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Merck Sharp & Dohme Pharmaceuticals, SRL v. Teva Pharmaceuticals USA

March 31, 2010

MERCK SHARP & DOHME PHARMACEUTICALS, SRL, PLAINTIFF,
v.
TEVA PHARMACEUTICALS USA, INC., AND TEVA PHARMACEUTICAL INDUSTRIES, LTD., DEFENDANTS.



OPINION

This matter comes before the Court on a Motion [Dkt. Entry 125] for Taxation of Costs by Plaintiff Merck Sharp & Dohme Pharmaceuticals, SRL ("Merck") pursuant to Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.1. Defendants Teva Pharmaceuticals USA, Inc., and Teva Pharmaceutical Industries, LTD., ("collectively Teva") oppose to Merck's motion.

Merck commenced this action on April 3, 2007 for infringement of a certain U.S. Patent.

The bench trial commenced on February 23, 2009 and concluded on February 26, 2009. The Court entered final judgment in this matter on August 19, 2009 [Dkt. Entry 123] in favor of Merck and against Teva concluding that Teva infringed certain claims of a patent. Teva appealed to the United States Court of Appeals for the Federal Circuit which dismissed [134] the appeal on January 11, 2010.

I. Standard Awarding Costs

Under Federal Rule of Civil Procedure 54(d), a prevailing party is entitled to costs unless the court otherwise directs.*fn1

Rule 54(d)(1) creates a "'strong presumption' that costs are to be awarded to the prevailing party." In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462 (3d Cir. 2000) (quoting 10 MOORE'S FEDERAL PRACTICE § 54.101, at 54-149); see also Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). If an Order or Judgment is silent as to costs, as it is in this matter, the natural reading of Rule 54(d) would lead one to conclude that a Judgment or Order allows costs because the court had not "otherwise directed." Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F. 2d 219, 221 (7th Cir. 1988).

a) Prevailing Party

A party is a prevailing party when that party succeeds on "any significant issue in litigation which achieved some of the benefit sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

In the current matter, Merck is the prevailing party within the meaning of Federal Rule of Civil Procedure 54(d). See Garonzik v. Whitman Diner, 910 F. Supp. 167, 168 (D.N.J. 1995) ("A prevailing party is the one in whose favor of a judgment is rendered, regardless of whether the party has recovered its entire claim or a portion thereof.") (citing Fahey v. Carty, 102 F.R.D. 751 (D.N.J. 1983).

b) Taxable Costs

As noted, Federal Rule Civil Procedure 54(d)(1) states "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." 28 U.S.C. § 1920 defines which costs are taxable:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees expenses, and costs of special interpretation services under section 1828 of this title.

While a court has discretion as to which costs it grants, it many not shift costs beyond those found in § 1920 without express statutory authorization to do so. Adams v. Teamsters Local 115, No. 99-4910, 2007 WL 2071897 *8 (E.D.Pa. July 17, 2007)(citing Crawford Fitting Co. v. J.T.Gibbons, Inc., 482 U.S. 437, 444-45 (1987). Additionally, Local Civil Rule 54.1 "set[s] forth the general rules . . . to follow in taxing costs" under § 1920.

Lite, N.J. Federal Practice Rules, Comment 4 to Rule 54.1, at 201 (Gann 2009 ed). Therefore, while a prevailing party is entitled to costs under Rule 54 of the Federal Rules of Civil Procedure, "those costs often fall short of the party's actual litigation expenses." In re Paoli, 221 F.3d at 458 (citations omitted).

II. Fees of the Clerk

Merck requests reimbursement in the amount of $700.00 for filing two complaints with this Court. The required filing fee under 28 U.S.C. § 1914(a) to file a civil action in the year 2007 was $350.00. Teva does not object to this expense as allowable taxed cost under 28 U.S.C. § 1920(1). Therefore, the Clerk allows $700.00 as a taxable cost.

III Fees for Service of Summons and Complaint

Merck requests reimbursement of fees paid to a private process server to serve the summons and complaint in this matter. While Section 1921(1) explicitly authorizes taxation of costs of the "clerk and marshal," this Court has further held that fees paid to private servers of process (serving summons/complaint and subpoena(s)) should be a taxable item. Hurley v. Atlantic City Police Dep't, No. 93-260, 199 WL 549298, at *8 (D.N.J. Sept. 17, 1996). ...


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