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Gierer v. Rehab Medical, Inc.

United States District Court, E.D. Missouri, Eastern Division

May 30, 2019

JENNIFER GIERER, Plaintiff,
v.
REHAB MEDICAL INC., Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This 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.

         Procedural Background

         Plaintiff, 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.

         Defendant, 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”).

         In the 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.

         Defendant 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.

         Standard

          Rule 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 for:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained ...

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