Memorandum July 9, 1958
STECKLER, Chief Judge.
This cause is now before the court upon the following matters:
(1) The fixing of attorneys’ fees to be awarded defendants’ attorneys for prosecuting the counterclaim for antitrust violations.
(2) Motion of defendants for admission of attorneys’ itemization.
(3) Motion of plaintiff for an order requiring defendants’ counsel, John F. Linder, to file an itemization of his charges for services on the antitrust cause of action.
(4) Motion of defendants to amend findings of fact and conclusions of law.
(5) Plaintiff’s post-hearing brief anent attorney fees, and motion to amend findings of fact and conclusions of law, ■etc.
(6) Plaintiff’s objections to defendants’ bill of costs.
(7) Motion for production or for leave to take additional depositions.
(8) Motion for admission of plaintiff’s Exhibits 199 and 200.
Since the last two above mentioned motions go to the matter of admitting additional evidence into the record, the ■court deems it advisable to take up and ■dispose of such motions before turning to the other motions.
On May 2, 1958, plaintiff filed his motion for an order requiring defendants to produce, for inspection, photographing and copying, all written documents, instruments and agreements made or entered into contemporaneously with plaintiff’s Exhibits 172 and 173, containing any other terms or conditions of the settlement agreement, etc. (privileged communications between attorney and client to be excepted); or in the alternative, for an order permitting plaintiff on five days’ notice to take the deposition of any one or more of the parties listed in paragraph IV of the motion for the purpose of establishing the existence of the “hitherto undisclosed terms and conditions of the settlement.”
Since the defendants made satisfactory voluntary production of the documents sought (plaintiff's proffered Exhibits 199 and 200), the motion for production or the alternative request for depositions are now moot and of course the court will make no ruling thereon.
On June 9, 1958, plaintiff filed his motion for admission of his proffered Exhibits 199 and 200. The court has carefully considered this motion, including the contents and substance of the exhibits which were attached thereto (plaintiff’s proffered Exhibits 199 and 200). After such consideration and a further re-evaluation of the evidence, including the settlement agreement and the covenant not to sue which were entered into with plaintiff’s co-conspirators, the court is of the opinion that nothing would be gained on the part of the plaintiff through an admission of plaintiff’s proffered exhibits, and that accordingly the motion should be and the same is hereby overruled.
The court will stand on its prior ruling whereby it has found that the plaintiff has not been released as a tort-feasor by the terms of the settlement and covenant not to sue executed by the defendants in connection with their settlement with the other alleged joint tort-feasors. Moreover, plaintiff’s proffered Exhibit-
200, the waiver and release of attorneys’ lien, would not give aid to the plaintiff in his contention that he is absolved from payment of attorneys’ fees by reason of his claimed release based upon this construction of the covenant not to sue. The waiver and release of attorneys’ lien amounted to no more than what it purported to accomplish, i.e., to cause defendants’ counsel not to look to Comfort Equipment Company, Burch Manufacturing Company, Cab-Ette Company and Lee Flora, plaintiff’s co-conspirators, for the payment of any fees whatsoever, in any of the then pending litigation in three different district courts, in consideration of the execution of the agreement of settlement. The defendants, Williams and Original, were not parties to the waiver and release of attorneys’ lien. Only their attorneys had such a lien to waive and release. Surely plaintiff cannot seriously contend that by such action on the part of defendants’ counsel, the defendants are now precluded from recovering as a part of their statutory remedy, a reasonable attorneys’ fee and costs as provided by the antitrust laws. Such an argument seems frivolous beyond words when considered in the light of the entire record in this case. Suffice to say that this court believes that the defendants as parties litigant are still entitled to recover a reasonable attorney fee for the use of their attorneys against their remaining defeated adversary in this long and expensive litigation.
The court will next take up the matter of fixing the attorney fees to be awarded defendants’ attorneys for their services in prosecuting the counterclaim for damages sustained by defendants as a result of plaintiff’s violation of the antitrust laws.
Defendants’ counsel have submitted evidence by way of expert testimony and itemized statements tending to show that they have earned attorneys’ fees for services in their antitrust cause of action totaling $141,035. This they are claiming in addition to the attorneys’ fees in the amount of $28,244.31 heretofore fixed by the court for their services in the defense of the patent infringement action.
The court has awarded compensatory damages to the defendants in the amount of $27,611.35 which, when trebled, amount to $82,834.05. Against this sum has been credited $110,000 received by the defendants from plaintiff’s co-conspirators for a covenant not to sue. Thus the court now finds what remains to be done is the fixing of defendants’ attorneys’ fees in the antitrust phase of the lawsuit.
j-
The court has carefully considered the evidence and post-trial briefs relating to attorneys’ fees in the antitrust cause of action. The court is not unmindful of the complexities of the case, nor of its far-flung reaches. The case has been in process for over eight years and has consumed hundreds of hours of the court’s time. Nor is the court overlooking the fact that it is convinced that this action was brought as a furtherance of the conspiracy, which the court believes had its inception prior to the granting of the patent in issue. Notwithstanding all of this, the court is bound by the authorities relative to the matter of fixing attorney fees in this type of action, particularly the rule as followed in the Seventh Circuit. See Milwaukee Towne Corp. v. Lowe’s, Inc., 7 Cir., 1951, 190 F.2d 561. See also Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 1952, 194 F.2d 846.
With the Milwaukee Towne Corp. case as a guide, the court concludes, and therefore finds, that the request for attorneys’ fees in the amount of $141,035 for services of defendants’ attorneys in the antitrust cause of action, does not bear a realistic relation to the amount of compensatory damages awarded. With regard to this finding, the court is not in accord with the views of the defendants whereby they would have the
court include as a part of the basis of compensatory damages, the amount of $28,244.31, the attorney fees fixed for their services in defending the patent infringement action. No convincing authority has been shown to support their position in that regard. Nor does the court agree with the defendants in respect to their position that the court ought to readjust the credit allowed on the damages awarded. Defendants would have the court deduct their expenses and claimed attorneys’ fees in •connection with the venue issue from the $110,000 paid defendants pursuant to the covenant not to sue, using the balance as a credit against the trebled compensatory damage. Likewise, as in their claim that the attorneys’ fees for defending the patent action should be included as a part of the compensatory damage in computing the treble damages, they have shown no authority to support their position and the court has been unable to find any.
Approaching the issue of attorneys’ fees from the other side, plaintiff would have the court disallow all fees for defendants’ attorneys prior to the entry of December 14, 1954, the order of dismissal, whereby the complaint was dismissed by Flora as against the defendants, Williams and Original, and the counterclaim and cross-complaint dismissed by Williams and Original against Flora, Comfort, Burch and Cab-Ette. This is on the theory that attorneys’ fees are to be included as part of the costs and that item four of the order of dismissal provides, “That no costs be awarded to any party litigant designated in this order, the respective parties litigant bearing their own costs.” This theory, as so many others proffered by plaintiff, at first blush might seem to have some merit, and the court is not wholly ignoring it. But the plaintiff does not stop there, he goes on and asks to be completely exonerated from payment of all costs and attorneys’ fees incurred during the three-year period devoted to the venue issue involving his co-conspirators and the appeal taken from the order of this court in respect thereto. He would have the court believe his hands are stainless of the part he played in the conspiracy. During that time he was as much of a litigant in the antitrust cause of action as at any other time throughout the long course of this controversy. It was he who reaped the greatest benefits from the conspiracy. The presence of the co-conspirators before the court, more than anything else, made it possible for the court to ascertain the true relationship between them and the plaintiff and thus the existence of the conspiracy. Not only that, it should be borne in mind that the District Court for the Western District of Missouri, on October 27, 1953, had enjoined and restrained the plaintiff from instituting any proceeding, judicial or administrative, for infringement of plaintiff’s patent alleged to have occurred prior to such date. It can be concluded from that injunctive decree that the Missouri District Court intended to deprive the plaintiff of the fruits of his patent during the period of the existence of the conspiracy, which this court has also found to have existed prior to the Missouri District Court action. And this court has found that by the bringing of this action in the Southern District of Indiana, the conspiracy was furthered, that this action was a part of the conspirators’ scheme to effectively carry forth their conspiracy and help bring it into complete fruition. Why the Missouri District Court made no mention in its decree of the “maintenance” of any pending infringement-action at the time of its decree is unexplained. But to say the least, it is not logical to believe that that court intended to exempt this action in this district merely because it had been brought prior to the date of its injunctive decree. Since there is no conclusive evidence on this point before this court, it is assumed that the Missouri District Court, out of judicial conservatism and comity, left the matter of the pendency of this action to the discretion
of this court in view of the pending counterclaim and cross-complaint. The decree there was a consent decree without the benefit of findings of fact and conclusions of law. Certainly the spirit of that court’s decree would dictate that this action for patent infringement especially in view of the record in this proceeding, should have abated at the time of that decree. Instead of withdrawing the complaint for patent infringement;' the plaintiff and his co-conspirator, Flora, chose to pursue the action beyond the date of that decree, even though they knew it was a remnant of their earlier conspiratorial actions.
Of course the plaintiff does not agrée’ with such a construction of that.decree, and the court here being somewhat in doubt as to its full meaning, concluded that this entire litigation should be heard on the merits. Except for such doubt, this court should have dismissed the complaint here in suit.
With the foregoing in mind, the court concludes that its order of December 14, 1954, did not relieve plaintiff from payment of a just portion of the attorneys’ fees and costs during the pendency of the venue litigation. Out of fairness, however, the court should not fail to consider as a weight factor in determining a reasonable attorney fee for defendants’ attorneys in the antitrust litigation, the recovery made and the attorneys’ fees received in connection with the $110,000 paid by plaintiff’s co-conspirators. Though the arrangement between defendants and their counsel was a private one, not subject to the control of the court at the time of payment, nonetheless, it cannot be altogether ignored in the separate matter of assessing attorneys’ fees at this time.
Therefore, considering the evidence in the light of the court’s first-hand knowledge of much of the services performed by defendants’ attorneys, and the value thereof, the court finds that a reasonable fee for their combined services should be, and is hereby fixed in the amount of $25,000. As to the division of such amount, counsel will be left to .their-own discretion.
The court is well aware that this sum represents just a little less than the compensatory damage found to have been sustained by defendants, but except for the difficulty of proof, it is ventured that the actual damage suffered as a direct result of the violation of the antitrust laws by the plaintiff and his co-conspirators would have been found to be far greater.
Motion, of Defendants for Admission of Attorneys’ Itemization, and Motion of Plaintiff for an Order Requiring Defendants’ Counsel, John F. Linder, to File an Itemization of His Charges, for Services on the Antitrust Cause of Action
Since the court has now disposed of the matter of fixing the amount of attorneys’ fees for the defendants’ attorneys in prosecuting the antitrust cause of action, the motion of defendants for admission of attorneys’ itemization, and motion of plaintiff for an order requiring defendants’ counsel, John F. Linder, to file an itemization of his charges, are considered to be moot.
Motions to Amend Court’s Findings of Fact and Conclusions of Law
Next the court turns to the respective motions filed by each side for amendment of the court’s findings of fact and conclusions of law. Their motions and supporting briefs have been carefully read and considered. After such consideration and further review of the pertinent parts of the record, the court concludes that it will stand on the findings of fact and conclusions of law heretofore made.
Plaintiff’s Objections to Defendants’ Bill of Costs’
The court now turns to the plaintiff’s objections to the bill of costs submitted by the defendants. Their bill of costs was filed on January 27, 1958. On February 11, 1958, the plaintiff; filed objections thereto. Due to the complex issues involved, many of which were previously argued, the clerk of the court
made no attempt to tax the costs. Therefore, this matter is not being considered on review of the actions of the clerk, but by the court in the first instance.
The bill of costs totals $39,257.26, and with certain minor exceptions, the plaintiff objects to the whole thereof. Following is a categorical breakdown of the items listed in the original bill of costs:
Item 1 Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case .......... $ 1,453.76
Item 2 Fees for witnesses (28 U.S.O. § 1821) ................. 75.28
Item 3 Fees for exemplification and copies of papers necessarily obtained for use in case ............................... 207.98
Item 4 Docket fees under 28 U.S.O. § 1923 .................... 72.50
Item 5 Costs incident to taking of depositions.................. 1,077.09
Item 6 Schedule I — Services, travel and telephone expense of defendant Williams ..................................... 27,189.53
Item 7 Schedule II — Travel and telephone expenses of defendants’ attorneys ............................................ 3,979.17
Item 8 Schedule III — Expense for services of defendants’ accountant ................................................. 4,950.00
Item 9 Schedule IV — Miscellaneous costs of certified copies of Patent Office records and notary fee.................... 251.95
$39,257.26
Since filing the original bill of costs, defendants were ordered to itemize with greater particularity Items 1, 3 and 5 of the bill. In their response to that order, which, incidentally was not a satisfactory response and therefore required an additional itemization, defendants called the court’s attention to “slight differences” in the amounts of court reporter charges and deposition charges, and asked that the amounts as set forth for such items in the original bill of costs be changed to show the sum of $1,733.64 for court reporter charges, and the sum of $1,050.04 for costs incident to taking of depositions. After such correction, the total amount of the bill of costs would amount to $39,510.09, an increase of $252.83. However, it is apparent that these figures must further be amended in view of defendants’ “Further Itemization of Costs” which was filed on May 20, 1958. According to the last itemization, the charges for court reporter amount to $1,688.73, and the costs incident to the taking of depositions amount to $1,049.64. The court will therefore treat the bill of costs to be amended as requested and according to the latest itemization amounting to $39,464.78.
Before taking up the objections to the various items in the bill of costs, it would be helpful to the parties if the court would set aright what appears to be a misgiving on the part of the defendants with respect to the meaning of certain language used in the court’s findings of fact and conclusions of law dated January 13, 1958. In its findings and conclusions, the court stated, “In addition to the payment of attorneys’ fees aforesaid, the defendants shall fully recover of the Plaintiff their total costs of suit laid out and expended in this cause.” This was not the best choice of words in view of what the court had in mind at the time. The court intended merely to have the statutory costs, including the reasonable costs incident to the taking of depositions, assessed against the plaintiff. It was not the intent of the court to go beyond what is normally and customarily included in the assessment of costs in this type of action. Therefore a great bulk of the de
fendants’ bill of costs will be disallowed in fixing the costs to be taxed against the plaintiff.
Perhaps it would also be well at this point to dispose of certain objections which the plaintiff interposes and which flow to the question of whether the defendants should be permitted to recover any costs after the date of the settlement with the plaintiff’s co-conspirators, and to the question of whether plaintiff should be taxed with any of the costs incurred in connection with the trial and disposition of the issue of venue. These objections affect all of the items of costs and must be considered in addition to the specific objections to the respective items.
Plaintiff says that by reason of the terms of the agreement made in connection with the execution of the covenant not to sue and the order of the court of December 14, 1954, approving the simultaneous dismissal of the complaint on behalf of Flora as against the defendants Williams and Original, and the counterclaim and cross-complaint on behalf of said defendants as against Flora, Comfort, Burch and Cab-Ette, he, the plaintiff, is exonerated from the payment of costs. Then, moreover, the plaintiff says he took no active part in the trial and disposition of the issue of venue. He says that during the period “from the spring of 1951 through the fall of 1954 the venue dispute occupied the stage, with the Clapper issue completely sidetracked.” He claims that he did not participate in the long venue battle in any way, that during the long period of delay the battle was confined to the defendants on the one hand and the cross-defendants on the other.
The settlement agreement which was made at the time the covenant not to sue was given by the defendants to all of the co-conspirators, except the plaintiff Clapper, provided that the dismissals “shall be entered without an award or payment of costs * * * all parties paying their own costs.”
The court’s order of dismissal of December 14, 1954 specified, “4. That no costs be awarded to any party litigant designated in this order, the respective parties litigant bearing their own costs.” In view of the terms of the agreement and the court’s order of dismissal, plaintiff concludes that the defendants are thereby bound to bear their own costs up to the date of the order, December 14, 1954. Now in addition to the foregoing, plaintiff further contends that he is in fact released from all liability because the agreements and the covenant not to sue constitute a legal release of plaintiff’s joint tort-feasors, and by operation of law, he too is released.
A similar position was taken by the plaintiff in his opposition to the matter of awarding attorneys’ fees to defendants for the services of their attorneys in the antitrust phase of this case. What the court has said in that regard will not be fully repeated here. The court disagrees with the theory of the plaintiff, first, because throughout the pendency of this action the plaintiff has been a most active litigant in the antitrust phase of the suit. Actually that phase of the suit has overshadowed the patent infringement action, both from the activities of the plaintiff and the defendants. Had it not been for the fact that the plaintiff’s co-conspirators were brought into this court, the scope and effect of the conspiracy might never have been' known. Plaintiff’s argument that he took no active part in the case during the venue battle does not bear weight.
Plaintiff seems to take the position that since he did not participate in the venue dispute as much as the other litigants, he should only be taxed, if at all, in proportion to the extent of his participation. Bearing in mind the court has found him guilty of violation of the antitrust laws, there is no logical reason why he, as one of the joint-wrongdoers, should not be held account
able for the full amount of the court costs. It is only in rare cases where one of several joint-wrongdoers is absolved from full liability for court costs. In the case of Vrooman v. Penhollow, 6 Cir., 1911, 186 F. 495, 496, a patent infringement action, one of three defendants made a motion that the costs adjudged against them be distributed among them in proportion to the extent of their participation in the infringement complained of. In the trial below, the evidence was scant as to the extent of the participation of this particular defendant in the infringement. This minor issue received little attention during the trial because of the larger contest over patent infringement. In denying the motion of the complaining defendant, the court said:
“It is apparently true that in some rare cases where there were several wrongdoers, some of whom had participated in doing the wrong only in a trivial or almost wholly unrelated manner, the court has exercised its discretion in their favor and cast the heavier burden of the costs to which all are liable upon the more guilty parties. But such cases are exceptions to the general rule upon very special circumstances. We think the position which Baker has taken and held in this matter has not been such as ought to induce the court to exercise its discretion in his favor. We have the conviction that he was the most potent factor in the infringement and that it was mainly because of his countenance and encouragement that the other defendants persevered in it.”
And so it was in the case at bar. The plaintiff Clapper was the dominant figure in the conspiracy. He stood to gain the most and did gain the most from the fruits of the joint-wrongdoings. How, then, can this court exercise its discretion in his favor and shift the costs incident to the venue question over and upon the successful defendants? Certainly not merely because the plaintiff says he did not participate very much in that part of the litigation.
The terms of the agreement and the order of dismissal of December 14, 1954, do not preclude at this stage of the litigation the taxing of the defendants’ costs against the plaintiff. Plaintiff was not a party to the agreement nor the covenant not to sue, and he was not included in the order of dismissal. Nor did the court by entering the order of dismissal intend it to have the legal effect plaintiff now claims. The court knows of no rule or theory of law that would preclude the defendants from agreeing with a part of the other litigants that they would bear their own costs up to the time the covenant not to sue was executed and the dismissal entered, and look forward to an ultimate recovery of such costs from their remaining defeated opponent, should they be successful. Whether the court in assessing costs under such circumstances should take into account the prior consideration paid for the covenant not to sue, seems to be a matter to be left to the sound discretion of the trial court.
Throughout plaintiff’s argument he fails to draw a distinction between such costs as should be awarded the successful defendants in connection with the patent infringement issue, and the costs which should be awarded in regard to the antitrust phase of the case. Keeping in mind all of the issues in this action, it is doubtful whether such a distinction can be accurately drawn. The court, therefore, must weigh and evaluate the respective items of cost and the objections made thereto, whether such items were incurred prior or subsequent to the dismissal as against the other parties, or whether in connection with the patent or antitrust issues.
The court has previously ruled that the agreement and covenant not to sue
did not constitute a legal release but was only a covenant not to sue.
For these reasons the court now holds that the plaintiff has not been relieved of paying the defendants’ legitimate costs of suit.
The court will now deal with the items of costs as they are listed in the bill of costs and consider them in the light of plaintiff’s objections.
Item 1
Fees of court reporter for all or any part of the transcript necessarily obtained for use in the case— $1,688.73
Plaintiff objects generally to the allowance of this item but particularly objects to the assessment of any costs against the plaintiff for an extra copy of the transcript of the testimony taken during the trial. Plaintiff argues that such extra copy of the transcript was merely for the convenience of counsel and therefore not necessarily obtained for use in the case. By inference plaintiff also objects to the cost of the original stenographic transcript furnished the court. This is on the premise that the court did not order a transcript of the evidence. Plaintiff, for authority in support of the first proposition, cites Hope Basket Co. v. Product Advancement Corp., D.C.Mich.1952, 104 F.Supp. 444; Department of Highways v. McWilliams Dredging Co., D.C.La.1950, 10 F.R.D. 107; Kenyon v. Automatic Instrument Co., D.C.Mich.1950, 10 F.R.D. 248; Stallo v. Wagner, 2 Cir., 1917, 245 F. 636. For his second proposition, plaintiff cites and relies upon Firtag v. Gendleman, D.C.D.C.1957, 152 F.Supp. 226; Marshall v. Southern Pacific Co., D.C.Cal.1953, 14 F.R.D. 228, and Cooke v. Universal Pictures Co., D.C.N.Y.1955, 135 F.Supp. 480. From a reading of these and other eases, one thing is made abundantly clear; the fixing and allowing of court costs vary in different districts and according to the judicial discretion of the various judges in view of the varying circumstances in the respective cases. Of course there are generally fixed standards which should be followed, but in each case the matter of allowing costs must be determined according to the peculiar facts and circumstances.
In this court it has been a custom of long standing, amounting to an unwritten rule, that in any case when a party orders a transcript of the evidence, the original transcript must be furnished the trial judge and the expense thereof must be borne by the party ordering the same, or, as the court otherwise directs. In the case at bar, since the court early in the proceedings made it known to counsel that in view of the complexities of the case they would be required to prepare and submit proposed findings of fact and conclusions of law, it is nothing more than reasonable that counsel and the parties should have anticipated the need of a transcript of the evidence and the cost incident thereto. Therefore the court concludes that defendants are entitled to recover as costs in this proceeding their expenditures toward the cost of the original stenographic transcript of the evidence and minutes of the trial. Also, the cost of one copy for the use of their counsel in the conduct of the trial and in the post trial procedures which were required by the court. The court will not, however, order the plaintiff to pay the costs of reporters’ fees and charges for transcripts of oral arguments which were had at various times through the pendency of this action. Such transcripts, it is felt, were principally for the convenience of counsel and should be borne by the party requesting them.
With these pronouncements as a guide, the following costs under Item 1 of the
bill of costs will be taxed against the plaintiff, but in respect to all other costs thereunder the plaintiff’s objections are sustained:
May 18, 1953 Walene E. Shields Transcript from trial of venue.
One-half of cost of original (391 pages) ..................$ 107.53
One-half cost of two copies @ 25^ per page ($195.50)....... 97.75
Postage ...................... 1-44
$ 206.72
June 11, 1957 E. Clifford Powell
Daily copy (carbon) of trial June 3, 4, 5, 6/57 869 pages @ 40{S.............. 347.60
17 pages index @ 80}S.......... 13.60
361.20
August 10, 1957 E. Clifford Powell
Transcript of trial, 6/20-28/57 1,481 pages @ $1.05 ........... 1,555.05
26 pages index @ $2.10........ 54.60
1% days reporter @ $25 ...... 37.50
One-half due by Original 823.57
Total Allowed - Item 1 ............................... $1,391.49
Item 2
Fees for Witnesses (28 U.S.C. § 1821) — $75.28
Plaintiff objects to the allowance of this item of costs except with respect of Ralph L. Morgan- — -$19.20, Ray Steffey — $8.62, and Harold B. Hood — $4.00. As to the witness fee and mileage for the defendant Williams, plaintiff points out that he being a party to the action and a real party in interest, attended throughout the whole of every day of both sessions of the trial, and actively participated in the management thereof; that therefore he did not, in other words, attend merely as a witness. Such being the case, the claimed witness fee and mileage for him is not allowable. Plaintiff cites Barnhart v. Jones, D.C.W.Va. 1949, 9 F.R.D. 423; Picking v. Pennsylvania R. Co., D.C.Pa.1951, 11 F.R.D. 71; Ryan v. Arabian American Oil Co., D.C. N.Y.1955, 18 F.R.D. 206; and Tuck v. Olds, D.C.Mich.1886, 29 F. 883.
Similarly, as to the witness fee for defendants’ counsel, Messrs. Swecker, Linder and Earnest, plaintiff argues that since all of them were attorneys of record in this case and actively participated in the conduct of the trial, they should not be permitted to shift position from counsel table to witness chair and there
upon be entitled to witness fees. The court agrees with the plaintiff. Accordingly only the following costs will be allowed under Item 2 of the bill of costs:
Ralph L. Morgan..............$ 19.20
Ray Steffey .................. 8.62
Harold B. Hood............... 4.00
Total Allowed - Item 2 .................................$ 31.82
Item 3
Fees for exemplification and copies of papers necessarily obtained for use in case — $207.98
To this item the plaintiff objects because there has been no itemization of the amount sought. Plaintiff relies upon Judge Hincks’ ruling in Perlman v. Feldmann, D.C.Conn.1953, 116 F.Supp. 102, 112. There, upon timely objection, Judge Hincks disallowed an item of costs covering the making of copies of unidentified documents. This court would be inclined to rule similarly on the item here at hand except for the court’s own knowledge of the manner in which the parties dealt with each other in providing copies of the very great number of letters and documents here involved. The court recalls the many conferences and informal agreements among counsel with respect to furnishing each other documents or copies of documents. Admittedly it would be far better for the problem now presented if the defendants had kept an itemized list identifying each letter, invoice, circular, catalog page, work sheet, etc., which they had reproduced, with a further explanation as to how it was used in the case.
Counsel for the defendants point out that this item covers photostatic and other reproduction costs of literally hundreds of letters, invoices and many different types and kinds of papers for use in this case only. A part of the cost here involved was actually paid Mr. Scofield, counsel for plaintiff, for copies of the Clapper letters that he furnished. Defendants say that when the plaintiff demanded and received large quantities of records taken from the defendant, Original, letters, invoices, purchase orders, shipping notices, etc., photostatic copies were made of those and the cost thereof is here included. Counsel for the defendants say it would be the work of supererogation to list all of the many documents thus copied, even if the court had the time to read such a list. In other words, it would be beyond what is required. The court agrees.
In view of the court’s own knowledge of the many, many documents used in the case, and since this is a matter within the court’s judicial discretion, and further in view of the oath of defendants’ counsel that the item of $207.98 is correct and necessarily incurred in this action, this item of costs will be ordered taxed.
Amount of Item 3 Allowed......$207.98
Item 4
Docket fees under 28 U.S.C. § 1923 — $72.50
Objection is made on the basis that this lump sum item is not broken down. Defendants in their brief say that they filed twenty-one depositions and are charging merely the $2.50 statutory fee per deposition. The remaining portion of the $72.50 item represents the $20 statutory attorneys’ docket fee.
In this court no charge is ever taxed by the clerk for filing a deposition. The attorneys’ docket fee will be allowed as a part of this item.
Amount of Item 4 Allowed......$20.00
Item 5
Costs incident to taking of depositions — $1,049.64
Quoting the plaintiff, his objection to this item is as follows:
“Most of the items under the heading ‘Depositions’ reflect disbursements made in 1951 and 1952, and these of course cannot be allowed in view of the court’s order of December 14, 1954 requiring the defendants to bear their own costs as to all matters up to that date. Some of these deposition expenses would not be allowable for the further reason that they were discovery depositions not introduced into evidence in the case. Insofar as the amounts reflect disbursements for
carbon copies
of depositions obtained by plaintiff’s counsel for their own convenience (the original being on file with the Clerk), no allowance for the copy would be proper.”
Plaintiff goes on to object to the items of expense covering the depositions of the plaintiff Clapper, and the defendant Williams, and also the expense of the carbon copy of the deposition of McVicar taken at Bloomington, Illinois.
Insofar as the objection is based on the court’s order of December 14, 1954, by reason of what the court has previously said in this memorandum, it follows that the objection must be overruled. As to the expense covering the extra copies of the various depositions, the court is firmly of the view that it was not merely convenient for counsel to have them, but it was imperative that they have them. This ease, in the experience of the court, stands out singularly. Never before has the court witnessed such vehemence on the part of counsel and the parties. Throughout all the proceedings there has been an absence of the customary trust and professional reliance a court is accustomed to see on the part of counsel. Not infrequently, accusations of misrepresentation, falsification and fraudulence have been leveled by counsel at each other. From their conduct and lack of trust in each other, there should be little wonder as to why they wanted copies of everything, including every statement made during their oral arguments. In this setting and with such a background, the court is of the view that the extra copies of the depositions were reasonably necessary for the use of counsel in this case. This applies both with respect to the pre-trial procedures arid in connection with the trial and post-trial procedures. Therefore, the court holds that defendants are entitled to recover the costs incident to the taking of the depositions listed in the itemization of this item of the bill of costs, including one carbon copy. Moreover, the court recalls how often it was required to call upon counsel to brief and argue certain points which necessarily required reference to the various depositions.
The court, although with some reluctance, agrees with the plaintiff in his objections to the costs of the deposition of the plaintiff Clapper taken by the defendants and the cost of the carbon copy of the deposition of the defendant Williams. It is felt that these depositions fall largely within the rule precluding the recovery of the costs of depositions taken solely for the convenience of counsel in the preparation of their case. Consequently, these two items of expense will not be allowed as a part of defendants’ bill of costs.
Therefore, as to Item 5 of the bill of costs, the court will allow the following:
1951
January 18 Cost of reporting deposition taken 11/10/50 of Lee Flora and Snyder, Danville, 111. (antitrust) ....................$ 71.70
1951
January 18 Cost of reporting depositions taken 11/28/50 in Kansas City of Robert D. McCarthy and Harry Burch (antitrust) ....... 79.49
January 24 Cost of reporting Heller deposition taken in Chicago on 11/8/50 (patent infringement) 3 hrs. attendance @ $4 ... $ 12.00 34 pages original @ 70jé .. 23.80 34 pages carbon @ 30f! ... 10.20
46.00
January 24 Cost of reporting Frein deposition taken in Chicago 12/27/50 (patent infringement) 1 hr. attendance......... 4.00 8 pages original......... 5.60 8 pages carbon.......... 2.40
12.00
February 19 Cost of reporting Alveson, and others, depositions at Duluth, 11/9/50 (patent infringement) ... 47.66
1952
May 19 Cost of reporting Maumee Valley Seed Co. depositions at Fort Wayne on 5/14/52 (venue) Reporter’s bill .......... 154.00 Legal services — costs in obtaining subpoenaes for witnesses .............. 25.00
179.00
May 27 Cost of reporting Ruddell and Morton depositions at Indianapolis, 5/15/52 (venue)---- 73.50 2 sets of photostats of correspondence produced .. 36.54
110.04
1952
September 28 Cost of reporting McCarthy, Dolan, Bowers and Kimsey depositions at Kansas City 6/25-26/52 (venue)
Attendance, 8 hrs. @ $3 .. 24.00
Notarial certificates ..... 2.50
187 pages original @ 60^ . 112.20
187 pages carbon @ 20^ .. 37.40
2 sets photostats of correspondence produced .. 10.45
Postage ................ 1-80
188.35
1956
December 15 Cost of reporting McVicar deposition taken at Bloomington, Illinois on 12/13/56 (antitrust) Attendance, 3 hrs. @ $5 .. 15.00
35 pages original........ 26.25
35 pages copy........... 8.75
Postage ................ .75
Marshal’s fees for service of subpoenas............ 18.20
68.95
Amount of Item 5 Allowed $803.19
Item 6
Schedule I. Services, travel and telephone expense of defendant Williams — $27,189.53
This item is made up of expense purportedly incurred by the defendant, Original Tractor Cab Company, Incorporated, and may be broken down into three categories:
(a) The portion of defendant Williams’ salary estimated to be chargeable to what are identified as “litigation matters”.
(b) Travel expenses of the defendant Williams in connection with such “litigation matters”.
(c) Telephone charges for calls also pertaining to “litigation matters”.
There is little doubt in the mind of the court that the defendant, Original, did in fact suffer material damage as a result of this litigation. But the defendants had their opportunity during their day in court to establish such damage. They attempted to establish the damage suffered by the corporation, but the court was not convinced by their method and theory. Now is not the time to retry this element of their case. Nor is the taxing of costs of suit the proper means of fixing such damage. For this and the reason earlier set out in this entry, all of Item 6 will be disallowed. Amount of Item 6 Allowed........$0.00
Item 7
Schedule II. Travel and telephone expenses of defendants’ attorneys —$3,979.17
As authority for its objection to this item plaintiff cites Manley v. Canterbury Corp., D.C.Del.1955, 17 F.R.D. 234; Hope Basket Co. v. Product Advancement Corp., D.C.Mich.1952, 104 F. Supp. 444, 451, and Brookside Theatre Corp. v. Twentieth Century Fox, D.C.Mo. 1951, 11 F.R.D. 259. Upon the authority of these cases plaintiff says it is well settled that an attorney’s travel and telephone expenses are not allowable. Stated as the general rule, the court would agree.
That this is the general rule is borne out by the weight of authorities. It is only in exceptional and compelling circumstances that courts are prone to depart from the general rule. Gibson v. International Freighting Corp., D.C.Pa. 1947, 8 F.R.D. 487. Such compelling circumstances do not appear in the case at hand. Travel expense of counsel in the preparation of suit and in attending the court proceedings must generally be classified as personal expense. The same is true in respect to long distance telephone expense. Neither of these items can rightfully be classified as “costs of suit.” Accordingly Item 7 of the bill of costs is disallowed.
Amount of Item 7 Allowed........$0.00
Item 8
Schedule III. Expense for services of defendants’ accountant —$4,950.00
This item represents charges for defendants’ accountant in the prepara■tion of defendants’ statement of losses :and for attending hearings, conferences .and trial. Such services were a part .of the defendants’ detailed preparation .and presentation of their counterclaim, and, as such, cannot be allowed as costs. It is true, a part of his time was spent in furnishing plaintiff’s accountants with information they needed in making an .audit of the defendants’ operations. However, there is no specification in the bill of costs as to how much time was so spent. The court will hazard no estimate. For these reasons Item 8 of the bill of costs is disallowed.
Amount of Item 8 Allowed........$0.00
Item 9
Schedule IV. Miscellaneous costs of certified copies of Patent Office records and notary fee —$251.95
All of the charges enumerated in Schedule IV are objected to with the exception of the certified copy of the Clapper file wrapper and interference ($24.55). Plaintiff concedes that the notary fee of $3 may be allowable if identified and shown to be applicable to this case. He also concedes that the defendants may be entitled to a portion but not all of the costs of patent copies ($78.25).
Defendants counter by pointing out that some of the copies of patents were foreign patents and photostatie copies had to be obtained, which increased the cost. A certified translation of the Swiss patent was required. A book of patents was offered in connection with the motion for summary judgment, as well as at the trial. They go on to say that the Alverson file wrapper was made necessary “by the misrepresentation of Plaintiff’s counsel with respect to it.”
The court was materially aided in making its final determination as to patent validity through the earlier presentation and disposition of defendants’ motion for summary judgment. By the time of the trial the court was well acquainted with the history of the prior art in this field.
The court availed itself of the Alvcrson file wrapper after the dispute arose with respect to the Alverson patent application. It was a necessary part of the record.
As to the file history of the Clapper patent for use of defendants’ counsel during trial, in view of the manner in which the interference and concession of
priority were handled as betweeen the applicants, who later were found to be in conspiracy, the court is inclined to believe the extra copy of the history of the Clapper patent was necessary for defendants’ counsels’ use in the trial. All of Item 9, Schedule IY, will be allowed. Amount of Item 9 Allowed......$251.95
Recapitulation of Costs Allowed
Item 1 Fees of court reporter for all or any part of the transcript necessarily obtained for use in the case ........................................ $1,391.49
Item 2 Fees for witnesses........................... 31.82
Item 3 Fees for exemplification and copies of papers necessarily obtained for use in case.............. 207.98
Item 4 Docket fees under 28 U.S.C. § 1923 ............. 20.00
Item 5 Costs incident to taking of depositions.......... 803.19
Item 6 Services, travel and telephone expense of defendant Williams ................................ -0-
Item 7 Travel and telephone expenses of defendants’ attorneys ..................................... -0-
Item 8 Expense for services of defendants’ accountant .. -0-
Item 9 Miscellaneous costs of certified copies of Patent Office records and notary fee.................... 251.95
Total costs allowed................ $2,706.43
The clerk will tax the foregoing items of costs against the plaintiff.
It is so ordered.