Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IN RE GARONZIK

December 15, 1995

Re: Garonzik
v.
Whitman Diner



The opinion of the court was delivered by: KUGLER

 Dear Counsel:

 Presently before the court is a dispute over the plaintiffs' Bill of Costs that was submitted at the conclusion of the jury trial in this matter. This case was a personal injury action in which Bernice and Milton Garonzik sought damages as a result of Bernice Garonzik's slip and fall on the premises of Defendant Whitman Diner. The parties consented to the jurisdiction of the Magistrate Judge to conduct the trial and related matters pursuant to 28 U.S.C. § 636(c). The initial jury trial ended in a mistrial. The matter was again tried before a jury and a verdict was rendered on May 26, 1995 attributing 45% fault to Plaintiff Bernice Garonzik, 35% fault to Defendant Whitman Diner, and 20% fault to Third-Party Defendant Larry Catalini. Judgment was entered on June 28, 1995. Plaintiffs subsequently filed a Bill of Costs seeking $ 5,807.38 in taxable expenditures, and Defendant Whitman Diner submitted opposition.

 I. PREVAILING PARTY

 Defendant argues that since Plaintiff Bernice Garonzik was found to be 45% liable, she should not be considered the prevailing plaintiff for purposes of taxation of costs under Fed. R. Civ. P. 54(d). Rule 54(d) provides that except where otherwise expressly provided by statute or rule, costs "shall be allowed as of course to the prevailing party unless the court otherwise directs...." A prevailing party is the one in whose favor a judgment is rendered, regardless of whether the party has recovered its entire claim or a portion thereof. See Fahey v. Carty, 102 F.R.D. 751 (D.N.J. 1983) (plaintiff was prevailing party even though he was found 20% responsible for accident); Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 200 (D. Kan. 1993) (plaintiff who was found 45% at fault "was no less a prevailing party by virtue of the fact that her judgment was less than the full amount of her damages").

 II. EXPERT WITNESS FEE

 The defendant makes several objections to portions of the plaintiffs' costs. First, the defendant opposes the plaintiffs' taxation of a $ 2,000.00 expert witness fee for Jerome Cotler, M.D., who testified by videotape at both trials. Defendant argues that because this is action is in federal court upon diversity jurisdiction, this court should look to state law in assessing whether expert witness fees in excess of the statutory maximum for attendance, mileage and subsistence may be taxed.

 The general rule is that, absent an express indication by a state legislature or its courts of that state's special interest in providing litigants with recovery of expert witness fees, federal law will govern taxation of costs in a diversity action. Cates v. Sears, 928 F.2d 679, 688-89 (5th Cir. 1991). See also Pierce Assoc., Inc. v. Nemours Found., 865 F.2d 530, 542 (3d Cir. 1988) ("Even though this is a diversity case, the recovery of fees which a prevailing party pays to its expert witnesses and consultants is governed by federal law, namely, 28 U.S.C. §§ 1821 and 1920"). Defendant has presented no persuasive argument as to why New Jersey law should apply to this application.

 Taxation of costs is authorized by Fed. R. Civ. P. 54(d) and governed by 28 U.S.C. § 1920 which provides:

 
A judge or clerk of any court of the United States may tax as costs the following:
 
(1) Fees of the clerk and marshal;
 
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
 
(3) Fees and disbursements for printing and witnesses;
 
(4) Fees for exemplification and copies of papers necessarily obtained ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.