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 from Plaintiff Great Lakes Gas
Transmission Limited Partnership (“Great Lakes”)
for permission to file a motion for reconsideration.
(Pl.'s Letter of 6/1/17 [Doc. No. 1053].) Great Lakes
seeks reconsideration of this Court's May 26, 2017 Order
(“the May 26 Order”) [Doc. No. 1052] in which the
Court granted the request of 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 for a
Verified Bill of Costs on Appeal [Doc. No. 1037]. Defendants
oppose Plaintiff's request [Doc. No. 1054].
account of the factual background is set forth in the May 26
Order. In short, following this Court's entry of 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]), 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.
No. 1010].) 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 from October 2016 through April 2017,
they further paid Atlantic a premium of $474, 969.00.
(Invoices, Ex. 1 to ESML's Verified Bill of Costs on
Appeal [Doc. No. 1037-1 at 2-3].)
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. Defendants
then 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) (emphasis added).
December 28, 2016, the Eighth Circuit issued a short order
permitting Defendants to recover from 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.
then requested an award from this Court for 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 objected to payment
of the supersedeas bond premiums, arguing that because
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, they were not
recoverable under Rule 39(e). (Pl.'s Obj. at 1-2 [Doc.
No. 1040].) Alternatively, even if they were 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 Plaintiffs asked the
Court to decline to award the supersedeas bond premium
payments as costs. (Id. at 4.)
May 26 Order, the Court considered the matter a “close
question” under Rule 39, (Order of 5/26/17 at 7), but
authorized the taxation of the supersedeas bond premium
payments, “as the Eighth Circuit awarded the appellate
filing fee costs, directed Defendants to seek their statutory
filing fee costs with this Court, and Defendants' Bill of
Costs gave notice of the reservation of rights to seek costs
for the premium payments.” (Id.) The Court
also declined to adopt Plaintiff's alternative argument.
(Id. at 7-8.) Rather, because Defendants ultimately
prevailed on their appeal, the Court, in its discretion,
granted Defendants' request for the supersedeas bond
time, Great Lakes seeks permission to file a motion for
reconsideration pursuant to Local Rule 7.1(j). Under that
rule, a party seeking leave to move for reconsideration must
present compelling circumstances in order to obtain the
Court's permission. L.R. 7.1(j). While the Court
understands Plaintiff's disagreement with the May 26
Order, Plaintiff has not identified any such compelling
discussed in the May 26 Order, Federal Rule of Appellate
Procedure 39(e)(3) provides that “premiums paid for a
supersedeas bond or other bond to preserve rights pending
appeal” are among the costs taxable in the district
court. Because this Court's judgment was vacated by the
Eighth Circuit, and Defendants timely filed their Bill of
Costs, they were eligible to seek premiums paid for the
supersedeas bond premiums, as costs taxable in the district
court. The question here is whether, procedurally, Defendants
were entitled to such costs where: (1) in Defendants'
Bill of Costs to the Eighth Circuit, they sought their $505
filing fees as costs and expressly reserved their right to
seek the premiums on the supersedeas bond from the district
court; and (2) the Eighth Circuit's Order on
Defendants' Bill of Costs [Doc. No. 1033] did not address
supersedeas bond premiums.
Court acknowledged in the May 26 Order, the facts here are
distinguishable from the relevant authority in the Eighth
Circuit, Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck
Corp., 497 F.3d 805, 807 (8th Cir. 2007), and
Emmenegger v. Bull Moose Tube Company, 324 F.3d 616
(8th Cir. 2003). In Reeder-Simco, defendant Volvo,
which prevailed on some of its defenses at trial, did not
file a bill of costs with the Eighth Circuit, but instead
asked the district court to tax as costs the portion of the
supersedeas bond premiums attributable to the claim on which
it prevailed. 497 F.3d at 807. Finding that it had no
authority to do so, the district court denied Volvo's
motion and the Eighth Circuit affirmed. Id. While
Great Lakes cites language in Reeder-Simco that
requires an appellate court to specify which party is
entitled to costs, and if so, what costs, (Pl.'s Letter
of 6/1/17 at 1), the court there was addressing the situation
in which, on appeal, judgment was both affirmed in part and
reversed in part. Reeder-Simco, 497 F.3d at 808.
Because of the potential for both parties to seek costs in a
mixed ruling, the court reasonably stated, “[N]one of
the costs listed as taxable ...