648 F.Supp. 351 (W.D.Mich. 1986), G77-6, Bergman v. United States

Docket Nº:G77-6.
Citation:648 F.Supp. 351
Party Name:Walter BERGMAN and James Drummond as Personal Representatives of Estate of Frances Bergman, Plaintiffs, v. UNITED STATES of America, Defendant.
Case Date:November 17, 1986
Court:United States District Courts, 6th Circuit, Western District of Michigan

Page 351

648 F.Supp. 351 (W.D.Mich. 1986)

Walter BERGMAN and James Drummond as Personal Representatives of Estate of Frances Bergman, Plaintiffs,


UNITED STATES of America, Defendant.

No. G77-6.

United States District Court, W.D. Michigan, Southern Division.

Nov. 17, 1986.

Page 352

Neal Bush, William H. Goodman, Mark Granzotto, Deborah LaBelle, Elizabeth Gleicher, Detroit, Mich., for plaintiffs.

Nicki L. Koutsis, U.S. Dept. of Justice, Civil Div., Torts Branch, Joseph Sher, Washington, D.C., for defendant.


ENSLEN, District Judge.

There remain three matters for the Court to decide in this lengthy proceeding: (1) defendant's objections to plaintiffs' February 15, 1985 Bill of Costs; (2) plaintiffs' July 16, 1985 Motion to Extend Time for Filing Plaintiffs' Reply Brief; and (3) plaintiffs' April 10, 1984 Motion for Attorneys' Fees and Expenses. For the reasons discussed below, the Court will grant plaintiffs

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all of the costs they have requested, grant plaintiffs' motion for an extension of time, and deny plaintiffs' motion for attorneys' fees and expenses.


The facts of this case are covered in detail in the Court's prior opinions and will not be repeated here except as needed to resolve these three matters. See Bergman v. United States, 579 F.Supp. 911 (W.D.Mich.1984); Bergman v. United States, 565 F.Supp. 1353 (W.D.Mich.1983); Bergman v. United States, 551 F.Supp. 407 (W.D.Mich.1982). Plaintiffs filed their request for attorneys' fees and expenses on April 10, 1984, after the Court had entered a "Judgment Order" against the United States. The parties subsequently stipulated to entry of a "Final Judgment" against the United States, and to dismissal of plaintiffs' claims against defendants Barret G. Kemp and Thomas J. Jenkins, on November 14, 1984. The parties then attempted to settle the issue of plaintiffs' costs and attorneys' fees between themselves. Their efforts were unsuccessful, however, and they filed supplemental briefs on the issue in July, 1985.


A. Bill of Costs

Plaintiffs have requested an award of costs in the amount of $14,212.46. Defendant the United States objects to three portions of plaintiffs' Bill: (1) the cost of a copy of part of the trial transcript in Peck v. United States; (2) the cost for travel in excess of 100 miles from the courthouse for some of plaintiffs' witnesses; and (3) plaintiffs' exemplification and copying costs. The Court finds that plaintiffs' costs are proper under 28 U.S.C. § 1920 and will grant their request in full.

Section 1920(2) allows a district court to tax as costs against the United States "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Defendant argues that plaintiffs obtained a copy of the trial transcript in Peck only for "purposes of investigation or preparation for trial" and that they thus cannot recover the cost of the transcript. See Hill v. BASF Wyandotte Corp., 547 F.Supp. 348, 351-52 (E.D.Mich.1982). Plaintiffs note in response that they seek only the costs they incurred in securing the portions of the Peck transcript that were introduced into evidence at the trial in this case. They argue that since they introduced these portions of the transcript--such as the testimony of Burke Marshall and Barrett Kemp--into evidence, such portions clearly were "necessarily obtained for use" in this case. See Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985) (taxation of deposition costs); State of Illinois v. Sangamo Construction Co., 657 F.2d 855, 867 (7th Cir. 1981) (referring to deposition costs).

The Court believes that plaintiffs have demonstrated that they "necessarily obtained" the transcript of the Peck trial "for use in" this case and thus will deny defendant's objection on this ground. The Court received portions of the transcript into evidence and considered them in reaching its decisions. Plaintiffs therefore should be able to recover the cost they incurred in securing such portions of the transcript.

The second set of costs to which defendant objects are the travel costs plaintiffs incurred in bringing nine witnesses from outside the Western District of Michigan to the place of trial. As defendant argues, courts generally are hesitant to award as costs the travel costs of witnesses who reside beyond the subpoena power of the court. See Farmer v. Arabian American Oil Co., 379 U.S. 227, 231-36, 85 S.Ct. 411, 414-17, 13 L.Ed.2d 248 (1964); Mastrapas v. New York Life Insurance Co., 93 F.R.D. 401, 405-06 (E.D.Mich.1982); Kenyon v. Automatic Instrument Co., 10 F.R.D. 248, 252 (W.D.Mich.1950), aff'd, 186 F.2d 752 (6th Cir. 1951); see also FRCP 45(e)(1). The Supreme Court held in Farmer, however, that a district court does have the discretion to award costs for the travel of witnesses from beyond the court's subpoena

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power. Farmer, 379 U.S. at 232, 85 S.Ct. at 415; see also Sperry Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132, 136 (E.D.VA. 1973); Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 10 (E.D.Mich.1970). Among the factors a court should consider in exercising this discretion are "the relevancy and necessity of the witnesses' testimony" and "whether the party calling the out-of-state witness had attempted to secure prior approval of the court for such expenses being taxed as costs." Sperry Rand Corp., 58 F.R.D. at 136.

In this case, plaintiffs did not request the Court for permission to tax the travel costs in question as costs under rule 54(d). The Court furthermore generally attempts to adhere to the subpoena power or 100-mile rule. This case, however, presents some exceptional circumstances that justify allowing plaintiffs the full amount of their witnesses' travel costs. First, the events at issue occurred over twenty years ago and in a state other than Michigan. It thus could have been expected that many of the witnesses would come from out-of-state. Second, the witnesses for which plaintiffs seek travel expenses were important to plaintiffs' case. All of them provided critical testimony that enabled plaintiffs to present their case to the Court. Their testimony was both relevant and necessary to plaintiffs' case. The Court therefore believes that plaintiffs should recover the travel costs of these witnesses. As an alternative ground for my decision with regard to Dr. John Gilroy and Dr. George Mogill, I note that both of these persons reside within the Court's subpoena power and that their travel costs thus would be taxable even under the standard defendant proposes. See FRCP 45(e)(1); MCR 2.506(G)(1).

The final point of contention between the parties on the costs issue concerns plaintiffs attempt to claim $2,708.05 in exemplification and copying costs. See 28 U.S.C. § 1920(4). Defendant objects to these costs because plaintiffs provided no details regarding their need or amount. Plaintiffs did provide appropriate documentation in their response to defendant's objections, however. Defendant filed no further objections with the Court and the Court sees no reason not to allow these costs. I therefore will reject defendant's objection on this ground.

In accordance with the above discussion, the Court will enter an order denying defendant's objections and granting plaintiffs' Bill of Costs in the amount of $14,212.46.

B. Motion to Extend Time

On May 15, 1985...

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