Martinez v. Thrifty Drug and Discount Co.

• Citation: 593 F.2d 992
• Decision Date: 19 March 1979
• Docket Number: No. 78-1568,78-1568
• Parties: Mary Beatrice MARTINEZ, Plaintiff-Appellant, v. THRIFTY DRUG AND DISCOUNT COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 992

593 F.2d 992 Mary Beatrice MARTINEZ, Plaintiff-Appellant,
v.
THRIFTY DRUG AND DISCOUNT COMPANY, Defendant-Appellee. No. 78-1568. United States Court of Appeals,
Tenth Circuit. Submitted Feb. 15, 1979.
Decided March 19, 1979.

Page 993

John J. Duhigg, of Duhigg & Cronin, Albuquerque, N. M., for plaintiff-appellant.

Michael P. Watkins, of Oldaker, Oldakar & Watkins, Albuquerque, N. M., for defendant-appellee.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The only question presented in this appeal is that of the validity of a district court rule promulgated in the United States District Court for the District of New Mexico, which authorized the court, under certain conditions, to impose jury costs against the parties and their counsel in an instance where there has been a failure to notify the clerk before 12 noon of the last business day preceding the time when the action is scheduled for trial so that the jurors could be advised that there is no necessity for them to attend court.

The action was originally filed August 22, 1977. On May 18, 1978, a jury was selected and the cause was set for trial on May 22, 1978. It was on the morning of trial that the action was dismissed by joint stipulation of the parties. Included in the stipulation was a provision that any assessment of costs "shall be borne solely by the Plaintiff and that the Defendant shall not be liable therefor." The next day, May 23, 1978, the clerk of the district court assessed against plaintiff and her counsel jury costs in the amount of $1,026.72. The case was dismissed by joint motion and an order which were filed on May 25, 1978.

28 U.S.C. § 2071 authorizes rulemaking power of the district courts. It empowers the court to make rules prescribing the conduct of business. The only requirement is that the rules will be consistent with the Acts of Congress and the rules prescribed by the Supreme Court. Rule 83 of the Federal Rules of Civil Procedure allows the district courts to make and amend rules governing the practice not inconsistent with the Rules of Civil Procedure.

Plaintiff-appellant points to 28 U.S.C. § 1920, which says that a judge or clerk may tax as costs fees of the clerk and marshal, fees of the court reporter, fees and disbursements for printing and witnesses, fees for exemplification and copies of papers necessarily obtained for use in the case and docket fees under § 1923, etc. It is said that there is no express provision...