Free Response - District Court of Connecticut - Connecticut

Case 3:02-cv-01302-JCH

Document 559

Filed 03/08/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT SHAWN POULIOT Plaintiff v. PAUL ARPIN VAN LINES, INC. et al. Defendants : : : : : : : : :

CIVIL ACTION NO. 3:02 CV 1302 (JCH) JUDGE JANET C. HALL

March 8, 2006

OBJECTION TO BILL OF COSTS Pursuant to 28 U.S.C. §§1821, 1920, 1923 & 1924, and Local Rule 54, the defendants Paul Arpin Van Lines, Inc. and Arpin Logistics, Inc., hereby object to the following items in the plaintiff's bill of costs: I. Expert Witness Fees in Excess of Statutory Rate The $13,000 fee for Dr. Mushaweh and the $1,000 fee for Dr. Cremer are improper and should be reduced to the statutory witness fee rate of $40 per day. Local Rule 54(c)(4)(i) expressly states that, "[f]ees for expert witnesses are taxable at the same rates as any other witnesses. Any amounts in excess of the statutory limits are not taxable." The statutory rate for witnesses is $40 per day; 28 U.S.C. §1821(b); and "a federal court may tax expert witness fees in excess of the . . . limit set out in § 1821(b) only when the witness is court-appointed[,]" or where there is "explicit statutory or contractual authorization . . . ." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442, 445 (1987); see Dr. Bernard Heller Foundation v. Lee, 847 F.2d 83, 86 (3rd Cir. 1988); Garonzik v. Whitman Diner, 910 F.Supp. 167, 169-70 (D.N.J. 1995) (both holding, based on Crawford, that District Court has no discretion to award expert fees in excess of statutory limit of $40 per day). In light of the clear language of Local Rule 54(c)(4)(i), and the clear holdings of

Case 3:02-cv-01302-JCH

Document 559

Filed 03/08/2006

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Crawford and its progeny, there is no basis to tax Dr. Mushaweh's or Dr. Cremer's fees as costs in excess of the statutory rate. Their fees should therefore be reduced to $40 each. II. Court Reporter Fees for Deposition Transcripts; Fees for Exemplification and Copies of Papers; and Clerk & Marshal Fees for Trial Subpoenas It is impossible to determine from the plaintiff's generalized listing of costs whether the total amount sought for these three items ­ almost $24,000 ­ is properly recoverable. The defendants therefore request that the Court order the plaintiff to provide specific proof for each of these three items. See Natale v. City of Hartford, 1989 WL 132542 at *6 (D. Conn. 1989) (reserving judgment on an assessment of certain costs because the plaintiff failed to produce sufficient evidence of the necessity of such costs). First, with respect to the $13,235.77 in deposition transcript fees, Local Rule 54(c)(2)(ii) permits recovery of those fees only if they were "used at trial in lieu of live testimony, for crossexamination or impeachment . . . or if they are necessarily obtained for the preparation of the case and not for the convenience of counsel." The defendants do not dispute that some deposition transcripts were used by the plaintiff for those permissible purposes. However, because the plaintiff has not provided more specific information for this cost, it is impossible to tell if the entire amount is allowable under Local Rule 54(c)(2)(ii). The same problem exists for the $9,316.79 for "exhibits," listed by the plaintiff under exemplification and copies of papers. Preparation of exhibits is not necessarily the same as exemplification, a distinction that the Local Rules make clear by excluding the cost of preparing certain kinds of exhibits. See Local Rule 54(c)(5). Again, because the plaintiff has not itemized the cost for his "exhibits," it is impossible to ascertain whether the entire amount is allowable. Third, to the extent that the plaintiff seeks to recover subpoena fees for William Mottla and Joseph Rocha, the defendants object on the ground that they repeatedly informed the

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Case 3:02-cv-01302-JCH

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plaintiff and the Court that Mottla and Rocha would be made available without the need for a subpoena. See Defendants' August 23, 2005 Supplemental Memorandum of Law (Docket Entry No. 455), at p. 4 ("Arpin intends to call [Mottla and Rocha] at trial, and they will voluntarily appear"). Again, because the plaintiff has not itemized the $1,327.20 in subpoena fees, the defendants cannot ascertain whether that total includes fees for Mottla and Rocha, which are not properly allowable. Therefore, with respect to the items listed in Section II, the defendants request hat the Court order the plaintiff to provide specific proof for each. III. Witness Mileage Fees for Michael Montgomery, Bill Mottla, and Joseph Rocha The plaintiff claims a total of $814.54 in mileage for these three witnesses. However, the defendants arranged for the appearance of all three witnesses at trial. The plaintiff therefore did not have to compensate any of them for their travel to and from the trial, and cannot now claim that expense as a cost "necessarily incurred in the case". 28 U.S.C. §1924.

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Case 3:02-cv-01302-JCH

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For the foregoing reasons, the defendants object to the plaintiff's bill of costs. Respectfully submitted,

Daniel J. Krisch, Esq. CT 21994 Michael S. Taylor, Esq. CT 14650 Horton, Shields & Knox, P.C. 90 Gillett Street Hartford, CT 06105 (860) 522-8338 fax (860) 728-0401 [email protected] [email protected] Harold J. Friedman, Esq. CT 23785 Karen Frink Wolf, Esq. CT 26494 Friedman. Gaythwaite, Wolf & Leavitt Six City Center, P.O. Box 4726 Portland, ME 04112-4726 (207) 761-0900 (207) 761-0186 (Fax) [email protected] [email protected]

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Case 3:02-cv-01302-JCH

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CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed via U.S. First Class Mail on March 8, 2006, to the following:

Michael A. Stratton, Esq. Stratton Faxon 59 Elm Street New Haven, CT 06510 Thomas J. Grady, Esq. Lenihan Grady & Steele 6 Canal Street PO Box 541 Westerly, RI 02891-0541 Harold J. Friedman, Esq. Karen Frink Wolf, Esq. Friedman Gaythwaite Wolf & Leavitt Six City Center, P.O. Box 4726 Portland, ME 04112-4726

Roland F. Moots, Jr., Esq. Moots, Pellegrini, Spillane & Mannion 46 Main Street, PO BOX 1319 New Milford, CT 06776-1319

Daniel J. Krisch

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