United States District Court, D. Delaware
before me is Defendants' Motion to Review Taxation of
Costs. (D.I. 483). The Parties have fully briefed the issues.
(D.I. 483, 484, 485). For the reasons set out below, I will
GRANT Defendants' motion and allow them
to recover costs beyond the amount initially granted by the
Court granted Defendants' motion to dismiss and closed
this case on August 31, 2016. (D.I. 472). Plaintiffs appealed
that decision to the Third Circuit. (D.I. 473). The Third
Circuit affirmed the Court's decision on May 12, 2017.
(D.I. 475). That affirmance conclusively resolved this case.
Accordingly, Defendants filed a Bill of Costs with the Clerk
seeking to recover $51, 683.52 in costs from Plaintiffs.
(D.I. 476). On October 24, 2018, the Clerk granted $1, 985.00
of Defendants' requested costs and denied the balance.
(D.I. 482). The Parties do not dispute the propriety of the
costs that the Clerk granted. (D.I. 484 at 13).
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 Sanofi v. Glenmark
Pharm., Inc., 2018 WL 64278701 (D. Del. Dec. 7, 2018),
with Walker Digital, LLC v. Google, Inc., 2016 WL
1553974 (D. Del. April 12, 2016), and Bethea v.
Rash, 2015 WL 4477693 (D. Del. July 22, 2015).
Defendants are Prevailing Parties
argue that it is premature to decide whether Defendants are
prevailing parties in this action. (D.I. 484 at 6-7). Their
argument is essentially that the continued use of discovery
obtained in this matter, in a related matter ("companion
case"), prevents the Court from deciding a prevailing
party. In support of their novel position, Plaintiffs cite
cases which confirm the inappropriateness of deciding a
prevailing party while some claims remain unresolved in a
case. (See Id. at 7-8 (citing A.H.D.C. v. City
of Fresno, 2002 WL 34575401 at *15 (E.D. Cal., Oct. 17,
2002); Va. Panel Corp. v. Mac Panel Co., 887 F.Supp.
880, 886 (W.D. Va. 1995))). Those cases do not, however,
address the appropriateness of deciding a prevailing party
when no claims remain pending. And, unlike those cases, the
outcome of this case is set. Regardless of whether Defendants
prevail in the companion case, they prevailed on the claims
at issue in this case. The outcome of the companion case will
not change that result. Thus, the Clerk was correct to
consider Defendants' request for costs.
request the cost of twelve transcripts: nine discovery
dispute conferences, a status conference, a scheduling
conference, and an oral argument on a motion to dismiss.
(D.I. 483 at 4-5). The Clerk denied this request entirely.
(D.I. 482 at 4-5). I agree with the Clerk's conclusion
that Defendants' 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.
1920 allows a party to recover the cost of transcripts
"necessarily obtained for use in the case."
Defendants argue that when a transcript contains a ruling it
is reasonably necessary for the parties to obtain a copy.
(D.I. 483 at 3-4). I agree. It is necessary to the orderly
progression of a case for the parties to know what, exactly,
the court ordered. Due to limitations imposed by the Court,
the only way for a party to confirm exactly what a judge
ordered during a conference is via the official transcript.
The transcript served as the Court's order for each of
the nine discovery disputes. (Id. at 4-5).
Accordingly, I will grant Defendants' request for the
cost of the discovery dispute transcripts, which is $3,
however, deny Defendants' request for the cost of the
status conference, scheduling conference, and oral argument
transcripts. Defendants cite pages in each transcript which
allegedly contain necessary Court guidance, but they have not
provided me a copy of those transcripts. I am not convinced
that the transcripts were necessary based on Defendants'
representation of their contents. A transcript is not
necessary simply because the Court "provided guidance
regarding the scheduling order" or the Court
"inform[ed] the parties that it [would] enter the
scheduling order." (Id.). That is the type of
information which the Parties are expected to take note of
during their interactions with the Court, but it is not the
type of information that renders obtaining a copy of a