United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON SMARTLING'S OPPOSITION TO
SKAWA INNOVATION'S BILL OF COSTS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
action between Plaintiff Smartling, Inc.
(“Smartling”) and Defendant Skawa Innovation Ltd.
(“Skawa”) was tried before a jury from June 3 to
June 12, 2019. Smartling sold a translation proxy application
to help companies translate their websites into different
languages. It alleged that Skawa's translation proxy
project, Easyling, infringed on Smartling's trademark and
trade dress by copying Smartling's website and other
aspects of its branding. On June 12, 2019, the jury returned
a verdict for Skawa, and on July 31, 2019, Skawa submitted a
bill of costs. [ECF Nos. 150, 160]. Presently before the Court
is Smartling's opposition to Skawa's bill of costs.
[ECF No. 161]. Skawa requests costs of $7, 372.10. [ECF No.
160]. For the reasons explained below, costs of $4, 009.10
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, Skawa Innovation is the prevailing party. See
[ECF Nos. 150, 159].
argues that the Court should disallow Skawa's request for
deposition transcripts costs because several of the
transcripts at issue were not used at trial. [ECF No. 162 at
4 & n.2]. Under 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
requests costs of $6, 268.75 for “printed or
electronically recorded transcripts necessarily obtained for
use in the case.” [ECF No. 160-1]. The Court finds an
award of transcript costs associated with the depositions of
Jack Welde and Peter Farago appropriate here. The Court
allows costs of $908.50 for the deposition transcript of
Peter Farago and the $195.00 virtual service fee associated
with that deposition. See [ECF No. 160-2 at 4, 8].
The Court allows costs of $1, 802.25 for Jack Welde's
deposition transcript. See [ECF No. 160-2 at 3].
Thus, the Court allows total transcript costs of $2, 905.75.
The Court disallows the remaining $3, 363.00 in transcript
costs requested by Skawa.
Court allows Skawa's request for $1, 103.35 in printing
costs. See [ECF No. 160-1].
clerk shall tax costs in the amount of $4, 009.10, being the
sum of $2, 905.75 in transcript costs and $1, 103.35 in
 Skawa filed a motion for attorney fees
and costs on July 11, 2019 that did not include a bill of
costs. [ECF No. 155]. The Court denied the motion for
attorney fees, and on July 30, 2019, suggested that Skawa
file a bill of costs if it wished to obtain costs pursuant to
Federal Rule of Civil Procedure 54(d) and 28 U.S.C. §
1920. [ECF Nos. 157, 159].
 Smartling argues that Skawa did not
prevail on all counts where the Court entered summary
judgment for Smartling on Skawa's Massachusetts General
Laws chapter 93A counterclaim. See [ECF No. 162 at
1-2 & n.1]. The Court finds that Skawa prevailed as to
the substantial part of the litigation. See [ECF No.
154]. For the avoidance of doubt, the Court notes that the
judgment entered by the clerk for Skawa “on all
counts” reflects the fact that the jury returned a
verdict for Skawa ...