United States District Court, N.D. New York
THE PLAINTIFF: Barclay Damon LLP., JOHN T. GUTKOSKI, ESQ.,
BELLA S. SATRA, ESQ., DOUGLAS J. NASH, ESQ., GABRIEL M.
NUGENT, ESQ., JOHN D. COOK, ESQ., KATHRYN DALEY CORNISH, ESQ.
MARK E. GALVEZ, ESQ.
THE DEFENDANT: Orrick, Herrington Law Firm, ANDREW D.
SILVERMAN, ESQ., DANIEL A. RUBENS, ESQ., MARK S. DAVIES,
ESQ., DLA Piper LLP, KATHRYN R. GRASSO, ESQ., STEPHEN J.
GOMBITA, ESQ., JOSEPH P. LAVELLE, ESQ., ANDREW N. STEIN,
ESQ., SUSAN N. ACQUISTA, ESQ., JERAULD E. BRYDGES, ESQ.,
ERIKA N.D. STANAT, ESQ.
MEMORANDUM-DECISION AND ORDER
L. SHARPE U.S. DISTRICT JUDGE.
PPC Broadband, Inc. commenced this patent infringement action
against defendant Corning Optical Communications RF, LLC.
(Compl., Dkt. No. 1.) After a four-day trial, the jury found
in favor of PPC. (Dkt. No. 358.) Subsequently, the court held
a two-day bench trial on Corning's equitable defenses and
found that Corning had not proven either defense. (Dkt. Nos.
513-14, 526.) The court also awarded PPC enhanced damages,
supplemental damages, and pre-judgment interest. (Dkt. No.
526.) Judgment was entered against Corning in the amount of
$61, 339, 316. (Dkt. No. 529.) PPC then filed a bill of costs
seeking $121, 020.36. (Dkt. No. 538.) Pending are
Corning's objections to the bill of costs. (Dkt. No.
539.) For the reasons that follow, the Clerk is directed to
tax $90, 741.55 as costs.
Standard of Review
Civ. P. 54(d)(1) authorizes the recovery of costs by a
prevailing party “[u]nless a federal statute, [the
Federal Rules of Civil Procedure], or a court order provides
otherwise.” Recoverable costs are limited to those
enumerated in 28 U.S.C. § 1920, which sets out the
following taxable costs:
(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
See Whitfield v. Scully, 241 F.3d 264, 269-70 (2d
Cir. 2001) (citing Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441 (1987)), abrogated on other
grounds by Bruce v. Samuels, 136 S.Ct. 627 (2016).
“[B]ecause Rule 54(d) allows costs ‘as of course,
' such an award against the losing party is the normal
rule obtaining in civil litigation, ” thereby placing
on the losing party the “burden to show that costs
should not be imposed.” Id. at 270 (quoting
Mercy v. Cty. of Suffolk, 748 F.2d 52, 54 (2d Cir.
1984)). Where a bill of costs is challenged, the reviewing
district court exercises discretion and “decide[s] the
cost question [it]self.” Id. at 269 (internal
quotation marks and citation omitted).