Dr. Martin Trepel v. Roadway Express, Inc.Dr. Martin Trepel v. Roadway Express, Inc.
Lead Opinion
JONES, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, J. (pp. 427-29), delivered a separate dissenting opinion.
OPINION
Plaintiff, Dr. Martin Trepel (“Trepel”), sued Roadway Express, Inc. (“Roadway Express or Roadway”), a common carrier, in the United States District Court for the Northern District of Ohio for damages to an article of African tribal art. After receiving a jury verdict in his favor, Trepel moved for attorney’s fees in the amount of $141,435.00 and “taxed costs” in the amount of $40,100.84. These matters were referred to Magistrate Judge James S. Gallas. Magistrate Judge Gallas issued a Report and Recommendation in which he recommended that the plaintiffs motion for attorney’s fees be denied and found that only $18,171.94 of Trepel’s costs were properly taxable. The district court adopted the Report and Recommendation in toto. Trepel now appeals the decision of the district court. For the reasons stated below, we VACATE the district court’s decision regarding attorney’s fees and VACATE the district court’s decisions regarding the taxation of witness travel expenses and the taxation of expert witness deposition fees.
I. Facts
In 1993, plaintiff purchased an African tribal carving known as the “Baga serpent” in New York City for $15,000. Shortly thereafter, Trepel arranged to have the defendant, Roadway Express, transport the object to Phoenix, Arizona, where it would become part of the decor of the plaintiffs home. During transport, the serpent was broken into three major pieces and several minor pieces. Plaintiff filed a claim with the defendant for the damages to the Baga serpent. Defendant did not contact Trepel about any alternative dispute resolution forum or initiate proceedings in such a forum. Plaintiff filed suit in federal court.
At the jury trial in 1997, plaintiff called a number of witnesses, many of whom came from outside the State of Ohio. The plaintiffs witnesses included Dr. Fredrick Lamp, Curator of African, American and Oceanic Art for the Baltimore Museum of Art; Dr. Robert J. Koestler, a research scientist and instructor in biodeterioration at the NYU Institute of Fine Arts; Dr. Dennis Stevenson, Director of the Harding
Plaintiff also called three rebuttal witnesses: Michael Oliver, an African art dealer; Brian Douglas Newton, former Chairman of the Department of Art of Africa, Oceania and the Americas at the Metropolitan Museum of Art; and Francine Ndiaye, former Curator of African Art at the Musee de l’Homme in Paris. Mr. Kahan estimated that the fair market value of the undamaged Baga serpent was 1.5 million dollars. Mr. Chisholm stated that the fair market value was 2.5 million dollars.
The jury found for the plaintiff and set damages at $80,000. Judgement in this amount was entered on July 17, 1997. On September 8, 1997, plaintiff moved for attorney’s fees under Section 7 of the Household Goods Transportation Act,
The magistrate judge issued a Report and Recommendation in which he recommended denying plaintiff attorney’s fees on the ground that plaintiff was not entitled to recover attorney’s fees because the item involved is an “object of art” that is exempt from the fee-shifting provision of
II. Discussion
A. Attorney’s Fees
As noted above, the district court (adopting the magistrate judge’s Report and Recommendation) denied Trepel’s mo
1. Background
In 1980, Congress enacted the Household Goods Transportation Act,
In order to “encourage” carriers to make dispute settlement programs available, the Household Goods Transportation Act stipulated that common carriers who did not make a dispute resolution program available would be liable for attorney’s fees if a customer prevailed on his claim. See id.;
(A) personal effects and property used or to be used in a dwelling when a part of the equipment or supply of such dwelling ... [but not] property moving from a factory or store, except such property as the householder has purchased with intent to use in his dwelling and which is transported at the request of, and the transportation charges paid to the carrier by, the householder;
(B) furniture, fixtures, equipment and the property of stores, offices, museums, institutions, hospitals or other establishments ... except., the stock-in-trade of any establishment, whether consignor or consignee, other than used furniture and used fixtures, except when transported as incidental to moving of the establishment, or a portion thereof, from one location to another; and
(C) articles, including objects of art, displays and exhibits, which because of their unusual nature or value require specialized handling and equipment usually employed in moving household goods ... except that this subparagraph shall not be construed to include any article, whether crated or uncrated, which does not, because of its unusual nature or value, require the specialized handling and equipment usually employed in moving household goods.
2. Analysis
On appeal, Trepel argues that he is entitled to attorney’s fees because the Baga serpent that he shipped is a “personal effect ... to be used in a dwelling” under
a.) Shippers Covered
First, Roadway argues that it is not required to pay attorney’s fees under
First, the legislative history does not clearly indicate that Congress intended the fee-shifting provision of
b.) Household Goods Covered
Roadway Express also argues that this statute does not apply to the Baga serpent because it is an “object of art.” As noted above,
In support of this interpretation, Roadway asserts that Congress intended this statute to give shippers redress when the cost of the item damaged was too small to justify the expense of litigation. Based on this intent, it argues that the fee-shifting provisions were not meant to cover “objects of art” because the owners of these expensive objects would already have a sufficient incentive to sue. Alternatively, Roadway Express argues that Trepel’s serpent should fall exclusively within subsection (C) because the rules of statutory interpretation dictate that the specific provision governs over the general one. See Morales v. Trans World Airlines, Inc.,
We are not persuaded by either of these arguments. Roadway’s argument that Congress intended to preclude customers who shipped “objects of art” from using the fee-shifting provisions because they have sufficient incentive to sue is not
Furthermore, we do not believe that the maxim that the specific provision should govern the general one is applicable in this case. The rule that a specific provision should govern a more general one is a helpful rule of thumb to apply when it is necessary to reconcile two conflicting statutory provisions. However, we see no reason to apply this rule in the instant case since there is no inherent conflict between provisions and there is nothing to reconcile. See Gallenstein v. United States,
Finally, and most importantly, we find that Roadway’s argument is not supported by the plain language of the statute.
c.) Waiver
Before the magistrate judge, Roadway argued that even if Trepel is entitled to attorney’s fees under
1. Travel Expenses
On September 12, 1997, plaintiff filed a bill of costs. Plaintiffs bill of costs sought to tax the travel costs of his witnesses from New York (Dr. Koestler, Dr. Stevenson, Mr. Kahan, Mr. Chisholm, Mr. Newton, Mr. Oliver); Baltimore; (Dr. Lamp); Paris (Ms. Ndiaye); and Phoenix (Ms. Hahn). Trepel claimed that the total amount of these travel costs was $12,716.35.
After reviewing the plaintiffs bill of costs, the magistrate judge recommended limiting Trepel’s witnesses travel expenses to $0.31 per mile. The magistrate judge stated that this limit was justified because Trepel only submitted demands for payment from his witnesses, and did not supply the witnesses’ actual receipts. He indicated that “[g]iven the weakness of the supporting documentation” the reasonableness of the plaintiffs demands for payment, which included over $1,000 for cab fare, was “seriously in question.”
Citing the Supreme Court’s decision in Farmer v. Arabian Am. Oil Co.,
Based on these limitations, the magistrate judge recommended granting the plaintiff $62.00 in travel costs for each of his nine witnesses. The district court adopted the magistrate judge’s recommendation in toto. We review the district court’s award of taxation of costs for an abuse of discretion. See Jones v. Continental Corp.,
a.) Rate Restriction
We agree with the district court that it would have been preferable for the plaintiff to supply actual witness receipts for travel expenses; however, wé believe that the district court abused its discretion when it limited witness expenses to $0.31 per mile.
Actual receipts are not required by statute or case law.
In this case, plaintiff submitted a list of the travel expenses incurred by his witnesses. This list was accompanied by an affidavit in which his attorney swore that the taxed bill of costs was' correct and that “the services for which fees have been charged were actually and necessarily performed.” J.A. at 117. Given that the defendant did not supply any evidence that these costs were not actually incurred, we find that the magistrate judge’s skepticism of the witness’ costs is unfounded.
Furthermore, we do not believe that the magistrate judge’s suggestion that the plaintiff is seeking to bill the defendant for
b.) Distance Restriction
We find ourselves unable to review the district court’s decision to limit the plaintiffs travel expenses to a 100 mile radius because neither the magistrate judge nor the district court provided an adequate explanation of its reasons for this limitation. See Subscription Television, Inc. v. Southern California Theatre Owners Ass’n,
“In considering whether to allow expenses for travelling in excess of 100 miles, the court should consider the length of the journey, the necessity of the testimony, and the possibility of averting the travel expense.” Soberay Machine & Equip. Co. v. MRF Ltd,., Inc.,
C. Deposition Fees
As noted above, the magistrate judge also proposed rejecting Trepel’s request for an order compelling defendant to reimburse him for $8,525.00 in expert witness fees that he paid Dr. Lamp, Dr. Stevenson, Dr. Keostler, Dr. Rosenburg, Mr. Kahan, and Mr. Chisholm to appear at depositions taken by the defendant. According to the magistrate judge,
Although it is clear that Trepel is not entitled to deposition costs under
III. Conclusion
For the reasons stated above, we VACATE the district court’s holding that plaintiff is not entitled to attorney’s fees under
Notes
. In the meantime, Trepel, who was dissatisfied with the $80,000 jury verdict, appealed the trial court’s damages judgment on several grounds, including the argument that the trial court abused its discretion by not allowing experts to testify regarding the bases for their opinions as to the value of the carving. This court agreed that the experts should have been allowed to testify about the basis for their opinions. On October 15, 1999 the jury’s award of damages was vacated and the case remanded to the trial court for a new trial on the damages issue only. PL Reply Br. at 14-15.
. It is well established that a prevailing party must have a statutory basis in order to recoup attorney’s fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
. House Report No. 96-1372 states that: "The household goods moving industry is the single most frequent subject of consumer complaints to the Interstate Commerce Commission. During 1979, the Commission received 24,609 consumer complaints, an average of 2.1 complaints per 100 shipments transported .... 43.13 percent [of these complaints] were related to the loss or damage of goods and the handling of complaints arising from such loss or damage ...” H.R.Rep. No. 96-1372, at 2 (1980), reprinted in 1980 U.S.C.C.A.N. 4271, 4272. "[T]he Committee recognizes that many users of household goods carriers are ordinary consumers unfamiliar with how the industry works and without the economic leverage of commercial shippers. These persons tend to be more vulnerable than other shippers and, hence, in need of protections that are not necessary for other motor carrier shippers.” Id. at 5, reprinted in 1980 U.S.C.C.A.N. 4271, 4275.
. In 1993, subchapter II of chapter 105 provided, “the Interstate Commerce Commission has jurisdiction over transportation by motor common carrier ... to the extent that passengers, property or both, are transported by motor carrier....”
. As noted above,
. According to the plaintiff, the common taxi fare from the Cleveland Airport to Akron is approximately $70. J.A. at 233.
. In Linneman Constr., Inc. v. Montana-Dakota Util. Co., Inc. the Eighth Circuit held that travel expenses for additional mileage "may be justified when the witness is a necessary and material witness in the proceedings and does not give merely redundant or cumulative testimony.”
Dissenting Opinion
dissenting.
I respectfully dissent.
First, I think the majority misconstrues the statute authorizing attorney’s fees by finding that items may be classified in multiple categories. I think that if we accept the majority’s reading that the provisos set out in the statute are not mutually exclusive, we rob
In his brief, the plaintiff advances the argument that “the fee-shifting provisions' of the Act were aimed at curing a social ill arising in the interstate shipping industry.” He elaborates on the problem of suing for damage done to household goods, noting: “Everyday experience teaches that most household property shipped by common carrier has less value than the cost of
The tripartite proviso scheme set forth by Congress supports the idea that only items of relatively low value in relation to the costs of litigation are covered by the fee-shifting provision. The type of goods listed in subsection (A), typically referred to as “first proviso” goods, encompasses standard household items such as furniture, fixtures, knick-knacks and other goods that are of relatively low monetary value, and easily replaceable. This is the category of goods to which the fee-shifting provision specifically applies. See
Invoking the plaintiffs explanation of the reasons underlying the passage of the fee-shifting language, there is a clear logic to requiring that the categories be read as exclusive of one another. Because of the relatively low cost and easy replaceability of first proviso goods, a customer paying his own attorney’s fees is unlikely to resort to litigation for redress. Therefore, the availability of alternative dispute resolution, and the provision for recovery of legal fees is vital to the congressional intent of protecting consumers from careless movers who might hide behind the high wall of litigation costs. Although second proviso goods are similar in character to their first proviso brethren, the owners of second proviso goods (businesses and institutions) hold significantly more bargaining power and resources than does a homeowner who might employ common carriers on only a few occasions in his lifetime. Businesses and institutions are more likely to use common carriers frequently, and would often be able to bring economic pressure to bear by threatening to withhold future business, and would be more able to shoulder the costs of litigation if necessary. Third proviso goods are of such significant value and unique nature that the potential damages for loss or injury to them would outweigh the costs of litigation, making suit a meaningful and effective remedy and deterrent. Further, the uniqueness of third proviso goods is likely to require expert opinion to establish their value, making some forms of alternative dispute resolution unappealing.
Further, the idea that a work of art slides from the specific classification of subsection (C) to the broader classification of “personal effect” under subsection (A) merely because the owner intends to place it in a home defeats the purpose of the original categorization. Had congress intended to allow objects to occupy more than one category, it could have expressly said so in the statute. Instead, it created three subsections, and required alternative dispute resolution and recovery of attorney’s fees for only one of these subsections. I would hold that the Baga serpent is a “work of art” that fits exclusively within the class of goods listed in the third proviso. Accordingly, I would hold that the fee-shifting language is inapplicable to
■ Second, I do not believe the district court abused its discretion in limiting travel expenses taxed as costs. An abuse of discretion is defined as a “definite and firm conviction that the trial court committed a clear error of judgment.” United States v. Mack,