                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    BELL HELICOPTER TEXTRON INC.,

            Plaintiff,

          v.                                              Civil Action No. 10-0789 (RLW)

    AIRBUS HELICOPTERS,

            Defendant.


                           MEMORANDUM OPINION AND ORDER

       This matter is before the Court on defendant Airbus Helicopters’ Bill of Costs for

expenses related to the hearing on Airbus’ request for a permanent injunction, which took place

from October 20 through October 22, 2014. After reviewing the parties’ papers and relevant

legal authorities, the Court concludes that Airbus is not the prevailing party in this case, and that

even if it were, the Court would decline to award costs in light of the mixed nature of the

judgment. The Court therefore denies Airbus’ request for costs.


                               I. PREVAILING PARTY STATUS

       “An award of costs . . . involves two separate inquires.” Shum v. Intel Corp., 629 F.3d

1360, 1366 (Fed. Cir. 2010) (citing Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396,

1407 (Fed. Cir. 2004)). “First, who is the ‘prevailing party’ within the meaning of Rule

54(d)(1).” Id. “Second, how much (if any) costs should be awarded to the prevailing party.”

Id.; accord SSL Servs., LLC v. Citrix Sys., Inc., 769 F.3d 1073, 1086 (Fed. Cir. 2014). The

decision of who is the prevailing party is controlled by Federal Circuit precedent. Manildra

Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1182 (Fed. Cir. 1996)).
       The Federal Circuit held in Shum that even if a judgment is mixed, there can be only one

prevailing party in a case. 629 F.3d at 1366-67. Thus, a court does not make a prevailing party

determination on a claim-by-claim basis, but rather with a view toward the entire case. The

prevailing party must have received some relief on the merits, and that relief must have

“materially alter[ed] the legal relationship between the parties by modifying one party’s behavior

in a way that directly benefits the opposing party.” Id. at 1367 (internal quotation marks

omitted). Where both parties obtained relief, a court examines the relief received respectively by

each party. Id. at 1368.

       There were several contested issues in this case: (i) whether the Modified Gear infringed

the patent; (ii) whether Airbus was entitled to damages for past infringement by the Modified

Gear, the Original Gear, or both; and (iii) whether Airbus was entitled to an injunction based on

any infringement. Bell Helicopters prevailed on the first and second issues, while Airbus

prevailed on the third. See Aug. 15, 2014 Opinion and Order (Dkt. Nos. 104, 105); Sept. 23,

2014 Tr. at 78:6–89:24 (Dkt. No. 159); Oct. 1, 2010 Order (Dkt. No. 169); Jan. 22, 2015 Opinion

and Order (Dkt. Nos. 209, 210). The Court’s rulings in this case therefore do not lend

themselves to a straightforward determination of prevailing party status.

       After carefully considering the relief received by each party, the Court concludes that, to

the extent that a prevailing party determination can be made, Bell is entitled to that status as it

obtained greater benefit from the Court’s rulings on the contested issues in this case. Because

the Modified Gear is the gear currently used by Bell, the Court’s declaratory judgment with

respect to that gear significantly affected the parties’ legal relationship in Bell’s favor. While

Airbus did obtain a benefit flowing from the Court’s injunction against any future use of the

Original Gear by Bell, a balancing of these benefits tips towards Bell. Bell had previously



                                                  2
ceased use of the Original Gear, so while the injunction marginally benefitted Airbus, it

nonetheless did not “modify [Bell’s] behavior.” Shum, 629 F.3d at 1367. In addition, it is

undisputed that Airbus did not prevail on the question of damages; to the contrary, the Court’s

rulings established that Bell was not obligated to compensate Airbus for any past infringement.

The Court therefore concludes that Airbus is not the prevailing party in this suit and cannot be

awarded costs.


                          II. DISCRETIONARY AWARD OF COSTS

       In the alternative, even if Airbus could be considered the prevailing party, the Court finds

that it would be appropriate to deny costs in light of the highly mixed nature of the judgment. A

prevailing party is not automatically entitled to costs. SSL Servs., LLC, 769 F.3d at 1087.

“Depending on the extent and nature of the prevailing party’s victory, it may be proper for the

trial court to award only low costs or no costs at all.” Shum, 629 F.3d at 1367 n.8 (citing Farrar

v. Hobby, 506 U.S. 103, 115 (1992); Manildra Mill., 76 F.3d at 1183). The amount of the cost

award, if any, is controlled by D.C. Circuit precedent. See Manildra Mill., 76 F.3d at 1184.

       Although Rule 54(d) of the Federal Rules of Civil Procedure imposes a presumption in

favor of awarding costs to the prevailing party, Moore v. Nat’l Ass’n of Sec. Dealers, Inc., 762

F.2d 1093, 1107-08 (D.C. Cir. 1985), the mixed nature of the judgment here provides grounds

for requiring each party to bear its own costs. See C & E Servs., Inc. v. Ashland Inc., 601 F.

Supp. 2d 262, 280 (D.D.C. 2009) (declining to award costs in a mixed judgment case, without

deciding who was the prevailing party, on the ground that the parties were “nearly in

equipoise”). Indeed, although it appears that the D.C. Circuit has not considered the practice,

several circuits have approved of district courts declining to award costs when each side has

prevailed in nearly equal degree. See Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234-35

                                                 3
(10th Cir. 2001); Ruiz v. A.B. Chance Co., 234 F.3d 654, 670 (Fed. Cir. 2000) (finding no abuse

of discretion when a district court refuses to award costs because neither party prevailed overall

in the suit); Testa v. Village of Mundelein, 89 F.3d 443, 446 (7th Cir. 1996) (requiring each party

to bear its own costs where plaintiff prevailed on one claim and defendant prevailed on another);

Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1996) (“In the event of a mixed judgment, . . .

it is within the discretion of a district court to require each party to bear its own costs.”). Given

the near-parity of each party’s relative success in this case, the denial of a cost award to Airbus is

appropriate. 1

         For the foregoing reasons, it is hereby

         ORDERED that Airbus Helicopters’ request for costs, Dkt. No. 213, is DENIED.

         SO ORDERED.




                                                                          Digitally signed by Judge Robert L. Wilkins
                                                                          DN: cn=Judge Robert L. Wilkins, o=U.S.
                                                                          District Court, ou=Chambers of Honorable
                                                                          Robert L. Wilkins,
                                                                          email=RW@dc.uscourt.gov, c=US
Date: March 25, 2015                                                      Date: 2015.03.25 16:15:03 -04'00'

                                                       ROBERT L. WILKINS
                                                       United States Circuit Judge
                                                       (Sitting by designation in the United States
                                                       District Court for the District of Columbia)




1
    Bell opposed Airbus’ motion, but did not itself seek costs.
                                                   4
