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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ALBERT D. BOLT,

NO. CIV. S-04-0893 WBS DAD

Plaintiff,

v.

ORDER RE: COSTS

MERRIMACK PHARMACEUTICALS,

INC.

Defendant.

----oo0oo----

On June 17, 2005, the court entered final judgment in

favor of plaintiff in this case. On June 24, 2005, plaintiff

submitted a cost bill totaling $4,454.77. On June 27, 2005,

defendant filed a notice of appeal. On July 5, 2005, defendant

filed a Response to plaintiff’s bill of costs which requests that

any action on plaintiff’s bill of costs be stayed pending the

Ninth Circuit’s resolution of the pending appeal. (See Def.’s

Response to Pl.’s Bill of Costs). 

Requests for stays of taxation of costs are rare and

infrequently granted. Some district courts do not even reach the

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issue, denying the request for a stay on the grounds that the

petitioner cites no authority for the request, or has not

articulated why a stay is appropriate or necessary. Pixion Inc.

v. Placeware Inc., 2005 U.S. Dist. LEXIS 11351, *4-5 (N.D. Cal.

2005)(“Pixion requests that the Court stay the taxation of costs

pending appeal. Pixion cites no authority for this request, and

the Court declines to grant a stay”); Nat’l Diamond Syndicate,

Inc. V. Flanders Diamond U.S.A., Inc., 2004 U.S. Dist. LEXIS

12742, *17 (N.D. Ill. 2004)(holding that “because defendants have

not articulated why a stay is appropriate or necessary, the court

declines Defendant’s request to stay ruling on the bill of costs

pending appeal”). But see Gas Sys. V Bauer Compressors, Inc.,

2001 U.S. Dist. LEXIS 12665, *3 (E.D. Mich. 2001)(recognizing

that the district court had discretion to issue a stay or to

award costs where a case was pending on appeal, but dismissing

the motion to stay in the “interest of judicial economy to

resolve all of the remaining issues”). 

One other district court specifically found an absence

of authority for granting such stays, concluding that they are

not provided for by statute and serve no useful purpose. See

Sembos v. Philips Components, 2003 U.S. Dist. LEXIS 20051, *2

(N.D. Ill. 2003). None of the district courts that have

addressed this issue have come to a different conclusion. This

court thus adopts the consensus approach. Defendant cites no

authority for its request and the court is likewise unaware of

any federal or local statutes giving it authority to grant the

stay. Therefore, the court denies the motion to stay the bill of

costs.

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In the alternative, defendant requests that if the

court denies its motion to stay plaintiff’s bill of costs the

court grant Merrimack an opportunity to substantively respond to

the bill of costs. Local Rule 54-292(c) specifically requires

the party against whom costs are claimed to file specific

objections to claimed items with a statement of grounds for

objection within 10 days from the date of service. Any

substantive objections defendant had to plaintiff’s bill of costs

should have been included in defendant’s response to the bill of

costs. Local Rule 54-292(c) does not authorize Merrimack to

unilaterally extend the deadline for filing substantive

objections to a bill of costs simply by requesting a stay. 

Nevertheless, in the interest of fairness, the court will give

Merrimack an additional 10 days to file and serve to plaintiff’s

cost bill

IT IS THEREFORE ORDERED that defendant shall file its

objections to the items or amounts requested in plaintiff’s cost

bill within 10 days from the date of this order. Plaintiff may

file its response to defendant’s objections within 10 days

thereafter. The court will then take the plaintiff’s bill of

costs under submission.

DATED: July 25, 2005

Case 2:04-cv-00893-WBS-DAD Document 92 Filed 07/25/05 Page 3 of 3