United States v. 353 CASES, ETC.
| Decision Date | 13 July 1961 |
| Docket Number | Civ. A. No. 565. |
| Parties | UNITED STATES of America, Libelant, v. 353 CASES, ETC., OF MOUNTAIN VALLEY WATER, Mountain Valley Sales Company et al., Claimants. |
| Court | U.S. District Court — Western District of Arkansas |
Charles W. Atkinson, U. S. Atty., Fort Smith, Ark., for libelant.
Robert F. Schlafly, St. Louis, Mo., J. F. Schlafly, Jr., Alton, Ill., Edward L. Wright, Little Rock, Ark., for claimants.
On June 13, 1961, the costs in the above entitled case were taxed by the Clerk of the Court in the sum of $7,085.50. On June 14, 1961, claimants H. B. McFarling, John G. Scott, and Mountain Valley Sales Company filed their motion under Rule 54(d), Fed.R. Civ.P., 28 U.S.C.A., to review the taxation and to retax the costs in accordance with the objections set forth in the motion.
There are no objections to items 1, 4, 7 and 8, but the claimants object to a portion of items 2, 3, 5 and 6, and ask the court to "disallow the part of such expenses incurred in libelant's unsuccessful effort to prove its charges of false claims under Sections 352(a) and 343(a) of the Act, as alleged in paragraphs 3 and 5 of the libel."
The libel was originally filed in the United States District Court for the Western District of Tennessee on August 19, 1953. An examination of D. C.W.D.Ark.1953, 117 F.Supp. 110; D. C.E.D.Ark.1955, 135 F.Supp. 333; United States v. United States District Court, etc., 8 Cir., 1955, 226 F.2d 238; United States v. 363 Cases, etc., D.C.W. D.Ark.1956, 143 F.Supp. 219; United States v. 353 Cases, etc., 8 Cir., 1957, 247 F.2d 473, and United States v. Miller, 8 Cir., 1958, 256 F.2d 89, will disclose the course that this proceeding has followed since its filing.
The case was finally tried to a jury May 21 to June 2, 1956. At the close of the claimants' evidence, the Government filed a written motion for directed verdict on the ground that the uncontroverted evidence showed that the Mountain Valley mineral water was recommended and used as a food for special dietary uses because of its mineral contents; that the labels on both sizes of bottles failed to bear the information required by 21 U.S.C.A. § 343(j), and 21 C.F.R., Sec. 125.4. For this reason the mineral was, as a matter of law, misbranded within the meaning of 21 U.S.C.A. § 343(j), and should be condemned pursuant to 21 U.S.C.A. § 334 (a) and (b). The motion was denied, the case was argued to the jury, and immediately after the instructions to the jury were given by the court, counsel were called upon, in the absence of the jury and before the jury retired to consider its verdict, to state their objections, if any, to the instructions. Whereupon counsel for the Government said:
"The libelant has no objections except for the failure to direct a verdict upon the charge that the water is misbranded because it fails to bear statements required by Section 343—J, of the Federal Food, Drug, and Cosmetic Act, since it is represented as a food for special dietary uses because of its mineral content * * *." 247 F.2d 476-477.
The jury returned a verdict in favor of the claimants and against the libellant, and judgment was entered upon the verdict.
In due time the libelant filed its motion for judgment notwithstanding the verdict on two grounds, which motion, omitting the formal parts, is as follows:
The motion was denied, and an appeal to the United States Court of Appeals for the Eighth Circuit was perfected.
Of the eight pamphlets seized in the distributor's place of business and introduced in evidence, the claimants conceded that four were "labeling." The Government contended that four additional pamphlets were also "labeling." The claimants contended that the four disputed pamphlets were not labeling because the evidence showed that they had not been used by the distributor in connection with selling the water in Memphis, but all of the pamphlets were approved advertising matter and available upon request.
At page 478 of 247 F.2d, the court said:
At page 480 of 247 F.2d, the court said:
"We think that all of the sales literature received in evidence was, as a matter of law, `labeling' * * and that the question whether the literature was `labeling' was not an issue for the jury."
The court further said:
Upon the filing of the mandate, this court on December 19, 1957, entered a judgment, to the provisions of which the libelant objected. The libelant filed a petition for writ of mandamus, which was heard by the Court of Appeals on May 28, 1958, and the court directed the Judge of this court to amend the judgment that had been entered on December 19, 1957, "by eliminating paragraph 2 and striking out in paragraph 5 the words, `which are directly referable to the misbranding adjudged herein.'" 256 F.2d 89-90.
Accordingly, on October 24, 1958, the court amended the judgment, and on October 28, 1958, the Court of Appeals found that since "the said order or amended judgment is in accordance with the opinion, ruling and order of this court, it is, therefore, now here ordered and adjudged by this court that the petition for writ of mandamus be, and it is, hereby dismissed."
Title 21 U.S.C.A. § 343, is as follows:
Title 21, C.F.R., Sec. 125.4, is as follows:
In numbered paragraph 4 of the complaint the libelant alleged that the water was misbranded when introduced into, while in, and while held for sale after shipment in interstate commerce within the meaning of Sec. 343(j), supra, in that it purports to be and is represented as a food for special dietary uses by reason of its mineral contents, and its label fails to bear the information required by the regulation which the Secretary of Health, Education and Welfare had determined to be necessary in order to fully inform purchasers as to its value for such uses.
Title 21 U.S.C.A. § 352, provides:
In numbered paragraph 3 it was alleged that the water was misbranded within the meaning of Sec. 352(a), supra, in that its labeling contained representations and suggestions that were false and misleading.
In numbered paragraph 5, the complaint alleged that the water was further misbranded within the meaning of Sec. 343(a) in that its labeling contained representations and suggestions that were false and misleading.
Rule 54(d), Fed.R.Civ.P., provides:
"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; * * *."
Title 21 U.S.C.A. § 334(e), reads:
"When a decree of condemnation is entered against the article, court costs and fees, and storage and other proper expenses, shall be awarded against the person, if any, intervening as claimant of the article."
In the brief of libelant in opposition to the motion to review the taxation of costs, the learned attorneys for libelant state:
"It is conceded that the statute does not remove the court's discretion in controlling the costs that should be taxed, which discretion is necessary to prevent the abuse of process, but no construction of that statute is necessary to fully understand its mandate."
In Spiritwood Grain Co. et al. v. Northern Pac. Ry. Co., 8 Cir., 1950, 179 F.2d 338, at page 344, the court said:
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Cox v. Maddux
...incurred by defendants in taking the deposition of plaintiff should not be allowed. More recently, in United States v. 353 Cases Etc. of Mountain Valley Water, W.D.Ark., 195 F.Supp. 685, a suit brought by the Government to condemn certain property under the provisions of the Federal Food, D......