OPINION & ORDER

[Resolving Docs. 100, 101]

JAMES S. GWIN, District Judge.

This case came before the Court for a jury trial in September 2017. Following the presentation of Plaintiff Northern Technologies International Corporation's case-in-chief, the Court granted Defendant Cortec Corporation's motion for judgment as a matter of law.1

Cortec then filed a bill of costs.2 Northern has now filed a motion asking the Court to deny that bill of costs.3 Cortec opposes that motion.4

For the following reasons, the Court GRANTS IN PART and DENIES IN PART Northern's motion opposing costs.

I. BACKGROUND

A. The Parties

Plaintiff Northern Technologies makes a rust-inhibiting plastic film that is used to package metal objects such as complex automotive parts.5 The film releases chemical additives as a vapor that settles on metal objects and prevents them from rusting so long as they are wrapped in the film.6 Northern sells its products under the trademarks "Zerust" and "Excor."7

Northern manufactures both the film itself and "masterbatch," which is a highly concentrated form of the chemical additives used to make the film.8 Masterbatch is sold to joint ventures that use it to make film by mixing it with plastic.9

Ninety to ninety-five percent of the products Northern sells are yellow.10 And it has a United States trademark on the use of the color yellow in volatile corrosion inhibiting plastic film.11 Northern claims that, in the anti-corrosion film industry, the color yellow is associated with its products.12

Defendant Cortec Corporation also sells anti-rust plastic film and masterbatch.13 Cortec's film is typically blue, green, or clear.14 It does not sell yellow films.15

Cortec sells its products primarily through distributors who take possession of the product as soon as Cortec loads it on the truck.16 Cortec does not control to whom its distributors sell the products or what price they charge.17 Nor does Cortec share in the distributors' profits or losses.18 Cortec occasionally sells its products through licensees, who purchase the raw materials required to make Cortec's films (i.e. masterbatch) in the same way distributors purchase finished products.19

B. 2005 Settlement Agreement

In 2004, Northern allegedly discovered that Cortec was manufacturing yellow films and, thus, infringing upon Northern's United States trademark.20 So Northern sued Cortec.21 Northern and Cortec settled that lawsuit.22 As part of the settlement agreement, Cortec promised that it would not "manufacture, export, import, use, sale, offer for sale, promot[e], or otherwise deal" in yellow anti-corrosive films or products (including masterbatch).23

C. Events in China

The present lawsuit stems from Northern and Cortec's activities in China. In 1999, Plaintiff Northern (through a holding company) formed a joint venture with a Chinese entity.24 The name of the joint venture was Tianjin Zerust, and a Chinese citizen named Tao Meng served as the joint venture's general manager.25

The joint venture agreement ensured that Northern retained ownership of all of its intellectual property and trade secrets. Significantly, that included Northern's masterbatch, pricing data, and supply relationships.26 The joint venture company also agreed to protect Northern's trade secrets and keep them secret, and to wind down forthwith if the agreement was terminated.27 The purpose of the joint venture was to produce film using Northern's yellow masterbatch and sell it to Chinese customers.28

Northern and its joint venture partner chose the Chinese characters "Jie Le Te" to represent the Zerust brand in China because Zerust is very hard for native Chinese speakers to pronounce.29

In 2014, the Northern and Tianjin Zerust joint venture was terminated.30 By all accounts, Tianjin Zerust was a successful joint venture, bringing in around $16 million in sales at the time it was terminated.31 But an audit revealed that Tao Meng and his wife had been embezzling money from the company.32

As a result of the believed embezzlement, Northern attempted to terminate the joint venture and to set up its own wholly-owned subsidiary to distribute its anti-corrosion products in China.33

Unfortunately for Northern, Meng did not go quietly into the night. With his wife, Meng operated another company, Shanghai JLT, whose name also contained the characters "Jie Le Te."34 That company began producing yellow anti-corrosion film as well as films in other colors.35 Arguably, Meng passed off the Shanghai JLT's films as Zerust films and sold his films to the joint venture's former customers.36 He also refused to wind down the joint venture.37

To make his films, Meng purchased masterbatch from other suppliers, including clear and blue masterbatch from Defendant Cortec.38 There is no evidence that Defendant Cortec ever produced yellow films or yellow masterbatch for Meng or sold them to Meng and Shanghai JLT.39 Northern alleged that competition from Meng caused confusion among Northern's customers, forced it to reduce its prices, and led to the loss of a number of accounts.40

Northern also alleged that Meng disclosed its confidential price list and that Cortec wrongfully obtained a sample of Northern's masterbatch.41

Finally, Northern introduced evidence suggesting that Meng's new company supplied Cortec with yellow film generated from Cortec masterbatch for testing.42

The evidence showed that Northern had no trademark on yellow films in China and that other companies in China were selling yellow anti-corrosion films.43

Cortec's CEO testified that he had no authority to stop Meng from using Cortec's clear masterbatch to make yellow films.44

D. Procedural History

Hoping to recover some or all of its losses stemming from the chaos surrounding the demise of its Chinese joint venture, Northern sued Cortec.45 Northern asserted a variety of state and federal law claims.46

By the time of trial, Northern had elected to pursue only claims for breach of contract, intentional interference with a prospective economic opportunity, violation of the Minnesota Deceptive Trade Practice Act, misappropriation of trade secrets, and unjust enrichment.47 At the close of Plaintiff Northern's case, the Court granted Defendant Cortec's motion for judgment as a matter of law as to all of those claims.48

Cortec then filed a bill of costs asking the Court to order Northern to pay $19,289.32 in costs and fees.49 Northern filed a motion to deny those costs.50 Cortec opposes.51

II. LEGAL STANDARD

Federal Rule of Civil Procedure 54(d)(1) states 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." There is a presumption in favor of awarding costs to a prevailing party,52 and the non-prevailing party has the burden of overcoming the presumption.53

But district courts retain broad discretion to deny costs.54

To determine whether costs should be denied to the prevailing party, the Court can consider "the losing party's good faith, the difficulty of the case, the winning party's behavior, and the necessity of the costs."55

The Sixth Circuit has stated that Rule 54(d) allows the Court to address situations where "it would be inequitable under all the circumstances in the case to put the burden of costs upon the losing party."56

II. ANALYSIS

A. General Objection to Bill of Costs

Plaintiff Northern first contends that it should not be taxed for any costs at all because this was a close case litigated in good faith.57 The Court disagrees.

No one—including the Court—maintains that Northern brought this action in bad faith. Nor can anyone dispute that the case was vigorously and zealously litigated. The host of motions in limine presented to the Court as well as the more than 170 exhibits Northern prepared for trial give proof enough of that.

But that a case involves many exhibits and motions and disputed points does not necessarily make it a "close case." "The closeness of a case is judged not by whether one party clearly prevails over another, but by the refinement of perception required to recognize, sift through[,] and organize relevant evidence, and by the difficulty of discerning the law of the case."58 A case is not difficult merely because it is contested.59

Very little "refinement of perception" or legal discernment was required to decide this case. That is because, despite presenting reams of evidence to the jury, Northern failed to present any evidence at all as to key elements of its claims.

First, Northern's complaints focused on Meng's and Shanghai JLT's conduct, not on Cortec's conduct. But Northern presented no evidence showing that Meng or Shanghai JLT acted as Cortec's agent such that Cortec would be liable for their conduct.

Northern did show that, on occasion, Cortec's corporate officers or agents referred to Meng or his company as "soldiers of Cortec"60 and welcomed them to the "Cortec family61 That is nothing more than the ordinary language of business and says nothing about whether Cortec's relationship with Meng or the entities he controlled meets the legal test for agency. The same is true of similar references to Meng and Shanghai JLT as Cortec's partners.62

Northern gave no evidence that Cortec controlled Meng or Shanghai JLT, that Cortec shared in any profit or loss with Meng or Shanghai JLT or that Cortec dealt with any Meng or Shanghai JLT customers on Meng's behalf. To the contrary, the evidence strongly suggests that Meng and Shanghai JLT made their own decisions to color their film.63.

Similarly, Cortec's CEO said disparaging things about Northern64 and used aggressive language when discussing his plan to compete with them for a share of the Chinese market in anticorrosive films.65 But that is not actionable conduct and does not prove that Cortec went after Northern's market share in an illegal way.66

Second, absent any evidence of agency, the remainder of Northern's case fell apart because it could not show that Cortec itself did anything that would give rise to liability.

Northern established that Cortec sold Meng clear masterbatch and that it tested a sample of yellow film that Meng allegedly made using Cortec's masterbatch.67 But the 2005 settlement agreement between Northern and Cortec prohibits neither of those things.

The settlement agreement says nothing about the sale of clear masterbatch. It only prohibits Cortec from selling yellow masterbatch.68

Moreover, although Northern contended that testing Meng's yellow film amounted to "dealing" in yellow film under the agreement, that is plainly not so.69 In the settlement agreement, the general words "otherwise deal" follow a list of specific verbs, namely: "manufacture, export, import, use, sale, offer for sale, [and] promot[e]."70 A long-standing canon of construction (ejusdem generis) provides that "[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned."71 The specific verbs listed in the settlement agreement all describe activities that involve profiting from the use or sale of yellow films and masterbatch.72 So it follows that the phrase "otherwise deal" encompasses only similar activities.

Merely testing a product made by a Cortec licensee using Cortec's raw materials, would not qualify. It is undisputed that Cortec no longer stood to make any profit from those films. Meng paid for clear masterbatch and took possession of it long before Meng added any yellow coloring.73 And Northern presented no evidence at trial showing that Cortec did anything with the results it obtained. Indeed, it was undisputed that Cortec's masterbatch formula hasn't changed in years and that there are currently no plans to change it in the future.74

Finally, even if Northern could have proved that Cortec received a copy of one of its old price lists or a sample of its masterbatch, it never proved that the price lists were trade secrets or that Cortec did anything with either the price list or the masterbatch.75 As a result, Northern failed to show that it suffered any damages as a result of these alleged disclosures.

In short, one or more of these failures of proof doomed each of Northern's claims.76 And the lack of evidence on these points ended any need to shift through the other evidence Northern produced, making this an easy case.

B. Specific Objections to Cortec's Bill of Costs

Northern also objects to specific items listed in Cortec's bill of costs.77 The Court finds that a few of those objections have merit, but overrules the rest.

1. Copying Costs

28 U.S.C. § 1920(4) permits the Court to tax to a party "the costs of making copies of any materials where the copies are necessarily obtained for use in the case."

Cortec has asked that it receive $3,031.20 to cover the cost of producing two copies of Northern's trial exhibits and the joint exhibits for trial.78 It contends that those costs were reasonably necessary because it needed a copy of the exhibits to "track exhibit objections and successfully defend the case at trial."79 Northern objects, arguing that it provided two sets of both its own and the joint exhibits for use during the trial and provided Cortec with electronic copies of all of its exhibits.80 Northern also protests that Cortec did not show a need for two printed copies of all of those exhibits.81

However, Northern acknowledges that the two copies it provided at trial were the copies the Court ordered it to produce.82 Neither of those copies was intended for use by Cortec in tracking exhibit objections or preparing for its motion for judgment as a matter of law. Instead, they were intended to allow the trial to continue in case of technical difficulties in the courtroom.

That said, "[c]opying costs are generally limited to `those costs incurred for copies made for the [C]ourt's consideration or for the opposing party.'"83 Cortec does not contend that it used its photocopies for either of those purposes. Nor has it explained why it needed two copies instead of just one. As the cost of "copies obtained only for the convenience of counsel . . . are ordinarily not recoverable,"84 the Court finds that Northern's objection to taxing the costs of photocopying its exhibits and the joint exhibits is well taken.85

Northern does not object to the $339.84 that Cortec requests in reimbursement for the costs of photocopying its own trial exhibits and documents related to motions for summary judgment and to amend the complaint.86 Having reviewed the documentation filed by Cortec in support of those costs, the Court finds them to be reasonable.

The Court, therefore, sustains Northern's objection to $3,031.20 of the copying costs requested by Cortec. It concludes that Cortec is entitled to only $339.84 in copying costs.

2. Trial Transcript Costs

Section 1920 also allows a party to tax costs related to "printed or electronically recorded transcripts necessarily obtained for use in the case."87

Cortec asks the Court to tax Northern for $5,540.25 to cover the costs of daily trial transcripts in this case.88 Northern protests that those costs were unnecessary and that the cost of daily copies of trial transcripts is recoverable only if those transcripts were indispensable.89

The Court finds that Northern should be taxed for the cost of daily trial transcripts.

Northern cites to several non-Sixth Circuit cases to support its argument that transcript costs are recoverable only if the transcripts were indispensable.90 But this Court has explained that a transcript is "necessarily obtained for use in the case" as required by § 1920(2) if it is shown that it was "necessary to counsel's effective performance or the court's handling of the case."91 While, "[i]n many cases, daily trial transcripts would be a convenience rather than a necessity,"92 the Court finds that they were not merely a convenience here.

In this case, the daily transcripts were necessary to Cortec's preparation, briefing and argumentation of its motion for judgment as a matter of law. Given the number of exhibits introduced and the complex corporate relationships involved here, attempting to point the Court to what was and was not in the record without a daily transcript would have been sheer chaos.93 Moreover, the Court needed the transcripts to properly consider Cortec's motion.

This is not a case like Farmer v. Arabian Am. Oil Co. where "calling on the stenographer to read from his notes" would have served the same purpose as a daily transcript.94 Here analysis of the transcript was necessary to show that Northern had wholly failed to introduce evidence as to key aspects of its claims.

The Court does note one discrepancy with regards to the trial transcript invoices submitted by Cortec in support of its bill of costs. The invoices state that Cortec was charged $7.25 per page for the transcripts.95 When all of the volumes are considered together, the trial transcript ran to 764 pages.96 That should mean that the transcripts cost Cortec $5,539.00, not the $5,540.25 charged in the invoices.97

Cortec has not explained why it was charged an additional $1.25. For that reason, the Court concludes that it should be awarded only $5,539.00 to cover the costs of the daily trial transcripts.

3. Deposition Costs

Cortec also asks for $7,302.17 in deposition transcript costs.98 Northern objects to the portions of that amount related to the video services used at the deposition of Patrick Lynch and the cost of rough transcripts.99

The Court denies Northern's objection to the video deposition costs.

It is doubtful whether videotaping Lynch's deposition was truly necessary. Lynch testified at trial, Cortec had a type-written transcript of his deposition, and the video tape of the deposition was never played at trial.100 Moreover, this Court recently concluded in another case that "video tape expenses associated with" a deposition are "unnecessary to the litigation" where a paper transcript was also available.101

But Rule 32(d)(3)(B) of the Federal Rules of Civil Procedure required Northern to object to videotaping Lynch's testimony at the time of his deposition.102 If it had voiced its objection then, instead of waiting until long after the deposition had been completed, Northern could potentially have prevented any party from incurring the video servicing costs.103 Because Northern has not shown or even argued that it objected to the use of video equipment at that time, the Court finds that it should be taxed the $1,631.25 attributable to videotaping Lynch's deposition.104

The Court does, however, find that the rough transcript costs requested by Cortec are unreasonable and may not be taxed to Northern.

There may be circumstances where rough transcripts are necessary expenses, such as when the final transcript will not be available in time for a party to timely file a brief on a pending motion.105 But Cortec has not shown that the circumstances here required a rough transcript.

While having the transcripts sooner might have been convenient for Cortec, it has not shown that it was necessary. As a result, the Court sustains Northern's objection to the $100.00 Cortec has requested to cover the costs of rough transcripts.

Northern does not object to the remainder of the deposition transcript costs requested by Cortec. Having reviewed the materials submitted in support of the bill of costs, the Court concludes that those requests are reasonable.

Northern should be taxed: (1) $1,757.40 for the written transcript of Lynch's deposition,106 (2) $1,123.20 for the written transcript of Matthew Wolsfeld's deposition, 107 (3) $1540.02 for the written transcript of Irina Roytman's deposition,108 and (4) $1,150.30 for the written transcript of Ik-Hau Ng's deposition,109 and (5) 1,631.25 for the cost of videotaping Lynch's deposition.110 That means Northern is responsible for a total of $7,202.17 in deposition transcript costs.

4. Travel Costs

28 U.S.C. § 1821(c) and (d) provide that a witness who is required to stay overnight or travel to attend court is entitled to payment of certain travel and subsistence expenses.111

Cortec has requested costs in the amount of $1,416.86 to cover the cost of Marcus Bieber's travel and lodging for trial.112 Bieber was listed as a witness by Northern and Northern called him to testify at around 2:15 PM on Tuesday, September 19, 2017.113 Bieber's testimony concluded at around 2:27 PM after the defense announced it had no questions for him.114

Cortec asks for reimbursement of Bieber's airfare, lodging expenses, lunches, and airport parking.115 Northern objects to paying for three nights of lodging and expenses, arguing that it should have to pay only one night's lodging and expenses because Bieber testified only briefly.116

The Court sustains Northern's objection in part.

Bieber paid a total of $182.91 for his lodging on the night of Sunday, September 17; $235.33 for the night of Monday, September 18; and $287.76 for the night of Tuesday, September 19.117 Because Bieber was a plaintiff's witness, he could not be sure when he would be called. So it was reasonable for him to arrange to be in Cleveland for the start of the trial on Monday. And, given the amount of time allotted for the presentation of Northern's case, it was reasonable for Bieber to suspect that he might be called as late as Wednesday and make his travel arrangements accordingly. Bieber was not required to purchase a refundable plane ticket or pay cancellation fees to rebook his flight when it turned out that his testimony was wrapped up on Tuesday.

As a result, the Court finds Cortec's request for reimbursement of three days' lodging to be reasonable. If Northern wanted to reduce the amount of travel expenses for which it was responsible, it should have made clear to Bieber when it planned to call him as a witness. It has presented no evidence that it did so.

Nevertheless, Section 1821 permits a witness to recoup his lodging expenses only up to the per diem rate established by the General Services Administration.118 For September 2017, that means that witnesses staying in the Cleveland area could be reimbursed for up to $134.00 per night in lodging expenses.119 For that reason, the Court reduces the amount of lodging costs to which Cortec is entitled to $134.00 per night, for a total of $402.00.

As for meals, those too are capped at the federal per diem rate.120 In the Cleveland area in September 2017, that rate was $69.00 per day.121 Cortec requests meal expenses in the amount of $8.88 for Monday and $10.38 for Tuesday.122 As those amounts are far below the per diem rate, the Court finds them to be reasonable.

Northern does not object to Cortec's request for $620.40 to cover Bieber's roundtrip airfare for flights between Minneapolis and Cleveland.123 Absent any evidence that a more economical or shorter practical route was available, the Court finds Cortec's airfare request to be reasonable.124

The Court also finds Cortec's request that Bieber be reimbursed for $72.00 in airport parking expenses to be reasonable based on the receipt presented with its bill of costs.125

In sum, the Court finds that Northern should be assessed a total of $1,113.66 to the travel expenses Bieber incurred in order to testify at trail.

5. Witness Fees and Clerk Fees

Witnesses in federal court are entitled to a $40.00 attendance fee for each day's attendance.126 Northern does not object to the $360.00 in attendance fees requested by Cortec. The Court has reviewed Cortec's request and finds it to be reasonable.

Cortec also asks for $1,299.00 in reimbursement for filing fees and fees associated with motions for admission pro hac vice.127 Northern does not object to those fees and the Court finds them to be reasonable.

6. Summary

In short, Defendant Cortec is entitled to the following costs and fees:

Plaintiff Northern should, therefore, be taxed a total of $15,853.67 in costs and fees.

CONCLUSION

For all of those reasons, the Court GRANTS Plaintiff Northern's motion as to (1) the cost of copying the Joint Trial Exhibit and Plaintiff's Trial Exhibit sets, (2) a small portion of the costs associated with the trial transcripts, (3) a portion of a witness' travel expenses, and (4) the costs related to rough deposition transcripts. The Court DENIES Northern Technologies' motion as to all other costs and fees.

The Clerk is therefore DIRECTED to tax $15,853.67 in costs to the Plaintiff.

IT IS SO ORDERED.