three days to respond. Among other things, Appellants demanded cooperation

in the AG’s and USX’s parallel investigations and a payment of $555,977.52. That

dollar figure was derived from information in TIECO’s seized records.6

      During the first half of 1996, the cooperation between the AG and USX

mostly involved legal matters and proceedings. For example, the AG and USX

conferred after the district court in this case ordered Appellants to produce “a copy

of all of [TIECO’s] data, computer tapes, and documents in its possession which

were seized by the [AG].” In March 1996, USX’s counsel, Burr & Foreman,

shared legal research with the AG.

      5. Mr. Yielding’s Ethics Complaint Against the AG


      6
         Appellants argue that evidence of the settlement demand should not have
been admitted pursuant to Fed. R. Evid. 408. We need not address this argument
to resolve this case.
                                         12
      In May 1996, attention shifted from the investigation of TIECO to an ethics

complaint filed by Mr. Yielding, on behalf of himself, TIECO, and ATOZ. The

complaint, filed with the Alabama State Ethics Commission (Commission), alleged

the AG seized TIECO’s property and then shared, with USX and Burr & Foreman,

information gained from that seizure. Mr. Yielding stated he never authorized such

a disclosure.

      At the Commission’s proceedings, appearances were made by USX’s

assistant general counsel, Mr. Hayslip, and James Wager, who was USX’s lead

auditor. The presentation given to the Commission by Mr. Wager was crucial to

the AG’s defense: he asserted it was probable TIECO was bribing local USX

managers. However, although USX was aware that Mr. Colby had stolen some

items from TIECO, Mr. Wager did not mention this fact. On July 10, 1996, the

Commission concluded there were insufficient facts to find the AG had violated

Alabama ethics laws. In a letter to USX, the AG expressed gratitude for USX’s

assistance, stating it went “beyond the call of duty.”

      6. Mr. Hayslip’s Statement to the Press

      During the pendency of the ethics complaint, Mr. Hayslip made some

derogatory comments related to the ethics complaint. One newspaper reported the

following:


                                          13
      Victor Hayslip . . . said Tieco’s complaints ring hollow. “What
      they’re doing is the equivalent of Jeffrey Dahmer complaining his
      victims got blood on the carpet,” Hayslip said. “It’s without merit.”. .
      . Hayslip said the complaints were an attempt to embarrass [the
      Alabama Attorney General] for political reasons.

Similar comments were printed in multiple Alabama newspapers.

      7. Grand Jury Indictments

      Another event that occurred during the pendency of the ethics complaint was

a state grand jury investigation led by the AG. In June 1996, the grand jury

returned seven indictments containing 125 counts alleging wrongdoing by TIECO.

Twenty-one counts pertained to USX-TIECO transactions.

      In his testimony before the grand jury, Mr. Hayslip misrepresented the

extent of Mr. Colby’s personal involvement in the scheme.7 At the trial in this

case, USX’s assistant general counsel acknowledged that he was aware of Mr.

Hayslip’s misrepresentations. Nonetheless, USX never informed the AG, the

grand jury, or the state court about the misleading aspects of Mr. Hayslip’s

testimony.




      7
         To reiterate, we are not finding that Mr. Hayslip made misrepresentations
before the grand jury. We are merely portraying the facts in the light most
favorable to Appellees. Mr. Hayslip and Burr & Foreman are not parties to this
appeal, and they have not been heard on this allegation.
                                         14
      Besides Mr. Hayslip, the other USX representative to provide significant

grand jury testimony was Mr. Wager, the lead auditor. Mr. Wager accused TIECO

of billing USX for items it had never received. By the time of the grand jury

proceeding, however, USX’s audit team had failed to search the golf course or the

tractor shop.8 Just as he had done before the Commission, Mr. Wager failed to

inform the grand jury that Mr. Colby, in participating in the alleged scheme, had

stolen some items from TIECO.

      The core of Mr. Wager’s testimony was an explanation of TIECO’s

accounting system and how TIECO was billing USX for items never delivered to

USX. According to Mr. Wager, TIECO would create an invoice for a certain item.

The invoice would show the item was shipped to USX’s tractor shop in Alabama.

To bill USX, the invoice would be sent to USX’s headquarters in Pittsburgh,

Pennsylvania. Initially, TIECO’s inventory would be debited to reflect the loss of

the item. In Mr. Wager’s view, all of the foregoing practices were acceptable, but

the insidious aspect of TIECO’s system was a so-called “adjustment account.”


      8
         Appellees assert that, subsequent to the indictments, USX found several of
the alleged missing items at the tractor shop. However, the record citations
provided by Appellees do not support this assertion. One citation is the cross-
examination of Mr. Wager, but Mr. Wager stated he had no knowledge about the
subsequent search. The other citation is to a state judicial opinion, which was not
admissible for reasons discussed below. See infra Part I.B. Regardless, even if
Appellees’ assertion is true, it would not alter our legal analysis.
                                         15
Under this account, TIECO would credit its inventory for an item which, according

to the invoice, already had been shipped to the tractor shop and for which USX had

been billed. Put simply, from TIECO's accounting records, it appeared TIECO was

billing USX Pittsburgh for items which were never delivered to USX.

      TIECO’s explanation of its accounting system conformed, to a large extent,

with the explanation given by Mr. Wager. At trial, Appellees called Pam

Hackbarth, a TIECO employee who knew more than anyone about TIECO's

accounting system and the adjustment account. She testified as follows:

      [T]he branch secretary [for TIECO] generate[s] an invoice, and the
      invoice is mailed to USX in Pittsburgh for payment. USX pays. And
      TIECO shows the invoice paid, and credits the [a]djustment [a]ccount,
      and credits the account with the payment.
      ....
      [W]hen we would bill [USX], that would be relieving our inventory of
      that item. And we would put a credit into the [a]djustment [a]ccount,
      bringing it back into inventory so it would be available.

Ms. Hackbarth admitted the adjustment account was used when TIECO was

invoicing a customer for items not delivered. She further conceded that USX in

Pittsburgh was not informed about the adjustment account.

      Contrary to Mr. Wager’s suggestion, however, the purpose of the adjustment

account was not to commit fraud on USX. Rather, Ms. Hackbarth explained:

      [T]he customer would want one product, and maybe because of
      budget reasons could not buy that product. And so [TIECO] would
      bill for parts. . . . Then [TIECO] would create the account for those

                                         16
      parts, and that would create a credit balance. And then [the customer]
      . . . would build a credit, and then he could buy what he needed. And
      it was to be items that the customer used in doing his job or taking
      care of the facility . . . .

By referring to “customer,” Ms. Hackbarth was not referring to USX’s

headquarters in Pittsburgh, but rather to USX employees in Alabama at the tractor

shop and the golf course. These Alabama employees would use TIECO’s

adjustment account as a means to procure items they could not otherwise obtain

through the normal USX budgetary process. This fact became evident, not only

from Ms. Hackbarth’s testimony, but also from the testimony of former USX and

TIECO employees.9 In any event, the Alabama employees were procuring items

for use at USX’s facilities, not for personal use.

      The grand jury indictments against TIECO went nowhere. In April 1997,

the AG voluntarily dismissed all counts related to USX. In July 1997, Judge James

S. Garrett of the Circuit Court of Jefferson County dismissed the remaining counts

for prosecutorial misconduct.

      As part of his opinion dismissing the indictments, Judge Garrett incorporated

a statement of facts prepared by TIECO in connection with its motion to dismiss



      9
        The employees worked for USX’s subsidiary, Heatherwood, but their
testimony was that all budgetary decisions were made by the parent corporation,
USX.
                                          17
the indictment. Not surprisingly, the statement of facts is quite favorable to

Appellees and relied upon heavily by Appellees in their brief to this Court. As we

discuss immediately below, the admission of Judge Garrett’s opinion was

improper, see infra Part I.B, and we do not consider the evidence contained

therein.

Admissibility of State Judicial Opinion

      1. Background

      The AG and TIECO were parties in the state criminal proceeding before

Judge Garrett. Burr & Foreman represented USX in the proceeding, but USX was

not a party. In dismissing the indictments, Judge Garrett issued an opinion which

adopted in toto a memorandum of facts prepared by TIECO in connection with its

motion to dismiss the indictment.

      Over Appellants’ objection, the district court admitted the opinion, including

the memorandum of facts. The memorandum was an exhaustive account that

neatly conformed to Appellees’ allegations, especially with respect to the

malicious prosecution, abuse of process, and civil conspiracy counterclaims. As is

set forth in the margin, the memorandum depicted in great detail Appellees’ view




                                          18
about the nature of USX’s involvement in the AG’s investigation of TIECO.10

Furthermore, Judge Garrett did not mince words, as he found, “[T]he misconduct

of the [AG] in this case far surpasses in both extensiveness and measure the totality

of any prosecutorial misconduct ever previously presented to or witnessed by this

Court.”

      Judge Garrett’s opinion was a significant portion of Appellees' case (as well

as their brief on appeal). During the examination of witnesses, Appellees' counsel

repeatedly referred to the proceedings before Judge Garrett, and on at least one

occasion, counsel read verbatim an extensive portion of the opinion. In closing

argument, Appellees' counsel told the jurors if they had any question about the

credibility of Appellants' witnesses, they should read Judge Garrett’s opinion.




      10
          The memorandum of fact described, inter alia: (1) cooperation between
the AG and USX in reviewing TIECO’s seized documents, (2) a meeting on
November 8, 1995, where USX informed the AG that it intended to sue TIECO
and would be providing the AG with copies of charts; (3) the coordination between
the AG and USX in having TIECO’s computer tapes reformatted and read;
(4) USX’s agreement to repay the AG for reformatting the tapes; (5) an implication
that either USX’s lead auditor, Mr. Wager, or the AG’s investigator, John
Mulligan, had lied about the repayment agreement; (6) legal advice given to the
AG and USX that “USX should not be used as quasi government agency”; (7)
cooperation between the AG and USX in conducting interviews of USX’s
employees; and (8) the AG’s sending TIECO’s records to USX in preparation for
the interviews.
                                         19
      Prior to trial, Appellants filed a motion in limine objecting to Judge Garrett’s

opinion, and they raised the objection again at trial. Appellants argued the opinion

should be excluded pursuant to Fed. R. Evid. 401 and Fed. R. Evid. 403. We

address solely the Rule 403 argument.

      2. Fed. R. Evid. 403

      Rulings on the admission of evidence are reviewed for abuse of discretion.

See, e.g., United States v. Adair, 

, 320 (11th Cir. 1992). An error on

an evidentiary ruling will result in the reversal of a jury’s verdict only if a party

establishes a substantial prejudicial effect or a manifest injustice. See Anderson v.

WBMG-42, 

, 563 (11th Cir. 2001) (citing Piamba Cortes v. Am.

Airlines, Inc., 

, 1305 (11th Cir. 1999)).

      As a preliminary matter, had Appellants lodged an objection pursuant to

Fed. R. Civ. P. 801(c), the admissibility of Judge Garrett’s opinion could be easily

resolved. See United States v. Jones, 

, 1554 (11th Cir. 1994). In

Jones, the district court admitted factual findings made in a separate case by

another district court. See 

We concluded such factual findings were

hearsay, and they could not be either judicially noticed or admitted under the

public records exception to the hearsay rule. See 

(citing Fed. R.




                                           20
Evid. 201 and Fed. R. Evid. 803(8)(C)); see also Nipper v. Snipes, 

, 417-

18 (4th Cir. 1993).

      Despite not being raised, the conclusion that Judge Garrett’s opinion was

inadmissible hearsay is not inconsequential to our analysis under Rule 403.11 Rule

403 involves balancing, on the one side, the evidence’s probative value and, on the

other side, the evidence’s dangers, including its unfairly prejudicial and misleading

nature. By comparison, hearsay is disfavored because it is not subjected to the

oath, the rigors of cross-examination, or the first-hand scrutiny of the jury. See

United States v. Parry, 

, 294-95 (5th Cir. 1981)12 (citing McCormick

on Evidence § 245 (2d ed. 1972)). As a result, hearsay can be unreliable; for

instance, in the context of the Confrontation Clause,13 hearsay that does not fall

within a firmly-rooted exception is presumed unreliable. See Idaho v. Wright, 497




      11
         Rule 403 provides, “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consideration of undue delay,
waste of time, and needless presentation of cumulative evidence.”
      12
          In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en
banc), this Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.
      13
         Of course, the Confrontation Clause is not applicable to civil cases, but
we refer to its jurisprudence to illustrate hearsay’s unreliability.
                                          

, 818, 

, 3148 (1990). Due to its unreliability, hearsay can

be misleading and unfairly prejudicial.

      The hearsay in Judge Garrett’s opinion—which does not satisfy a firmly-

rooted exception14—was particularly unreliable and misleading. Although the

statement of facts was presented to the jury as Judge Garrett’s finding, it was

prepared entirely by Appellees’ counsel. In effect, the admission of the statement

of facts permitted counsel to testify on his client’s behalf, without being cross-

examined. Further, the statement of facts was intended to exculpate TIECO, and

thus, it was self-serving and unreliable. Cf. United States v. Reme, 

,

1168-69 (11th Cir. 1984).

      Of course, Judge Garrett accepted the statement of facts by incorporating it

into his opinion. But this made the hearsay contained therein even more unfairly

prejudicial and misleading. As the Fourth Circuit has stated, “[J]udicial findings of

fact present a rare case where, by virtue of their having been made by a judge, they




      14
          As we noted in Jones, the common law did not permit the admission of a
judgment from another 

. One court has found that judicial
findings are admissible under the residual exception to the hearsay rule. See Jones
v. Wash. Metro. Area Transit Auth., 

, 1019-20 (D.D.C. 1996).
But that exception is not firmly rooted. See 

, 110 S. Ct.
at 3147-48.
                                          22
would likely be given undue weight by the jury, thus creating a serious danger of

unfair prejudice.” 

(internal quotations omitted).

      The Fourth Circuit’s Nipper decision is particularly pertinent to the instant

case. When we ruled in Jones that a judicial finding was inadmissible hearsay, we

relied heavily on Nipper. See 

. In Nipper, like here, the

plaintiff introduced the factual findings of a state court to prove a civil conspiracy.

See 

. While reversing on the ground that the judicial findings

were inadmissible hearsay, the Fourth Circuit also concluded that judicial findings,

due to the danger of unfair prejudice, were inadmissible under Rule 403. See 

see also Carter v. Burch, 

, 265 (4th Cir. 1994); United States

v. DeSantis, 

, 770 (6th Cir. 1998) (Nelson, J., concurring); Blue Cross

and Blue Shield of N.J., Inc. v. Philip Morris, Inc., 

, 324, 325

(E.D.N.Y. 2001); Hairston v. Wash. Metro. Area Transit Auth., No. Civ. 93-2127

(D.D.C. April 10, 1997).

      The district court abused its discretion in admitting Judge Garrett’s opinion.

The jury, not Judge Garrett, was charged with making factual findings on

Appellees’ allegations in this case. Moreover, Appellants have shown they were

substantially prejudiced by the admission of Judge Garrett's opinion, as Appellees

relied on the opinion throughout the trial. Most notably, during closing argument,


                                          23
Appellees’ counsel told the jury to use the opinion to make credibility

determinations. Therefore, the district court’s admission of the opinion constituted

reversible error.

C.    Judgment as a Matter of Law

      A party is entitled to judgment as a matter of law “[i]f during a trial by jury

[the opposing] party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for [the opposing] party on

that issue.” Fed. R. Civ. P. 50(a)(1). We review de novo the denial of a Rule 50

motion and apply the same standard as the district court. See, e.g., Bogle v. Orange

County Bd. of County Comm’rs, 

, 656 (11th Cir. 1998). Furthermore,

for those close claims based on state law, “we are bound to decide the [claim] the

way it appears the state’s highest court would.” E.g., Royal Ins. Co. of Am. v.

Whitaker Contracting Corp., 

, 1040 (11th Cir. 2001) (internal

quotations and citation omitted).

      Under Rule 50, a court considers the evidence in the light most favorable to

the non-movant and grants all reasonable inferences in favor of the non-movant.

See, e.g., 

. Nonetheless, a non-movant must present more

than a mere scintilla of evidence. See, e.g., Abel v. Dubberly, 

, 1337

(11th Cir. 2000). A court should deny a motion for judgment as a matter of law


                                          24
“only if reasonable and fair-minded persons in the exercise of impartial judgment

might reach different conclusions.” 

omitted). With this

standard, we analyze for each of Appellees’ counterclaims whether USX should

have been granted judgment as a matter of law.

      1. Violation of 42 U.S.C. § 1983

      To violate 42 U.S.C. § 1983, a party must be acting “under color of state

law.” Id.; e.g., Willis v. Univ. Health Servs., Inc., 

, 840 (11th Cir.

1993). Although USX is a private corporation, Appellees contend USX

nonetheless violated § 1983 because it acted in concert with the AG, an arm of the

state of Alabama. Even if this assertion is true, it does not, by itself, establish

liability under § 1983. To state a claim under § 1983, a party must also prove a

violation of a particular constitutional or federal statutory provision. See id.;

Whiting v. Traylor, 

, 583, 584 n.4, 586 (11th Cir. 1996). In this case,

Appellees claim a violation of (1) the Due Process Clause of the Fourteenth

Amendment and (2) the Fourth Amendment as applied to states through the

Fourteenth Amendment.

      As a preliminary matter, the district court’s jury instruction on the Due

Process Clause and the Fourth Amendment was inadequate. The charge merely

stated the following:


                                           25
      Under the Fourth Amendment . . . , every person . . . has the right to
      be free from an unreasonable search and seizure. Under the
      Fourteenth Amendment . . ., no state may deny to any of its citizens
      “due process of law.” Notice of contemplated action and an
      opportunity to be heard are the two rights guaranteed by the due
      process clause of the Constitution.

This instruction was empty of any substance, as it does little more than restate the

constitutional text. Like all causes of action, constitutional claims have elements

which the claimant must prove. See, e.g., Eleventh Circuit Pattern Jury

Instructions (Civil Cases) § 2.2, at 198 (1999) (describing elements of Fourth

Amendment claim). The hollow instruction in this case, however, effectively

permitted the jury to usurp the district court’s role as interpreter of the

Constitution.

      Nevertheless, even if the jury had been properly instructed, it could not have

reasonably found a constitutional violation. In arguing the Due Process Clause

was violated, Appellees point to much of the same evidence they rely on for the

state law malicious prosecution claim.15 But TIECO has no right under the

substantive component of the Due Process Clause to be free from criminal



      15
          While relying on the same evidence, Appellees state in their brief, “There
is no assertion of a malicious prosecution claim under 42 U.S.C. § 1983.”
Appellees’ Br. 33. This statement highlights the perplexing nature of Appellees’
§ 1983 claim. When asked at oral argument to articulate the heart of the
constitutional claim, Appellees' counsel was unable to do so.
                                           26
prosecution without probable clause. See Albright v. Oliver, 

, 268,

, 810 (1994); 

nn.3 & 4.

      Whether a malicious prosecution claim can be brought via the procedural

component of the Due Process Clause is an open question in this circuit.16 See

n.3 (citing Perez-Ruiz v. Crespo-Guillen, 

, 43

(1st Cir. 1994)). Justice Kennedy, joined by Justice Thomas, has suggested that

such a claim would lack merit where, as here, state law provides a cause of action

for malicious prosecution. See Albright, 

, 114 S. Ct. at 818-19

(Kennedy, J., concurring). We need not address this question today. Even if we

were to accept the proposition that such a cause of action existed, the plaintiff

would be required, at the very least, to establish the common-law tort of malicious

prosecution, including the absence of probable cause. See 

          Allegations of malicious prosecution could plausibly constitute a
violation of the Fourth Amendment. For instance, we observed in Whiting:
       Labeling . . . a section 1983 claim as one for a “malicious
       prosecution” can be a shorthand way of describing a kind of legitimate
       section 1983 claim: the kind of claim where the plaintiff, as part of the
       commencement of a criminal proceeding, has been unlawfully and
       forcibly restrained in violation of the Fourth Amendment and injuries,
       due to that seizure, follow as the prosecution goes 

; accord Uboh v. Reno, 

, 1002-03 (11th Cir. 1998).
But, in this case, TIECO, a corporation, was never arrested, detained, or seized in
any way. Thus, the Fourth Amendment violation envisioned by Whiting could not
have occurred in this case.
                                          27
270 

n.4; see also 

296-97, 

, 825, 827-28 (Stevens, J., dissenting) (suggesting Due Process Clause is

violated whenever prosecution in not predicated on probable cause). As discussed

below, probable cause existed to prosecute TIECO, and thus Appellees have not

established the common-law tort. See infra Part I.C.2. Thus, no violation of

procedural due process could have occurred.17

      Finally, we address Appellees’ allegations concerning the search and seizure

of TIECO’s records. Appellees must rely on the Fourth Amendment, the explicit

constitutional text that protects citizens from searches and seizures. See 

, 114 S. Ct. at 813. A warrant, and its corresponding search,

violates the Fourth Amendment if it fails to specify the place to be searched and

the items to be seized, see Steele v. United States, 

, 

(1925); Go-Bart Importing Co. v. United States, 

, 

(1931); or if it is issued by an official who is not neutral and detached, see

Coolidge v. New Hampshire, 

, 

(1971), or if it is

procured by a false statement made intentionally or recklessly, see Franks v.

Delaware, 

, 

(1978); or if it is not supported by


      17
         Appellees also argue that TIECO’s procedural due process right was
violated because the AG and USX conspired to violate Alabama’s ethics laws.
This contention lacks merit.
                                          28
probable cause, see Massachusetts v. Upton, 

, 

(1984).

None of the foregoing occurred here. On the contrary, Appellees allege that USX

agreed to delay its audit of TIECO “so the AG could produce probable cause for a

search warrant.” Appellees’ Br. 4; see also Appellees’ Am. Compl. ¶ 2.a., at 5

(stating that “[i]n an effort to help the [AG] establish enough probable cause to

obtain a search warrant, USX began supplying the [AG] with information”).

Assuming that Appellees’ allegation is true, an agreement to delay a search until

there is probable cause could not possibly run afoul of the Fourth Amendment. See

U.S. Const. amend. IV (stating that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation”).

      In sum, there is no evidence in the record to support a finding that

Appellees’ federal constitutional rights were violated. The district court should

have granted USX judgment as a matter of law on the § 1983 counterclaim.

      2. Malicious Prosecution

      Under Alabama law, to prevail on a malicious prosecution claim, a plaintiff

(in this case, TIECO) must show: (1) a prior judicial proceeding was instituted by

the defendant (in this case, USX); (2) the defendant acted without probable cause

in the prior proceeding; (3) the defendant acted with malice in instituting the prior

proceeding; (4) the prior proceeding ended in favor of the plaintiff; and (5) the


                                          29
plaintiff was damaged. See Poff v. Hayes, 

, 240 (Ala. 2000); S.S.

Kresge Co. v. Ruby, 

, 487-88 (Ala. 1977). Appellants contend

Appellees failed to establish the first, second, and third elements. We address

solely the second element, probable cause.18

      Probable cause is “a reasonable ground for suspicion, supported by

circumstances sufficiently strong in themselves to warrant a cautious man in the

belief that the person accused is guilty of the offense charged.” Simpson v. Life

Ins. Co. of Ga., 

, 996 (Ala. 1993) (internal quotations omitted);

accord Eidson v. Olin Corp., 

, 1285 (Ala. 1988); see also

Delchamps, Inc. v. Bryant, 

, 832 (Ala. 1999); S.S. Kresge 

at 488. In determining whether probable cause existed, the facts should not be

viewed in hindsight, but rather at the time the prosecution is instituted. See Nat’l

Sec. Fire & Cas. Co. v. Bowen, 

, 139 (Ala. 1984). Where material

facts are disputed, the issue of probable cause is for the jury; however, where the



      18
          Grand jury indictments are prima facie evidence of probable cause under
Alabama law. See, e.g., Simpson v. Life Ins. Co. of Ga., 

, 996 (Ala.
1993). This prima facie evidence is rebutted if the indictments were “induced by
fraud, subornation, suppression of testimony, or other like misconduct of the party
seeking the indictment.” Nat’l Sec. Fire & Cas. Co. v. Bowen, 

, 140
(Ala. 1983). Because we conclude probable cause was established as a matter of
law even in the absence of an indictment, we need not decide whether the grand
jury indictments in this case were rebutted.
                                          30
material facts are not disputed, the issue is one of law for the court. See S.S.

Kresge, 

at 488. Put another way, if there are undisputed facts in the

record establishing that the defendant had probable cause to pursue the criminal

indictments, the plaintiff cannot recover for malicious prosecution. See 

.

      In this case, undisputed facts establish that, at the time of the grand jury’s

investigation, USX reasonably suspected TIECO of criminal activity. As

mentioned previously, TIECO’s description of its accounting system essentially

comported with the description given by USX to the grand jury. Mr. Wager,

USX’s lead auditor, told the grand jury that TIECO billed USX in Pittsburgh for

items not delivered to USX’s tractor shop or golf course. Similarly, Ms.

Hackbarth, TIECO’s employee in charge of accounting, testified at trial that

TIECO was billing USX in Pittsburgh for one item while delivering a different

item to the tractor shop and golf course. In other words, the item being billed was

not being delivered. Although TIECO may have had an innocent explanation for

this accounting system, the system, on its face, gave USX a reasonable ground for

suspecting TIECO of fraud. Furthermore, even though USX may have had reason

to question the credibility of TIECO’s principal accuser (Mr. Colby), that did not

denigrate the probable cause created by TIECO’s accounting system. Therefore,


                                          31
the district court should have granted USX judgment as a matter of law on the

malicious prosecution counterclaim.

      3. Abuse of Process

      To state an abuse of process claim, one must allege the abuse of a judicial

process. See W. Page Keeton, Prosser and Keeton on Torts § 121, at 898 (5th ed.

1984) (cited in Drill Parts and Serv. Co. v. Joy Mfg. Co., 

, 1288

(Ala. 1993)). In this case, Appellees allege USX abused the process of a criminal

search warrant. However, based on the Supreme Court of Alabama’s decision in

Drill Parts, Appellees have failed to establish an abuse of process claim. 

at 1286-89.

      The plaintiffs in Drill Parts, like Appellees here, alleged that the defendants

had used a criminal search warrant to gather information for a civil suit against the

plaintiffs. See 

1286. Noting that malice was an element of an abuse of

process claim,19 the Supreme Court of Alabama held, “[T]o establish malice in this

case[,] the plaintiffs must show that the defendants willfully caused a criminal

search warrant to issue for the wrongful purpose of obtaining discovery for a civil

action against the plaintiffs.” 

(emphasis added); accord 

,


      19
          The other elements for an abuse of process claim under Alabama law are
ulterior purpose and wrongful use of process. See, e.g., Caldwell v. City of
Tallassee, 

, 1127 (Ala. 1996).
                                         32
§ 121, at 898 (stating an essential element is “a wilful act in the use of the process

not proper in the regular conduct of the proceeding”). In the instant case, the

evidence is insufficient to show that USX “willfully caused” the search warrant for

TIECO’s premises.

      Granted, USX was cooperating with the AG both before and after the

issuance of the search warrant, and USX used information from the seized records

to prepare its settlement demand. To reiterate, however, the challenged process

must be a judicial one, that is the search warrant—not the AG’s investigation.20

Nothing in the record indicates that USX controlled or influenced, or even

participated in, the decision to seek and execute the warrant. No USX

representative was present for either the procurement or execution of the warrant.

Further, according to the AG’s chief investigator (who sought and executed the

warrant), all the information in the affidavit accompanying the warrant application

was gained from the AG’s own interviews of former TIECO employees. Most

importantly, the chief investigator unequivocally denied that USX was involved in,



      20
          That does not mean evidence of USX’s conduct after the warrant issued
and during the AG’s investigation was irrelevant. Such evidence was pertinent to
establishing an ulterior purpose and a wrongful use of process. 

note 19;
Shoney’s, Inc. v. Barnett, 

, 1024 (Ala. Civ. App. 1999) (stating that
“[t]he tort of abuse of process is concerned with the wrongful use of process after
it has been issued” (internal quotations omitted)).
                                          33
or had knowledge of, procurement of the search warrant, and Appellees presented

no evidence to rebut or impeach this sworn testimony. Therefore, the district court

should have granted USX judgment as a matter of law on the abuse of process

counterclaim.

      4. Tortious Interference With Business Relations

      To prove tortious interference with business relations in Alabama, a plaintiff

must show: (1) the existence of a contract or business relation, (2) defendant’s

knowledge of the contract or business relation, (3) intentional interference by the

defendant with the contract or business relation, (4) absence of justification for the

defendant’s interference, and (5) damage to the plaintiff as the result of the

defendant’s interference. See Mut. Savs. Life Ins. Co. v. James River Corp. of Va.,

, 1180 (Ala. 1998). In addition, a plaintiff must show “some

evidence of fraud, force, or coercion[] on the defendant’s part.” Joe Cooper &

Assocs., Inc. v. Cent. Life Assurance Co., 

, 986 (Ala. 1992) (citing

Griese-Traylor Corp. v. First Nat’l Bank of Birmingham, 

, 1045 (5th

Cir. 1978)); accord Barber v. Business Prods. Ctr., Inc., 

, 227 (Ala.

1996).

      TIECO’s claim under this tort hinges on interactions between USX and

TIECO’s suppliers. Specifically, while USX was reviewing TIECO’s seized


                                          34
records, two of TIECO’s suppliers were also present and reviewing the documents;

on one occasion, USX provided an invoice to a supplier. These minimal

interactions, as a matter of law, did not constitute tortious interference with

business relations. Appellees have presented no evidence that USX intentionally

interfered with a contract or business relation between TIECO and its suppliers.

Furthermore, Appellees have not pointed to any evidence indicating the use of

fraud, force, or coercion by USX. The district court should have granted USX

judgment as a matter of law on the counterclaim for tortious interference with

business relations.

      5. Defamation

      As previously noted, unlike the other counterclaims, the defamation action

sought relief for both Mr. Yielding and TIECO. Appellees contend that USX is

liable for defamation because its outside counsel, Mr. Hayslip, compared TIECO

and Mr. Yielding to Jeffrey Dahmer, the convicted mass murderer.21




      21
          The allegedly defamatory statement is fully set forth above. 

Part I.A.6.
                                          35
      Under Alabama law,22 whether a statement is reasonably capable of

defamatory meaning is a question of law for the court. See Blevins v. W.F. Barnes

Corp., 

, 390 (Ala. Civ. App. 1999) (citing Harris v. School Annual

Publ’g Co., 

, 964 (Ala. 1985)); Drill Parts, 

at 1289-90.

A statement is defamatory if it “tends . . . to harm the reputation of another as to

lower him in the estimation of the community or to deter third persons from

associating or dealing with him.” 

(internal quotations

omitted) (citing 

). When analyzing an allegedly

defamatory statement, a court must give the statement’s language the “meaning

that would be ascribed to the language by a reader or listener of average or

ordinary intelligence, or by a common mind.” 

(internal quotations

omitted) (citing Camp v. Yeager, 

, 927 (Ala. 1992)); see also Labor

Review Publ’g Co. v. Galliher, 

, 190 (Ala. 1907). Furthermore, the

“alleged defamatory matter must be construed in connection with other parts of the




      22
          To state a defamation claim in Alabama, a plaintiff must allege: (1) a false
and defamatory statement concerning the plaintiff; (2) an unprivileged
communication of that statement to a third party; (3) fault amounting at least to
negligence on the part of the defendant; and (4) either actionability of the statement
irrespective of special harm or the existence of special harm caused by the
publication of the statement. McCaig v. Talladega Pub’g Co., 

, 877
(Ala. 1989) (citing Restatement (Second) of Torts § 558 (1977)).
                                          36
conversation or publication, and the circumstances of its publication . . . .” Marion

v. Davis, 

, 359 (Ala. 1927); see also Drill Parts, 

at 1289.

      Equally well established is the rule that once a plaintiff has alleged that the

statement defamed him in a certain manner, the plaintiff is thereafter bound by that

construction of the statement. See Smith Bros. & Co. v. W.C. Agee & Co., 

, 648 (Ala. 1912) (citing Gaither v. Advertiser Co., 

(Ala. 1894));

Labor 

. In their amended complaint, Appellees averred that

Mr. Hayslip’s statement was an attempt by USX to compare TIECO to the “vile

and evil” nature of Jeffrey Dahmer. Am. Compl. ¶ 2, at 33. Similarly, at trial,

Appellees’ counsel argued that, with Mr. Hayslip’s statement, “[USX] said [Mr.

Yielding] is like Jeffrey Dahmer.” Trial Tr. 1759. Appellees are bound by these

constructions of Mr. Hayslip’s statement.

      In light of the circumstances and context of Mr. Hayslip’s statement, no

reasonable person could have construed it to be defamatory as alleged by

Appellees. The context was USX’s allegations concerning fraud by TIECO and

Appellees’ allegations concerning an unethical and illegal investigation by the AG

and USX. Under these circumstances, any reasonable person who heard or read

Mr. Hayslip’s statement would have inferred the following: USX was strongly




                                          37
implying, through a distasteful metaphor, that Appellees were guilty of fraud and

that Appellees’ ethics complaint was without merit.

      Such an implication was capable of having defamatory meaning in that

Appellees’ reputation could have been diminished if the community believed

Appellees were committing fraud and filing frivolous complaints. But Appellees

did not argue this construction of the statement to the jury. Rather, Appellees

averred that their reputation was diminished because the community, after hearing

Mr. Hayslip’s statement, would believe they were comparable, in some fashion, to

a convicted mass murderer. Considering the circumstances surrounding Mr.

Hayslip’s statement, no reasonable person could have thought Appellees were

similar to a mass murderer. Therefore, the district court erred by not granting

judgment as a matter of law to USX on the defamation counterclaim.

      6. Civil Conspiracy

      Under Alabama law, civil conspiracy is not an independent action; rather, a

plaintiff must have a viable underlying cause of action. See Drill Parts, 

at 1289. As is evident from our discussion above regarding the other

counterclaims, Appellees have failed to present sufficient evidence of any

underlying cause of action. Therefore, the district court should have granted USX

judgment as a matter of law on the civil conspiracy counterclaim.


                                         38
                       II. ATTORNEY’S FEES AND COSTS

      Pursuant to 42 U.S.C. § 1988(b), Appellees were awarded $1,332,024.86 in

attorney’s fees. Section 1988(b) permits attorney’s fees to the “prevailing party”

for actions brought under various civil rights provisions, including 42 U.S.C.

§ 1983. As is evident from Part I.C.1 of our opinion, Appellees did not prevail on

the § 1983 claim. Therefore, insofar as it awarded attorney’s fees, the judgment

must be vacated.

      Appellees were also awarded $110,744.4 in costs. Fed. R. Civ. P. 54(d)

permits a court to award costs, other than attorney’s fees, to the prevailing party.

In light of our holdings, further proceedings are required in the district court, as it

is no longer clear which party should be considered the prevailing party. Cf. Terry

Props., Inc. v. Standard Oil Co., 

, 1540 (11th Cir. 1986). Thus,

insofar as it awarded costs, the judgment must be vacated and remanded for

reconsideration by the district court.23


      23
          “[A] court may only tax costs as authorized by statute.” EEOC v. W&O,
Inc., 

, 622-23 (11th Cir. 2000) (citing Crawford Fitting Co. v. J.T.
Gibbons, Inc., 

, 445, 

, 2499 (1987)). The parties agree
the award of costs is governed by 28 U.S.C. § 1920. Thus, if a cost is not
enumerated in § 1920, Appellees should not have requested reimbursement.
Nevertheless, many of Appellees' requests for costs cannot be located in § 1920 (or
any other statute). For instance, Appellees sought costs incurred in defending the
AG’s criminal prosecution, see Loranger v. Stierheim, 

, 782 (11th Cir.
1994), and they sought fees for their expert witnesses beyond the amount
                                           39
                               III. CONCLUSION

        We hold as follows: (1) We AFFIRM the judgment as a matter of law in

favor of Appellees on Appellant Heatherwood’s claims. (2) We AFFIRM the

dismissal of Appellant USX’s claims. (3) We REVERSE the denial of Appellants’

motion for judgment as matter of law on Appellees' counterclaims for a violation

of 42 U.S.C. § 1983, malicious prosecution, abuse of process, tortious interference

with business relations, defamation, and civil conspiracy. (4) We REVERSE the

judgment of the district court awarding $6.8 million to Appellee TIECO and

$375,000 to Appellee Yielding. (5) We VACATE the judgment awarding

$1,442,769.27 in attorney’s fees and costs to Appellees and REMAND for further

proceedings consistent with this opinion.

        AFFIRMED in part, REVERSED in part, VACATED and REMANDED in
part.




prescribed by 28 U.S.C. § 1821, see Duckworth v. Whisenant, 

, 1399
(11th Cir. 1996). On remand, if the occasion to award costs arises again, the
district court should closely scrutinize its award.
                                        40