Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berry Plastics Corp. v. Intertape Polymer Corp.

United States District Court, S.D. Indiana, Evansville Division

January 17, 2017

BERRY PLASTICS CORPORATION, Plaintiff and Counter Defendant,
v.
INTERTAPE POLYMER CORPORATION, Defendant and Counter Plaintiff.

          ENTRY ON PLAINTIFF'S BILL OF COSTS

          RICHARD L. YOUNG, JUDGE

         Plaintiff and Counter Defendant, Berry Plastics Corporation, filed a Complaint for Declaratory Judgment against the Defendant and Counter Plaintiff, Intertape Polymer Corporation, seeking a declaration that Intertape's United States Patent No. 7, 476, 416 is invalid and unenforceable. Intertape filed a Counterclaim, since amended, charging Berry with infringing the ‘416 Patent. Berry's claims of invalidity and Intertape's claim of infringement were tried to a jury from November 3 to November 17, 2014. The jury found that Berry did not prove by clear and convincing evidence that Claims 1, 6, 7, 8, 10, 11, 12, 21, 22, 23, 24, 25, 27, 31, 32, 33, and 34 of the ‘416 Patent were invalid as anticipated under 35 U.S.C. § 102; were invalid as obvious under 35 U.S.C. § 103; were invalid because the ‘416 Patent failed to name the proper inventors under 35 U.S.C. § 256; were invalid because the claims were derived from others under 35 U.S.C. § 102(f); or were invalid because Intertape did not first conceive of the invention. In addition, the jury found that Intertape failed to prove by a preponderance of the evidence that Berry infringed Claims 1, 6, 7, 8, 10, 11, 12, 21, 22, 23, 24, 25, 27, 31, 32, 33, and 34 of the ‘416 Patent.

         Following the jury trial, the parties filed a number of post-trial motions, including Berry's Renewed Motion for Judgment as a Matter of Law that U.S. Patent No. 7, 476, 416 is Invalid as Obvious. On September 30, 2015, the court granted that motion. Intertape thereafter filed a Motion for Reconsideration and, on June 3, 2016, the court granted the motion with respect to the unasserted dependent claims. Therefore, the court found, as a matter of law, that independent claims 1 and 21, and dependent claims 6, 7, 8, 10, 11, 12, 22, 23, 24, 25, 27, 31, 33, and 34 are invalid as obvious.

         Berry, as the prevailing party, now moves for costs in the amount of $99, 732.23 pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920. For the reasons stated below, the court GRANTS IN PART Berry's Bill of Costs.

         I. Prevailing Party Status

         Intertape first argues that Berry is not entitled to any costs because Berry achieved only limited success in this “mixed results” case. The court agrees the jury verdict was a wash-neither party prevailed. However, the court granted Berry's motion for judgment as a matter of law that 16 of the ‘416 Patent's 34 claims were invalid as obvious, including independent claims 1 and 21.

         In light of the court's ruling, Intertape's reliance on cases like Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir. 1999) is misplaced. Gavoni stands for the proposition that a court may properly deny costs to a party who technically prevailed, but received only nominal results. There, for example, the jury found in favor in the plaintiff but “awarded the plaintiffs a relatively paltry $6500”-less than one percent of what they requested. Id. at 1074-75. Here, however, Berry invalidated the ‘416 Patent's independent claims and a multitude of its dependent claims. Berry's victory is more than nominal; it was substantial. See Smart v. Local 702 IBEW, 573 F.3d 523, 525 (7th Cir. 2009) (“A party prevails for purposes of Rule 54(d) when a final judgment awards it substantial relief.”). Accordingly, the court finds it is entitled to costs.

         II. Legal Standards and Berry's Cost Requests

         Under Rule 54(d), “costs - other than attorney's fees - should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d). Taxable costs are enumerated in 28 U.S.C. § 1920:

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 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.

         Whether or not to award specific costs is within the discretion of the court. U.S. Neurosurgical, Inc. v. City of Chi., 572 F.3d 325, 333 (7th Cir. 2009). In determining whether to tax costs against the losing party, the court engages in a two-part inquiry: “(1) whether the cost imposed on the losing party is recoverable and (2) if so, whether the amount assessed for that item was reasonable.” Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000) (citing Weeks v. Samsung Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1998)). Although there is a heavy presumption in favor of the award of costs to the prevailing party, id., that party “must prove with evidence and not merely with ipse dixit statements-that the costs were actually incurred, were reasonable in amount, and were necessary.” Trading Tech. Int'l, Inc. v. eSpeed, Inc., 750 F.Supp.2d 962, 969 (N.D. Ill. 2010).

         The amounts to which Berry claims entitlement under Rule 54(d) and 28 U.S.C. § 1920 are as follows:

1. Fees for printed or electronically recorded transcripts

$43, 226.70

2. Fees for witnesses

$19, 475.04

3. Costs of copies

$37, 030.49

Total

$99, 732.23

         III. Specific Objections

         A. Costs of Deposition Transcripts

         A court may tax as costs the “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Intertape objects to certain costs associated with the deposition transcripts taken in this case, arguing they are “extraneous costs, incurred for the convenience of counsel” and thus, are not recoverable. Trading Tech., 750 F.Supp.2d at 969 (“Costs incurred merely for the convenience of the prevailing party may not be recovered.”). These costs include:

(1) “CD Depo Litigation Package” totaling $365.50 (Filing No. 549-1, Berry's Deposition Invoices at 2-3, 5, 8, 9, 17, 19, 20, 27);
(2) “Video/Text Synchronization” totaling $2, 032.50 (id. at 4, 6, 18);
(3) “Rough Draft of Deposition Transcript” totaling $2, 297.55 (id. at 8, 17, 19, 20, 27);
(4) In addition to paper exhibits, a second set of “Exhibits Scanned; Searchable - OCR” totaling $641.03 (i ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.