United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Rehab Medical,
Inc.'s motion in support of its bill of costs. Plaintiff
Jennifer Gierer has filed her response and opposes many of
the itemized costs. The matter is fully briefed and ready for
decision. For the following reasons, the Court will grant in
part and deny in part defendant's motion for bill of
March 14, 2017, the Court entered summary judgment in favor
of defendant on Count I of plaintiff's four-count Third
Amended Complaint, which asserted a claim under the
anti-retaliation provisions of the False Claims Act, 31
U.S.C. § 3730(h). The Court declined to exercise
supplemental jurisdiction over the three remaining state law
claims and dismissed these claims without prejudice.
See Doc. 137. The state law claims were a Missouri
statutory claim for unpaid commissions due; unjust enrichment
for compensation earned and due; and common-law wrongful
termination in violation of public policy. In the
accompanying Judgment and Order of Dismissal, the Court
assessed costs against plaintiff. Doc. 138.
the time allowed under Eastern District of Missouri Local
Rule 8.03, defendant filed a motion for bill of costs, a
supporting memorandum, and all supporting documentation.
Plaintiff objects to many categories of these costs, and
argues that defendant should be awarded only one-fourth of
its costs because it prevailed on only one of four counts.
defendant submitted its bill of costs, plaintiff re-filed in
state court the three state law claims that were dismissed
without prejudice in this case. On October 25, 2017,
defendant removed the new state court case to this Court
based on diversity jurisdiction, and the case is currently
pending before another judge of this Court. See Gierer v.
Rehab Medical, Inc., No. 4:17-CV-2624 HEA (E.D. Mo.)
(“Gierer II”). Defendant has moved for
summary judgment on plaintiff's three state law claims in
Gierer II, and that motion remains pending.
first objects to defendant's motion for bill of costs as
untimely pursuant to Federal Rule 54(d), which requires a
bill of costs to be filed within fourteen days of the
Court's entry of judgment. See Fed.R.Civ.P.
54(d). This Court's Local Rule 8.03(A)(1) states,
however, that a party has twenty-one days after the date of
entry of a final judgment to file a bill of costs. Defendant
filed its bill of costs within the twenty-one day time period
allowed by the local rules, and it is timely.
Prevailing Party Under Federal Rule 54(b)
Rule of Civil Procedure 54(d) provides that “[u]nless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P. 54(d).
Plaintiff argues that because defendant prevailed only as to
Count I and the Court declined to exercise supplemental
jurisdiction over Counts II through IV, the Court must
consider whether the costs sought are reasonable in relation
to the success achieved. Plaintiff asserts that
defendant's costs should be reduced to one-fourth of the
amount it seeks, because defendant prevailed on only one of
her four claims.
is generally true that status as a prevailing party is
determined on the outcome of the case as a whole, rather than
by piecemeal assessment of how a party fares on each motion
along the way.” Jenkins v. State of Mo., 127
F.3d 709, 714 (8th Cir. 1997). This is because “[a]
party who is only partially successful also can be deemed a
prevailing party. Consequently, a claimant who has obtained
some relief usually will be regarded as the prevailing party
even though the party has not sustained all his
claims.” Boswell v. Panera Bread Co., No.
4:14-CV-1833 AGF, 2016 WL 4415350, at *1-2 (E.D. Mo. Aug. 19,
2016) (quoting Charles Alan Wright et al., Federal
Practice and Procedure § 2667 (3d ed.)). “The
fact that a party does not prevail on all of its claims does
not . . . preclude it from being the prevailing party for
purposes of awarding costs under Rule 54(d).” Kemin
Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de
C.V., 464 F.3d 1339, 1347 (8th Cir. 2006). Similarly,
the fact that a party prevails on one of its claims does not
necessarily dictate that that party is the prevailing party
for purposes of awarding costs. Id.
awards are committed to the discretion of the district
courts, and there is no rule requiring courts to apportion
costs according to the relative success of the
parties.” Kemin Foods, id. at 1348.
“In fact, apportioning costs according to the relative
success of the parties is appropriate only under limited
circumstances, such as when the costs incurred are greatly
disproportionate to the relief obtained.” Id.
(citing 10 James Wm. Moore et al., Moore's Federal
Practice § 54.101[b] (3d ed. 2006)).
the instant case is in an unusual procedural posture. While
defendant prevailed as to the federal claim in Count I-and
thus, is the prevailing party in Gierer I-the
remaining three state law counts asserted by plaintiff and
dismissed without prejudice in this case are now pending
before the Court in Gierer II. If plaintiff prevails
in Gierer II, she would be entitled to an award of
her costs in that case. Under these circumstances, the Court
in the exercise of its discretion finds it appropriate to
limit defendant's cost award to one-fourth of its costs
based on its partial success in Gierer
Court now turns to the specific items of cost sought by
defendant, and ...