IN RE D&B COUNTRYSIDE, LLC

• Decision Date: 09 February 1998
• Docket Number: Bankruptcy No. 95-11946-SSM,Adversary No. 96-1110.
• Parties: In re D&B COUNTRYSIDE, L.L.C., Debtor. D&B COUNTRYSIDE, L.L.C., Plaintiff, v. S.P. NEWELL, et al., Defendants.
• Court: Bankr. V.I.

217 B.R. 72 (1998)

In re D&B COUNTRYSIDE, L.L.C., Debtor.

D&B COUNTRYSIDE, L.L.C., Plaintiff, v. S.P. NEWELL, et al., Defendants.

Bankruptcy No. 95-11946-SSM, Adversary No. 96-1110.

United States Bankruptcy Court, E.D. Virginia, Alexandria Division.

February 9, 1998.

COPYRIGHT MATERIAL OMITTED

Joseph S. Luchini, Hazel & Thomas, P.C., Falls Church, VA, for D&B Countryside, L.L.C.

John T. Richards, Jr., Trout & Richards, P.L.L.C., Washington, DC, for S.P. Newell.

MEMORANDUM OPINION

STEPHEN S. MITCHELL, Bankruptcy Judge.

This matter is before the court on defendant Newell's motions (a) for release of an appeal bond; and (b) for review of the plaintiff's costs taxed by the clerk of this court on December 16, 1997. A hearing was held on January 13, 1998, at which counsel for both the plaintiff and the defendant appeared and presented argument. At the conclusion of the hearing, the court took the matter under advisement to review the applicable law.

Facts

The debtor, D&B Countryside, L.L.C. ("the debtor") is a Virginia limited liability company formed in 1994 to develop a parcel of land in Sterling, Loudoun County, Virginia, known as Parc City Center. It filed a voluntary petition under chapter 11 of the Bankruptcy Code in this court on May 9, 1995, and thereafter brought this action to set aside a $3 million note, deed of trust, and confessed judgment in favor of S.P. "Chip" Newell ("Newell").¹ The debtor additionally sought an award of damages for civil conspiracy and for slander of title to its real estate arising from the recording of the deed of trust and the docketing of the confessed judgment. After a two-day trial held on December 9 and 10, 1996, this court on February 24, 1997, issued a memorandum opinion and judgment declaring that the $3 million note, deed of trust, and confessed judgment were void as a liability of the debtor and as a lien against the debtor's property, but dismissing the slander of title and conspiracy causes of action.² The underlying facts of this action are adequately set forth in the court's memorandum opinion and need not be repeated here, but to the extent that the court's findings are relevant to the motion before the court, the court incorporates them by reference. The judgment also provided that the debtor was entitled to recover its taxable costs, which is the issue currently before the court.

On November 21, 1997, the debtor filed a bill of costs requesting that the following amounts be taxed against Newell:

                                                                   Amount
                Type of fee requested                             requested
                Fees of the Clerk                                $  225.00
                Fees for service of summons and
                  subpoena                                       $1,345.50
                Fees of the court reporter for all or any
                  part of the transcript necessarily
                  obtained for use in the case                   $2,446.35
                Fees for witnesses                               $  485.24
                Fees for exemplification and copies of
                  papers necessarily obtained for use in
                  the case                                       $2,227.05
                Docket fees under 28 U.S.C.1923                      22.50
                Other costs                                      $3,000.00
                                                                 _________
                Total:                                           $9,751.64
                

On December 16, 1997, the clerk taxed the above amounts against Newell. On December 22, 1997, Newell filed a timely³ motion for this court to review the debtor's bill of costs, noting his opposition to several of the costs asserted by the debtor as not being properly taxable under 28 U.S.C. § 1920. Previously, on November 12, 1997, Newell filed a motion to release his appeal bond.

Conclusions of Law and Discussion

I.

Under Fed.R.Bankr.P. 7054(b), "the court may allow costs to the prevailing party in an adversary proceeding except when a statute of the United States or these rules otherwise provides" (emphasis added). While it is clear that Rule 7054(b) is modeled on Fed.R.Civ.P. 54(d), there are significant differences.⁴ Fed.R.Civ.P. 54(d) mandates an allowance of costs "as of course" unless the court "otherwise directs," thereby creating a strong presumption in favor of taxing costs unless a statute provides otherwise. Fed.R.Bankr.P. 7054(b), however, contains no such standard. Samayoa v. Jodoin (In re Jodoin), 196 B.R. 845, 856 (Bankr.E.D.Cal. 1996), aff'd on other grounds, 209 B.R. 132 (9th Cir. BAP 1997); 10 Moore's Federal Practice § 54.1011a, at 54-148 to 149 (3d ed. 1997). But see 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2668, at 197-201 (2d 1983) (reasoning that an award of costs even under Fed.R.Civ.P. 54(d) is within the discretion of the court). Accordingly, whether to award costs is within the sound discretion of the bankruptcy court. Jodoin, 196 B.R. at 856; Rathbone v. Lake (In re Consolidated Partners Investment Co.), 156 B.R. 982, 987 (Bankr.N.D.Ohio 1993); 10 Collier on Bankruptcy ¶¶ 7054.05 & 7054.RH, at 7054-8 & 7054-10 to 11 (Lawrence P. King, ed. 15th ed. rev.1997). Once a party establishes that a certain cost fits within the statutory definition, the burden shifts to the other party to prove that the allowance of the cost should not be allowed. Principe v. McDonald's Corp., 95 F.R.D. 34, 36 (E.D.Va. 1982) (Warriner, J.). Finally, the court reviews de novo the clerk's taxation of costs. 10 Moore's Federal Practice § 54.1003, at 54-145.

A court may only tax those costs authorized by statute. Relevant to the present controversy, 28 U.S.C. § 1920 provides as follows:

A judge or clerk of any court of the United States⁵ 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;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

The Supreme Court has held that because Congress drafted a very precise statute without language suggesting that the list of costs in § 1920 is only representative, courts must construe § 1920 very narrowly, and absent explicit statutory authority, may not award costs not provided for by § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45, 107 S.Ct. 2494, 2499, 96 L.Ed.2d 385 (1987) (disavowing that part of Farmer v. Arabian American Oil Co., 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964), which suggested that district court judges could "sparingly" tax costs not specifically allowed by statute); see also West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 86, 111 S.Ct. 1138, 1140-41, 113 L.Ed.2d 68, (1991) (noting that Crawford Fitting held that 28 U.S.C. § 1920, in conjunction with 28 U.S.C. § 1821 (witness fees), "defines the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further."); 10 Moore's Federal Practice § 54.1033a, at 54-176. Although § 1920 is an exhaustive list of those categories of costs that may be taxed, the particular item sought to be taxed need not be expressly mentioned in the statute, and the court has some latitude to interpret the statutory language. Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 945 (7th Cir.1997); Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 177-78 (9th Cir.1990) (per curiam), cert. denied, 502 U.S. 812, 112 S.Ct. 61, 116 L.Ed.2d 36 (1991); SK Hand Tool Corp. v. Dresser Industries, Inc. 852 F.2d 936, 944 (7th Cir.1988), cert. denied, 492 U.S. 918, 109 S.Ct. 3241, 106 L.Ed.2d 589 (1989); 10 Moore's Federal Practice § 54.1033a, at 54-176 to 177.

II.

A.

There are several of the claimed costs to which Newell has not objected. These include the filing fee for the adversary proceeding of $120, witness fees of $445.24⁶ and docket fees under 28 U.S.C. § 1923 in the amount of $22.50. Accordingly, no further discussion is required with respect to those costs, and they will be allowed. The remaining costs claimed by the debtor have all been objected to by Newell. Accordingly, the court will address each of the disputed categories in turn.

B.

The court first addresses the $105.00 fee that the debtor paid when it filed its notice of cross-appeal. As noted above, the judgment, although finding in the debtor's favor on its counts for declaratory relief, dismissed the counts seeking monetary damages. The debtor is seeking to recover the fee it paid to file its cross-appeal of this latter portion of this court's judgment. Under Fed. R.Bankr.P. 8014,

Except as otherwise provided by law, agreed to by the parties, or ordered by the district court or the bankruptcy appellate panel, costs shall be taxed against the losing party on an appeal. If a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court. Costs incurred in the production of copies of briefs, the appendices, and the record and in the preparation and transmission of the record, the cost of the reporter\'s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal and the fee for filing the notice of appeal shall be taxed by the clerk as costs of the appeal in favor of the party entitled to costs under this rule.

It is unclear from the language of the rule whether "the clerk" who taxes "the fee for filing the notice of appeal" is the clerk of the bankruptcy court or the clerk of the appellate tribunal (the district court or, in...