United States District Court, D. Delaware
SANOFI and SANOFI-AVENTIS U.S. LLC, Plaintiffs,
GLENMARK PHARMACEUTICALS, INC. USA, et al., Defendants.
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.
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).
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.").
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. 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).
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
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).
Apportionment of Costs Between Sandoz and Watson
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
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
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,
will grant Plaintiffs half of that total, $3, 928.43.