"I asked plaintiff to pay the cost award, and he just said 'Come at me, bro!' What do you think he means?"AI-Generated, displayed with permission
FRCP 54 provides that the prevailing party is entitled to recover its costs, not including attorneys fees.
In practice, though, that's easier said than done. Recovery of costs is limited both by statute and local rule. Beyond that, plaintiffs in particular may not have a lot of assets, and it may take serious collection effort to get anything out of them. As you can imagine, parties sometimes decide that the likely cost in attorneys fees outweighs what they are likely to actually recover.
But not always! Today, Judge Andrews issued a memorandum order reviewing …
Costs are kind of a funny subject. The Local Rules set forth a straightforward list of which items are taxable as costs to the prevailing party, and under what circumstances. For instance, under LR 54.1(b)(2), transcripts of court proceedings are taxable only:
when requested by the Court or prepared pursuant to stipulation. Mere acceptance by the Court does not constitute a request. Copies of transcripts for counsel’s own use are not taxable.
The rules for travel fees, copying, etc., are similarly strict, and so in my (totally unverified) experience, the vast majority of a proposed bill of costs will be denied pretty much every time.
AI-Generated, displayed with permission
A party may, of course, move for the Court to review the taxation of costs. D. Del. LR 54.1(d). The Court then has wide discretion to award costs beyond those specifically authorized by the local rule, and there are several DE decisions doing just that. Judge Williams issued one such ruling last Friday in Onyx Therapeutics, Inc. v. CIPLA Limited. C.A. No. 16-988-GBW (D. Del. Feb. 17, 2023).
The opinion is generally a good primer on just how far costs might be stretched beyond the apparent bounds of the local rule. For instance, discussing the local rule on the taxation of court transcripts above, Judge Williams stated:
While LR 54.1(b)(2)provides that "[c]opies of transcripts for counsel's own use are not taxable[,]" Judge Stark, who presided over this case, has found such costs taxable under § 1920(2). Judge Stark explained that "the undersigned Judge regularly resolves discovery disputes during teleconferences, articulating the Court's reasoning on the transcript and often without issuing any formal, written order. In order to effectively litigate a patent case ...
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