United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion for Bill
of Costs, [Doc. No. 33]. Plaintiffs oppose the motion. For
the reasons set forth below, Defendant's Motion for Bill
of Costs will be granted, as provided herein.
a former sales employee of Defendant, first filed an action
against her former employer in United States District Court
alleging: retaliation for engaging in unlawful acts under the
False Claims Act, 31 U.S.C. § 3730(h)
(“FCA”) (Count I); unpaid commissions due under
Missouri Revised Statutes § 407.913 (Count II); unjust
enrichment (Count III); and wrongful termination in violation
of public policy (Count IV). Gierer v. Rehab Med.,
Inc., No. 4:14-CV-1382 CAS, 2017 WL 976931 (E.D. Mo.
Mar. 14, 2017) (“Gierer I”) On March 14,
2017, Judge Shaw of this District entered summary judgment in
favor of Defendant as to Count I only; finding insufficient
allegations as to the requirements for diversity
jurisdiction, Judge Shaw declined to exercise supplemental
jurisdiction over Plaintiff's state law claims (Counts II
- IV), and dismissed them without prejudice. Id.
as the prevailing party, moved for a bill of costs in
Gierer I under Federal Rule of Civil Procedure
54(d). In the interim, Plaintiff filed her three
previously-dismissed claims in state court, which Defendant
removed to this Court based on diversity jurisdiction
(“Gierer II”). Taking these developments
into consideration, Judge Shaw ruled that Defendant would be
awarded one-fourth of its costs in Gierer I:
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 I.
Gierer v. Rehab Med., Inc., No. 4:14-CV-1382 CAS,
2018 WL 1397532, at *2 (E.D. Mo. Mar. 20, 2018)
(“Gierer I Costs”).
instant action, Gierer II, Plaintiff alleged:
wrongful termination in violation of public policy (Count I);
unpaid commissions due under Missouri Revised Statutes §
407.913 (Count II); and unjust enrichment (Count III). These
claims were based on substantially the same set of facts as
Gierer I. On September 30, 2018, the Court granted
Defendant's Motion for Summary Judgment as to all counts.
now moves for costs as the prevailing party in this case.
Rather than submitting a new bill of costs, Defendant
requests the remaining three-fourths of the Gierer I
costs which Judge Shaw found to be recoverable.
54(d) of the FRCP provides “costs-other than
attorney's fees-should be allowed to the prevailing
party.” See also In re Derailment Cases, 417
F.3d 840, 844 (8th Cir.2005) (“A prevailing party is
presumptively entitled to recover all of its costs.”).
Pursuant to 28 U.S.C. § 1920, the Court may tax costs
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained ...