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Veteran Medical Products, Inc. v. Bionix Development Corp.

March 16, 2010

VETERAN MEDICAL PRODUCTS, INC., ET AL., PLAINTIFFS,
v.
BIONIX DEVELOPMENT CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh W. Brenneman, Jr.

ORDER REGARDING BILL OF COSTS

This matter is before the court on plaintiff's second bill of costs (docket no. 139). This case involved issues to be determined by both the court and the jury.

I. Background

On April 18, 2008, the jury entered a verdict in favor of plaintiffs in the amount of $199,000.00 and the court subsequently entered a judgment in favor of plaintiffs in that amount. See docket no. 118. On April 28, 2008, plaintiffs submitted their motion for a finding that defendants' unsuccessful patent infringement counterclaim was an "exceptional case" warranting award of attorney fees pursuant 35 U.S.C. § 285. See docket no. 119. On May 1, 2008, defendants moved for judgment as a matter of law. See docket no. 122.

On May 20, 2008, plaintiffs submitted a bill of costs in the amount of $16,457.96 (docket no. 130), pursuant to W.D. Mich. LCivR 54.1, which provides as follows:

If the parties in a case can agree on costs, it is not necessary to file a cost bill with the Clerk. If the parties cannot agree, a bill of costs shall be filed with the Clerk within thirty (30) days from the entry of judgment. If a bill of costs is filed, any party objecting to the taxation of costs must file a motion to disallow all or part of the claimed costs within ten (10) days of service of the bill of costs on that party.

The motion and response thereto shall be governed by LCivR 7.1 and 7.3 W.D. Mich. LCivR 54.1. Defendants filed a timely document entitled "Memorandum in opposition to plaintiff's bill of costs" (docket no. 132).*fn1

The court considered and granted defendants' motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and entered an amended judgment which reduced plaintiffs' damages to $0.00. See docket nos. 136, 137 and138. The court also granted plaintiffs' motion for attorney fees pursuant to 35 U.S.C. § 285 and directed plaintiffs to submit an affidavit with supporting documents justifying their claim for attorney fees. See docket nos. 136 and137. Shortly after entry of the amended judgment, plaintiffs filed a second bill of costs in the identical amount of $16,457.96. See docket no. 139. Defendants did not file a motion to disallow the second bill of costs. On March 16, 2010, the court awarded plaintiffs attorney fees pursuant to § 285 in the amount of $59,308.00 and entered a final judgment in this matter. See docket nos. 146 and 147.

Based on this record, both the first and second bill of costs were premature, because the court had not issued a final judgment in this matter. See Fed. R. Civ. P. 54(a) (" 'Judgment' as used in these rules includes a decree and any order from which an appeal lies"). For this reason, the court has held the bill of costs in abeyance until entry of a final judgment. The court having ruled on the attorney fees sought under § 285 and final judgment having now been entered in favor of plaintiffs, the court will address the bill of costs.

II. Plaintiffs' Bill of Costs

Allowable costs are set forth in 28 U.S.C. § 1920, which provides as follows: A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily ...


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