United States District Court, Southern District of New York
February 6, 2003
BIC CORPORATIONS AND WITE-OUT PRODUCTS, INC PLAINTIFFS,
FAR EASTERN SOURCE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Harold Baer, Jr., District Judge.
OPINION & ORDER
Defendant Far Eastern moves, pursuant to Fed.R.Civ.P. ("FRCP") 54(d)(1), to vacate the taxation of costs for obtaining a copy of the transcript of the trial in this case. Far Eastern's motion is DENIED-IN-PART and GRANTED-IN-PART.
The Court assumes familiarity with the discussion of the background facts as set forth in BIC Corp. v. Far Eastern Source Corp., 2000 WL 1855116 (S.D.N.Y. Dec. 19, 2000), thus only facts relevant to decide this motion are set forth here. In December 2000, the Court granted plaintiffs BIC Corporation and Wite-Out Products, Inc. (collectively "BIC") a permanent injunction against defendant Far Eastern Source Corporation ("Far Eastern") to enjoin defendant from continuing to use the WIPE-OUT trademark for its correction products. BIC Corp. v. Far Eastern Source Corp., 2000 WL 1855116 (S.D.N.Y. Dec. 19, 2000). The Second Circuit affirmed this Court's decision in October 2001. 2001 WL 1230706 (2d Cir. Oct. 12, 2001). The Second Circuit's order affirming the Court's injunction was filed with the clerk of the Second Circuit on October 12, 2001. Antonecchia Decl. Exh. 2. BIC subsequently submitted a bill of costs in connection with the order on November 13, 2001. The Clerk of the Court entered a judgment against defendant in the amount of $1,500.00 for purported the cost of the transcript. Defendant contends that it should not have to pay for the trial transcript cost because (1) plaintiffs failed to file their request within the time frame as required by Local Civil Rule 54.1(a), and (2) the transcript was not "necessarily obtained" for use in the appeal.
I. Timeliness of Request for Taxation of Costs
Defendant contends that plaintiffs should have filed the request to tax costs within thirty days of the final judgment of appeal, which in this case would mean on or before Sunday, November 11, 2001. Defendant is incorrect. According to the Southern District's instructions, "[t]he Bill of Costs must be filed with the Clerk's Office within 30 days from the date of the docketing of . . . the mandate." Antonecchia Decl. Exh. 1 (emphasis added). The mandate was docketed November 15, 2001, thereby making any Bill of Costs due on or before December 15, 2001. Plaintiffs filed their Bill of Costs on November 13, 2001, well before the deadline for the Bill. Accordingly, plaintiffs' request for taxation of costs was timely filed.*fn1
2. Necessity of Trial Transcript
Defendant further contends that the transcript, for which costs are now sought, was not necessarily obtained for purposes of appeal, but rather obtained "simply for convenience." Caraballo Decl. ¶ 2. I disagree. Defendant notes that it had ordered its own copy of the transcript, which it was prepared to use in the joint appendix, and therefore plaintiffs had unnecessarily obtained an extra copy of the transcript. Defendant fails to note, however, that plaintiffs ordered their copy about a week before defendant, and thus, if anything, defendant's later order of its copy of the transcript appears to have been unnecessary. Plaintiffs' appellate brief cited to extensive portions of the trial transcript in reviewing this Court's determinations. Furthermore, as part of the joint appendix submitted by the parties for their appeal briefs, the parties included plaintiff's minu-script version of the transcript, which the Second Circuit used to determine the appeal. Accordingly, I find the transcript that plaintiffs ordered "was needed to determine the appeal," Fed.R.App.P. 39(e), and the cost of the transcript should be imposed on defendant. Fed.R.Civ.P. 54(d)(1). Although plaintiffs paid $1500.00 to the Southern District Court Reporter, the invoice, which plaintiffs did not obtain until later, showed that the transcript actually cost only $1,153.75. I assume the difference has been or will be returned to BIC, but whether that is so or not, the defendant is hardly responsible for more than the actual cost. Thus, defendant's motion to vacate costs is granted-in-part and denied-in-part, and defendant is ordered to pay plaintiffs the cost of the transcript, i.e., $1,153.75.