Johnson v. Weihert (In re Weihert)

493 B.R. 61, 2013 WL 2403368, 2013 Bankr. LEXIS 2234
Procedural entryThis page is a short order in Johnson v. Weihert (In re Weihert). Read the opinion of the Court — 489 B.R. 558
United States Bankruptcy Court, W.D. Wisconsin·Decided May 31, 2013·No. Bankruptcy No. 12-10893; Adversary No. 12-105·Published

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, Bankruptcy Judge.

Plaintiffs contest the bill of costs filed by the prevailing defendant in this adversary proceeding. See Johnson v. Weihert (In re Weihert), 489 B.R. 558 (Bankr.W.D.Wis. [63]*632013). At a preliminary hearing on April 22, 2013, the parties indicated that they had resolved all objections except as to expert witness fees in the amount of $3,250 for Milwaukee County Medical Examiner Brian L. Peterson, MD. That matter was taken under advisement.

Plaintiffs argue that the fees are disallowed because the debtor failed to file a motion for payment within 14 days of entry of judgment as required by Federal Rule of Civil Procedure 54(d)(1). They also argue that the expert witness fees should be limited to the amounts set forth in 28 U.S.C. § 1821 because Dr. Peterson was not “court appointed,” there is no contract between the parties regarding witness fees, and the fees are not authorized by any other statute. The debtor argues that Federal Rule of Bankruptcy Procedure 7054 does not incorporate Civil Rule 54(d), and that Dr. Peterson’s fees were authorized by Wisconsin Statutes §§ 59.36 and 59.38.

Bankruptcy Rule 7054(b) provides that “[t]he court may allow costs to the prevailing party except when a statute of the United States or these rules otherwise provides.” Fed. R. Bankr.P. 7054(b). As provided in 28 U.S.C. § 1920, witness fees may be taxed as costs. Section 1920 provides that a “judge or clerk of any court of the United States may tax as costs ... (3) [f]ees and disbursements for printing and witnesses.” 28 U.S.C. § 1920.1 Standard witness fees are set forth in 28 U.S.C. § 1821. Section 1821 states, “[ejxcept as otherwise provided by law, a witness in attendance at any court of the United States ... shall be paid the fees and allowances provided by this section.” 28 U.S.C. § 1821.2 In this case, both parties agree that if the debtor’s taxable costs for Dr. Peterson are limited by § 1821, the relevant allowances would be the daily attendance fee and the travel allowance for mileage. See 28 U.S.C. § 1821(b), (c)(2).

The Supreme Court has considered Civil Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). Petitioners in Crawford argued that “since § 1920 lists which expenses a court ‘may’ tax as costs, that section only authorizes taxation of certain items,” and therefore “§ 1920 does not preclude taxation of costs above and beyond the items listed, and more particularly, amounts in excess of the § 1821(b) fee.” Id. at 441, 107 S.Ct. 2494. The Supreme Court disagreed:

We think that it is clear that in §§ 1920 and 1821, Congress comprehensively addressed the taxation of fees for litigants’ witnesses. This conclusion is all the more compelling when we consider that § 1920(6) allows the taxation, as a cost, of the compensation of court-appointed expert witnesses. There is no provision that sets a limit on the compensation for court-appointed expert witnesses in the way that § 1821(b) sets a limit for litigants’ witnesses. It is therefore clear that when Congress meant to set a limit on fees, it knew how to do so. We think that the inescapable effect of these sections in combination is that a federal [64] court may tax expert witness fees in excess of the $30-per-day limit set out in § 1821(b) only when the witness is court-appointed. The discretion granted by Rule 54(d) is not a power to evade this specific congressional command. Rather, it is solely a power to decline to tax, as costs, the items enumerated in § 1920.

Crawford, 482 U.S. at 442, 107 S.Ct. 2494. The Supreme Court concluded that “when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.” Crawford, 482 U.S. at 439, 107 S.Ct. 2494.

The Supreme Court’s holding in Crawford controls in the bankruptcy context as well. See, e.g., In re Griffin Trading Co., 424 B.R. 431, 433 (Bankr.N.D.Ill.2010) (holding that an appeal bond was not a taxable cost because it was not listed in § 1920). “[T]he discretion written into Rule 54(d) and 7054(b) does not give courts the power to add to the list in § 1920, but ‘is solely a power to decline to tax, as costs, the items enumerated in [the section].’ ” Griffin Trading, 424 B.R. at 433 (quoting Crawford, 482 U.S. at 442, 107 S.Ct. 2494). While Bankruptcy Rule 7054(b) may allow the bankruptcy court even greater discretion to deny costs,3 Bankruptcy Rule 7054(b) bears the same relationship to §§ 1920 and 1821 that Civil Rule 54(d) does. Both rules grant courts the authority to award costs. Nothing in the language of Bankruptcy Rule 7054(b) indicates that the bankruptcy court would have additional power to award costs beyond what is provided in § 1920. Therefore, under the reasoning of Crawford, when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a bankruptcy court is bound by the limits of § 1821(b), absent contract or explicit statutory authority to the contrary.

In this case, plaintiffs first object that the debtor did not file the proposed bill of costs within fourteen (14) days of the entry of judgment as required by Civil Rule 54(d). However, that requirement does not apply here. Although Bankruptcy Rule 7054 incorporates Civil Rule 54(a)-(c), it does not incorporate subsection (d). Under Bankruptcy Rule 7054(b), “[e]osts may be taxed by the clerk on 14 days’ notice.” There is no mention that the proposed bill of costs needs to be filed within 14 days of entry of judgment. Furthermore, even under Civil Rule 54(d), the rule for costs is the same. Fed.R.Civ.P. 54(d)(1). Only a motion for a claim of attorney’s fees is required to be filed no later than 14 days after the entry of judgment. Fed.R.Civ.P. 54(d)(2)(B)(i).

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Johnson v. Weihert (In re Weihert), 493 B.R. 61, 2013 WL 2403368, 2013 Bankr. LEXIS 2234 (Wis. 2013).

493 B.R. 61 (Johnson v. Weihert (In re Weihert)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Crawford Fitting Co. v. J. T. Gibbons, Inc.
482 U.S. 437 (Supreme Court, 1987)
Inskeep v. Griffin (In Re Griffin Trading Co.)
424 B.R. 431 (N.D. Illinois, 2010)
Johnson v. Weihert (In re Weihert)
489 B.R. 558 (W.D. Wisconsin, 2013)