United States District Court, D. Minnesota
St. Jude Medical, S.C., Inc., Plaintiff,
Biosense Webster, Inc., Johnson & Johnson, and Jose B. de Castro, Defendants.
Edward F. Fox, Esq., Mark R. Bradford, Esq., and Nicole A. Delaney, Esq., Bassford Remele, PA, Minneapolis, MN, on behalf of Plaintiff.
Joseph W. Anthony, Esq., Mary L. Knoblauch, Esq., Courtland C. Merrill, Esq., and Steven C. Kerbaugh, Esq., Anthony Ostlund Baer & Louwagie, PA, Minneapolis, MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge on Defendants Biosense Webster, Inc., Johnson & Johnson, and Jose B. de Castro's (collectively, "Defendants") Motion for Review of Clerk's Taxation of Costs [Docket No. 328]. In the Cost Judgment [Docket No. 326] entered by the Clerk of the Court, the Clerk allowed $23, 396.90 of the $28, 906.95 in total costs claimed by Plaintiff St. Jude Medical, S.C., Inc. ("St. Jude"). Defendants request the Court to reduce the Cost Judgment by $8, 208.86, consisting of $3, 514.25 in deposition transcript costs, $3, 265 in video deposition costs, and $1, 429.61 in copying expenses. St. Jude opposes the motion, arguing that the Court lacks jurisdiction to alter the Cost Judgment, and alternatively, that the motion fails on the merits. For the reasons stated below, Defendants' motion is denied.
St. Jude argues that this Court lacks jurisdiction to alter the cost award because Defendants appealed the Cost Judgment to the Eighth Circuit on December 22, 2014. See Notice of Appeal [Docket No. 327] (including December 8, 2014 Cost Judgment among the orders appealed to the Eighth Circuit). However, Defendants' Statement of Issues on Appeal does not list the Clerk's taxation of costs as an issue presented for review on appeal. See Kerbaugh Decl. [Docket No. 341] Ex. A (Appellant's Statement of Issues).
A notice of appeal divests a district court of jurisdiction only of those issues involved in the appeal. Harmon v. United States ex rel. Farmers Home Admin., 101 F.3d 574, 587 (8th Cir. 1996). "A district court retains jurisdiction over collateral matters, such as attorneys' fees and costs while an appeal is pending." Comcast of Ill. X v. Multi-Vision Elecs., Inc., 504 F.Supp.2d 740, 746 (D. Neb. 2007); see also Walsh v. Kelly, 203 F.R.D. 597, 598 (D. Nev. 2001) (holding district court retained jurisdiction over motion for costs because the motion was "ancillary to the case, that is, it involves issues that are separate from the matters currently under consideration by the Ninth Circuit").
The Defendants' Statement of Issues on Appeal does not identify the issue of the amount of taxable costs as an issue on appeal. The only manner in which the Cost Judgment is implicated is if the Eighth Circuit were to reverse the underlying judgments that serve as the basis for the cost award. If this occurred, the Cost Judgment would be vacated. Thus, the issue of the amount of taxable costs is a collateral matter over which this Court retains jurisdiction.
1. Deposition Transcripts
Defendants argue that the Clerk improperly taxed $3, 514.25 in costs for six deposition transcripts because the deposition transcripts were not used at trial or summary judgment. A district court has discretion to award costs for a deposition that was "necessarily obtained for use in a case and was not purely investigative." Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997) (alteration and internal quotation marks omitted). In determining whether depositions were necessarily obtained for use in a case, "the underlying inquiry is whether the depositions reasonably seemed necessary at the time they were taken." Id . (quotation marks omitted).
With respect to the six deposition transcripts at issue, five were for depositions noticed by Defendants. Therefore, it was reasonable for Plaintiff St. Jude to believe the depositions were necessary at the time they were taken. See Farnsworth v. Covidien, Inc., Civ. No. 08-1689, 2010 WL 2160900, *3 (E.D. Mo. May 28, 2010) ("[I]t was reasonable [for Defendant] to believe that the deposition was necessary at the time it was taken because Plaintiff was the one who requested the deposition."); Shukh v. Seagate Tech., LLC, Civ. No. 10-404, 2014 WL 4348199, *4 (D. ...