A doctor formerly employed by an oil company to work in Saudi
Arabia sued for breach of his employment contract. The jury failed
to agree, and the District Judge granted the company's motion for a
directed verdict. Costs of more than $6,600 were taxed against the
doctor, including transportation expenses of witnesses from Arabia
and daily transcripts requested by company counsel. The Court of
Appeals reversed, on the ground that a verdict should not have been
directed, and remanded for a new trial. On remand, the case was
dismissed because of the doctor's inability to post a $6,000 bond
as security for costs. The Court of Appeals again reversed, and
indicated that the costs already taxed were exorbitant. At a second
trial, the jury found for the company. The clerk taxed costs at
almost $12,000 for the two trials, which the second District Judge
reduced by over 90%, eliminating the expenses of the overseas
witnesses and the cost of the daily transcripts. The Court of
Appeals upheld the costs for the second trial, but reversed as to
costs for the first trial, although reducing the amount, holding
that the second judge failed to give proper deference to the first
judge's taxation of costs.
Held:
1. The 100-mile subpoena provision in Rule 45(e) of the Federal
Rules of Civil Procedure does not completely bar a district court
from taxing as costs expenses of transporting witnesses more than
100 miles, for Rule 54(d) does leave the district court discretion
to tax such expenses. Pp.
379 U. S.
231-232.
2. It was not error for the District Judge at the end of the
second trial when judgment was finally entered, to determine costs
for both trials, the first judgment and taxation of costs having
been upset by the reversal of the trial judgment. Pp.
379 U. S.
232-233.
3. The District Judge's discretion was appropriately exercised
in his taxation of costs for both trials. Pp.
379 U. S.
233-236.
324 F.2d 359, reversed.
Page 379 U. S. 228
MR. JUSTICE BLACK delivered the opinion of the Court.
The questions presented in this case relate to the power and
discretion of a United States district court to tax as costs
against the loser in a civil lawsuit expenses incurred by the
winner in carrying on the litigation.
Howard Farmer, a physician from Texas specializing in
ophthalmology, started this litigation against the Arabian American
Oil Company in a New York state court, claiming $4,000 damages
[
Footnote 1] for breach of an
employment contract. The complaint alleged that, in April, 1955,
the company entered into an agreement to employ Farmer as an
ophthalmologist in Saudi Arabia at an annual salary of $16,000 plus
a $4,000 living allowance per year, so long as the company
continued its oil well operations there, and that, although he
began work and properly performed his duties, the company
wrongfully discharged him in March, 1956. On the company's motion,
the case was removed to federal court because of diversity. The
company admitted that it had employed Farmer, but defended on the
grounds that the discharge was not wrongful, both because he had
been employed at will, rather than for a definite term, and because
he had been discharged for good cause. At the trial, Farmer
attempted to show that the company discharged him because he
had
Page 379 U. S. 229
found that a number of Americans employed by the company in
Arabia had contracted trachoma, a much dreaded tropical eye disease
which may lead to blindness, and that, although urged by the
company's medical staff to falsify or suppress his findings, he had
refused to do so. The company's evidence tended to disprove this
charge, and to show that Farmer had been discharged because he had
operated on a young Arabian boy's eye without first having received
and examined a urinalysis and blood test report. This the company
alleged to be in violation of a written company rule and standard
surgical practice. Such tests had, in fact, been completed before
Dr. Farmer performed the operation, but whether he had known of the
tests or their results, and whether there actually had been a
company rule requiring that he have the test results were in sharp
dispute.
The company, in order to refute Farmer's charge, brought three
witnesses from Saudi Arabia to New York to testify in support of
its version of the dispute. The jury failed to agree, after which
District Judge Palmieri granted the company's motion for a directed
verdict, 176 F. Supp. 45, and approved the clerk's taxation of
costs against Farmer in the amount of $6,601.08, which included,
among other things, transportation expenses for the witnesses from
Arabia and costs of daily stenographic transcripts of the trial
record furnished to the company's lawyers at their request. Holding
that a verdict should not have been directed, the Court of Appeals
reversed and remanded the case for a new trial, thereby upsetting
the judgment and the taxation of costs. 277 F.2d 46.
On remand to the District Court, the company obtained an order
directing Farmer to put up security for costs in the sum of $6,000.
Because Farmer was unable to post so large a bond, Judge MacMahon
dismissed the case. The Court of Appeals reversed in an opinion
that strongly
Page 379 U. S. 230
indicated its belief that the costs already taxed were
exorbitant and that to require Farmer to give the bond would "for
all practical purposes" deny him his day in court. 285 F.2d 720. On
a second trial, this time before District Judge Weinfeld, the jury
found for the company, and no appeal was taken. The clerk then
taxed $11,900.12 against Farmer as the aggregate cost of both
trials, but, on review, Judge Weinfeld found these costs
"staggering" for so uncomplicated a case, and reduced them to
$831.60. In making this reduction, Judge Weinfeld lowered the cost
bill approved by Judge Palmieri in the first trial from $6,601.08
to $496.05. He did this chiefly by eliminating the transportation
expenses of the witnesses from Arabia and the costs of supplying
the company's counsel with overnight transcripts of the daily trial
proceedings. Judge Weinfeld also refused to require Farmer to
reimburse the company for its similar expenses in the second trial.
31 F.R.D. 191. Sitting en banc, the Court of Appeals, by a vote of
5-4, affirmed Judge Weinfeld's cost taxation for the second trial,
but held that he had failed to give proper deference to Judge
Palmieri's taxation of costs for the first trial, and so reversed
that part of his order. The Court of Appeals itself, however,
directed that Judge Palmieri's cost allowance be reduced by $2,064
for transportation of two of the witnesses from Arabia, who had
"occupied otherwise empty space in company planes on regularly
scheduled flights to and from Saudi Arabia, so that, as to them,
there was no actual travel expense incurred by the company, and
none should have been allowed."
324 F.2d 359, 364.
Farmer petitioned for certiorari to review the Court of Appeals'
refusal to affirm Judge Weinfeld's taxation of costs. The company
sought certiorari to review those parts of the Court of Appeals'
judgment refusing to allow all costs taxed by Judge Palmieri on the
first trial and
Page 379 U. S. 231
refusing to allow transportation costs incurred in transporting
its witnesses from Arabia for the second trial. We granted both
petitions, 376 U.S. 942. For reasons to be stated, which are not
wholly the grounds relied on by Farmer, we agree with him that
Judge Weinfeld's order should have been upheld in its entirety.
I
We deal first with Farmer's contention that the District Court
was wholly without power to tax costs against him to reimburse the
company for expenses incurred in bringing the witnesses from Arabia
to this country. His argument runs this way. It has long been the
law in this country, as now set out in Rule 45(e) of the Federal
Rules of Civil Procedure, [
Footnote
2] that, with exceptions not here relevant, subpoenas requiring
the attendance of witnesses at a trial cannot be served outside the
judicial district more than 100 miles from the place of trial. Many
decisions of district courts and courts of appeals have held that,
since witnesses cannot be compelled under this rule to travel more
than 100 miles, a party who persuades them to do so by paying their
transportation expenses cannot have those expenses taxed as costs
against his adversary. [
Footnote
3] This was the view of three of the dissenting judges below.
324 F.2d 359, 365. The majority, however, while recognizing that
the great bulk of judicial authority supports the 100-mile rule,
nevertheless
Page 379 U. S. 232
held that district courts do have discretionary power to tax
such costs under 28 U.S.C. § 1920(3) (1958 ed.), which provides
that "[a] judge or clerk . . . may tax as costs . . . [f]ees and
disbursements for . . . witnesses. . . ." The majority also thought
the prior 100-mile rule had been undercut by the 1949 congressional
amendment to 28 U.S.C. § 1821 (1958 ed.), which provides that
"witnesses who are required to travel . . . to and from the
Continental United States, shall be entitled to the actual expenses
of travel. . . ."
We cannot accept either the extreme position of the company that
the old 100-mile rule has no vitality for any purpose or Farmer's
argument that a federal district court can never under any
circumstances tax as costs expenses for transporting witnesses more
than 100 miles. In this case, however, where taxation of such
expenses is being denied, we need not set out the specific
circumstances under which such costs can be taxed, nor mark
precisely the limits of a district court's power to tax them. It is
sufficient here to point to Federal Rule of Civil Procedure 54(d),
which provides that,
"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. . . ."
While this Rule could be far more definite as to what "costs
shall be allowed," the words "unless the court otherwise directs"
quite plainly vest some power in the court to allow some "costs."
We therefore hold that Judge Weinfeld was correct in treating this
case as an appeal to his discretion.
II
The Court of Appeals held, and the company argues here, that,
even if Judge Weinfeld did have discretion, it was nevertheless
error for him to undertake "an independent determination
de
novo of the costs allowed at
Page 379 U. S. 233
a prior trial." 324 F.2d at 364. We cannot agree. Since Judge
Palmieri's judgment and his taxation of costs were both upset by
the Court of Appeals' reversal of the first trial judgment, it
became the duty of the clerk to tax costs for both trials only when
judgment was finally entered for the company. The fact that the
clerk accepted Judge Palmieri's former cost taxation put no duty on
Judge Weinfeld to accept the same figures. On review of the clerk's
assessment, it was Judge Weinfeld's responsibility to decide the
cost question himself, and, so far as an exercise of discretion was
called for, it was then his discretion, and not Judge Palmieri's,
that had to control. True, any judge in a like situation would
almost surely hope to agree with his brother judge's prior opinion,
but we cannot accept the idea that he is compelled to do so. Judge
Weinfeld was aware of intervening circumstances of which Judge
Palmieri could not have known, as, for example, the Court of
Appeals' two opinions following the first trial, one of which
mentioned cost questions. And Judge Weinfeld, in lowering the prior
assessment, reached a result not greatly different from that of the
Court of Appeals, which itself reduced Judge Palmieri's cost
allowance more than $2,000.
III
Finally, we think that Judge Weinfeld's taxation of costs as to
both trials was an appropriate exercise of his discretion, and
should have been allowed to stand. The two disputed expenses that
are most important in principle and largest in amount are (a)
approximately $3,000 for stenographers' fees in supplying company
counsel with daily transcripts of the trial, and (b) approximately
$7,000 for expenses incurred in transporting witnesses from and
back to Arabia.
(a) In denying the allowance for daily transcripts, Judge
Weinfeld pointed out that while these might have
Page 379 U. S. 234
added to the convenience of counsel for the company, and perhaps
even have made the task of the trial judges easier, the transcripts
were by no means indispensable. The judge's conclusion was based on
his personal knowledge that this was not a complicated or extended
trial where lawyers were required to submit briefs and proposed
findings. As to the company's argument that the transcript costs
were justified because the jury read them, Judge Weinfeld correctly
pointed out that the same result could have been accomplished
without this expense by following the common practice of calling on
the stenographer to read from his notes. We think Judge Weinfeld's
refusal to make Farmer pay for these overnight transcripts, which
were ordered by the company's counsel, was proper, and should not
have been disturbed by the Court of Appeals.
(b) Judge Weinfeld, "in the exercise of discretion," refused to
tax the actual transportation expenses of the witnesses from
Arabia, limiting those costs to the
per diem fees fixed by
law and to expenses for travel for a distance not to exceed 100
miles to and from the courthouse. He undoubtedly was influenced to
some extent by the longstanding 100-mile rule. That rule, we think,
is a proper and necessary consideration in exercising discretion in
this field. The century and a half old special statutory provision
[
Footnote 4] relating to
service of subpoenas more than 100 miles from the courthouse is
designed not only to protect witnesses from the harassment of long,
tiresome trips, but also, in line with our national policy, to
minimize the costs of litigation, which policy is strongly
emphasized in the Federal Rules of Civil Procedure. [
Footnote 5] Here, the company,
Page 379 U. S. 235
on its own, without prior notice to the court, brought its
foreign witnesses to court at its own expense. With reference to
this, Judge Weinfeld said:
"Upon an appropriate motion, the means of obtaining the
testimony of the witness would have rested with the Court, which,
in its discretion, could have imposed conditions with respect to
which party initially was to bear the expense and provided for its
ultimate taxation in favor of the prevailing party."
31 F.R.D. 191, 195.
Having failed to bring this problem to the court's attention in
any manner, the company went ahead and piled up what Judge Weinfeld
quite understandably referred to as this "huge bill of costs." We
think that, under the circumstances, Judge Weinfeld could not be
charged with any improper exercise of the discretion vested in him
by Rule 54(d). We do not read that Rule as giving district judges
unrestrained discretion to tax costs to reimburse a winning
litigant for every expense he has seen fit to incur in the conduct
of his case. Items proposed by winning parties as costs should
always be given careful scrutiny. Any other practice would be too
great a movement in the direction of some systems of jurisprudence
that are willing, if not indeed anxious, to allow litigation costs
so high as to discourage litigants from bringing lawsuits, no
matter how meritorious they might in good faith believe their
claims to be. Therefore, the discretion given district judges to
tax costs should be sparingly exercised with reference to expenses
not specifically allowed by statute. Such a restrained
administration of the Rule is in harmony with our national policy
of reducing insofar as possible the burdensome cost of litigation.
We therefore hold that Judge Weinfeld's order assessing only
appropriate expenses should have been
Page 379 U. S. 236
affirmed by the Court of Appeals. That court's judgment is
accordingly reversed, and the judgment of the District Court is
affirmed.
It is so ordered.
* Together with No. 33,
Arabian American Oil Co. v.
Farmer, also on certiorari to the same court.
[
Footnote 1]
By two successive amendments made several years later, the
complaint was amended to claim, first $59,683, and finally
$160,000.
[
Footnote 2]
Rule 45(e) provides in part that:
"A subpoena requiring the attendance of a witness at a hearing
or trial may be served at any place within the district, or at any
place without the district that is within 100 miles of the place of
the hearing or trial specified in the subpoena. . . ."
[
Footnote 3]
See cases cited in the opinion of the court below, 324
F.2d at 362, and the dissent, 324 F.2d at 366, as well as cases
collected in 28 U.S.C.A. § 1821, n. 4, and 28 Fed.Code Ann. §
1821.
[
Footnote 4]
1 Stat. 88 (1789); 1 Stat. 335 (1793).
[
Footnote 5]
See, e.g., Rule 1 of the Federal Rules of Civil
Procedure, which provides that all the Rules "shall be construed to
secure the just, speedy, and
inexpensive determination of
every action." (Emphasis supplied.)
MR. JUSTICE GOLDBERG, concurring in the result.
I agree with the Court that Judge Weinfeld did not abuse his
discretion in limiting the costs for transcripts in both trials.
The issues, as Judge Weinfeld properly found, were not
extraordinarily complicated, nor were the trials of great length,
and Judge Weinfeld's decision that much of this expense was not
really necessary seems to me entirely correct, let alone not so
erroneous as to constitute an abuse of discretion. I likewise agree
with the Court that it was Judge Weinfeld's responsibility to
decide the cost question, and that he was not compelled to agree
with Judge Palmieri's prior opinion which was set aside by the
Court of Appeals' reversal of the first trial judgment. Also, if I
believed that Judge Weinfeld had discretion to tax costs for travel
beyond the "100-mile limit," I would agree that he did not abuse
his discretion in reducing the travel allowances of the defendant's
witnesses to the equivalent of mileage for 100 miles.
But I do not agree that the 100-mile limit is a matter for even
the narrow discretion which the Court would allow the lower federal
courts to exercise. I would not depart from the strong precedents
and long-continued custom that the 100-mile rule is a limitation to
be uniformly observed, and not to be departed from, in taxing
costs.
Judges Smith, Clark, and Hays, dissenting in the Court of
Appeals on this point, have stated reasons which, to me, are both
persuasive and compelling. Judge Smith succinctly summarized the
rationale of the dissenters in stating that the decision of the
majority of the Court of Appeals
"not only breaks with the overwhelming weight of authority, and
creates a different rule for costs in
Page 379 U. S. 237
civil cases from that in admiralty, but also, as the majority
indeed appears to admit, abandons the traditional scheme of costs
in American courts to turn in the direction of the English practice
of making the unsuccessful litigant pay his opponent's litigation
expense, as well as his own. It has not been accident that the
American litigant must bear his own cost of counsel and other trial
expense save for minimal court costs, but a deliberate choice to
ensure that access to the courts be not effectively denied those of
moderate means."
324 F.2d 359, 365. No undue burden is imposed upon a litigant by
the American rule, for depositions may be taken of witnesses who
live outside the district where a case is pending. If the litigant
feels that the personal appearance in court of such a witness is
necessary, it is reasonable that he bear the cost involved.
That a discretionary application of the 100-mile rule violates
other sound policy is shown by this very case. Two able and
experienced District Court Judges applying discretion came to
opposite results in the application of the rule; a learned Court of
Appeals divided 5 to 4 on this issue. I fear that, in place of the
certainty and uniformity of treatment of this important cost item
which has heretofore prevailed throughout the federal system, the
opinion of the Court will spawn considerable litigation seeking
review of the discretion which the Court now holds is vested in the
lower courts. This type of litigation in itself is both
time-consuming and expensive to the parties, and will further add
to the burdens of litigation, which, even under the traditional
100-mile rule, were heavy. Moreover, it will unduly prolong
litigation, for appeals over costs may be decided well after a
final judgment has been entered.
The fact is that the defendant, in all probability, would not
have seriously raised this issue, in light of the uniform
Page 379 U. S. 238
authority against its position, were it not for the enactment of
the proviso added in 1949 to 28 U.S.C. § 1821 (1958 ed.). But, as
the dissenting judges demonstrated, this proviso has nothing to do
with "the eventual recovery of . . . fees as costs by the
prevailing party." 324 F.2d at 367. It was enacted at the request
of the Attorney General to obtain authority to pay the travel
expenses of witnesses at the lowest first-class rate, so that their
attendance could be obtained without financial sacrifice on their
part. S. Rep. No. 187, 81st Cong., 1st Sess. Furthermore, it is
doubtful whether this statute applies to foreign travel at all,
since it seems, on its face, to be limited to travel between the
Territories and possessions of the United States and between the
continental United States and its Territories and possessions.
Finally, since the word "required" is used in the statute, and
since the statute's proponent was the Attorney General, it is
susceptible of the interpretation that, even if deemed applicable
to witnesses coming from abroad, it is limited to those witnesses
who are subject to subpoena in the two situations provided in 28
U.S.C. § 1783 (1958 ed.). [
Footnote
2/1]
Moreover, Federal Rule of Civil Procedure 54(d) lends no support
to this Court's conclusion. That Rule provides that,
"Except when express provision therefor is made either in a
statute of the United States or in these
Page 379 U. S. 239
rules, costs shall be allowed as of course to the prevailing
party unless the court otherwise directs. . . ."
In light of the uniform application of the 100-mile limitation
both before and after the adoption of 54(d), known to those charged
with framing and amending the Rules, its reference to "costs" can
only be interpreted as referring to those traditional court costs,
such as the cost of providing transcripts or travel costs limited
by the 100-mile rule, normally awarded to a winning litigant.
[
Footnote 2/2]
For these reasons, I would adhere to the traditional formulation
of the rule, as set forth by the Ninth Circuit, that the
"mileage allowable should be that which was traveled within the
district, or actual mileage traveled in and out of the district up
to 100 miles, whichever is the greater."
Kemart Corp. v. Printing Arts Research Laboratories,
Inc., 232 F.2d 897, 904.
Even the narrow decision of the Court today, in the words of
Judge Clark, dissenting in this case,
"represents an approach to the English system never accepted by
us because of our conviction that it 'favored the wealthy and
unduly penalized the losing party.'"
324 F.2d at 370.
Judge Learned Hand once properly observed:
"After now some dozen years of experience, I must say that, as a
litigant, I should dread a law suit beyond almost anything else
short of sickness and death. [
Footnote
2/3]"
I would not intensify that dread.
[
Footnote 2/1]
28 U.S.C. § 1783(a) (1958 ed.) provides:
"(a) A court of the United States may subpoena, for appearance
before it, a citizen or resident of the United States who:"
"(1) Has been personally notified in a foreign country to appear
before a court thereof to testify pursuant to letters rogatory
issued by such court of the United States, and who has failed to
appear or has failed to answer any question which he would be
required to answer were he being examined before such court of the
United States; or"
"(2) is beyond the jurisdiction of the United States and whose
testimony in a criminal proceeding is desired by the Attorney
General."
[
Footnote 2/2]
Authorities on the rules such as Professor Moore approve the
100-mile rule, and do not intimate that it departs in any way from
the letter or spirit of Rule 54(d). 6 Moore, Federal Practice,
1362-1363.
[
Footnote 2/3]
Address of Learned Hand, 3 Association of the Bar of the City of
New York, Lectures on Legal Topics 105 (1926).
MR. JUSTICE HARLAN, with whom MR. JUSTICE STEWART joins,
dissenting.
The only possible justification for bringing this case here was
to settle the question of whether the 100-mile
Page 379 U. S. 240
subpoena rule deprives a district court of power to tax as costs
the traveling expenses of witnesses reasonably brought by the
prevailing litigant from places beyond that distance. The Court,
however, declines to make any precise holding on this question. The
scope of the discretion of a district judge acting within his
powers, which is the foundation of today's decision, is, in my
opinion, a matter which should be left with the courts of appeals.
I would affirm the judgment below for the reasons stated in the
opinion of Chief Judge Lumbard for the majority of the Court of
Appeals, 324 F.2d 359.