50 F.R.D. 52 | N.D. Miss. | 1970
MEMORANDUM OPINION ON DEFENDANTS’ OBJECTIONS TO PLAINTIFFS’ REQUESTS FOR TAXATION OF COSTS AND ALLOWANCE OF ATTORNEYS’ FEES
On December 1, 1969, this court entered its final decree and attached memorandum opinion adjudicating this case on its merits. Stacy v. Williams, 306 F.Supp. 963 (D.C.1969). That decree provided at page 3, |f (7) “that all costs [of the suit should] be taxed against defendants.” On December 9, 1969, plaintiffs filed an itemized Bill of Costs amounting to $1,108.11 for taxation against defendants. Objections to certain items claimed as costs were filed by defendants on December 24, 1969. Thereafter, on February 11, 1970, plaintiffs moved the court for leave to amend their Bill of Costs for an allowance of reasonable attorneys’ fees, or in the alternative for allowance of attorneys’ fees to plaintiffs’ counsel apart from costs. Plaintiffs’ attorneys have claimed their services to be reasonably worth $18,280. The foregoing motions and objections were submitted to the court on briefs of counsel and are now before the court for decision.
As a preliminary objection, defendants contend that under Miss. Code 1942 Ann. § 1573,
We next consider the question of attorneys’ fees. Our final judgment entered December 1, 1969, stated that “all costs shall be taxed against defendants.” That judgment made no mention of attorneys’ fees, nor had such been claimed by plaintiffs in the course of the prior litigation. It was not until February 11, 1970, more than two months after entry of final judgment, that plaintiffs first sought to amend and recover attorneys’ fees. Rule 59(e) of F.R.Civ.P.
3. In view of plaintiffs’ failure to request an amendment to the judgment allowing attorneys’ fees apart from costs until more than two months after entry of final judgment, plaintiffs’ motion to amend is denied.
We now turn to specific items on the original Bill of Costs which were objected to by defendants. At the outset, plaintiffs contend that inasmuch as their Bill of Costs was filed on December 9, 1969, and noticed for hearing on December 16, 1969, defendants’ objections, not filed until December 24, 1969, are not timely and should be disregarded. In cases in which the local district court rules call for a hearing on objections to Bills of Costs before the clerk of the court, objections filed after the date set for that hearing are generally held to be untimely and are not allowed.
Of the entire costs claimed by plaintiffs, which total $1,108.11, and which include claims for filing fees, transcripts of hearings, Marshal’s and witnesses’ fees and cost of duplicating trial memoranda, defendants have objected to two items: (1) duplicating of trial memoranda ($184.60), and transcripts of hearings ($450.67). With the exception of admiralty cases, which are governed by a special statute allowing specified costs for printing of briefs in admiralty appeals,
Lastly, defendants have objected to being taxed with $450.67 to reimburse the expense of court reporter’s transcripts of three evidentiary hearings had in this cause. Plaintiffs contend that these transcript costs were allowable under 28 U.S.C. § 1920(2), Fn. 4 supra, as fees of the court reporter for stenographic transcripts necessarily obtained for use in the case. As contended by plaintiffs, it was necessary to obtain the transcripts because each of the three hearings in question was held before the managing judge of this three-judge district court, sitting alone. Such transcripts were obtained for the other two judges of this court to keep them fully abreast of the case and to have readily available a complete record of the proceedings. Particularly in view of the hard-fought and highly controversial nature of this important case was it necessary that all three judges have access to all proceedings in the case. Additionally, new counsel entered the case at different points in time, thus rendering the transcripts a virtual necessity for their use.
Whether the costs of transcripts of hearings at the trial level are taxable against the losing party is a matter largely in the discretion of the trial court.
“As any trial judge or lawyer will attest there are cases in which it is necessary, even imperatively necessary, that the court and counsel on both sides have a copy of the trial transcript, or part of it, in connection with trial motions, in both jury and court cases, and in making findings of fact and conclusions of law in court cases; and even at times a daily transcript is very necessary for the examining of witnesses, to keep the case moving properly, and in other respects for a sensible and expeditious trial.” Citing Texas City Tort Claims v. U. S., 188 F.2d 900 (5 Cir., 1951).
Professor Moore further states that all courts agree that the trial court may in its discretion order that daily transcripts of hearings be made and tax the costs thereof among the parties as it sees fit. 6 Moore, p. 1374.
After subtracting the item claimed for brief printing ($184.60), which is disallowed, plaintiffs are allowed court costs amounting to $923.51, for which the defendant Board of Trustees is liable, and an order shall be entered accordingly.
. § 1573. “Usee liable for costs — state as nominal plaintiff.
In suits in the name of the state or any person for the use of another, the usee may be required to secure or pay the costs, and shall be liable therefor; and in no case shall the state, as a nominal plaintiff, be liable for costs.”
. U. S. v. Ward, 349 F.2d 795 (5 Cir., 1965).
. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
. 28 U.S.C. § 1920: Taxation of costs “A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”
. Rule 54(d), F.R.Civ.P.:
“(d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs ¿gainst the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.”
. U. S. v. Kolesar, 313 F.2d 835 (5 Cir., 1963).
. Kenny v. U. S., 118 F.Supp. 907 (D.C. N.J., 3-judge court, 1954).
. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Kansas City Southern R. Co. v. Guardian Trust Co., 281 U.S. 1, 50 S.Ct. 194, 74 L.Ed. 659 (1929).
. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967) ; Monolith Portland Midwest Co. v. Kaiser Aluminum & Chemical Corp., 407 F.2d 288 (9 Cir., 1969) ; see also Lumbermen’s Mutual Casualty Co. v. Renuart-Bailey-Cheely Lumber & Supply Co., 392 F.2d 556 (5 Cir., 1968) ; Kenny v. U. S., supra, Fn. 7.
. Moore’s Federal Practice § 54.77(2), p. 1348; 6 Moore, p. 1352, citing Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4 Cir., 1951).
. Lee v. U. S., 238 F.2d 341 (9 Cir., 1956).
. U. S. v. Southern R. Co., 278 F.Supp. 60 (D.C.N.C.1967).
. 28 U.S.C. § 1923.
. Scaduto v. Orlando, 381 F.2d 587 (2 Cir., 1967).
. U. S. v. Kolesar, 313 F.2d 835 (5 Cir., 1963) ; Syracuse Broadcasting Corp. v. Newhouse, 319 F.2d 683 (2 Cir., 1963).