Trepel v. Roadway Express, Inc.

• Decision Date: 25 January 2001
• Docket Number: No. 99-3457,99-3457
• Citation: 266 F.3d 418
• Parties: (6th Cir. 2001) Dr. Martin Trepel, Plaintiff-Appellant, v. Roadway Express, Inc., Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 418

266 F.3d 418 (6th Cir. 2001)

Dr. Martin Trepel, Plaintiff-Appellant, v. Roadway Express, Inc., Defendant-Appellee.

No. 99-3457

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 25, 2001

Decided and Filed: September 17, 2001

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 95-00422, Dan A. Polster, District Judge.

P. David Palmiere, McCONNELL & PALMIERE, Bloomfield Hills, Michigan, for Appellant.

Steven E. Sigalow, Richard H. Sayler, Deborah L. Hamilton, JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, for Appellee.

Before: JONES, BATCHELDER, and CLAY, Circuit Judges.

JONES, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, J. (pp. 427-29), delivered a separate dissenting opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Plaintiff, Dr. Martin Trepel ("Trepel"), sued Roadway Express, Inc. ("Roadway Express or Roadway"), a common carrier, in the United States District Court for the Northern District of Ohio for damages to an article of African tribal art. After receiving a jury verdict in his favor, Trepel moved for attorney's fees in the amount of $141,435.00 and "taxed costs" in the amount of $40,100.84. These matters were referred to Magistrate Judge James S. Gallas. Magistrate Judge Gallas issued a Report and Recommendation in which he recommended that the plaintiff's motion for attorney's fees be denied and found that only $18,171.94 of Trepel's costs were properly taxable. The district court adopted the Report and Recommendation in toto. Trepel now appeals the decision of the district court. For the reasons stated below, we VACATE the district court's decision regarding attorney's fees and VACATE the district court's decisions regarding the taxation of witness travel expenses and the taxation of expert witness deposition fees.

I. Facts

In 1993, plaintiff purchased an African tribal carving known as the "Baga serpent" in New York City for $15,000. Shortly thereafter, Trepel arranged to have the defendant, Roadway Express, transport the object to Phoenix, Arizona, where it would become part of the decor of the plaintiff's home. During transport, the serpent was broken into three major pieces and several minor pieces. Plaintiff filed a claim with the defendant for the damages to the Baga serpent. Defendant did not contact Trepel about any alternative dispute resolution forum or initiate proceedings in such a forum. Plaintiff filed suit in federal court.

At the jury trial in 1997, plaintiff called a number of witnesses, many of whom came from outside the State of Ohio. The plaintiff's witnesses included Dr. Fredrick Lamp, Curator of African, American and Oceanic Art for the Baltimore Museum of Art; Dr. Robert J. Koestler, a research scientist and instructor in biodeterioration at the NYU Institute of Fine Arts; Dr. Dennis Stevenson, Director of the Harding Laboratory at the New York Botanical Gardens; Mr. Leonard Kahan, owner of an African art gallery in New York; Michael Chisolm, a teacher, scholar and appraiser of African art; and JoAnn Hahn; a resident of Phoenix, Arizona who went to the Roadway Express terminal to take delivery of the Baga serpent for Trepel.

Plaintiff also called three rebuttal witnesses: Michael Oliver, an African art dealer; Brian Douglas Newton, former Chairman of the Department of Art of Africa , Oceania and the Americas at the Metropolitan Museum of Art; and Francine Ndiaye, former Curator of African Art at the Musee de l'Homme in Paris. Mr. Kahan estimated that the fair market value of the undamaged Baga serpent was 1.5 million dollars. Mr. Chisholm stated that the fair market value was 2.5 million dollars.

The jury found for the plaintiff and set damages at $80,000. Judgement in this amount was entered on July 17, 1997. On September 8, 1997, plaintiff moved for attorney's fees under Section 7 of the Household Goods Transportation Act, 49 U.S.C. § 11711(d) (1993) (repealed 1995), which was in effect when the Baga serpent was shipped in 1993. On September 12, 1997, plaintiff filed a bill of costs. Plaintiff's bill of costs sought to tax the travel costs of his witnesses from New York (Dr. Koestler, Dr. Stevenson, Mr. Kahan, Mr. Chisholm, Mr. Newton, Mr. Oliver); Baltimore (Dr. Lamp); Paris (Ms. Ndiaye); and Phoenix (Ms. Hahn). Trepel claimed that the total amount of these travel costs was $12,716.35. He also requested an order compelling defendant to reimburse him for $8,525.00 in expert witness fees that he paid Dr. Lamp, Dr. Stevenson, Dr. Keostler, Dr. Rosenburg, Mr. Kahan, and Mr. Chisholm to appear at depositions taken by the defendant. The district court referred the motion for attorney's fees and the motion for costs to Magistrate Judge Gallas.

The magistrate judge issued a Report and Recommendation in which he recommended denying plaintiff attorney's fees on the ground that plaintiff was not entitled to recover attorney's fees because the item involved is an "object of art" that is exempt from the fee-shifting provision of 49 U.S.C. §11711(d). Regarding the witnesses' travel expenses, the magistrate judge proposed that the plaintiff only be allowed to recoup travel costs for travel within 100 miles of the courthouse (200 miles total for each witness) and recommended that these transportation costs be limited to $0.31 per mile. Based on the distance and rate limitations, the magistrate judge recommended granting the plaintiff $62.00 in travel costs for each of his nine witnesses. Finally, the magistrate judge proposed that plaintiff's request for expert-related deposition expenses be denied on the grounds that it was not authorized by statute. The magistrate judge's findings were adopted by the district court in toto.¹

II. Discussion

A. Attorney's Fees

As noted above, the district court (adopting the magistrate judge's Report and Recommendation) denied Trepel's motion for attorney's fees on the ground that there was no statutory basis for such an award.² On appeal, Trepel contends that the district court erred because he is entitled to attorney's fees under the Household Goods Transportation Act. 49 U.S.C. §11711(d) (1993) (repealed 1995). The denial of attorney's fees is generally reviewed for abuse of discretion. See Cramblit v. Fikse, 33 F.3d 633, 634 (6th Cir. 1994). However, when the denial of attorney's fees is based on the construction of a statute, we exercise de novo review. See Columbia Gas System Inc. v. United States, 70 F.3d 1244, 1246 (Fed Cir. 1995).

1. Background

In 1980, Congress enacted the Household Goods Transportation Act, 49 U.S.C. §10101 et seq., to remedy problems in the interstate shipping industry. One of the problems apparently faced by shippers of household goods was that common carriers refused to recognize their claims because the carriers knew that few household goods shippers would engage in an expensive lawsuit to recover for damage to common household items of relatively little value.³ In order to rectify this problem, the Household Goods Transportation Act proposed that shippers provide arbitration and dispute resolution programs so that customers could recover damages without going to court. See H.R. Rep. No. 96-1372, at 12 (1980),reprinted in 1980 U.S.C.C.A.N. 4271, 4282 ("The new section establishes minimum requirements for informal dispute settlement programs to be established by household goods carriers for the purpose of resolving shipper disputes in a fair, expeditious, and inexpensive manner.").

In order to "encourage" carriers to make dispute settlement programs available, the Household Goods Transportation Act stipulated that common carriers who did not make a dispute resolution program available would be liable for attorney's fees if a customer prevailed on his claim. See id.; 49 U.S.C. § 11711(d) ("the shipper shall be awarded reasonable attorney's fees if . . . no dispute settlement program approved under this section was available for use by the shipper to resolve this dispute."). However, the Act did not make attorney's fees available to all successful litigants. According to § 11711(f), the attorney's fee-shifting provision only applied "in the case of collect-on-delivery transportation of those types of household goods described in section 10102(11)(A) of this title." 49 U.S.C. § 11711(f) (1993) (repealed 1995).

49 U.S.C. § 10102(11) provided the definition of "household goods." This provision described three categories of household goods.

(A) personal effects and property used or to be used in a dwelling when a part of the equipment or supply of such dwelling . . . [but not] property moving from a factory or store, except such property as the householder has purchased with intent to use in his dwelling and which is transported at the request of, and the transportation charges paid to the carrier by, the householder;

(B) furniture, fixtures, equipment and the property of stores, offices, museums, institutions, hospitals or other establishments . . .except . . the stock-in-trade of any establishment, whether consignor or consignee, other than used furniture and used fixtures, except when transported as incidental to moving of the establishment, or a portion thereof, from one location to another; and

(C) articles, including objects of art, displays and exhibits, which because of their unusual nature or value require specialized handling and equipment usually employed in moving household goods . . . except that this subparagraph shall not be construed to include any article, whether crated or uncrated, which does not, because of its unusual nature or value, require the specialized handling and equipment usually employed in moving household goods."

49 U.S.C. § 10102(11) (1993) (repealed 1995). As noted above, the attorney-fee shifting provisions only applied to "personal effects and property used or to be used in a dwelling" described in part A.

2. Analysis

On appeal, Trepel argues that he is...