LEONARD P. STARK, District Judge.
At Wilmington this
Having reviewed the record, and for the reasons stated below,
1. On March 18, 2013, Plaintiffs Intellectual Ventures I LLC and Intellectual Ventures II LLC (collectively, "IV") filed this patent infringement action against two defendants, Symantec Corporation ("Symantec") and Veritas Technologies LLC ("Veritas") (collectively, "Defendants"), asserting United States Patent Nos. (a) 6,732,359 ("the '359 patent"), (b) 6,598,131 ("the '131 patent"), and (c) 5,537,533 ("the '533 patent"). (D.I. 1)
2. On February 16, 2017, the Court entered Final Judgment for Defendants and against IV. (D.I. 340)
3. On March 15, 2018, the Court of Appeals for the Federal Circuit affirmed this Court's Final Judgment. (D.I. 347)
4. As shown in the recitation above, and as correctly stated by Defendants: "Resolving the infringement claims by Intellectual Ventures I LLC and Intellectual Ventures II LLC (collectively, `IV') took over half a decade of document production, depositions, hearings. and multiple opinions and judgments by this Court and the Federal Circuit." (D.I. 372 at 1)
5. On June 27, 2018, Defendants filed a Bill of Costs, supported by a Declaration of Lisa K. Nguyen and other documentation, with the Clerk of Court. (D.I. 351, 352, 353)
6. IV objected to the Bill of Costs on July 25, 2018. (D.I. 361)
7. On January 18, 2019, the Clerk entered his Taxation of Costs in the amount of $21,485.85 on January 18, 2019. (D.I. 371) ("Taxation")
8. Defendants objected to the Clerk's Taxation and their motion for review of that Taxation is fully briefed. (See D.I. 372, 373, 374)
9. "Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties." Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 565 (2012). In particular, Rule 54(d)(1) provides: "Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the prevailing party." As the Third Circuit has observed, Rule 54(d)(1) "uses the word `costs' as a term of art, rather than to refer to all expenses a prevailing party may incur in a given action." In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 458 (3d Cir. 2000) (citing 10 MOORE'S FEDERAL PRACTICE § 54.103, at 54-174 to 54-197 (3d ed.1999)).
10. The categories of costs that are taxable are established by statute: 28 U.S.C. § 1920, a statute to which the Supreme Court "has accorded a narrow reading." Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 171 (3d Cir. 2012) (citing Crawford Fitting Co. v. J.T. Gibbons Inc., 482 U.S. 437, 442 (1987)). Section 1920 states, in full:
11. In the District of Delaware, Rule 54 and § 1920 are supplemented by Local Rule 54.1, which provides additional guidance on taxable costs. Pursuant to Local Rule 54.1(a)(1), "[u]nless otherwise ordered by the Court, the prevailing party shall be entitled to costs." D. Del. L.R. 54.1(a)(1). Local Rule 54.1 directs prevailing parties to submit a bill of costs to the Clerk, who verifies the bill and makes any necessary adjustments. See D. Del. L.R. 54.1(a).
12. Together, § 1920, Federal Rule 54, and Local Rule 54.1 create a "strong presumption" that costs should be awarded to the prevailing party. See Reger v. The Nemours Found., Inc., 599 F.3d 285, 288 (3d Cir. 2010); see also Paoli, 221 F.3d at 462. "Only if the losing party can introduce evidence, and the district court can articulate reasons within the bounds of its equitable power, should costs be reduced or denied to the prevailing party." Paoli, 221 F.3d at 468. "This is so because the denial of such costs is akin to a penalty." Reger, 599 F.3d at 288. "Thus, if a district court, within its discretion, denies or reduces a prevailing party's award of costs, it must articulate its reasons for doing so." Id.
13. A consequence of the strong presumption that the prevailing party should be awarded its costs that are shown to be within the narrow statutory categories of taxable costs is that "the assessment of costs most often is merely a clerical matter that can be done by the court clerk." Taniguchi, 566 U.S. at 573 (internal quotation marks omitted); see also Paoli, 221 F.3d at 453 (describing costs analysis as "essentially ministerial act of the clerk of court"). Nevertheless, a party disappointed with the Clerk's taxation determination may appeal it to the District Court, which must review the Clerk's decision de novo. See Reger, 599 F.3d at 288; Paoli, 221 F.3d at 461; see also Fed. R. Civ. P. 54(d)(1) ("On motion served ..., the court may review the clerk's action.").
14. In reviewing the Clerk's costs decision, the Court may consider such factors as: "(1) the prevailing party's unclean hands, bad faith, dilatory tactics, or failures to comply with process during the course of the instant litigation or the costs award proceedings; and (2) each of the losing parties' potential indigency or inability to pay the full measure of a costs award levied against them." Reger, 599 F.3d at 288 n.3 (internal quotation marks omitted). "In contrast, however, a district court may not consider (1) the losing parties' good faith in pursuing the instant litigation (although a finding of bad faith on their part would be a reason not to reduce costs); (2) the complexity or closeness of the issues — in and of themselves — in the underlying litigation; or (3) the relative disparities in wealth between the parties." Id. (internal quotation marks omitted). In other words, that a case is "a classic close case, brought in good faith" is not an "appropriate criteri[on] in determining whether a costs award is equitable." Paoli, 221 F.3d at 465.
15. "[T]he losing party bears the burden of making the showing that an award is inequitable under the circumstances." Id. at 462-63. Notwithstanding this burden on the losing party, the Court (like the Clerk) has discretion to deny a request for taxation of costs based on a prevailing party's failure to support its request with sufficient and specific documentation. See 28 U.S.C. § 1924 ("Before any bill of costs is taxed, the party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or by his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed."). This principle is reflected in Local Rule 54.1(a)(2), which provides, "[t]he bill of costs shall clearly describe each item of cost and comply with the provisions of 28 U.S.C. § 1924."
16. The parties agree that Defendants are the prevailing parties. It is also undisputed that Defendants filed the Bill of Costs in a timely manner. The disputes relate to the Clerk of Court's denials of portions of Defendants' Bill of Costs, resulting in reduction of Defendants' requested $162,145.41 to an award of $21,485.85. (See D.I. 352) The Court reviews and resolves each category of expenses below.
The Clerk of Court awarded Defendants their requested
The Clerk of Court awarded Defendants their requested
The Clerk of Court awarded Defendants
The Court will also grant Defendants' requested
Defendants requested $62,429.46 in costs for the transcripts of 21 depositions. (See D.I. 372 at 8) The Clerk agreed with IV that costs associated with only one deposition were recoverable and awarded just $2,515.05 in taxable deposition costs. (D.I. 371 at 3)
The Court agrees with Defendants that "transcript costs for all twenty-one depositions that Defendants identified should be taxed" and, therefore, the Court will grant Defendants' request for payment of
The Court further agrees with Defendants that an additional
The Court also agrees with Defendants that they should recover an additional
The Clerk awarded Defendants
17. The Court has considered and rejects IV's contention that it should decline to award Defendants any more in costs than the Clerk allowed due to Defendants' alleged "repeated misconduct." (D.I. 373 at 1; see also id. at 13-15) While the Court referenced certain statements Defendants made throughout this case as part of its decision finding this case to be not exceptional within the meaning of 35 U.S.C. § 285 (see D.I. 370 at 47-52), the Court did not find misconduct and does not now find any unclean hands, bad faith, or other equitable basis to reduce the costs award the Court has found (for reasons explained above) to be warranted.