Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Plaintiff's Motion to Vacate 5/17/06 Taxation of Costs Order (Doc. # 133). In the motion, Plaintiff seeks to vacate the taxation of costs in the amount of $4,208.38 against it and in favor of Alcon Laboratories, Inc., Alcon RefractiveHorizons, Inc., and Southwestern Eye Center, Ltd., (the "Alcon Defendants"). Plaintiff argues that the Alcon Defendants prevailed on the patent infringement claim, but that Plaintiff prevailed on the Alcon Defendants' Section 2 monopolization counterclaim. Accordingly, Plaintiff argues that the case effectively was a draw, that the Alcon Defendants were no more prevailing parties than Plaintiff, and that the taxation of costs against Plaintiff was improper. The Court notes that the Alcon Defendants did not respond to Plaintiff's motion and, under Rule 7.2(i) of the Local Rules of Civil Procedure, the Court may deem such a failure
Case 2:03-cv-00029-JAT Document 134 Filed 03/20/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Koepnick Medical & Education Research) ) Foundation, L.L.C., ) ) Plaintiff, ) ) vs. ) ) Alcon Laboratories, Inc.; Bausch & Lomb) Incorporated; Summit Autonomous, Inc.;) Swagel-Wootton Eye Center, Ltd.;) ) Southwestern Eye Center, Ltd., ) ) Defendants. ) )

No. CV 03-0029-PHX-JAT ORDER

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as consent to the granting of the motion. However, the Court declines to exercise its discretion to grant Plaintiff's motion as unopposed. Further, in light of Rule 54.1(d) of the Local Rules of Civil Procedure, which provides that "[t]he prevailing party need not succeed on every issue to be entitled to costs," the Court finds that the taxation of costs against Plaintiff and in favor of the Alcon Defendants was proper. Accordingly, IT IS ORDERED that Plaintiff's Motion to Vacate 5/17/06 Taxation of Costs Order (Doc. # 133) is DENIED. DATED this 19th day of March, 2007.

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