AGSouth Genetics LLC et al v. Georgia Farm Services LLC et al

Filing 222

ORDER granting 191 Motion to Alter Judgment; granting in part and denying in part 192 Motion for Attorney Fees; denying 195 Motion for Attorney Fees; denying 196 Motion ; denying 203 Motion to Alter Judgment; denying 203 Motion to Amend/Correct. Ordered by U.S. District Judge W LOUIS SANDS on 5/21/2014 (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
AGSOUTH GENETICS, LLC, and
UNIVERSITY OF GEORGIA RESEARCH
FOUNDATION, INC.,

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Plaintiffs,
v.
GEORGIA FARM SERVICES, LLC,
Defendant.

CASE NO.: 1:09-CV-186 (WLS)

ORDER
Presently pending before the Court is Plaintiffs’ Motion to Alter or Amend the
Judgment (Doc. 191) and Motion for Attorney’s Fees (Doc. 192), and Defendant’s
Motion for Attorney’s Fees (Doc. 195), Motion for Costs (Doc. 196), and Motion to Alter
or Amend the Judgment (Doc. 203). For the reasons that follow, Plaintiffs’ Motion to
Alter or Amend the Judgment (Doc. 191) is GRANTED, and Plaintiffs’ Motion for
Attorney’s Fees (Doc. 192) is GRANTED-IN-PART and DENIED-IN-PART; and
Defendant’s Motion for Attorney’s Fees (Doc. 195), Motion for Costs (Doc. 196), and
Motion to Alter or Amend the Judgment (Doc. 203) are DENIED.
BACKGROUND
On July 23, 2009, Plaintiffs brought the instant suit under the Plant Variety
Protection Act (“PVPA”) and the Lanham Act. (Doc. 1.) The Complaint, as amended,
alleged that Defendant Georgia Farm Services (“GFS”), which was in the business of
selling seeds, including certain varieties that Defendant sold with Plaintiffs’ approval,
sold or was selling a protected variety of wheat seed, AGS 2000, in unlabeled brown
bags, mislabeled brown bags, or in bulk without the permission of Plaintiffs, the PVP
certificate owner and authorized license holder of the variety. (Doc. 55-1 at 3-4.) Other
defendants were named in the Complaint, as amended, but were dismissed from the
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suit before the case went to trial. (See Docs. 55-1, 156, 157, 162, 163.) On March 18, 2010,
Defendant made an Offer of Judgment of $10,000 “for all claims to include claims for
attorney[‘]s fees and costs reasonably incurred as of the date of th[e] offer.” (Doc. 182.)
Following a four-day trial, the jury returned a special verdict finding that
Defendant willfully violated the PVPA, and that the reasonable royalty award was
$125.00 per bag of AGS 2000, multiplied by 15 bags found to be infringing for a
reasonable royalty award of $1,875.00. (Doc. 186.) The jury found in favor of Defendant
as to Plaintiffs’ Lanham Act claim. (Id. at 2.) Subsequently, the Court entered Judgment
on October 31, 2013. (Doc. 190). The Judgment stated as follows:
Pursuant to the jury verdict dated October 22, 2013, JUDGMENT is hereby
entered as follows: as to Count 1, judgment is entered in favor of Plaintiffs
in the amount of $125.00 per bag of AGS 2000, multiplied by 15 bags
infringed by the Defendant for a total responsible [sic] royalty award of
$1,875.00. The amount shall accrue interest from the date of entry of
judgment at the rate of .14% per annum until paid in full. As prevailing
parties, plaintiffs shall also recover costs of this action. As to Count 2,
judgment is entered in favor of Defendant. Defendant may file a motion
for costs pursuant to Rule 68 of the Federal Rules of Civil Procedure.
(Doc. 190 at 1.) On November 1, 2013, Plaintiffs filed a Motion to Alter or Amend the
Judgment. (Doc. 191.) Therein, Plaintiffs assert that the Judgment should be amended
to fix the typographical error and to indicate that the jury found that Defendant
willfully infringed Plaintiffs’ PVPA rights. (Id.) On November 11, 2013, Plaintiffs filed
a Motion for Attorneys’ Fees, Enhancement (Treble) of Damages, Pre-Judgment Interest,
and Necessary Expenses. (Doc. 192.) Each of those requests is based on the jury’s
finding of willfulness. (Id.) On November 11, 2013, Defendant responded to Plaintiffs’
Motion to Alter or Amend the Judgment, and Plaintiffs did not file a reply. (Doc. 193.)
On December 5, 2013, Defendant responded to Plaintiffs’ Motion for Attorneys’ Fees,
and Plaintiffs replied thereto on December 30, 2013. (Docs. 205 & 214.) Because no
additional briefing has been filed and all time periods for such have elapsed, those
motions are ripe for review. See M.D. Ga. L.R. 7.3.1.

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On November 12, 2013, Defendant filed a Motion for Attorney’s Fees Under the
Lanham Act (Doc. 195) and Motion for Costs (Doc. 196). Each of those motions were
based on Defendant’s contention that it was the prevailing party and its Offer of
Judgment precluded the award of fees and costs to Plaintiffs. (See id.) On November
26, 2013, Plaintiffs responded to both motions. (Docs. 199 & 200.) On December 13,
2013, Defendant filed replies thereto. (Docs. 207 & 208.) As such, those motions are ripe
for review. See M.D. Ga. L.R. 7.3.1. On November 29, 2013, Defendant filed a Motion to
Alter or Amend the Judgment. (Doc. 203.) That motion has been fully briefed and is
ripe for review. (Docs. 210 & 217.) See M.D. Ga. L.R. 7.3.1.
ANALYSIS
The various motions before the Court pose the following questions: (1) What
effect does the Offer of Judgment made by Defendant and rejected by Plaintiffs have on
the matters before the Court?; (2) Which Party is the prevailing party?; (3) Who is
entitled to attorney’s fees and costs, and in what amount?; and (4) How should the
above-referenced Judgment be amended to reflect this order and other post-trial rulings
of the Court?
I.

Effect of Offer of Judgment

Federal Rule of Civil Procedure 68(d) states that, “[i]f the judgment that the
offeree finally obtains is not more favorable than the unaccepted offer, the offeree must
pay the costs incurred after the offer was made.” The Offer of Judgment in this matter
was made on March 18, 2010, and offered Plaintiffs $10,000 “for all claims to include
claims for attorney’s fees and costs reasonably incurred as of the date of this offer.” (See
Doc. 182.) “To make a proper comparison between the offer of judgment and the
judgment obtained when determining, for Rule 68 purposes, which is the more
favorable, like ‘judgments’ must be evaluated.” Marryshow v. Flynn, 986 F.2d 689, 692
(4th Cir. 1993). 1 The Offer of Judgment in this matter explicitly included attorney’s fees
Marryshow v. Flynn, 986 F.2d 689 (4th Cir. 1993), relied on Marek v. Chesny, 473 U.S. 1 (1985), which
evaluated the Rule 68 comparison of the offer of judgment and the judgment finally obtained in a § 1988
case. See also Grosvenor v. Brienen, 801 F.2d 944 (7th Cir. 1986). Nonetheless, the Court finds that the
conclusion reached in those cases should also apply in this context, even though the PVPA does not

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and, as a result of the jury’s verdict, under 7 U.S.C. § 2565 and Federal Rule of Civil
Procedure 54(d), Plaintiffs may be awarded attorney’s fees as part of the judgment if
certain requirements are met. Thus, to determine the effect of the Offer of Judgment,
the Court must first determine whether the pre-offer fees and costs that are actually
awarded to Plaintiffs exceed the $10,000 Offer of Judgment.
A.

Plaintiffs’ Attorney’s Fees

Plaintiffs assert that they are entitled to attorney’s fees in this matter based on the
jury’s finding of willfulness, the quantum of evidence to support that finding, and
Defendant’s “vexatious and unjustified litigation and frivolous filings.” Defendant
asserts that Plaintiffs are not entitled to attorney’s fees because (1) Rule 68 precludes
such; (2) Plaintiffs are not prevailing parties; and (3) this case was not “exceptional.” As
stated above, whether Rule 68 requires Plaintiffs to pay Defendant’s post-offer costs is
dependent on whether the pre-offer costs and fees, in addition to the amount awarded
by the jury, exceed the $10,000 Offer of Judgment. Although Rule 68 may deprive
Plaintiffs of their ability to recover fees and costs, that issue must be addressed after the
amount of fees otherwise recoverable by Plaintiffs is determined. Thus, preliminarily,
whether Plaintiffs may recover attorney’s fees is dependent on whether they are
prevailing parties and whether the case is exceptional.
i.

Prevailing party status

Federal Rule of Civil Procedure 54(d) limits the number of prevailing parties in
any particular case to one. See Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010).
“The touchstone of the prevailing party inquiry . . . is the material alteration of the legal
relationship of the parties in a manner which Congress sought to promote in the fee
statute.” Sole v. Wyner, 551 U.S. 74, 82 (2007) (citing Tex. State Teachers Ass’n v. Garland

include attorney’s fees as part of “costs.” See 7 U.S.C. § 2565. Under the plain language of Rule 68(d),
“the judgment the offeree finally obtains” must be compared against the “unaccepted offer.” Thus, if, as
part of the judgment finally obtained, Plaintiffs receive pre-offer attorney’s fees in excess of $10,000, the
judgment finally obtained is more favorable than the unaccepted offer because the unaccepted offer in
this matter explicitly included attorney’s fees. Even if attorney’s fees are not, at least in the strictest sense,
“a part of the judgment,” attorney’s fees are nonetheless part of Defendant’s “total liability” and should
therefore be considered in the Rule 68 calculus. See generally Marek, 473 U.S. at 6-7.

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Indep. Sch. Dist., 489 U.S. 789, 792-93 (1989)). Under Federal Circuit precedent, which
controls in this matter, Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1182
(Fed. Cir. 1996), a “prevailing party” must “have received at least some relief on the
merits” and “[t]hat relief must materially alter the legal relationship between the parties
by modifying one party’s behavior in a way that ‘directly benefits’ the opposing party.”
Shum, 629 F.3d at 1367 (citations omitted). A party is not deprived of prevailing party
status merely because it does not prevail on all of its claims. Kemin Foods, L.C. v.
Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1347 (Fed. Cir. 2006).
Plaintiffs argue that they are prevailing parties because the jury returned a
verdict that found that Defendant willfully infringed Plaintiffs’ PVPA rights and that
fifteen bags of AGS 2000 were infringing. Plaintiffs also assert that they are prevailing
parties because the jury’s verdict potentially entitles them to enhancement of damages
and attorney’s fees. Defendant argues that it is the prevailing party, in part, because
Plaintiffs rejected the Offer of Judgment and did not obtain a more favorable result at
trial. Defendant also asserts that it is the prevailing party because the jury only found
fifteen bags infringing although Plaintiffs asserted that 960 bags were infringing.
Lastly, Defendant claims that Plaintiffs’ Lanham Act claim was meritless, the litigation
was conducted in bad faith, and Plaintiffs’ investigation was fraudulent.
In this case, Plaintiffs brought two claims, one under the PVPA and one under
the Lanham Act. (Docs. 1 & 55.) Defendant brought one counterclaim against Plaintiffs
under a state law theory of tortious interference with business relations. (Doc. 12.)
Plaintiffs filed a motion for summary judgment as to Defendant’s counterclaim, but it
was denied for failure to comply with Local Rule 56. (Docs. 80, 109.) Defendant did not
file a motion for summary judgment. (See generally Docket.) Defendant’s motion for
judgment as a matter of law was denied as to both of Plaintiffs’ claims, and Plaintiffs’
motion for judgment as a matter of law as to Defendant’s counterclaim was granted.
(Doc. 181.) The jury found that Defendant willfully infringed Plaintiffs’ PVPA rights
and awarded Plaintiffs $1,875.00.

(Doc. 186.)

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Because the jury found that the

infringement was willful, Plaintiffs may be—and for the reasons stated below, will be—
awarded trebled damages and attorney’s fees. (Id.)
Defendant “prevailed” only in the sense that the jury found in its favor as to
Plaintiffs’ Lanham Act claim, and the jury found infringing less bags than asserted by
Plaintiffs.

Plaintiffs “prevailed” in the sense that the jury found that Defendant

willfully infringed Plaintiffs’ PVPA rights by engaging in some conduct prohibited by
the PVPA as to fifteen bags of AGS 2000. The “prevailing party” inquiry turns on
which party benefits from the material alteration of the legal relationship of the parties.
Here, the result achieved by Defendant merely maintained the status quo, i.e. it was
found to not have infringed Plaintiffs’ Lanham Act rights and did not owe damages for
that reason. The jury finding of willful infringement obtained by Plaintiffs, however,
requires Defendant to remit payment of at least $1,875.00 to Plaintiffs.

Because

Plaintiffs achieved, at a minimum, more than the perpetuation of the status quo, the
Court finds that Plaintiffs are the prevailing parties. Because Defendant is not the
prevailing party, it cannot recover attorney’s fees. Accordingly, Defendant’s Motion for
Attorney’s Fees (Doc. 195) is DENIED.
ii.

Exceptional cases under the PVPA

In “exceptional cases” under the PVPA, courts may award reasonable attorney
fees to the prevailing party. See 7 U.S.C. § 2565. “[A]n ‘exceptional’ case is simply one
that stands out from others with respect to the substantive strength of a party’s
litigating position (considering both the governing law and the facts of the case) or the
unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. Icon Health
& Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). “District courts may determine whether a
case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the
totality of the circumstances.”

Id.

Exceptionality may be demonstrated by a

preponderance of the evidence. Id. at 1758. “To assist the district court in making a
reasoned decision about enhanced damages, [the Federal Circuit] laid out nine factors
to consider in Read Corp. v. Portec, Inc., 970 F.2d 816, 826-27 (Fed. Cir. 1992).” Maxwell v.
Angel-Etts of Cal., Inc., 53 F. App’x 561, 566 (Fed. Cir. 2002). Those factors are as follows:

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(1) Whether the infringer deliberately copied the ideas or design of another;
(2) Whether the infringer, when he knew of the other’s patent protection,
investigated the scope of the patent and formed a good-faith belief that it was
invalid or that it was not infringed;
(3) The infringer’s behavior as a party to the litigation;
(4) Defendant’s size and financial condition;
(5) Closeness of the case;
(6) Duration of defendant’s misconduct;
(7) Remedial action by the defendant;
(8) Defendant’s motivation for harm;
(9) Whether defendant attempted to conceal its misconduct.
Read Corp., 970 F.2d at 827 (citations omitted) (overruled on other grounds). Plaintiffs
argue that this case was exceptional based on the willful nature of Defendant’s
infringement and the quantum of evidence suggesting such.

(Doc. 192-1 at 5-6.)

Plaintiffs also assert that Defendant “engaged in vexatious and unjustified litigation and
frivolous filings” by bringing a tortious interference with business relations claim. (Id.)
Defendant argues that the case was not exceptional because Plaintiffs denied the Offer
of Judgment and there was no showing that any of the infringing AGS 2000 seed
“handled by [Defendant] was ever planted, harvested and planted again.” (Doc. 205 at
10-11.) Further, Defendant asserts that its claim of tortious interference with business
relations should not be held against it because whether the claim was viable was “a
close question.” (Id. at 10.)
The Court finds that this case was exceptional. The evidence introduced at trial
supports a finding that Defendant knew that the seed it asserted to be AGS 2000 was
protected by a PVP certificate but Defendant nonetheless sold it in a manner than
infringed on Plaintiffs’ PVPA rights. Defendant sold other varieties protected by PVP
certificates that were owned by Plaintiffs, and those varieties were sold properly and
lawfully. The brownbag AGS 2000, however, was sold without license from Plaintiffs,
without the proper markings and notifications, and mixed with non-AGS 2000 seed.

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The seed sold to the investigator was not 100% AGS 2000, although it was advertised as
such. Further, the jury’s finding of willfulness is supported by Douglas Wingate’s
experience as a seedsman and other circumstances surrounding the sale of the
brownbag wheat, such as the location and storage of the infringing seed in relation to
the location and storage of the non-infringing seed.
Even though the jury found that only fifteen bags infringed Plaintiffs’ PVPA
rights, the evidence supports a finding, and the Plaintiffs’ belief, that many more bags
were infringing.

Also, notwithstanding the jury’s rejection of Plaintiffs’ expert’s

calculation of a reasonable royalty, there is no indication that the expert’s calculation
was obtained without good faith, or that Plaintiffs’ reliance on that calculation was
without good faith. The Court does not consider this case to involve a close question,
unlike many of the cases cited by Defendant. See, e.g., Brooktree Corp. v. Advanced Micro
Devices, Inc., 977 F.2d 1555, 1582 (Fed. Cir. 1992). Lastly, for the reasons stated at trial
and in previous orders, the Court does not find any claim asserted by either party to
have been asserted without good faith or merit. Accordingly, the Court finds that this
case was exceptional and Plaintiffs therefore may be awarded attorney fees under 7
U.S.C. § 2565. In its discretion, the Court finds that an award of attorney’s fees in this
matter is appropriate.
iii.

Plaintiffs’ Attorney’s fees

To determine the appropriate amount of an award of attorney’s fees, the Court
multiplies the number of hours reasonably expended on a case by the reasonable or
customary hourly rate. This “lodestar” amount is then adjusted upward or downward
in light of various factors. Bywaters v. United States, 670 U.S. 1221, 1228-29 (Fed. Cir.
2012) (citing Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564
(1986)).

Ordinarily, most of the factors will be reflected in the lodestar itself—for

example, time and rate—rather than in an adjustment of the lodestar. See Blum v.
Stenson, 465 U.S. 886 (1984). “[A]djustments in the lodestar figure ‘are proper only in
certain rare and exceptional cases, supported by both specific evidence on the record
and detailed findings by lower courts.’ ” Bywaters, 670 F.3d at 1229 (citations omitted).

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A reasonable hourly rate is based on “the prevailing market rate of the forum
court.” Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008).
Plaintiffs assert that the following hourly rates are reasonable and in line with
prevailing market rates: $240 per hour for Duff Nolan, lead counsel for Plaintiffs; $65$80 per hour for investigative and paralegal work provided by the Nolan Law Group,
PLLC; $200 per hour for Richard Fields, local counsel for Plaintiffs; $125 per hour for
associates whom Mr. Fields assigned to work on this case; and $65 per hour for
paralegal work provided by Mr. Fields’ firm. (Docs. 192-2 & 192-3.) Defendant does
not explicitly take issue with those rates. Counsel for Defendant, Daniel Kent, stated
that his hourly rate is $450 per hour, and asserted that such rate “represents a
substantial discount from other intellectual property litigation attorneys in metro
Atlanta where I practice who have more than 23 years of litigation and trial experience
as I do.” (Doc. 195-1 at 2-3.) Based on the assertions of the Parties, and the Court’s
knowledge of the customary market rate of fees, the Court finds that the rates stated by
Plaintiffs are reasonable and commensurate with the prevailing market rates.
As to the amount of time expended, the Court has reviewed Plaintiffs’ invoices
and has not identified any patently unreasonable expenditure of time in this matter.
Also, Plaintiffs’ total asserted hours expended are not unreasonable in light of the
extended and complex nature of the case. Counsel for Plaintiffs began investigating this
matter in April 2009, brought suit in July 2009, and litigated the case through a jury trial
which resulted in a favorable jury verdict. In Defendant’s response to Plaintiffs’ request
for attorney’s fees, Defendant does not assert that any errors were made or that
excessive fees or hours expended were charged. Because the Court has not identified
any invoice entry that is unreasonable, and no unreasonable entries have been
identified by Defendant, the Court finds that $199,320.00 for 830.5 hours at the rate of
$240 per hour is a reasonable fee for lead counsel Duff Nolan; $41,048.82 at the rate of
$65-80 per hour is a reasonable fee for investigative and paralegal work conducted by
Mr. Nolan’s law firm; $59,540.00 for 222.7 hours at the rate of $200 per hour, in addition
to a per diem rate of $2,500 for each day of trial, is a reasonable fee for local counsel

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Richard Fields; $4,687.50 for 37.5 hours at the rate of $125.00 per hour is a reasonable fee
for associates at Mr. Fields’ law firm; and $461.00 for 7.1 hours at the rate of $65.00 is a
reasonable fee for paralegal work conducted by Mr. Fields’ law firm. See Lam, Inc. v.
Johns-Manville Corp., 718 F.2d 1056, 1069 (Fed. Cir. 1983) (despite errors in attorney’s
fees invoices, district court’s grant of attorney’s fees was not error because defendant
“made no real challenge . . . concerning amount of fees claimed” by plaintiff). The
Invoices submitted by Plaintiffs reflect that Mr. Fields has been paid by Mr. Nolan, and
Mr. Nolan has been paid by Plaintiffs. Thus, Defendant is hereby ORDERED to remit
attorney’s fees in the amount of $305,057.32 to Plaintiffs within thirty (30) days from the
entry of this order.
Because the pre-offer fees actually awarded as of the time the Offer of Judgment
was made exceeded $10,000.00, Rule 68(d) is inapplicable. The award of the pre-offer
fees demonstrates that Plaintiffs’ refusal of the Offer of Judgment was not unreasonable
but instead a prudent decision to seek to recoup the fees already expended.2 For the
reasons stated above, the Court finds that the Offer of Judgment does not exceed the
judgment finally obtained and therefore does not operate to indebt Plaintiffs to
Defendant for costs. The Court finds that, because Rule 68 is inapplicable, it is not
necessary to consider any of Defendant’s arguments pertaining to the Offer of
Judgment. As such, Defendant’s Motion for Costs (Doc. 196) is DENIED.
B.

Enhancement of damages

In PVPA infringement cases, “the court may increase the damages up to three
times the amount determined.” 7 U.S.C. § 2564(b). The Parties agree that the Read
factors discussed above control the Court’s determination as to whether damages
should be enhanced. (Docs. 192-1 at 9, 205 at 13.) For the reasons discussed above
regarding the Court’s finding that this case was exceptional, and because the jury found

The fact that the jury verdict, even when trebled, is under $10,000 is not necessarily of import because,
as stated by various witnesses at trial, there could have been other reasons for bringing suit other than
obtaining a damages award—i.e., deterring others from violating Plaintiffs’ PVPA rights. For those
reasons, the Court finds that it is within its discretion to find that the rejection of the Offer of Judgment
did not trigger the operation of Rule 68. See Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981).

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Defendant’s infringement willful, the Court finds that the damages awarded by the jury
should be trebled.
C.

Prejudgment interest

In light of “Congress’ overriding purpose of affording patent owners complete
compensation[,] prejudgment interest should ordinarily be awarded.”

Gen. Motors

Corp. v. Devex Corp., 461 U.S. 648, 655 (1983). Prejudgment interest should be awarded
“absent some justification for withholding such an award.”

Id. at 657.

Because

Defendant’s only argument that prejudgment interest should not be awarded is
dependent on Defendant’s Rule 68 argument—which was rejected for the reasons
discussed above—the Court finds that there is no justification for withholding an award
of prejudgment interest. The Court does agree, however, that “prejudgment interest
cannot be assessed on the increased or punitive portion of the damage award.” Lam,
Inc., 718 F.2d at 1066 (citing Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d
1380 (Fed. Cir. 1983)). Also, the Parties seem to be in agreement that the prejudgment
interest should accrue at the rate of .14% from November 24, 2008. (Docs. 192-1 at 14,
205 at 18.) For those reasons, prejudgment interest shall accrue on the jury’s damages
award of $1,875.00 at the rate of .14% per annum from November 24, 2008.
D.

Costs of litigation

Lastly, Plaintiffs argue that they should be awarded costs of this action and state
that “[i]n the event the Court find[s] in Plaintiffs’ favor with respect to ‘costs,’ Plaintiffs
will provide an amount of those expenses awarded along with appropriate
documentation.”

(Doc. 192-1 at 15.)

Plaintiffs submitted a Bill of Costs, but that

document excludes “necessary expenses incurred by Plaintiffs in this litigation such as
vehicle travel, lodging, airfare, and meals.” (See Docs. 192-1, 192-4, 219.) Defendant
argues that Plaintiffs are not entitled to costs because they rejected the Offer of
Judgment. (Doc. 205 at 19.) Defendant also asserts that the Bill of Costs submitted by
Plaintiffs is deficient and the expert witness fees sought to be recouped are not
recoverable under the circumstances present in this case. (Id.) Further, Defendant
states that the costs recoverable by Plaintiffs are limited by 28 U.S.C. § 1920. (Id.)

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The costs taxable to a particular party are enumerated at 28 U.S.C. § 1920. See
Monsanto Co. v. David, 516 F.3d 1009, 1017 (Fed. Cir. 2008) (noting that 28 U.S.C. § 1920
generally “limits the amount that federal courts may tax as costs in the absence of
‘explicit statutory or contractual authorization to the contrary.’ ”). Plaintiffs have not
indicated that any relevant statutory or contractual provision entitle them to costs
beyond those enumerated at § 1920. To the extent Plaintiffs request that Defendant be
taxed costs as to any item not enumerated at 28 U.S.C. § 1920, that request is DENIED.
“[A]bsent explicit statutory or contractual authorization for the taxation of
expenses of a litigant’s witness as costs, federal courts are bound by the limitations set
out in 28 U.S.C. § 1821 and § 1920.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
445 (1987). The Federal Circuit has explicitly stated that, in a patent case, “expert
witness fees fall under 28 U.S.C. § 1920, subject to the 28 U.S.C. § 1821(b) limitation.”
Amsted Indus. Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 377 (Fed. Cir. 1994).
Plaintiffs’ Bill of Costs enumerates the various costs expended on the items deemed
recoverable by 28 U.S.C. § 1920, but does not indicate how much of the “attendance fee”
for Plaintiffs’ expert witness accounts for the “$40 per day” attendance fee as opposed
to “time necessarily occupied in going to and returning from the place of attendance at
the beginning and end of such attendance or at any time during such attendance.” See
28 U.S.C. § 1821(b). Because it is unclear the amount of expert witness fees allowable as
to Mr. Davis under 28 U.S.C. § 1821(b) and § 1920 as a result of the ambiguity in
Plaintiffs’ Bill of Costs, the Court declines to award attendance fees to that witness.
Further, the Court will only award Plaintiffs costs as to items that were identified on the
Bill of Costs and itemized. The Court finds that, in consideration of the Bill of Costs and
Invoices, the “fees of the clerk,” “fees for service of summons and subpoena,” and “fees
for printed or electronically recorded transcripts necessarily obtained for use in the
case” were appropriately itemized. Thus, Defendant is ORDERED to remit to Plaintiffs
within thirty (30) days of the entry of this order, $1,213.05 in costs taxable to Defendant
under 28 U.S.C. § 1821 and § 1920.

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CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Alter or Amend the Judgment
(Doc. 191) is GRANTED, and Plaintiffs’ Motion for Attorney’s Fees (Doc. 192)

is

GRANTED-IN-PART and DENIED-IN-PART; and Defendant’s Motion for Attorney’s
Fees (Doc. 195), Motion for Costs (Doc. 196), and Motion to Alter or Amend the
Judgment (Doc. 203) are DENIED. Defendant is hereby ORDERED to remit attorney’s
fees in the amount of $305,057.32, and costs in the amount of $1,213.05, to Plaintiffs
within thirty (30) days from the entry of this order. Defendant is also ORDERED to
remit trebled damages in the amount of $5,625.00. That amount shall accrue interest
from the date of entry of judgment at the rate of .14% per annum until paid in full.
Prejudgment interest shall accrue from November 24, 2008 on the damages amount
awarded by the jury, $1,875.00, at the rate of .14% per annum until paid in full.
The Judgment shall be amended as follows:
Pursuant to the jury verdict dated October 22, 2013, JUDGMENT is hereby
entered nunc pro tunc October 29, 2013, as follows: as to Count 1, judgment
is entered in favor of Plaintiffs in the amount of $125.00 per bag of AGS
2000, multiplied by 15 bags willfully infringed by the Defendant for a total
reasonable royalty award of $1,875.00. That amount shall accrue interest
from November 24, 2008 at the rate of .14% per annum until paid in full.
The reasonable royalty award shall be trebled, resulting in a total damages
award of $5,625.00. That amount shall accrue interest from the date of
judgment at the rate of .14% per annum until paid in full. Defendant shall
remit to Plaintiffs within thirty (30) days attorney’s fees in the amount of
$305,507.32, and costs in the amount of $1,213.05. As to Count 2,
judgment is entered in favor of Defendant.
SO ORDERED, this 21st day of May 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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