*1 TREPEL, Dr. Martin Plaintiff-
Appellant,
v. EXPRESS, INC.,
ROADWAY
Defendant-Appellee.
No. 99-3457. Appeals,
United States Court of
Sixth Circuit.
Argued Jan.
Decided and Sept. Filed
$141,435.00 in the and “taxed costs” $40,100.84. These matters were amount of Magistrate Judge James S. referred Magistrate Judge Gallas issued Gallas. a Report and Recommendation which he plaintiffs motion recommended attorney’s fees denied and found for be $18,171.94 Trepel’s costs only of were properly taxable. The district court adopted the and Recommendation Trepel appeals now the decision in toto. stat- the district court. For the reasons below, we VACATE the district court’s ed regarding attorney’s fees and VA- decision district decisions re- CATE the court’s taxation travel ex- garding the of witness expert penses and the taxation of witness fees. deposition I. Facts briefed), (argued P. David Palmiere Hills, Palmiere, & Bloomfield McConnell 1993, plaintiff purchased an African MI, Plaintiff-Appellant. for “Baga known ser- carving tribal as $15,000. City in New York for pent” H. Richard Sigalow (argued), E. Steven thereafter, Trepel arranged Shortly (argued L. Deborah Hamilton Sayler, defendant, Roadway Express, have Jones, briefed), Day, Pogue, & Reavis Phoenix, Arizona, object transport Cleveland, OH, Defendant-Appellee. for part of the decor of where it would become JONES, BATCHELDER, and transport, Before During home. plaintiffs CLAY, Judges. major Circuit three was broken into serpent Plaintiff pieces. several minor pieces and JONES, J., opinion of the delivered a claim with the defendant filed CLAY, J., court, joined. in which Baga serpent. Defendant damages 427-29), BATCHELDER, (pp. J. delivered Trepel any contact about alterna- did not dissenting opinion. separate a dispute resolution forum initiate tive Plaintiff in such a forum. proceedings OPINION suit federal court. filed JONES, R. NATHANIEL Circuit 1997, plaintiff jury trial in called At Judge. witnesses, many of whom a number of The Plaintiff, (“Trepel”), from outside the State Ohio. Trepel Dr. Martin came Dr. Fredrick (“Roadway witnesses included Roadway Express, plaintiffs Inc. sued African, carrier, American and Roadway”), Lamp, Curator Express or a common Museum of for the Art for Baltimore Court Oceanic in the United States District Koestler, Art; research Dr. Robert J. damages Northern District Ohio in biodeterioration After re- and instructor of African tribal art. scientist an article Arts; favor, Fine Dr. Institute of jury in his at the NYU ceiving a verdict Stevenson, Harding Director in the amount Dennis moved for $8,525.00 at York Laboratory expert New Botanical witness fees that he Kahan, Gardens; Mr. Leonard of an Stevenson, owner paid Lamp, Dr. Dr. Dr. Koest- York; African gallery art New Michael ler, Kahan, Rosenburg, Dr. Mr. and Mr. Chisolm, teacher, appraiser scholar appear depositions Chisholm to taken *3 art; Hahn; of African Ann and Jo resi- by the defendant. The district court re- Phoenix, dent of Arizona who went to the ferred the motion for attorney’s fees and Roadway Express terminal to take deliv- the motion for Magistrate Judge costs to ery Baga serpent Trepel. of the for Gallas. Plaintiff also called three rebuttal wit- The issued a Oliver, nesses: Michael an African art and Recommendation in which he recom- dealer; Newton, Brian Douglas former plaintiff mended denying attorney’s fees Department Chairman of the of Art of ground plaintiff on the was not enti- Africa, Oceania and the Americas at the tled to recover attorney’s fees because the Metropolitan Art; Museum of and Fran- item “object involved is an of art” that is Ndiaye, cine former Curator of African exempt fee-shifting provision from the Art at the Musee de l’Homme Paris. 11711(d). 49 Regarding the wit- Mr. Kahan estimated that the fair market expenses, nesses’ magistrate travel value undamaged Baga serpent was judge proposed plaintiff only be 1.5 million dollars. Mr. Chisholm stated recoup allowed to travel for costs travel fair market value was 2.5 million (200 within 100 miles of the courthouse dollars. witness) miles total for each and recom- jury The plaintiff found for the and set mended that transportation these costs be $80,000. damages Judgement at in this per limited to mile. Based on the $0.31 17, amount July was entered on 1997. On limitations, distance and rate the magis- 8, 1997, September plaintiff moved for at- judge trate granting recommended torney’s fees under Section 7 of the House- plaintiff in travel costs for each of $62.00 Act, Transportation hold Goods 49 U.S.C. his nine Finally, witnesses. magis- 11711(d) (1993) 1995), (repealed which trate judge proposed plaintiffs re- was in Baga serpent effect when the was quest for expert-related deposition ex- 12, shipped September in 1993. On penses be grounds denied on the that it plaintiff filed a bill of costs. Plaintiffs bill was not by authorized statute. magis- The sought costs to tax the travel costs of judge’s trate findings adopted by were (Dr. his witnesses from New York Koest- district court in toto.1 ler, Stevenson, Kahan, Dr. Mr. Mr. Chis- holm, Newton, Oliver); Mr. Mr. Baltimore II. Discussion (Dr. (Ms. Lamp); Ndiaye); Paris Attorney’s A. Fees (Ms. Hahn). Trepel Phoenix claimed that the total amount of these travel costs As noted the district court $12,716.35. He also requested (adopting an order the magistrate judge’s Report compelling Recommendation) defendant to him reimburse Trepel’s denied mo- meantime, Trepel, In the agreed experts who was dissatis- court should have $80,000 verdict, jury appealed fied with the testify been allowed to about the basis for damages judgment trial court’s opinions. on several their On October 1999 the grounds, including argument jury’s damages that the trial award of was vacated and the court allowing abused its discretion case remanded to the trial court new experts testify regarding damages the bases for their trial only. Reply on the issue PL Br. opinions carving. as to the value of the This at 14-15.
421 96-1372, H.R.Rep. No. ground going to court. See attorney’s fees on tion for (1980), statutory reprinted basis for such there was no (“The Trepel contends that new appeal, award.2 U.S.C.C.A.N. section On is enti requirements the district court erred because he establishes minimum for in- under House attorney’s dispute programs tled to formal settlement to be Act. Transportation hold Goods established carriers 11711(d) The resolving purpose shipper for the dis- generally fees is re fair, denial of in a putes expeditious, inexpen- manner.”). viewed of discretion. See Cram for abuse sive Fikse, F.3d blit v. Cir. “encourage” order carriers *4 1994). However, the denial of attor when dispute programs make settlement avail- of a ney’s on construction fees is based able, Transportation the Household Goods statute, novo de review. See we exercise stipulated Act common that carriers who Inc. System v. United Columbia Gas dispute not resolution program did make a (Fed.Cir.1995). States, 1244, 1246 70 F.3d attorney’s available be liable for would if prevailed a customer on his claim. See Background 1. 11711(d) (“the id.; § shipper 49 U.S.C. 1980, Congress In the House- enacted attorney’s shall be reasonable awarded Act, Transportation hold Goods ... dispute program fees if settlement no remedy problems § in seq., 10101 to et approved under this section was available industry. shipping One of the interstate shipper for use to resolve this dis- problems apparently shippers faced However, pute.”). the Act did not make that carriers goods household common attorney’s all fees available to successful their claims because recognize refused to 11711(f), litigants. According to the at- that few household the carriers knew torney’s provision only applied fee-shifting engage expen- in goods shippers would collect-on-delivery transpor- “in the case of damage recover for to com- sive lawsuit to types goods tation of those of household relatively mon items of little household 10102(11)(A) described in section of this rectify problem, order to value.3 In 11711(f) (1993) (re- 49 title.” U.S.C. Transportation Act the Household Goods 1995). pealed provide proposed shippers arbitration 10102(11) provided defi- programs 49 dispute resolution so goods.” provi- nition of “household This damages recover without customers could damage plaints] the loss or prevailing party a were related to 2. It is well established statutory recoup complaints handling arising must basis in order to goods have a and the Alyeska Pipeline attorney’s Serv. Co. fees. See damage H.R.Rep. or ...” No. such loss 255, 240, Soc’y, 421 U.S. 95 96-1372, v. Wilderness (1980), reprinted 2 1980 1612, (1975); Cooper S.Ct. 141 v. L.Ed.2d 4271, "[T]he 4272. Committee U.S.C.C.A.N. Educ., County Bd. Williamson recognizes many users of household Cir. ordinary goods unfa- carriers are consumers industry works miliar with and with- how No. 96-1372 states that: House leverage of commercial out the economic moving industry "The is the persons shippers. tend be more These single frequent subject of consumer most and, hence, shippers other vulnerable than complaints to the Interstate Commerce Com- necessary protections are not need of During the Commission re- mission. shippers.” Id. at re- other motor carrier 24,609 complaints, an aver- ceived consumer printed in U.S.C.C.A.N. per age complaints shipments of 2.1 transported percent [of .... 43.13 these com- categories Roadway Express sion described three of house- defendant sets forth two goods. arguments why Trepel hold different toas not entitled to fees under this (A) personal property effects used statute. dwelling part or to be used when equipment supply or of such a.) Shippers Covered dwelling property moving ... [but not] store, factory except
from a such First, Roadway argues that it is property pur- as the householder has pay attorney’s fees under dwelling chased with intent to use his 11711(d) because it is not a member of transported request and which is at the moving industry. sup the household of, transportation charges paid and the port argument, points of this Roadway householder; by, to the carrier legislative history argues which it indicates (B) that the Household fixtures, Transportation Goods furniture, equipment and Act was intended stores, apply to the “house offices, museums, property goods moving industry apart hold institutions, from the hospitals or other establish- trucking rest of the industry.” H.R.Rep. except., ... ments the stock-in-trade of *5 96-1372, No. at establishment, reprinted in 1980 any consignor whether or at Roadway argues U.S.C.C.A.N. 4271. consignee, other than used furniture and that it clearly part is not of the fixtures, household except transported used when goods moving industry because it is not moving as incidental to of the establish- ment, carry goods; certified to household it thereof, does portion from or one go any shipper’s to another; transport home and location to and his or her household contents to a new (C) articles, art, including objects of dis- location; spe residential it does not have exhibits, plays and which of because equipment personnel; cialized and trained require their unusual nature or value and it does not hold itself out as a mover specialized handling equipment and usu- goods. of household Accordingly, Road ally employed moving household way subject concludes it is not to the fee- goods except ... that subparagraph this shifting provisions of the Household Goods any shall not be construed to include Act, Transportation and therefore is not article, uncrated, whether crated or pay Trepel’s attorney’s to fees. not, which does because of its unusual disagree. We value, require specialized nature or the handling equipment usually em- First, legislative the history does not ployed in moving goods. household clearly indicate that Congress intended the 11711(d) provision fee-shifting of section to 10102(11) (1993) (repealed § 49 U.S.C. apply solely to the household mov- 1995). attorney-fee As noted Rather, ing industry. the House shifting provisions applied only “person- to only suggests prompt- that various factors property al effects and used or to be used ed the Committee on Public Works and in a dwelling” part described A. Transportation to ... ] “considerf Analysis goods moving industry apart appeal, Trepel argues On that he is enti- rest trucking industry.” of the tled to attorney’s Baga fees because the at reprinted Id. in 1980 U.S.C.C.A.N. serpent shipped “personal he is a language any This does not take effect ... dwelling” position to be used in a under scope on the ultimate 10102(11)(A). § response, In Transportation Household Goods Act. 1995). 10102(11) (1993) 11711(d) (repealed §
Moreover, explicitly U.S.C. section However, fee-shifting provisions of sec- ap- fee-shifting provision states 117711(d) ef- only apply “personal to carrier tion “motor common any plies subject property” to the described in section transportation fects providing 10102(11)(A). According Roadway under Ex- of the Commission jurisdiction 10102(11) this ti- chapter II 105 of three press, subsections subchapter 11711(d) (1993) exclusive. The defendant mutually tle....”4 are Roadway undis- serpent Since Baga since that the contends that description, this falls within putedly “object of art” as described in clearly is statute indicates language of the plain 10102(11)(C), “personal it cannot be a apply to fee-shifting provisions “property” under effect” the stat- Roadway Express. Given 10102(11)(A), and is therefore not cov- unambiguous, is utory language fee-shifting provisions. ered legislative clearly expressed is no there interpretation, this Road- support we find that contrary, intent intended this way Congress asserts that is conclusive. of the statute language when the shippers redress give statute to Austin, Bradley v. See damaged was too small cost of the item Cir.1988) (“If find that the we on expense litigation. Based justify the then unambiguous, is statutory language intent, fee-shifting argues as conclusive language regarded not meant to cover “ob- provisions were legisla- clearly expressed unless there is of these jects art” because the owners contrary.”) (citing tive intent already have a objects would expensive Known as v. Premises United States Alternatively, incentive to sue. sufficient *6 Road, Shelby Old Brownsville Trepel’s that Roadway Express argues Tennessee, F.2d 1130 County, 736 sub- exclusively fall within serpent should (6th Cir.1984)). (C) statutory the rules of section because specific pro- interpretation dictate that b.) Covered Household Goods one. See general over the governs vision that this Express argues also Roadway Airlines, Inc., 504 Morales Trans World v. serpent apply Baga to the does not statute 374, 384, 119 L.Ed.2d 112 S.Ct. U.S. of art.” As noted “object it is an because (1992). 157 10102(11) three describes section of persuaded by either (A) are not We “per- goods: categories of Roadway’s argument arguments. these to be property used or sonal effects preclude cus intended to (B) “furniture, Congress that fix- dwelling,” in a used from “objects of art” shipped tomers who tures, of property and the equipment provisions because (C) fee-shifting museums, [etc.,]” using the stores, offices, to sue is not incentive art, they 49 have sufficient and exhibits.” “objects displays of provide vehicle trans- motor chapter pro- general public to subchapter of 105 II regular or vided, compensation over portation for Commission “the Interstate Commerce routes, 49 U.S.C. irregular or both.” by transportation motor jurisdiction over has 1995). (1993) 10102(14) (repealed Accord- passen- the extent that carrier ... common Express both, Roadway does ingly, given that transported by property are gers, common carri- dispute was a "motor that it carrier....” motor er,” "mo- dispute it was also a it cannot to 49 U.S.C. Pursuant carrier,” subject 10102(4) and that it tor carrier” includes the term "motor subchapter II of carriers,” jurisdiction of the ICC under which are defined common “motor section 105. "holding out to the persons [themselves] as serpent it the fact within convincing plainly because overlooks falls this section be- many “objects people ship of art” that personal Trepel cause it is a effect that Roadway’s monetary are of little value. planned dwelling to use his in Arizona. have the ridiculous interpretation would serpent While it true that is is inexpensive precluding owners of effect of “object of art” and also falls under subsec- making just art from use of this statute (C) there is in the nothing plain tion lan- “object item is an of art” and because the guage of the statute to indicate property.5 We not some other household precludes part fact it from also being Congress do intended such not believe (A). Accordingly, subsection we find that Congress If wanted to exclude a scheme. adopted district court erred when it expensive objects coverage under magistrate judge’s Report and Recom- 10102(A), §(cid:127) easily by it could have done so Baga serpent mendation and held that the However, cap. a dollar implementing by fee-shifting provision not covered did not. 11711(d). Austin, §of See 841 F.2d at Furthermore, (“In we do not believe determining meaning leg- specific provision islation, that the maxim that the look plain we must first govern general applicable should itself.”). one is language of the statute specific provi in this case. The rule that a govern general sion should a more one is a c.) Waiver
helpful apply rule of thumb to when it is magistrate judge, Before the Roadway necessary conflicting to reconcile two stat argued Trepel if even is entitled to However, utory provisions. rea we see no attorney’s 11711(d), under fees he apply son to this rule in the instant case right waived his since there is no conflict between fail- inherent provisions nothing ing complaint and there is to recon to claim them his States, failing cile. See Gallenstein v. United to file a motion for attorney’s fees (6th Cir.1992) (The general F.2d within 14 days entry judgment. specific governs general rule that Since the denied apply plain “does not when the language that, Attorney’s grounds plain- fees on the *7 the two can be reconciled with subsections tiff was not to them entitled under the out need application general for Transportation Act, Household Goods he rule.”). question never reached the of whether Trepel had waived right attorney’s his to
Finally, importantly, and we most find fees. Given that the district court adopted Roadway’s argument supported not toto, magistrate report judge’s in it did plain language of the statute. Sec- not reach the waiver issue either. In 11711(f) light tion simply states that the attor- Trepel holding our is entitled to ney’s provisions apply of the statute 11711(d), § attorney’s fees under we re- only types of household de- 10102(11)(A). mand to §in in this case the district court to scribed That section “personal prop- turn refers to determine whether waived right effects his erty” dwelling. Baga to be used The to fees. 10102(11)(C) 10102(11)(C) added) (emphasis
5. As noted
includes
U.S.C.
"objects
1995). Thus,
of art
... which because of their
an item need
special-
require
unusual nature or value
not be valuable to be covered
subsection
handling
equipment usually
ized
em-
(C).
ployed
moving
goods.’’
in travel costs for each
plaintiff
$62.00
B. Taxed Costs
of his nine witnesses. The district court
Expenses
1. Travel
adopted
judge’s recommen-
magistrate
1997,
12,
plaintiff filed a
September
On
the district
dation in toto. We review
sought
bill of
Plaintiffs
costs
bill of costs.
for
court’s award of taxation of costs
an
of his witnesses
the travel costs
to tax
Jones v. Conti-
abuse of discretion. See
(Dr. Koestler, Dr. Steven-
New York
(6th
Corp.,
nental
789 F.2d
Kahan,
Chisholm,
son,
Mr. New-
Mr.
Mr.
Cir.1986).
(Dr.
Baltimore;
ton,
Oliver);
Lamp);
Mr.
(Ms.
(Ms. Ndiaye); and Phoenix
Paris
a.) Rate Restriction
Hahn). Trepel
the total
claimed
district
agree with the
court
We
travel
costs was
these
amount
preferable for
that it would have been
$12,716.35.
receipts
plaintiff
supply
actual witness
bill of
reviewing
plaintiffs
After
however,
expenses;
for travel
wé believe
costs,
judge recommended
magistrate
that the district court
its discretion
abused
expenses
travel
Trepel’s witnesses
limiting
expenses
it limited witness
when
$0.31
judge
per
magistrate
mile. The
to $0.31
per mile.
justified
limit was
because
stated that this
by stat-
receipts
Actual
are not
pay-
demands for
Trepel only submitted
1821(c)(1),
ute or case law. 28 U.S.C.
witnesses,
sup-
and did not
from his
ment
of a
payment
which discusses the
witness’
in-
receipts. He
the witnesses’ actual
ply
carrier,
a common
expenses for travel on
the weakness of the
“[g]iven
dicated that
receipt or
specifically
“[a]
states that
other
reasonable-
supporting documentation” the
shall be furnished.”
evidence of actual cost
pay-
plaintiffs
demands
ness
1821(c)(1) (1994) (emphasis
$1,000
ment,
cab
included over
which
added).
federal courts have
Accordingly,
fare,
“seriously
question.”
was
parties
present
required prevailing
Supreme
decision
Citing the
Court’s
have allowed them to
receipts
actual
Co.,
Arabian Am. Oil
379 U.S.
Farmer v.
Holmes v.
include affidavits instead. See
(1964),
Based for seeking to bill the defendant plaintiff is judge granting recommended magistrate 426 (“[T]he trial transportation services is court must state its reasons
overly generous
appellate
to the
for the denial of costs so that the
supported
According
the record.
able
whether
submissions,
court will be
to determine
or
seven of the nine
plaintiffs
discretion.”).
not the trial court abused its
coach
question
in
flew
class to
witnesses
Although it
Cleveland.
J.A. at 231.
considering
“In
whether
to allow ex
class,
flew
true that two witnesses
first
miles,
penses
travelling
for
in excess of 100
compensation
full
plaintiff
request
did not
length
the court should consider the
of the
tickets, but rather sub-
for the first class
journey,
necessity
testimony,
expenses
on the relevant
mitted
based
possibility
averting
and the
the travel
addition,
231, 238. In
coach fare. J.A. at
Soberay
Equip.
Machine
expense.”
&
Co.
plaintiffs
for cab fare was based on
bill
Ltd,., Inc.,
v. MRF
2494,
§ For the 1920 now embodies the kinds of ex reasons stated we VA- CATE the district penses may holding that a federal court tax court’s as plaintiff is not entitled against losing party). costs After fees re 11711(d) § under 49 evidence, and REMAND viewing for a determination as to Trepel whether Trepel held that since was not entitled to waived right attorney’s fees, his and a expert witness fees under 1920 or fees, calculation of if necessary. those We 1821, he recovering any was barred from also VACATE the district court’s determi- magistrate such fees under Rule 54. The expenses nation of travel and REMAND judge suggest also seemed to that the fact to allow the explain district court to its that Trepel was not entitled to recover decision to limit witness travel expert deposition witness costs under radius, a 100 mile and to determine travel precluded him recovering from expenses accordingly. Finally, we VA- them under Federal Rule of Civil Proce7 CATE the district grant court’s refusal to 26, governs discovery dure which ex expert deposition witness RE- costs and penses. implicitly The district court MAND to the district court for a determi- adopted adopted suggestion when nation expert Trepel of what witness fees the magistrate judge’s and Recom is entitled to recover under Federal Rule mendation in toto. of Civil Procedure 26. Although it is clear that is BATCHELDER, Circuit Judge, deposition not entitled to under costs Rule dissenting. 54, preclude this fact him does not I respectfully dissent. obtaining post-judgment reimbursement First, I majority think the misconstrues magistrate these costs. As the judge the statute noted, authorizing attorney’s Supreme Court’s deci Crawford finding may items be classified in only precludes recovery sion under Rule multiple I think if categories. we 54 when explicit statutory there is no au accept majority’s reading pro- case, thority. In this statutory authority visos set out in the are not mutual- statute provided by Rule 26. See Louisiana 11711(f) exclusive, ly we rob 49 U.S.C. Kellstrom, Light Power & v.Co. 50 F.3d 1995) any purpose, Cir.1995) (Rule 26(b)(4)(C) render the Congress distinctions drawn provides independent recovery basis for meaningless. expert part discovery); fees as Ingram, Chambers v. 360-61 brief, plaintiff In his advances the (7th Cir.1988) (litigant’s post-judgment re argument that fee-shifting provisions' “the 26(b)(4)(C) quest for costs under Rule curing of the Act were aimed at a social ill timely even though requested he never arising shipping the interstate indus- deposition); such costs at the time of Lan try.” problem He elaborates on the Lord, caster v. No. 90 Civ WL suing damage goods, done to household (S.D.N.Y. 1993) Mar.31, at **1 noting: “Everyday experience teaches (same). Therefore, we remand this case to property shipped by most household com- court depo- district to determine what mon carrier value than has less the cost *10 availability dispute of alternative resolu- breakage. for its
any litigation to recover tion, provision recovery legal the of and settings, in the carrier could Thus most congressional is intent of vital to the litiga- the of simply hide behind from careless mov- protecting consumers tion, knowledge the in the secure of might high ers who hide behind the wall to going start injured customer is litigation Although proviso costs. second a pay compara- lawsuit to expensive goods to their first are similar character tively expensive piece property.” less of brethren, proviso the owners of second However, point taken. it Id. This is well institutions) (businesses proviso goods and exception to to me that the obvious seems power significantly bargaining hold more to “hide behind the being a carrier’s able a who and resources than does homeowner the litigation” property of is when expense might employ only common carriers on rarity. or damaged significant is of value in his few occasions lifetime. Businesses serpent just Baga The is such an item. likely are to use and institutions more tripartite proviso scheme forth The set common carriers and would of- frequently, only by Congress supports the idea that bring pressure ten be able to economic to relatively of low in relation to items value by threatening to withhold future bear the costs of are covered litigation business, and would be able to shoul- more fee-shifting provision. type goods The of litigation necessary. if der the costs of (A), typically in subsection referred listed proviso Third are goods significant of such proviso” goods, encompasses as “first to unique potential value and nature that the items such as furni- standard household damages injury for loss or to them would fixtures, ture, knick-knacks other and outweigh litigation, making the costs of relatively monetary that are low goods of remedy suit a and effective and meaningful value, easily replaceable. and This is the Further, uniqueness of deterrent. category goods fee-shifting of to which the proviso goods likely require third is to provision specifically applies. See value, expert opinion to establish their 11711(d) (1993) 1995). (repealed making dispute of some forms alternative proviso goods, Second listed subsection unappealing. resolution (B) are to proviso similar character first Further, art the idea a work of are in a or goods, employed but business specific classification of slides from proviso Third setting. goods institutional (C) subsection to broader classification items, art, specialty objects are as such (A) “personal effect” under subsection because unusual “which of their nature merely place owner to because the intends require specialized handling value and it in a of the purpose home defeats equipment employed moving original in- categorization. congress Had §10102(11)(C) goods....” objects occupy tended to allow more expressly category, than one could have Invoking plaintiffs explanation Instead, said so in the statute. it created underlying passage the reasons subsections, three alternative fee-shifting language, logic there is clear attor- dispute recovery resolution be requiring categories read as ney’s only one these fees for subsec- exclusive of one another. Because of the Baga serpent tions. I hold that would relatively easy replaceability exclusively low cost is a of art” that fits “work proviso goods, paying of first a customer in the third within the class of listed unlikely I proviso. Accordingly, his own fees is to resort would hold Therefore, fee-shifting language inapplicable litigation for redress. *11 brought damage third-provi- a suit of a item.
so
n Second, I do not believe the district
court abused in limiting its discretion trav- expenses
el taxed as costs. An abuse of
discretion is defined as a “definite and firm
conviction the trial court committed a judgment.”
clear error of United v. States
Mack, Cir.1998),
(quoting Logan v. Dayton Corp., Hudson (6th Cir.1989)). F.2d I am
simply enforcing unconvinced that the “100 disallowing
mile rule” and certain travel Indeed,
expenses rises to such level. view,
my approving these would
have been abuse of discretion. LeMARBE, Plaintiff-Appellee,
Richard
v. WISNESKI,
Jerome J. Defendant-
Appellant, Fairbanks;
Sharon Dennis
Straub, Defendants.
No. 00-1383. Appeals,
United States Court
Sixth Circuit.
Argued June
Decided Sept. and Filed