United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON KODAK ALARIS, INC.'s
MOTION TO DISALLOW BILL OF COSTS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
ITyX Solutions AG (“ITyX Solutions”) and
Defendant Kodak Alaris, Inc. (“KAI”) entered into
a strategic partnership to develop and market
“intelligent document recognition” software
products. After the relationship soured and a commercial
dispute arose between them, ITyX Solutions filed this lawsuit
against KAI for breach of contract, declaratory judgment, and
injunctive relief. [ECF No. 1 (“Complaint”)]. KAI
in turn brought counterclaims for breach of contract, breach
(and aiding and abetting the breach) of a fiduciary duty,
tortious interference with contractual and business
relations, and declaratory judgment against ITyX Solution as
well as the related parties ITyX Systemwicklung OHG
(“ITyX OHG”), ITyX Technology GMBH (“ITyX
Technology”), ITyX Solution's CEO Süleyman
Arayan, and ITyX Solution's co-founder Heiko Groftschik
(collectively with ITyX Solutions, “ITyX”). [ECF
No. 122 (“Counterclaims”)]. Following a
three-week jury trial from November 5 through November 26,
2018, an eleven-member jury returned a verdict in favor of
ITyX and found $7, 466, 045 in damages. [ECF No. 323]. On
March 1, 2019, the Court entered a final judgment in the
amount of $9, 211, 699.20 and stated that ITyX was entitled
to its costs under Federal Rule of Civil Procedure 54(d) and
28 U.S.C. § 1920. [ECF No. 350 ¶¶ 9, 11]. On
March 14, 2019, ITyX filed a bill of costs in the amount of
$79, 600.74. [ECF No. 353]. On April 1, 2019 ITyX amended its
bill of costs to exclude the initially requested pro hac
vice fees and now requests costs of $78, 110.74. [ECF
No. 375-1]. Presently before the Court is KAI's motion to
disallow the bill of costs as premature, or alternatively to
disallow certain costs that KAI contends are not compensable.
[ECF No. 364]. For the reasons explained below, costs of $49,
614.15 are ALLOWED.
neither the Federal Rules of Civil Procedure nor the Local
Rules for this district impose a deadline for the filing of a
bill of costs, see Bergeron v. Cabral, 393 Fed.Appx.
733, 734 (1st Cir. 2010), under the District of Massachusetts
Procedures for Filing the Bill of Costs, “[t]he Bill of
Costs must be filed within fifteen (15) days of the earlier
of (i) the expiration of the time allowed for appeal of the
final judgment or decree, or (ii) receipt by the Clerk of the
Mandate of the Court of Appeals.” Taxation of
Costs at 1, http://www.mad.uscourts.gov/resources/pdf/
taxation.pdf. Although ITyX filed the instant bill of costs
earlier than envisioned by the district's procedures,
resolution of the instant bill will not prejudice KAI, and
the Court will therefore address the merits of the bill of
Rule of Civil Procedure 54(d) provides that “[u]nless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). While “[t]here is a background presumption
[under Rule 54(d)] favoring cost recovery for prevailing
parties, ” B. Fernandez & HNOS, Inc. v. Kellogg
USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008), “[t]he
award of costs is a matter given to the discretion of the
district court, ” Sharp v. Hylas Yachts, Inc.,
No. 11-cv-11814-JCB, 2016 WL 10654435, at *1 (D. Mass. June
14, 2016). “[T]he ‘prevailing party' is the
party who prevails as to the substantial part of the
litigation.” Sheehy v. Town of Plymouth, No.
95-cv-12425-RBC, 2001 WL 92386, at *3 (D. Mass. Jan. 18,
2001) (quoting Testa v. Village of Mundelein, 89
F.3d 443, 447 (7th Cir. 1996)) (quotation marks omitted).
Here, KAI does not dispute that ITyX is the prevailing party,
see [ECF No. 364 at 3], and as indicated by the
final judgment, KAI will be allowed costs permissible under
28 U.S.C. § 1920 for which it has submitted proper
documentation, see [ECF No. 350 ¶ 11].
Therefore, starting with ITyX's request for $78, 110.74,
the Court will consider the costs to which KAI objects.
Fees for Private Service of Process to Non-Parties
U.S.C. § 1920 provides that the Court may tax
“[f]ees of the clerk and marshal.” KAI objects to
$360 in costs for serving subpoenas on three non-parties and
argues that the recovery should be limited to the fees that
the marshals would have charged, had the marshals served
process. ITyX argues that the U.S. Marshals Service no longer
serves summonses and subpoenas in civil cases and that it
should therefore be allowed the full costs of its private
process server. [ECF No. 364 at 6-7]. The Court will allow
the $360 in service of process fees.
28 U.S.C. § 1920, fees for transcripts
“necessarily obtained for use in the case, ” are
recoverable. Transcripts are “necessarily obtained for
use in the case” if they are “either introduced
in evidence or used at trial.” Templeman v. Chris
Craft Corp., 770 F.2d 245, 249 (1st Cir. 1985).
Deposition transcript fees may also be recoverable “if
special circumstances warrant it, ” id.,
however, using deposition transcripts only to prepare for
trial or in legal memoranda is not sufficient to impose
costs, see Haemonetics Corp. v. Fenwal, Inc., 863
F.Supp.2d 110, 116- 17 (D. Mass. 2012); Walters v.
President & Fellows of Harvard Coll., 692 F.Supp.
1440, 1443 (D. Mass. 1988) (“Although these depositions
may well have been necessary to the thorough preparation of
the plaintiff's case, she has not demonstrated any
special circumstances warranting the recovery of the
associated costs.”). ITyX seeks $38, 858.63 in
transcript costs. [ECF No. 375-1]. KAI challenges $12, 041.78
is transcripts costs for transcripts that were not introduced
into evidence or used at trial, $12, 441.10 for deposition
transcripts that relate to ITyX's own witnesses, $990 in
costs associated with a videotaped deposition, $1, 701.20 for
miscellaneous costs associated with obtaining transcripts,
$3, 679.00 for costs for trial transcripts, and $94.50 for
costs associated with the preliminary injunction transcript.
[ECF No. 364 at 6- 10]. The Court will reduce the bill of
costs by $12, 041.78 for printed and electronic transcripts
that ITyX did not introduce into evidence and $94.50 for the
preliminary injunction transcript considering that ITyX did
not prevail in obtaining a preliminary injunction. The Court
concludes that the remaining costs were for transcripts and
associated services that were necessarily obtained for use in
this case and will allow transcript costs of $26, 722.35.
Printing and Copying
challenges substantially all of ITyX's $10, 224.35
printing costs. [ECF No. 364 at 11]. A judge or clerk may tax
as costs “[f]ees and disbursements for printing”
and “for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained
for use in the case.” 28 U.S.C. § 1920(3)-(4).
Here, the Court accepts ITyX's representation that the
$10, 224.35 figure only includes expenses for “printing
and copying costs for copies of documents marked as exhibits
at depositions, for the two demonstrative exhibits used at
trial, and for the witness binders that were used during the
witness examinations during trial.” [ECF No. 374 at
10-11]. ITyX has not shown, however, that the $3, 243.87 of
the included printing costs for exhibits used at depositions
in late 2017 and late 2018 were “necessarily obtained
for use in the case, ” and the Court will therefore
reduce the bill of costs by that amount and allow printing
and copying costs of $6, 980.48.
requests $22, 942.26 in fees for witnesses. Fees for
non-party witnesses are taxable for witnesses who give
relevant and material testimony in the case. See 28
U.S.C. § 1920(3). Although not binding on this Court,
the District of Massachusetts Procedures for Filing the Bill
of Costs provides that witness fees “for employees of a
corporate party are allowable so long as the employees are
not [themselves] real parties in interest.”
Taxation of Costs at 3, http://www.
mad.uscourts.gov/resources/pdf/taxation.pdf. The Court will
reduce the bill of costs by the $13, 116.44 in expenses
associated with Mr. Arayan and Mr. Groftschik because they
were parties to the litigation. The remaining $9, 825.82 in
witness costs are allowed.
Compensation of Interpreters and ...