United States District Court, D. Minnesota
A. Farlow, Hayley Ellison, Worthy W. Walker, Barbara L.
Wohlrabe, and David W. Elrod, Elrod PLLC, Julian C. Zebot and
Cooper S. Ashley, Maslon LLP, for Plaintiff.
Douglas H. Flaum, Kevin P. Broughel, and Shahzeb Lari, Paul
Hastings LLP, Lousene M. Hoppe and Nicole M. Moen, Fredrikson
& Byron, PA, Thomas R. Thibodeau, David M. Johnson, and
Ryan Stutzman, Thibodeau Johnson & Feriancek, PLLP, for
RICHARD NELSON, United States District Judge
the Court is a request for an award of costs associated with
the appeal filed by Defendants Essar Steel Minnesota, LLC,
Essar Steel Limited f/k/a Essar Steel Holdings, Ltd., Essar
Steel India Limited f/k/a Essar Steel Limited, and Essar
Global Fund Ltd. f/k/a Essar Global. (ESML's Verified
Bill of Costs on Appeal [Doc. No. 1037].) For the reasons set
forth below, the Essar Defendants' request is granted.
September 16, 2015, this Court entered judgment against
Defendants in the amount of $32, 902, 183.00. (See
Am. Order for Entry of Judgment at 4-5 [Doc. No. 977]; Am.
Judgment [Doc. No. 979].) On September 18, 2015, Defendants
filed a Notice of Appeal to the Eighth Circuit Court of
Appeals. (Notice of Appeal [Doc. No. 987].) To stay execution
of judgment pending the appeal, the parties entered into a
stipulation requiring Defendants to deposit with the Clerk of
this Court a supersedeas bond in the sum of $37, 837, 510.45,
representing 115% of the judgment. (See Stipulation
[Doc. No. 1006]; Order of 10/5/15 [Doc. No. 1007]; Bond [Doc.
order to obtain the supersedeas bond, Defendants paid a
premium of $756, 750.00 to their insurer, the Atlantic
Specialty Insurance Company (“Atlantic”), and, in
order to renew the bond for October 2016 through April 2017,
they further paid Atlantic $474, 969.00. (Invoices, Ex. 1 to
ESML's Verified Bill of Costs on Appeal [Doc. No. 1037-1
appeal to the Eighth Circuit was successful. Great Lakes
Gas Transmission Ltd. P'ship v. Essar Steel Minnesota
LLC, 843 F.3d 325, 334 (8th Cir. 2016). The Eighth
Circuit instructed this Court to vacate judgment and dismiss
the matter for lack of jurisdiction. Id.
thereafter, Defendants filed a Bill of Costs with the Eighth
Circuit, seeking an order requiring that Great Lakes
reimburse them for a filing fee of $505.00, citing Rule 39 of
the Federal Rules of Appellate Procedure and Rule 39A of the
Eighth Circuit's Local Rules. (Appellants' Bill of
Costs [Doc. No. 1040-1].) They further stated,
“Appellants reserve the right to request taxation of
the cost for preparation and transmission of the trial
transcript and record, premiums paid for Appellants'
supersedeas bond, and the filing fee for the notice of
appeal, from the United States District Court, District of
Minnesota, in accordance with Rule 39(e) of the Federal Rules
of Appellate Procedure.” (Id. at 1-2)
December 28, 2016, the Eighth Circuit issued a short order
permitting Defendants to recover from Plaintiff Great Lakes
Gas Transmission Limited Partnership (“Great
Lakes”) the sum of $500.00 as taxable costs on appeal
[Doc. No. 1040-2]. Pursuant to Federal Rule of Appellate
Procedure 39(e)(4), the Eighth Circuit directed Defendants to
recover the statutory filing fee of $5.00 with this Court.
(Id.) The Order contained no language regarding
Defendants' reservation of rights for the taxation of
costs on the premiums paid for the supersedeas bond.
now request that this Court award the $5.00 filing fee for
their Notice of Appeal and the $1, 229, 719.00 in supersedeas
bond premiums that they incurred, for a total of $1, 229,
724.00, to be paid by Great Lakes. (ESML's Verified Bill
of Costs at 1.) Great Lakes objects to Defendants'
request, arguing that Defendants did not seek an order
regarding the taxation of supersedeas bond premium payments
from the Eighth Circuit, nor did the Eighth Circuit address
such costs. (Pl.'s Obj. at 1-2 [Doc. No. 1040].)
Accordingly, Plaintiff contends that these costs are not
recoverable under Rule 39(e). (Id.) Alternatively,
even if they are recoverable, given the complexity of the
jurisdictional issue on which Defendants prevailed on appeal
and Defendants' conduct in “unnecessarily
dr[agging] out this case for six years by asserting baseless
defenses and engaging in otherwise dilatory litigation
conduct, ” the Court should exercise its discretion and
decline to award the supersedeas bond premium payments as
costs. (Id. at 4.)
Rule 39, in cases in which the district court's judgment
is affirmed in part, reversed in part, modified, or vacated
by an appellate court, costs may be assessed against a party
“only as the court orders.” Fed. R. App. P.
39(a)(4). This Court's judgment was vacated by the Eighth
Circuit and Defendants timely filed their Bill of Costs
within the fourteen day-period proscribed by Rule 39(d)(1).
Under the rule, “premiums paid for a supersedeas bond
or other bond to preserve rights pending appeal” are
among the costs taxable in the district court. Fed. R. App.
leading Eighth Circuit authority on this issue is
Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck
Corp., 497 F.3d 805, 807 (8th Cir. 2007). At trial,
Reeder-Simco prevailed on its claims brought under two
separate federal statutes, alleging unfair price
discrimination. Id. Volvo appealed. Id. As
is the case here, in order to stay any collection of judgment
pending appeal, Volvo posted a supersedeas bond and paid
premiums during the pendency of the appeal. Id. On
appeal, the Eighth Circuit affirmed the judgment as to one of
the claims, but reversed as to the other. Id. Volvo,
however, did not file a bill of costs with the Eighth Circuit
within fourteen days of that court's entry of judgment.
Id. Instead, it asked the district court to tax as
costs the portion of the supersedeas bond premiums
attributable to its prevailing claim. Id. Finding
that it had no authority to do so, the district court denied
Volvo's motion. Id. On appeal, the Eighth
Circuit observed that under Rule 39, “the appellate
court must specify whether one party or the other, or both,
are entitled to costs, and if so, ...