Wade v. Mississippi Cooperative Extension Service

64 F.R.D. 102, 19 Fed. R. Serv. 2d 192, 1974 U.S. Dist. LEXIS 8187
District Court, N.D. Mississippi·Decided June 6, 1974·No. No. EC 70-29-K·Published·Cited by 19 cases

Opinion

MEMORANDUM ORDER

KEADY, Chief Judge.

The court has before it the bill of costs submitted by plaintiffs in the sum of $5,147.51 and defendants’ written objections thereto. The items in controversy are discussed and ruled upon as follows:

1. Court reporter fees of $323.-90 for furnishing counsel copies of transcript of testimony and original transcript of pretrial conference are first considered. Ordinarily, copies of transcript ordered by counsel for convenience are not allowed, but in this protracted and difficult litigation involving testimony of a technical nature, the court is of the opinion that ordering the transcript was not only essential for the court’s understanding but that copies were necessary for counsel to effectively present their case in post-trial briefs. Similarly, the transcript of pretrial conference is a legitimate charge in the case. Defendants’ objection to this item is overruled.

2. Fees for witnesses in the total sum of $443.40 are objected to. We agree that of the witnesses for whom attendance and mileage are claimed, only Richard Sroges, James T. Marsh and Mrs. Raygene Dunlap are entitled to the amount set opposite their names. The other witnesses, Wade, Lindsey, Moody, Durham and Bailey, were named parties plaintiff and are by statute ineligible to claim witness fees. Defendants’ objection to Mrs. Dunlap is not well taken and her witness fee should be allowed; defendants' objection for allowance of attendance and mileage as to the named plaintiffs is sustained.

3. Defendants next object to the sum of $109.30 claimed as fees for exemplification and copies of papers necessarily obtained for use in the case. The basis of the objection is the failure of plaintiffs to itemize or explain the charge. Plaintiffs’ explanation is that the cost was incurred for copying several papers of the complaint required to be filed on individual defendants and for copies of plaintiffs’ trial exhibits furnished to the court and to counsel for both sides. This is an adequate explanation of the item and in our judgment recovery should be allowed. Defendants’ objection thereto is denied.

4. We next consider the objection made by defendants to $731.10 incurred for copies of depositions furnished by the court reporter to plaintiffs’ counsel. The originals of all depositions were filed at Aberdeen, Mississippi, a distant point from the residence of plaintiffs’ counsel, who had offices in Jackson and New York City. The originals were not readily available for inspection. The information contained in the pretrial depositions was useful and essential in the preparation of plaintiffs’ case. Because of the particular circumstances of this protracted and complex litigation, with the original depositions not being accessible to plaintiffs’ counsel, we exercise our discretion to allow the cost of the copies. United States v. Kolesar, 313 F.2d 835 (5 Cir. 1963). The exceptional circumstances here present justify the allowance of costs of obtaining copies by counsel. Defendants’ objection to this item is overruled.

5. The last item relates to a claim of expert witnesses in the amount [105]*105of $2,415.71. These charges are for amounts paid to plaintiffs’ experts, Dr. Sroges ($632.08), Mr. Marsh ($1,383.63) and Dr. Henderson ($200), each of whom charged fees at the rate of $50 per day for out-of-court preparation and $100 per day for court appearance, plus special personal expense. In addition, Tougaloo College made a charge of $200 for use of its computer and computer materials. No application was made in advance to the court for engaging these experts, whose testimony related entirely to statistical interpretations of certain records maintained by defendants. The expert witnesses had no direct knowledge of facts bearing upon issues related to the litigation; they merely undertook to give interpretative views that job discrimination on account of race existed on the basis of defendants’ records and documents. Although the expert opinions were of probative value, evidence of this nature was simply an alternative and not an essential method of proving plaintiffs’ case. Indeed, the statistical experts tended only to support the primary evidence offered by plaintiffs which was sufficient to establish their case without the necessity of statistical interpretation. Considering these circumstances, it is our view that we should not depart from the customary rule of disallowing fees for experts who are employed by a party without prior sanction or approval of the court. Baum v. United States, 432 F.2d 85 (5 Cir. 1970). This court’s allowance of an expert witness fee in Lela Mae Brooks v. Town of Sunflower, No. GC 71-57-K (N.D.Miss.1974) is readily distinguishable. In Brooks, plaintiffs were wholly dependent upon technical engineering study to contest successfully the sufficiency of the Town’s plans for installing a new municipal sanitary sewer system, extending water lines and furnishing other municipal services. Obviously, lay testimony in such a case was inappropriate and it was indispensable for the plaintiffs to obtain technical advice. Defendants’ objection to the claim of expert witnesses over and above the statutory subsistence and travel allowance is sustained.

Consistent with the foregoing, the following items are deducted from plaintiffs’ bill of costs:

Witness fees for five named plaintiffs Expert witness fees
Total costs claimed Less deductions ordered Allowable costs
$ 198.40 2,415.71 $2,614.11
$5,147.51
2,614.11
$2,533.40

SUPPLEMENTAL OPINION ORDER

This action is before the court on defendants’ objection to the bill of cost submitted to the Clerk for taxation by plaintiff-intervenor, United States of America, pursuant to Rule 54(d), F.R. Civ.P.

We begin with the observation that the United States stands on equal footing with a private litigant in its ability to recover costs as a prevailing party in civil actions. Pine River Logging & Improvement Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902); United.States v. Lynd, 334 F.2d 13 (5 Cir. 1964); 10 Federal Practice and Procedure, § 2672, p. 168-69. It is not significant that officials of the Department of Agriculture, an agency of the United States, were initially named as defendants in this action. The lawsuit was still in the embryonic stage when the court ordered realignment of such officials as party plaintiffs, and the Attorney General of the United States was allowed to intervene pursuant to 42 U.S.C. § 2000h-2. Nor is it arguable that plaintiff-intervenor is not a “prevailing party” merely because the court did not adopt each and every contention advanced nor order all relief requested. Lewis v. Pennington, 400 F.2d 806 (6 Cir. 1968); Hines v. Perez, 242 F.2d 459 (9 Cir. 1957); Sperry Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132 (E.D.Va. 1973).

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Wade v. Mississippi Cooperative Extension Service, 64 F.R.D. 102, 19 Fed. R. Serv. 2d 192, 1974 U.S. Dist. LEXIS 8187 (N.D. Miss. 1974).

64 F.R.D. 102 (Wade v. Mississippi Cooperative Extension Service) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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