Howard Farmer v. Arabian American Oil Company

LUMBARD, Judgе,, Chief Before CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, MARSHALL, Judges. HAYS and consisting (with Judges Lumbard, LUMBARD, Smith Chief FRIENDLY, Hays, judges Judges MOORE, and agreed the active of this whom concur). appeal con- MARSHALL KAUFMAN and in banc. sidered question presents appeal a This administration cast Some earlier decisions namely a litigation, power of civil judgment appealability doubt on a judge trans to tax costs district solely for Con costs. See Newton v. from portation to trial of witnesses Co., 78, solidated 44 Gas 265 U.S. S.Ct. judicial places district without the 481, (1924); 68 L.Ed. 909 The James from the miles distant more than 100 place 1931); McWilliams, (2 49 F.2d 1026 Cir. for hold that of trial. We Lee, 1934). (9 Walker v. F.2d 622 Cir. 71 may and in the be allowed such However, 54(d) Rule of the Federal holding examine the of that governs Rules of Civil now Procedure rulings respect made with thereto granting “Except costs. It states: judges trials two district express provision when an therefor alleged of his for an breach Farmer’s suit made either a statute United employment. contract of rules, or in these States costs shall be litiga prevailing Farmer instituted this Howard allowed of course to the May 24, 1956, unless the court tion otherwise directs * * against County, Court, provision, York New The effect of this Company 1920,1 American Oil Arabian combined with 28 U.S.C. tois § right statutory Aramco removed cause (Aramco). make ject costs sub judicial District United States Court discretion. Within the York, statutory scheme, District of New there the Southern careful no hint in being diversity citizenship. A trial tent to create element of uncontrolled found, had Palmieri and a lightly was before can discretion nor is one jury, jury implied. a which terminated in dis Furthermore, to be it is un Thereafter, agreement. questionably portion Aramco’s mo true that the granted, relating judgment for a directed verdict was tion to costs be re (1959), appeal, 176 45 but this deter viewed cretion, for abuse of that dis reversed, Cir., D.C., 2 mination we 277 if other issues are also raised. 46, denied, g., See, F.2d cert. 364 U.S. 81 e. Chemical Bank & Trust v.Co. (1960), L.Ed.2d Corp., S.Ct. 5 53 (2 neces Prudence-Bonds 207 F.2d 67 sitating 1953), a second trial. Farmer failed Cir. 347 U.S. 74 S.Ct. directing comply Chicago order costs, him Sugar (1954); L.Ed. 1063 98 security post Sugar Refining and the action Co., v. American Co. 176 again reversed, (7 1949), was dismissed. We denied, F.2d 1 Cir. cert. 338 holding that order constituted an 70 S.Ct. 94 U.S. L.Ed. 584 discretion, effectively pre abuse as it (1950). why no We see reason we should plaintiff prosecuting cluded from appeal his hear an this element expense pro surely action because of the curing judgment alone. a final bond, Cir., 2 meaning 285 F.2d 720 of 28 within the U.S.C. 1291. jury (1960). trial, A second Jeffcott, v. See Donovan 147 F.2d 198 Judge Weinfeld, resulted in a (9 1945). verdict for when, We hold Cir. the defendant. The Clerk here, question taxed costs is not whether the $11,900.12 on Farmer’s motion should have allowed or by Judge were reduced particular $831.- disallowed items of appeals. and from this order Aramco exceeded, is rather whether and there appeal panel After the abused, discretion, heard judgment fore “ ‍‌​​​​‌​‌​‌​‌​​‌‌‌‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌​‍provides: (3) Section 1920 print- Fees and disbursements “A or clerk of ing court of the and witnesses.” United States tax as costs the fol- * * * lowing: 362 solely appealable. required for costs is Lichter nesses who are to travel between Foundation, Welch, possessions, Inc. v. 142 269 F.2d “the Territories and 1959); Printing (6 Corp. Cir. Kemart v. from the continental United States.”

Arts Laboratories, authority sup judicial Research bulk of 1956); porting 897 (9 Cir. Prudence-Bonds the 100-mile rule is be found v. prior Corp., Prudence F.2d in Realization decided the enactment (2 1949); Cir. Harris the 1949 v. Twentieth amendment which added the Century-Fox above-quoted provision. Corp., Film F.2d 571 Friedman , (2 1943); Moore, Cir. (7 Washburn Federal Practice 155 F.2d 959 Cir. Co. (1953). 1946); Corp. Miller, Vincennes Steel 1938). 94 (5 F.2d 347 Cir. The vast taxing costs, In in the Clerk majority of more recent the cases which cluded substantial for air trans amounts approve the do no more cite rule than portation from defendant’s witnesses considering cases, other without the rea away far as Saudi Arabia to the might support which sons lend or to it of trial. Wеinfeld reduced these against weigh it. Those cases decided assessments to a uniform allowance subsequent legislation give 1949 to the per witness, equivalent $16.00 or the g., Ludvigsen or no attention. E. it.little way per of 100 each at miles mile. $.08 Stevedoring Co., Inc., v. Commercial 228 took this action as an Cir.) denied, 707 (dictum), F.2d (2 cert. judicial choosing discretion, exercise 350 U.S. 76 S.Ct. 100 L.Ed. rely upon not to frequently the limitation 100-mile Printing (1956); 874 Kemart imposed the federal courts Laboratories, Inc., Research Arts 232 power transporta on their own assess (9 1956); 897 Cir. Perlman v. brought tion costs of from witnesses Feldmann, F.Supp. (D.Conn. 116 102 judicial the in which without district 1953), grounds, reversed on other 219 sitting. is We must there court the'trial (2 F.2d denied, 50 A.L.R.2d 1134 Cir.), cert. applicability determine the fore first 349 U.S. 75 S.Ct. 99 100-mile limitation. We hold the the (1955). Moreover, L.Ed. 1277 in inapplicable as rule a restraint 100-mile courts, recent in lower the 100- the judicial upon exercise discretion the flatly rejected. mile rule has been transportation- the assessment in Bennett Chemical Co. v. Atlantic Com brought trial. for witnesses modities, Ltd., (S.D.N.Y. 24 F.R.D. 200 appears 100-mile to have 1959); Maresco v. Flota Mercante the limitation out evolved Grancolombiana, S.A., 167 845 power subpoena a federal court to an (E.D.N.Y.1958); Bank of America v. judicial or within area Corp., Loew’s Supp. International 163 F. place of trial. See Fed- miles (S.D.N.Y.1958). 45(e). Rules of Civil Procedure eral prior Whatever the merits judi- suggestion, a not a shadow of There rule, Congress given cial has not 1920(3), however, in 28 U.S.C. § compelling demonstrating evidence an in- simply that and dis- рrovides “[f]ees ** * tention that it be continued. The reason witnesses” bursements express for the addition of provision that the court’s taxed be expenses travel anything for actual subpoena in has a what- case of issue overseas travel is stated what with' constitutes re- to do a letter of ever Attorney Assistant the appended General, disbursement a witness. coverable Indeed, part to and made 1821 as report 28 U.S.C. amended in of the Seriate provides discussing clear Committee authorization for expenses travel, “For bill: overseas actual it taxation that come witnesses witnesses who recommended from afar. allowed travel expenses expressly provides at actual lowest first- Section mileage allowance, rate available. There have the usual actu- class been lieu required when have been shall to wit- times be allowed witnesses travel al

36$ jus- personal in which the engage fair administration at such S„ losing party requires Rep. not. tice No. sacrifice.” financial cost reprinted taxed Sess., in 1949 be to the full extent of the Cong. 1st 81st producing Cong.Serv. pp. U.S.Code that, party. surely But cannot said sup- as little finds 100-mile rule there will in which the never be a case in the statutes. port reason as it does losing justice, party, in interest of into court comes a witness Whether example, bear such For had costs. compulsion voluntarily of a or under positions case been reversed subpoena, he behest comes producе and Farmer been forced to wit- appears as a witness. for whom nesses from Saudi Arabia in order to way, interest of the he serves the Either against unjust charges defend arriving just at a determination Aramco, hardly jus- one could assert the controversy. United States requiring pay tice Farmer to the costs Sanborn, (C.C.D.Mass.1886) 28 F. producing himself, his witnesses Gray). The fact Mr. Justice (opinion risk the Indeed, failure of his defense. subpoena not issue because does rigid adherence to a limitation on the the reach of the witness is outside expenses of likely taxation travel is more nothing problem with the has to do work litigants to to the detriment of appear- of his to allocate cost of how the meager financial resources than a at the trial. ance rule which leaves the allocation of costs rule can the 100-mile be defended Nor according to determined to cir- the expenses allocation the of liti- an as cumstances of each case. keeping practice gation with the why There is no judge reason a expenses to let such fall on courts our thought capable should be less of deter party them. Fees who incurs for the mining proper a allocation of the costs usually largest legal services are the expenses witnesses’ travel than he is litigation. single expense of In most allocating expenses trial, such pay cases, prevailing party must the such transcripts, as which are committed himself, even if he has cоme into fees couid; without artificial limitation to the dis against only unjust defend an judge. cretion of the trial We do not There is no reason to ex- accusation. hold that the full measure of travel ex practice Certainly further. tend penses against must be taxed the unsuc reason to is no extend it the there cessful every in each and cause; limiting recovery means curious merely we affirm the of a federal expenses miles, figure to 100 a of travel judge district to exercise his discretion may bear no relation to the dis- in the allocation of such costs. In exer actually traveled. As this tance ease cising discretion, that judge may trial illustrates, a 100-mile limitation is well well take account of the relative financial day facility when a an anachronism parties resources of the ability and the development travel world-wide litigant of the unsuccessful to bear the business make international at- litigation, costs where the action at trial of witnesses from far tendance prosecuted has been good in all faith. places almost a matter of course. off It is under such a rule that im suggested has been that the 100- pecunious litigant may be assured of salutary purpose serves a rule mile inso- right present effectively his case protection it erects for far impecunious judge jury. litigant might who other- litigation Concluding hesitate institute wise that the 100-mile rule that, inapplicable, unsuccessful, if fear particular he we turn to the transporting the burden of bear the de- items costs taxed in the case at bar. plain, trial, Judge witnesses. It seems the first fendant’s how- At Palmieri allowed ever, expenses totalling $3,715.21 such solicitude for transportation is ill-founded. witnesses, There of six three $i least, or, For whom Arabia. advance at came Saudi trial should it- that, below, ap- ex- self reasons stated cept think bear the cost of witnesses’ pearance agree. of wit- as to the travel at trial. We cannot totalling Page $2,- Swanson, nesses imagine It is difficult to more a 064.00, it was within the discretion charge against employer serious than expenses, Palmieri to allow these suppressed that he evidence em and that his exercise discretion should ployees contracting ran the risk of judge not have been disturbed. As thе circumstances, serious disease. In such presided trial, who at the first possibly the defendant could not greater opportunity Palmieri had expected adopt been less than the most necessity particular assess costs disproving plain effective means of incurred in defense action charges. tiff's had We have occasion circumstance, him. This considered past to note the nature sensitive jury. “live” witnesses in a trial before a problems presented one when Porter, Arnstein 154 F.2d judge pass asked the exercise (1946). Moreover, 469-470 first by another, of discretion makes it in- instance it is for the before whom appropriate for district under- gauge necessity the trial is had to independent take an determination de transрorting witnesses to the prior novo of the costs allowed at a trial. propriety trial and to determine the alleged plaintiff had been assessing transporta such ophthalmologist hired to work against litigant. tion the unsuccessful hospital Arabia, the defendant’s in Saudi We believe Weinfeld should have wrongfully and that had he been dis- Judge to respect deferred Palmieri with charged. disputing In addition to the to those costs incurred the in first trial employment contract, terms of the the him, just before as we defer to him with plaintiff defendant contended that the respect to the costs the trial of at which discharged just spe- cause, had been for presided. cifically performed opera- that he had appears, however, It that two оf the obtaining tion without first the results witnesses, Page Swanson, occupied and tests, in certain violation of an ex- empty space company planes otherwise in hospital accepted press rule and regularly flights on scheduled to and practice. plain- medical standards of Arabia, from Saudi so that as to them explanation discharge tiff’s for his was expense no there was actual travel in- upon truthfully that he had insisted re- company curred and none should findings alleged many porting that have been allowed. employees of American the defendant in contracting trachoma, Arabia were Saudi Judge Palmieri allowed costs tropical disease which leads to blind- transcripts pretrial $361.55 superiors claimеd that his had He ness. sought hearings, trial, examinations before and suppressing him to intimidate into depositions. Judge Weinfeld reduced findings. his Considering this amount to $76.05. pretrial hearings expenses whose travel witnesses and the gave relating discovery procedure dispute in evidence under are the Federal conflicting plaintiff’s Rules, say accounts of the we cannot that it the discharge. was an question Judge There is no abuse of discretion for that Palmieri had information to conclude that these costs these were neces disprove plaintiff’s sary preparation elements of was essential for the trial, Judge establish the defense. first and then to allow and claims them. Simi however, larly, determined, Judge we find it that in within Weinfeld Palmieri’s heavy expense producing $1,812.30 stenog discretion allow view rapher’s compilation defendant fees court the should have incurred in them testimony daily trial, written taken in of the minutes of as well relied universally fed- almost copies certain observed photostatic $180.02 heretofore, of the taxation these eral courts exhibits, bulky found both as he costs where the travel proper conduct necessary items point 1920(2), dis- without the from a 28 U.S.C. §§ trial. See trict more than 100 miles distant. abuse 1920(4). that it holdWe Judge This not decision breaks with Palmieri’s in view discretion overwhelming weight Judge authority, necessity, for findings as different in civil creates a for costs them. to disallow Weinfeld admiralty, also, cases from that in Judge entirety Wein- its We sustain in admit, majority appears as the indeed сosts in- as to determination feld’s abandons the traditional scheme of Al- him. held before in the trial curred though in American courts turn in the direc- would us who those of are there English making practice tion of beyond traveling expenses have allowed litigant pay oppo- the unsuccessful his trial been limit had the 100-mile litigation expense nent’s as well as his say us, cannot own. been accident has his discretion abused Weinfeld limiting litigant American must bear own cost transportation of wit- costs for expense counsel trial save trial, held before to the second nesses him, for minimal court but a deliberate of $16.00 allowance to a uniform choice to ensure access to the courts per witness. effectively be not denied those оf remand reverse and We therefore means. moderate arguments Of course there are taxed the costs as allow instructions to English system, trial, $6,601.- first Palmieri discouragement litigation, its of much $2,064.00 travel of less taxed for strange taking but it is to find this court $4,537.08 Page Swanson, or a total opportunity espouse time plus trial, taxed those items for the first contrary face of choice trial. on the second Court when the identical question expense of travel taxation Judge (with SMITH, whom Circuit was Admiralty before it formulation Judges, HAYS, join) CLARK and major- Rules. I fear that the dissenting. ity reads into the statute and rule con- dissent, I from the determina- both cerning reimbursement witnesses and his dis- tion that Weinfeld abused costs direction as to where the ultimate fixing costs and from the cretion litigation expense burden of fall must holding to tax that he had discretion just which isn’t there. limit.” for travel over the “100-mile costs taxing judgment reducing In equiv- As a matter the allowance to the might larger mileage way have made allowances alent of for 100 miles each transcript mile, Judge photostats rely both Weinfeld did not 8^í trials, because of the seriousness of the on has the limitation referred to which charges imposed and the the out- heretofore been the courts on parties. mileage But the issues were come to assess outside ‍‌​​​​‌​‌​‌​‌​​‌‌‌‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌​‍the extraordinarily complicated not nor the miles, and more 100 than great length, trial one of had rather took the action as an exercise of pro- the benefit of observation of the consider, however, We discretion. ceedings directly him, I and would ruling his should be whether affirmed on judge’s decision, not hold the that much the basis 100-mile limitation. expense really necessary, that it should be so would hold affirmed. error or his limitation of costs so though accepted it is now that a Even flagrant an error to constitute an subpoena under not be need witness abuse of discretion. statutory fees make collect losing them as however, party liable for important, More future most courts that litigants rejection have be noted will the limitation 366 imported States, question Cir.1921), (9 considered the 273 F. 391 aff’d. subpoena 423, 144, 260 the territorial limitation U.S. 43 67 L.Ed. 329. S.Ct. 2 (within (The

of witnesses or 100 the district affirmance mention does not ; problem) trial) miles from to limit v. Fisheries Co. Consolidated mileage Fairbanks, Co., F.Supp. distance for fees can be Morse & 714 106 Ludvigsen (E.D.Pa.1952); Pennsylvania taxed as Commercial R. costs. v. Lee v. Stevedoring Co., (2 Co., Inc., F.Supp. (E.D.Pa.1952); 707 93 228 F.2d 309 Cir.) (dictum), Refining Miner, cert. denied 350 U.S. Commerce Oil 198 v.Co. 1014, 660, F.Supp. Reynolds 76 874 (1956); S.Ct. 100 L.Ed. 895 (D.R.I.1961); Printing Corp. (9 Yturbide, Kemart Arts Research Metals v. v. Co. F.2d 321 258 Laboratories, Inc., (9 840, Cir. 1958), F.2d 897 Cir. 232 cert. 79 denied 358 U.S. 1956); Spiritwood S.Ct. Grain Co. v. 3 au Northern this L.Ed.2d 76. Besides Ry., 1950) (dic thority, rule, Pac. approves 179 F.2d 338 Cir. al (8 Moore ; though Co., tum) analysis. Friedman v. Washburn 155 without discussion (7 1946); Moore, 6 Practice, pp. 959 Cir. Vincennes Steel Federal 1362-63. Corp. Contra, Miller, (5 v. 94 F.2d 347 Cir. Bennett Chemical Atlantic Co. v. 1948); Feldmann, Commodities, Ltd., (S.D. Perlman v. 116 F. 24 F.R.D. 200 Supp. N.Y.1959); (D.Conn.1953), 102 reversed on Maresco v. Flota Mercante grounds, 219 F.2d 50 A.L.R.2d Grancolombiana, S.A., F.Supp. 167 845 (2 1134 Cir.), cert. denied 349 U.S. (E.D.N.Y.1958); v. Bank of America (1955); 75 S.Ct. 99 L.Ed. 1277 Loew’s Corp., F.Supp. International 163 Kenyon Co., v. Automatic Instrument 10 (S.D.N.Y.1958); 924 Anderson, Knox v. (W.D.Mich.1950); F.R.D. 248 Brook 163 1958). (D.Hawaii 822 Be Century- side v. Theatre Twentieth sides Sanborn, United States v. 28 F. 299 Corp., Fox (W.D.Mo. Film 11 F.R.D. 259 (C.C.D.Mass.1886) (Gray, J.) which re 1951), ground, modified on another 194 jects rule, the 100 mile there ‍‌​​​​‌​‌​‌​‌​​‌‌‌‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌​‍is other Cir.), (8 F.2d 846 cert. denied 343 U.S. authority to the same effect Mas ; (1952) 72 S.Ct. 96 L.Ed. 1348 Prouty Draper, sachusetts. v. 20 Jones, Barnhart v. (S.D. F.R.D. 423 (C.C.D.Mass.1842) (Story, Fed.Cas. 13 Gallagher W.Va.1949); v. Pac. R. Union J.). Circuit, Co., (S.D.N.Y.1947); however, First cannot F.R.D. 208 really Anonymous, (C.C.S.D. having position be taken Fed.Cas. to day. N.Y.1863); Easton, Ames, Beckwith 3 Fed. Governor 187 F. (1 (D.C.E.D.N.Y.1870); Leo, 1910) Cas. 29 Cir. states the rule which had (D.C.E.D.N.Y.1872); 15 Fed.Cas. 326 been followed in the District of Mas Stoning Buffalo Ins. & Co. Providence sachusetts but criticizes it. The District Co., (C.C.S.D.N.Y. 29 F. ton Court S.S. Miner, Commerce Oil v.Co. su 1886); Vernon, pra, The F. (D.C.E. by felt itself not bound the old cases D.Mich.1888); Syracuse, The 36 F. 830 and weight went on to follow the Kirby authority.3 (C.C.S.D.N.Y.1888); United of 45(e) therefor, 2. of the Federal Rules of upon proper Rule Civil applica- the court may Procedure. tion and cause shown authorize the “(e) Subpoena Hearing any a or subpoena Trial. place. service of a at request any “(1) “(2) subpoena At of sub- A directed to a witness poenas hearing foreign country for attendance at a or in a shall issue under by shall be issued the clerk of the trial the circumstances and in the manner and provided the district in which U.S.O., be served as in Title hearing subpoena or trial is held. A the requiring § 1783.” attendance of a at witness opinion hearing by Judge Day, any 3. From . or trial served a at district, any place place or 899: within any without the district is within 100 “In the absence of authoritative hearing holding by Appeals miles the Court of for the speсified subpoena; and, Circuit, in the trial when I First am constrained to follow provides reasoning logic pre- a statute United States and of the rule At- remaining support re- to believe that the Assistant for the The sole torney limitation, unfamiliar with the there- General was jection of 100-mile light volume 100-mile rule of the fore, Court District would seem be litiga- government admiralty Dis- civil and Eastern cases and in the Southern particularly single tion. This is so in the case York, and the tricts New Admiralty 47,4 of the Rule all existence With Hawaii. the District by early Supreme Court, which the rejection of the deference, I feel that the 1920, recognized 100- and enforced the by and few rule advocated these power Supreme mile rule. Court’s case by in this carried our brethren out admiralty rеading over costs in in was confirmed is based on erroneous the 1948 revision of Title 1821. proviso § to 28 U.S.C. added in 1949 without history proviso, reference to Rule legislative argue quite seems anomalous to that the Cong.Service, pp. 1231- 1949 U.S.Code Congress which in 1948 confirmed the in- concern discloses witnesses, in Court over costs adequacy compensation to admiralty existing mileage, the face Rule in- per as to rate diem applying limit, mileage the 100-mile travel costs be- adequacy where in eases indirectly rejected year ait later fare, discussion with no low first class statute not limited to civil cases. As- or the whatever the Committee Attorney General sistant precise statement, In the interest recovery as costs the fees evеntual adopt would the formulation of the Ninth necessary party. prevailing It was “[Mjileage Circuit: allowable should be authority pay obtain was traveled within the dis- first class lowest such witnesses at the mileage trict, or actual traveled could be attendance so that their rate up miles, out the district to 100 which- financial sacrifice obtained without greater.” ever is the Kemart noteworthy part. that the re- It is Printing Laboratories, Arts Research Department quest of Jus- came from the Inc., supra, (emphasis 232 F.2d at 904 Of- Administrative tice and not from the point original). is of more than fice, applies and that to witnesses formal interest in a circuit whose dis- admiralty criminal as well as civil tricts include with distances of some impossible to from the causes. It is tell mоre than 100 miles from a seat court. language of the statute itself whether Hayden Press, Inc., v. Chalfant contempla- within 100-mile rule was (9 1960). F.2d 543 Cir. Congress Yet at the time. tion of the any purpose Imposition of a lack of indication of this limitation on costs keeping be drawn from the to affect is more with a fundamental proviso, legal allowing system title of the Act which added than choice in our fees of wit- “An Act increase the [T]o unlimited reimbursement would be. nesses the United States courts some other al- Unlike countries commissioners, and United States ways major portion left the the ex- purposes” litigation pense ultimately mention of with no for other to fall party any on taxable costs. hard who bears it in the first in- effect is the majority personal vailing оf the federal in cost incident to his exeess imposes appearance cordingly, no undue before the trial This rule court. Ac- courts. litigant, mileage hardships in of the allowance for on a view the residing provisions of outside of Rule 26 the Fed- witnesses liberal way.” limited to 100 miles each of Procedure for the Rules Civil shall eral depositions persons taking of liv- “Admiralty Rule 47. Costs—travel 4. of ing the district where a case is outside pending, and case. their use at the trial “Traveling expenses any litigant of In witness for the event a of such testimony one hundred miles to and from the of a witness more than the court feels in taking place testimony person essential, only right of the is it is and litigant proper taxed as costs.” not be that such should bear the shаll ing Recovery attorney’s judgment. stance. fees and of at the time of final major expenses preparation which, however, of for trial These are in matters exception is with than the us the would seem that rather deference should If, just given by perhaps, op- rule. the victor in second to the entirely whole, portunity Judge judge, cause is not made of the first here Palmieri, weigh doors our closed courts are not be- situation then litigant being assessing necessity. him small fore in who cannot risk sec- by imposition does, however, ruined ond of his adver- ad- have an vantage sary’s witness, expenses. developments full the additional statutory course, subsequent trial, before him still recovers his full to the first fees under 28 The effect U.S.C. 1821. into take consideration. existing this, although In the rule is to divide this bur- the writer summoning original party would as den between him matter have been party statutory by inclined to Judge and the costs, liable for make the allowance made Palmieri, who chooses to at least as to the neces- sity bearing larger photostats'6 portion him summon transcripts and pretrial depositions perhaps the costs when extensive travel is and also as place testimony by deposi- necessity to the daily chosen in transcript,7 rogatory. surely ground tion or there is opinion submit that letters for difference of promote necessity this result will as photostats best fair ad- justice transcript, daily and ministration of in the district copy, let alone in a trial of simple, though courts.5 these rather hard fought, issues. It was not an therefore Judge Weinfeld was therefore correct abuse of discretion items, to disallow the limiting expense in in result the travel pointed by and as out majority, our as allowed costs to each from witness review of these items is not to determine without the district to a mile $16.00 —8f findings Judge whether Weinfeld way for 100 miles each for each trial. necessity as to and are reasonableness Turning rulings now to his on other correct, they grossly but whether are so items we must determine whether there in error constitute an abuse was an abuse of discretion in his disal- judicial discretion. by lowance of of those taxed judgment I would affirm the for costs Clerk. At the outset we are faced with of $831.60. judgment jury the fact that the after the CLARK, Judge (concurring disagreеment on first trial was va- Judge SMITH). dissent appeal, cated reversal so Judge findings completely Palmieri’s as to the neces- I concur Smith’s sity dissent, expressing, does, of such items reasonableness as it a wise copies por- public policy, transcript photostatic buttressed the over- whelming weight authority for use at the trial were tions of exhibits binding long practice. review- settled federal But I ven- language recovery. Moure’s Barnhart tilan the amount of the 5. quoted: supra, Jones, “Economy litigation often is an essential * * «* subpoena justice. effect of a element Taxation of unlimited mileage derogation limited outside the district served allowances is in of this trial, principle, permitted.” miles cannot be to infer reasonable it seems Compare Mfg. Galion Iron Works & Co. Congress must have intended to limit the Machinery Co., F.Supp. v. Beckwith mileage to same distance. taxation (W.D.Pa.1938) with Raffold Process country as vast as ours If a court Paper Co., v. Castanea mileage permitted of the entire taxation (W.D.Pa.1938). without limitation as to dis- witnesses Bank of America v. tance, Loew’s im- Inter- unbearable burden would be an Corp., supra; litigation. national mann, supra. posed Perlman v. Feld- conduct of might in cases lead to a course some Such whereby, greater costs would be a result if, contrary this, we force him to because but statement additional ture a brief Judge Palmieri, should divide it with we great practical of the given oppor- ambiguities and at least have lattеr the because the issue and light tunity holdings opinion majority to review his policy conflicts prob- of the full record. of the require a re-evaluation will by judicially rule-makers or lem either Again appears majority it that may made legislators. problem be or courage have lacked final reach a com- considering difficulties concrete pletely result, hard-boiled as course facing clerks hereafter quite shown reduction of the by in- judges. Up shown to now—as outrageous $11,900.12 sum claimed of long quiry, list of as well mainly (composed of the cost of defend- applied precedents clerks have —the bringing employees ant’s its own around of witness- on travel limitation 100-mile world) $4,537.08, plus the cost substantially routinely without es trial, apparently allowed of the second dispute. they two faced with Now are sum, totaling nearly $5,- This $335.55. policy approaches opposing and will not item; is not an inconsiderable with- to act when the issue arises be able ironically required question- that hearing a court re- out a full-dress rulings able to reach it. Thus the ex- view. penses Page Swanson, witnesses totaling $2,064, were disallowed because attempt In division its to straddle the they occupied space otherwise unused below, majority policy disclosed company plane. Except theory on the has all the earmarks of a com- decision wrongs right, two make a nothing this can- promise result. There in- justified, not be for it is wrong settled herently this; on the at times a com- authorities legal- that costs for among promise quite views de- ly taxable, due they are whether have sirable. But care must taken paid been illogical witness or conflicting not. The not does lead or re- taxing authority expected cannot be practical consequence sults. Here we go into the issue whether the witness lavish have travel fees allowed on the appeared not have voluntarily, litigation mak- round of which the defendant ing no claim for fees. lost, and denied on the round it won. difficulty arises because the decision There are other which, me, factors departs from normal the wise rule that point injustice also to the of the result. responsible one alone is early stage anAt case, very ultimate decision of a cause trial and pointedly criticized expendi lavish travel responsibility is not to be reversing tures in an order for a bond apportioned among shared those plaintiff for costs which was unable preliminary who made or interlocu- furnish. Farmer v. Arabian American tory rulings. As a matter of fact Co., Cir., Oil 285 F.2d 720. When the great injustice decision does to the first persisted, defendant it would seem that judge here, because it holds him to rul- expenditures the extra should have been ings preliminary stage, made at a treasury. its own risk and from its own happened, much that is relevant had surely majority are ill-advised in give opportunity him does to re- trying support sup claim view and revise his actions in the shifting equities; sands, posed at best regard respon- later events. obviously plaintiff favor these here ‍‌​​​​‌​‌​‌​‌​​‌‌‌‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌​‍sibility Judge Weinfeld; as centered in the defendant.1 Nor is the much as 1. Thus the defendant’s defense of its dis deal of evidence not close been a charge plaintiff involving plaintiff’s marital, ly attack on relevant professional instability. competence, litigious, the latter’s call and emotional ing juries forth as bitter emotions as did the be recalled that it took two plaintiff’s plaintiff’s fate; jury hospital attack on defendant’s the first to settle disagreed. conditions. And there seems to have 370 testimony accepted

supposed of our an ade us because conviction need oral unduly quate wealthy excuse; my judgment, jury, that it “favored the 3 penalized losing party.” stupid the.de not so as to need see Here to obviously costs, plain emрloyees person bill of decide ruinous fendant’s to to bond, tiff who could where the federal not afford a cost can truth lies. And in the system provided ample mean revenge means little we have more than an instrument securing testimony through deposi corporation. to this I sub making interrogatories, policy, tions mit that it is it rea not wise or consist sonable, natural, traditions, put practical ent with limit our to to the deci repayment only sion of the lavishness of of travel costs those the trial for all practical required purposes who can be to come to court in the hands of the winning litigant. subpoena power. exercise of the court’s Indeed, heretofore we have taken the Judge gives Smith a fair indication of position party’2 preference that a for strength precedents for this testimony weighed against oral must be view, including traditional opponent, the burden to his and an order Admiralty 47, although Rule Court’s depositions interrogatories or must does not exhaust the available number.3 substituted be when travel costs will be repudiating With the recent cases Hyam Export burdensome. v. American few earlier cases contra in the First Cir Lines, Cir., 221, 2 (per 213 F.2d 222-223 cuit, Refining Corp. see Commerce Oil J.); Harlan, Brooks, Cir., Richmond v. 2 Miner, D.C.R.I., F.Supp. 895, 198 227 F.2d 492. Nor is the claim at majority supported only by decision is large all realistic these allowances certain district court decisions here impecunious favor at times liti represent which do not law of our gant. litigant Such a will not And Circuit.4 neither statute nor rulе originally; cash advance nor can he what defines of these costs shall being chance of saddled take with the Judge demonstrates, As Smith consist.5 ultimately. cost As Smith so well represents decision the reading erroneous argument demonstrates, represents proviso 1949 to 28 U.S.C. English approach legislative system, history.6 to the never 1821 and its § Estado, 54(d) 2. v. Flota Conte Mercante del 2 5. Thus F.R. does not define Cir., 664, 672, per Friendly, J., fixing 277 but leaves statute or de- Goodhart, citing Costs, 38 Yale L.J. law. And 28 U.S.C. § cisional 1920 de- (1929). 872-877 certain costs such as the fines fees of the marshal, pointedly clerk specific un- See, g., 3. e. Annotation 4 (3) to 28 covering U.S.C. in its subd. “Fees printing and disbursements and wit- nesses.” 4. Bank of America v. Loew’s International proviso, 6. This 63 Stat. to the standard Corp., D.C.S.D.N.Y., F.Supp. mileage statute, аllowance 28 U.S.C. § Dawson, J.; per Bennett Chemical Co. v. 1821, allowing actual Commodities, Ltd., D.C.S.D.N.Y., Atlantic “attending in * court of the 200, per Dawson, J.; 24 F.R.D. Maresco ** required United-States who are Grancolombiana, S.A., v. Flota Mercante pos- to travel between the Territories D.C.E.D.N.Y., F.Supp. 845, per sessions, or to and from the continental Byers, Anderson, The case of Knox v. J. States,” obviously, passed United D.C.Hawaii, F.Supp. 822, rests on change long standing no intent fed- statutory special provision. .a note practice, eral Smith demon- Against infra. these cited such Moreover, wording its strates. does not -important Second as Per attempted put the burden bear Feldmann, D.C.Conn., lman v. it, its terms it covers travel 115, per Hincks, J.; Gallagher v. places of trial and between Co., D.C.S.D.N.Y., R. Pac. Union F.R.D. do in the statute which listed foreign include Caffey, J.; Ryan per v. Arabian Am. countries. And the comment Co., D.C.S.D.N.Y., 18 F.R.D. Oil Attorney from the Assistant Gen- Bondy, J.; 208, per nothing; and other earlier eral adds reference by cited (cid:127)eases Smith. travel” is to travel “overseas lay D.C.S.D.N.Y., that, below, I would down rule reached result pre- 191, 197, insub taxation of costs not “as course to F.R.D. of $831.60—a vailing party” by dis- thus based clerks of our stantial sum in itself —is continued, long courts, strong sub trict precedent hundred the so-called “one and first, fair mile stantially is rule” must It be followed in the unbroken custom. instance, away just. but would not have been sustained take It should from judge power modify a district here. taxation if motion be made to the Judge sep- WATERMAN, (in always so to do. is There the rare case statement). arаte Judge —which neither Weinfeld nor I reached I dissent from the result would find this case to be—where taxa- agree majority of the court inflexibility tion can work scandalous in- Hays my Clark, Smith brothers justice. judgment for costs of should $831.60 be affirmed. I hold a different view somewhat colleagues

my this and therefore submit my separate It statement. is belief that

Judge properly treated the mo- Weinfeld him as a motion addressed

tion before properly and that he ex-

to his discretion disposition REYNOLDS, Winston his M. Appellant, ercised discretion in position I differ from that motion. opinions taken in the of the dissenters UNITED America, STATES of Weinfeld relative Appellee. major over items could exercise No. 20508. dispute parties between the items —the United States Appeals Court of relating proper taxation of trans- Fifth Circuit. portation pre- of certain of the Oct. vailing party’s witnesses who were not subpoenaed. See Weinfeld’s dis- at 31 F.R.D.

cussion 195-196. to review the taxation a motion When presented to a district costs of witness surely should have in mind the dissenting my brothers would three

rule inflexibly apply rule that recover- —the mileage should limited witness able district, within the to travel course or, of travel outside the dis- in the event hearing.

trict, 100 miles

Nevertheless, proper a motion such is a make, only ‍‌​​​​‌​‌​‌​‌​​‌‌‌‌​‌‌​​​​​‌‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌​‍purpose and the one to judge’s independent have the

motion is

judgment exercised. obvious that long-stand- did properly ing mind when he so held requested movant be allowed. terms) possessions. (i. e., within its the Territories only Hawaii exact ex- Anderson, proviso, pressed construing Knox reluctance to case C.Hawaii, in usual federal rule. as without D. volving between California

Case Details

Case Name: Howard Farmer v. Arabian American Oil Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 6, 1963

Citation: 324 F.2d 359

Docket Number: 240, Docket 27893

Court Abbreviation: 2d Cir.