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Inc. v. Perrigo Company

United States District Court, D. Massachusetts

August 1, 2019

BRIGHAM AND WOMEN'S HOSPITAL, INC. and INVESTORS BIO-TECH, L.P.
v.
PERRIGO COMPANY and L. PERFUGO COMPANY

          ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Perrigo Company and L. Perrigo Company ("defendants") filed a Bill of Costs seeking $90, 637.02 from Brigham and Women's Hospital, Inc. and Investors Bio-Tech, LLP ("plaintiffs"). Plaintiffs object to all but $2, 357 of these costs, which they say is nonetheless offset by expert witness fees owed to them by defendants.

         I. Standard

         Under Federal Rule of Civil Procedure 54(d), the court may award "costs" to a prevailing party. Those costs are identified in 28 U.S.C. § 1920 and include:

(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;....

         See also 28 U.S.C. § 1821 (further defining witness expenses taxable under 28 U.S.C. § 1920(3)).

         Within these statutory boundaries, the court retains broad discretion to "shape[] the contours" of a prevailing party's award. Great N. Ins. Co. v. E. Propane Gas. Inc.. No. 15-12955-JGD, 2017 WL 2434776, at *1 (D. Mass. June 5, 2017) (quoting Conwav v. Licata. 144 F.Supp.3d 212, 217 (D. Mass. 2015)): see also In re Two Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litia.. 994 F.2d 956, 962-63 (1st Cir. 1993) (a district court may decline to tax items in 28 U.S.C. § 1920 if it provides some rationale).

         II. Defendants' Bill of Costs

         Following an eight-day trial in December 2016 in this patent infringement action, a jury returned a verdict for plaintiffs. It found that the asserted claims of the patent were valid, that defendants' product infringed each asserted claim, and that such infringement was willful. However, on defendants' motion under Federal Rule of Civil Procedure 50(b), I determined that plaintiffs had failed to present sufficient evidence of direct infringement and that, accordingly, "no reasonable jury could have returned a verdict" in their favor. Brigham & Women's Hosp.. Inc. v. Perrigo Co.. 280 F.Supp.3d 192, 197 (D. Mass. 2017). Judgment was therefore entered for defendants on all claims. Plaintiffs appealed and the Federal Circuit conducted a de novo review and affirmed. Brigham & Women's Hosp.. Inc. v. Perrigo Co.. 761 Fed.Appx. 995 (Fed. Cir. 2019).

         Plaintiffs nonetheless argue that this case should be treated as one of "mixed results" and that costs should be awarded to the party who "carried the day" at each stage of the case. Ira Green. Inc. v. Military Sales & Serv. Co.. 775 F.3d 12, 28-29 (1st Cir. 2014). But a case of "mixed results" is one in which each party prevailed on some claims or counterclaims. Here, defendants categorically won and are therefore the party entitled to costs under Rule 54(d).

         A. Clerk Fees

         Defendants first request $900 for pro hac vice motion fees. Courts in this district generally do not allow parties to recover these costs, 600 LB Gorillas. Inc. v. Fieldbrook Foods Corp.. No. 15-CV-13991-ADB, 2018 WL 6332494, at *5 (D. Mass. Dec. 4, 2018) (collecting cases), and I am not persuaded that defendants' choice of out-of-state counsel is "fairly chargeable to plaintiff." Keuria. Inc. v. JBR, Inc.. No. 11-CV-11941-FDS, 2014 WL 2155083, at *2 (D. Mass. May 21, 2014). Defendants' pro hac vice application costs are denied.

         B. Marshal Fees

         Defendants originally sought $1, 979 in fees for service of summonses and subpoenas, but both parties have since agreed that only a portion of that sum is recoverable under 28 U.S.C. § 1920(1). Accordingly, defendants' request for Fees of the Marshal is allowed in the agreed amount of $780.

         C. Transcript ...


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