Case 4:07-cv-00109-RAS Document 871 Filed 03/30/17 Page 1 of 5 PageID #: 58416
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`Case No. 4:07-CV-109
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`RAYTHEON COMPANY, a Delaware
`corporation,
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`Plaintiff,
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`v.
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`INDIGO SYSTEMS CORPORATION, a
`California corporation, and FLIR SYSTEMS,
`INCORPORATED, an Oregon corporation,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER GRANTING IN PART
`DEFENDANTS’ MOTION FOR APPROVAL OF THEIR PROPOSED BILL OF COSTS
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`The following are pending before the court:
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`1.
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`2.
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`3.
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`4.
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`Defendants’ motion for approval of their proposed bill of costs (docket entry #849);
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`Plaintiff Raytheon Company’s objections and response to Defendants’ motion for
`approval of their proposed bill of costs (docket entry #850);
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`Reply in support of Defendants’ motion for approval of their proposed bill of costs
`(docket entry #851); and
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`Plaintiff Raytheon Company’s sur-reply to Defendants’ motion for approval of their
`proposed bill of costs (docket entry #870).
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`Having considered the motion and the responsive briefing thereto, the court finds that the motion
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`should be granted in part.
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`On March 31, 2016, the court entered a final judgment in this matter. The court ordered that
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`the Plaintiff take nothing from the Defendants. The court further ordered that costs of court should
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`be taxed against the Plaintiff. On April 14, 2016, the Defendants filed their proposed bill of costs;
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`Case 4:07-cv-00109-RAS Document 871 Filed 03/30/17 Page 2 of 5 PageID #: 58417
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`however, the Defendants advised the court that the Plaintiff needed additional time to review the
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`proposed bill of costs. On April 29, 2016, the Plaintiff filed its notice of appeal. On May 11, 2016,
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`the Defendants filed their notice of appeal. The parties’ respective appeals are currently pending
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`before the United States Court of Appeals for the Federal Circuit.
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`Thereafter, on July 20, 2016, the Defendants filed the instant “Motion for Approval of Their
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`Proposed Bill of Costs.” In their motion, the Defendants explained that the parties conferred on the
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`Defendants’ cost application and reached an agreement on all categories of recoverable costs (in an
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`amount totaling $121,177.08) except for the category concerning fees for witnesses. In their motion,
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`the Defendants sought to recover costs for witnesses in the amount of $74,898.64. On August 3,
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`2016, the Plaintiff filed its response in opposition to the Defendants’ request. In its opposition, the
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`Plaintiff advised the court that the parties had reached an agreement in the amount of $40,000 for
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`witness fees. However, the Plaintiff requested that the Defendants agree to abate payment of all
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`costs until after the appeal was resolved. The Defendants do not agree to the abatement.
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`In the Defendants’ reply brief, the Defendants abandoned their original $74,898.64 witness
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`fee request and now currently seek an amount of not less than $40,000 for witness fees. While the
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`Defendants’ updated witness fee request is in accord with the agreement reached among the parties,
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`the request is a randomly agreed upon number that does not correspond to the documentation
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`attached to the Defendants’ motion or reply brief.
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`The court notes that the Plaintiff, in its response and sur-reply briefs, objects to certain
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`categories contained in the Defendants’ request for witness fees. The Plaintiff filed an umbrella
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`objection, arguing that the Defendants are not entitled to recover any witness fees (except for the $40
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`attendance fees for the days of testimony and travel) because all of the witnesses were employees
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`Case 4:07-cv-00109-RAS Document 871 Filed 03/30/17 Page 3 of 5 PageID #: 58418
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`of the Defendants at the time of the trial and testified in their capacities as employees. The Plaintiff
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`notes that 28 U.S.C. § 1920 prohibits parties from recovering witness fees and related travel and
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`subsistence expenses as costs. The Plaintiff argues that this prohibition extends to employees of
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`corporate defendants who provide testimony on behalf of the corporate defendants. The Plaintiff
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`explains, then, that such witnesses are, therefore, only entitled to statutory witness fees and
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`subsistence allowances for the days they appeared as witnesses. The Plaintiff relies on Hodge v.
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`Seiler 558 F.2d 284, 287 (5th Cir. 1977) and Honestech, Inc. v. Sonic Sols., 725 F. Supp. 2d 573,
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`583-84 (W.D. Tex. 2010).
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`The court notes that 28 U.S.C. § 1920(3) provides that “A judge or clerk of any court of the
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`United States may tax as costs the following: (3) Fees and disbursements for printing and witnesses.”
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`In Hodge, the court cited to the general rule that “‘[t]he expenses of witnesses who are themselves
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`parties normally are not taxable.’” Hodge, 558 F.2d at 287, quoting WRIGHT & MILLER, FEDERAL
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`PRACTICE AND PROCEDURE: CIVIL § 2678 p. 229. The Hodge case, however, is distinguishable from
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`the instant case because the Hodge court denied an individual plaintiff’s request for travel costs. The
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`Hodge case did not involve the reimbursement of fees to a corporate defendant. However, the Hodge
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`case relied on WRIGHT & MILLER, supra., which provides, in part, as follows:
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`The expenses of witnesses who are themselves parties normally are not taxable. For
`example, real parties in interest or parties suing in a representative capacity are not
`entitled to fees or allowances as witnesses. The expenses of a director or officer of
`a corporation who is not personally involved in the litigation may be taxable,
`however, even if that individual is testifying on behalf of the organization and the
`latter is a party to the suit.
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`WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2678, citing Electronic Specialty
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`Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N.Y. 1969) (“The expenses of a
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`Case 4:07-cv-00109-RAS Document 871 Filed 03/30/17 Page 4 of 5 PageID #: 58419
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`director or officer can be allowed even if they are testifying on behalf of a corporate party to the suit
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`‘so long as their interest in the litigation is no more than a natural concern for the welfare of the
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`corporation as opposed to actual participation in the litigation to the extent that they become
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`identifiable as a party in interest.’” ) (remaining citations omitted). Here, the Plaintiff is not alleging
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`that any of the Defendants’ employees who testified in the instant action could have been identifiable
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`as parties in the instant case.
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`The Plaintiff also relies on Honestech, supra. The Honestech court, however, involved the
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`recovery of costs incurred by a designated corporate representative. Since the instant Plaintiff is not
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`alleging that the Defendants’ witnesses were the Defendants’ designated corporate representatives,
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`Honestech is inapplicable.
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`Because the Plaintiff has failed to cite the court to applicable authority in support of its
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`proposition that a prevailing corporate party may not be awarded witness fees for the testimony of
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`its employees, the Plaintiff’s objection is denied. The Defendants, as the prevailing parties, may
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`recover as costs appropriate witness fees incurred by their employees. See Nissho-Iwai Co., Ltd. v.
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`Occidental Crude Sales, 729 F.2d 1530, 1551-53 (5th Cir. 1984); United Teachers Assoc. Ins. Co.
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`v. Union Labor Life Ins. Co., 414 F.3d 558, 574-75 (5th Cir. 2005).
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`Although the Plaintiff filed several other objections to the Defendants’ request to recover
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`witness fees, the court need not consider the same. In its sur-reply, the Plaintiff failed to advise the
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`court regarding the connection between its remaining objections and the Defendants’ reduction in
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`their request to recover witness fees. As such, the court finds that the Defendants may recover their
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`witness fees in the amount of $40,000. The court reminds the parties that they had reached an
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`agreement on this amount. The court also finds that the Plaintiff’s payment of the costs shall be
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`Case 4:07-cv-00109-RAS Document 871 Filed 03/30/17 Page 5 of 5 PageID #: 58420
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`stayed pending the outcome of the appeal. Based on the foregoing, it is hereby
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`ORDERED that the Defendants’ motion for approval of their proposed bill of costs (docket
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`entry #849) is GRANTED IN PART. The Defendants are awarded costs in the amount of
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`$161,177.08 ($40,000 for witness fees + $121,177.08 for all other agreed upon fees). The Plaintiff’s
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`payment of all costs shall be stayed pending the outcome of the appeal.
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`IT IS SO ORDERED.
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