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Sanofi v. Glenmark Pharmaceuticals, Inc.

United States District Court, D. Delaware

December 7, 2018

SANOFI and SANOFI-AVENTIS U.S. LLC, Plaintiffs,
v.
GLENMARK PHARMACEUTICALS, INC. USA, et al., Defendants.

          MEMORANDUM ORDER

         Presently before me is Plaintiffs' Motion to Review Taxation of Costs. (D.I. 359). The Parties have fully briefed the issues. (D.I. 359, 361, 362). For the reasons set out below, I will GRANT Plaintiffs' motion and allow them to recover costs beyond the amount granted by the Clerk.

         Plaintiffs are the prevailing parties in this matter. (D.I. 336). Accordingly, Plaintiffs filed a Bill of Costs with the Clerk seeking to recover $105, 414.86 in costs from Defendant Sandoz, Inc. and Defendant Watson Laboratories, Inc. ("Watson"). (D.I. 345). Plaintiffs subsequently reached an agreement with Watson and I vacated the judgment against it. (D.I. 351). The Clerk granted $2, 096.60 of Plaintiffs' costs that were attributable to Sandoz and denied the balance. (D.I. 357).

         I. Legal Standard

         Federal Rule of Civil Procedure 54(d)(1) provides, "costs-other than attorney's fees- should be allowed to the prevailing party." The "costs" which should be allowed under Rule 54(d) are defined narrowly by 28 U.S.C. § 1920. Taniguchi v. Kan.Pac. Saipan, Ltd., 566 U.S. 560, 573 (2012) ("Taxable costs are limited to relatively minor, incidental expenses as is evident from § 1920, which lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts.").

         This Court has adopted District of Delaware Local Rule 54.1 as the standard under which the Clerk determines the amount of costs taxable by a prevailing party.[1] The Local Rule is meant to implement the '"strong presumption' that costs are to be awarded to the prevailing party." Reger v. The Nemours Found, Inc., 599 F.3d 285, 288 (3d Cir. 2010).

         Rule 54(d)(1) and Local Rule 54.1 provide that a party may seek review of the Clerk's decision within seven days of service. "A district court's review of the clerk's determination of costs is de novo." Id. Due to the discretionary nature of the costs determination, judges in this District have reached different conclusions when faced with requests to review the Clerk's determination. Compare Walker Digital, LLC v. Google, Inc., 2016 WL 1553974 (D. Del. April 12, 2016), with Bethea v. Rash, 2015 WL 4477693 (D. Del. July 22, 2015).

         II. Discussion

         Plaintiffs request that I assess the full amount of allowed costs against Defendant Sandoz, Inc. (D.I. 359 at 2-3). They also request that I go beyond the limitations suggested by the Local Rule and award costs to the full extent allowable under 28 U.S.C. § 1920. (Id. at 3-8).

         A. Apportionment of Costs Between Sandoz and Watson

         Plaintiffs argue that the Clerk incorrectly apportioned costs between Defendants Watson Laboratories, Inc. and Sandoz. The Clerk's decision was based on my February 21, 2018 Vacatur Order. (D.I. 357 at 5). The Order, which Plaintiffs and Watson stipulated to, states, "Plaintiffs and Watson are each to bear their own costs." (Id.). I agree with the Clerk's determination that this language indicates that Defendant Sandoz should not be responsible for the half of the costs that the Court would have assessed against Watson. Moreover, I believe that it would be inequitable to impose the costs of this entire litigation on Defendant Sandoz when Plaintiff permitted Watson to exit the litigation just before costs were determined. Accordingly, the Clerk properly granted Plaintiffs $1, 696.60 in witness fees and properly denied the other half, which Watson would have borne. (D.I. 357 at 5). I will similarly apportion other costs.

         B. Transcript Costs

         Plaintiffs request that I grant the cost of obtaining the Markman hearing transcript, the pretrial conference transcript, and the bench trial transcript. (D.I. 359 at 3-4). The Clerk denied this request entirely. (D.I. 357 at 3). I agree with the Clerk's conclusion that Plaintiffs request does not meet the requirements of Local Rule 54.1(b)(2) (transcripts are "taxable when requested by the Court or prepared pursuant to stipulation"). I will, however, exercise my discretion to grant costs beyond those listed in the Local Rule.

         I grant Plaintiffs the portion of the cost of obtaining trial transcripts attributable to Defendant Sandoz. Although I did not specifically request these transcripts as described by the Local Rule, I recognize that the transcripts were necessary for the Parties to complete post-trial briefing. The total cost of the trial transcripts was $7, 856.86.[2] I will grant Plaintiffs half of that total, $3, 928.43.

         C. ...


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