William Templeman and Alyce Templeman v. Chris Craft Corporation, 770 F.2d 245, 1st Cir. (1985)

770 F.
2d 245
1986 A.M.C. 1351, 3 Fed.R.Serv.3d 805
William TEMPLEMAN and Alyce Templeman, Plaintiffs,

Appellants,
v.
CHRIS CRAFT CORPORATION, Defendant, Appellee.
No. 84-1889.
United States Court of Appeals,

First Circuit.
Argued June 5, 1985.
Decided Aug. 16, 1985.
Theodore T. Schuld, Chicago, Ill., with whom Patrick J. Mazza, Arthur L.

Klein and Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., were
on brief for plaintiffs, appellants.
Ivan M. Fernandez, Hato Rey, P.R., with whom Ulpiano Falcon Matos
and Falcon & Fernandez, Hato Rey, P.R., were on brief for defendant,
appellee.
Before COFFIN, RUBIN * and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
The issues in this appeal are whether the district court erred in denying
plaintiffs' request for prejudgment interest, costs and attorney's fees. Plaintiffs,
William and Alyce Templeman, received a jury verdict of $238,293 for
personal injuries and property losses resulting from the burning and sinking on
the high seas of their yacht which had been manufactured by defendant Chris
Craft Corporation.
Prejudgment Interest
2
Plaintiffs brought suit on the basis of diversity jurisdiction under theories of

strict liability, negligence and breach of express and implied warranties. The
district court determined that admiralty was the applicable substantive law.
Plaintiffs claim that Michigan law, which requires the addition of prejudgment
interest in civil actions, should have been used. For the reasons that follow, we
find that plaintiffs did not properly raise the issue below and are precluded from
doing so now.
3
In September of 1983, plaintiffs filed a "Petition and Memorandum of Law

Seeking Determination of Substantive Law Applicable to This Action." The
petition sought the application of Florida substantive law or, in the alternative,
Puerto Rico substantive law. The petition also asserted that admiralty law
applied. Nowhere in the petition is there any mention that Michigan law
applied.
The question of the applicable substantive law was referred by the district court
to a magistrate. The magistrate recommended "that the substantive law
applicable to this case should be general admiralty law including its choice of
law rules." The recommendation does not advert to Michigan law directly or by
remote inference. The recommendation of the magistrate was filed on January
27, 1984. Plaintiffs did not object to it. The district court adopted the
magistrate's report and recommendation on March 21, 1984.
The case was tried and submitted to the jury on the basis of general admiralty
law. The jury was specifically asked, as required in admiralty, whether the
plaintiffs were entitled to prejudgment interest and found that they were not.
Plaintiffs now argue that the substantive law of Michigan should govern the
question of prejudgment interest. They contend that because a breach of
warranty occurred under the contract to build or sell the yacht and this type of
contract is not governed by admiralty, the substantive law of the place of
delivery, Michigan, should govern the warranty claims and the question of
whether to award prejudgment interest. Under Michigan law, prejudgment
interest is required by statute. Mich.Comp.Laws Ann. Sec. 600.6013(1), (2)
(Supp.1985).
The failure of plaintiffs to object to the magistrate's report and recommendation

is a complete bar to appellate review of their claim that Michigan law is
applicable. Hovan v. United Brotherhood of Carpenters and Joiners of America,
704 F.2d 641, 641-42 (1st Cir.1983); Scott v. Schweiker, 702 F.2d 13, 14 (1st
Cir.1983); Park Motor Mart, Inc. v. Ford Motor Company, 616 F.2d 603 (1st
Cir.1980). Absent objection by the plaintiffs, the district court had a right to
assume that plaintiffs agreed to the magistrate's recommendation. General
admiralty law, therefore, became the law of the case.
Although plaintiffs in their trial brief did suggest that Michigan's or Wisconsin's
rules on prejudgment interest applied, we do not think that this rose to the level
of an objection to the magistrate's report and, even if it did, it was not made
within the ten-day statutory period.1 The trial brief was filed on August 24,
1984, seven months after the magistrate's report and five months after the
district court adopted the report. Nor did the plaintiffs object to the court's
submitting the case to the jury on an admiralty prejudgment interest instruction
and special interrogatory. A party may not appeal from an error to which he
contributed by failing to object. Austin v. Unarco Industries, Inc., 705 F.2d 1,
15 (1st Cir.), cert. denied, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454
(1983).
Taking these omissions into consideration, we think it clear that plaintiffs did
not properly raise the issue of the applicability of Michigan prejudgment
interest law below. They are, therefore, precluded from doing so on appeal.
Brook Village North Associates v. General Electric Company, 686 F.2d 66, 76
(1st Cir.1982). We have repeatedly held that, in the absence of a miscarriage of
justice, we will not consider a legal theory or contention not presented to the
trial court and raised for the first time on appeal. Computer Systems
Engineering, Inc. v. Qantel Corporation, 740 F.2d 59, 64 (1st Cir.1984);
Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st Cir.) (listing cases), cert.
denied, --- U.S. ----, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984); Marcial Ucin, S.A.
v. SS Galicia, 723 F.2d 994, 1002 (1st Cir.1983); Johnston v. Holiday Inns,
Inc., 595 F.2d 890, 894 (1st Cir.1979).
Costs
9
Following the jury verdict in their favor, the plaintiffs submitted a bill of costs
in the amount of $24,300 for expenses they had incurred in the litigation. The
district court entered an order allowing $1,136.33 plus the actual air fare paid
by the plaintiffs' expert witness as costs taxable to Chris Craft. The question is
whether the district court erred in denying plaintiffs' requests for deposition
costs, docket fees, and expert witness fees.
10
The statute on taxation of costs, 28 U.S.C. Sec. 1920, lists six items that may
be taxed as costs:
11
(1) Fees of the clerk and marshal;
12
(2) Fees of the court reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case;
13
(3) Fees and disbursements for printing and witnesses;
14
(4) Fees for exemplification and copies of papers necessarily obtained for use in
the case;
15
(5) Docket fees under section 1923 of this title;
16
(6) Compensation of court appointed experts, compensation of interpreters, and

salaries, fees, expenses, and costs of special interpretation services under
section 1828 of this title.
17
Under Federal Rule of Civil Procedure 54(d), "costs shall be allowed as of

course to the prevailing party unless the court otherwise directs; ...." The
Supreme Court has warned that "the discretion given district judges to tax costs
should be sparingly exercised with reference to expenses not specifically
allowed by statute." Farmer v. Arabian American Oil Co., 379 U.S. 227, 235,
85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964). With this frame of reference, we turn
to the specific disallowed items.
1. Deposition Costs
18
For the costs of transcribing and copying six depositions, the plaintiffs
requested reimbursement in the amount of $2,781.45. The district court
excluded all deposition expenses from the costs taxed against Chris Craft.
19
Section 1920(2) permits taxation of costs for the "[f]ees of the court reporter
for all or any part of the stenographic transcript necessarily obtained for use in
the case."
20
Courts
have generally held that the cost of taking and transcribing depositions fits
within subsection 2. See Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th
Cir.1982); Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318 n. 48 (D.C.Cir.1981);
Economics Laboratory, Inc. v. Donnolo, 612 F.2d 405, 411 (9th Cir.1979); SCA
Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir.1979); Keyes v. School
District No. 1, 439 F.Supp. 393, 417 (D.Colo.1977).
21
Ramos v. Lamm, 713 F.2d 546, 560 (10th Cir.1983). While some cases hold
that the costs of depositions are taxable only if they were either introduced in
evidence or used at trial, other cases allow the recovery of such costs if the
taking of the depositions is shown to have been reasonably necessary in light of
the particular situation at the time it was taken. Copper Liquor, Inc. v. Adolph
Coors Company, 684 F.2d 1087, 1099 (5th Cir.1982). See generally 6 J. Moore,
W. Taggart & J. Wicker, Moore's Federal Practice Sec. 54.77 (2d ed. 1985). We
hold that if depositions are either introduced in evidence or used at trial, their
costs should be taxable to the losing party. It is within the discretion of the
district court to tax deposition costs if special circumstances warrant it, even
though the depositions were not put in evidence or used at the trial.
22
In its order denying the deposition costs, the court stated: "None of the
depositions taken were admitted in evidence at trial; therefore, they are not
allowable costs." This is contrary to the record which shows that the six
depositions for which plaintiffs seek costs were read into the record "in order to
determine which parts will be read to the jury." Parts of two depositions were
then read to the jury. We think it clear that all six depositions were introduced
into evidence. Reading them into the record in order for the court to determine
which parts could be read to the jury was in the nature of an offer of proof. The
depositions read to the jury became, of course, part of the testimony of the
case. The costs of the six depositions, $2,568.45, should, therefore, have been
taxed to the defendant.
23
A subsidiary question is whether the expense of copying the depositions,

$213.00, should be taxed as part of the deposition costs. The district court's
order did not cover this. Section 1920(4) lists as a permissible taxable cost "
[f]ees for exemplification and copies of papers necessarily obtained for use in
the case." In light of plaintiffs' unrefuted statement that in "introducing these
depositions into the record it was necessary to use the original and a copy of
each transcript," the copying costs should also have been taxed to the
defendant.
2. Docket Fees
24
Plaintiffs requested reimbursement for the docket fees of $15.00 for the six
depositions; this was also denied by the district court. Section 1920(5) allows
taxation of docket fees under 28 U.S.C. Sec. 1923. Section 1923(a) directs
these costs to be taxed at "$2.50 for each deposition admitted into evidence."
The docket fees of $15.00 must, therefore, be taxed to the defendant.
3. Witness Fees
25
Plaintiffs included in their bill of costs $6,975.15, the entire expense of

retaining an expert witness for the litigation. The district court disallowed most
of the amount requested, allowing only the standard statutory fee as prescribed
under 28 U.S.C. Sec. 1821 plus air fare to San Juan.

26
Section 1920(3) contains the statutory provision for taxing witnesses' fees as
costs. Section 1821 specifies the amount of such fees. The long-standing rule is
that the "federal statute governs." Henkel v. Chicago, St. Paul, Minneapolis &
Omaha Ry. Co., 284 U.S. 444, 448, 52 S.Ct. 223, 225, 76 L.Ed. 386 (1932).
We have held that this rule applies in diversity cases. Bosse v. Litton Unit
Handling Systems, Division of Litton Systems, Inc., 646 F.2d 689, 695 (1st
Cir.1981). Thus, "[a]dditional amounts paid as compensation, or fees, to expert
witnesses cannot be allowed or taxed as costs in cases in the Federal courts."
Pizarro-de-Ramirez v. Grecomar Shipping Agency, 82 F.R.D. 327, 328
(D.P.R.1976).
27
We recognize that the district court has some discretion in the taxation of costs
for witnesses. Farmer v. Arabian American, 379 U.S. at 232, 85 S.Ct. at 415.
The rule in this circuit is: "Ordinarily the taxation of costs would be limited to
those ordinary costs authorized by Sec. 1920. Extraordinary costs may be
allowed, however, when specifically approved by the court prior to trial."
Gradmann & Holler GMBH v. Continental Lines, S.A., 679 F.2d 272, 274 (1st
Cir.1982). There was no such pretrial approval here. The district court's award
of costs for plaintiffs' expert witness was in accord with the law and well within
its discretion.
Attorney's Fees
28
Plaintiffs claim that they are entitled to $80,000 in attorney's fees under Rule
44.4(d) of the Puerto Rico Rules of Civil Procedure, because defendant's
conduct was frivolous and obstinate. There are two reasons why this claim
must be rejected, one legal and the other factual. We turn first to the law.
29
Recognizing that the Puerto Rican statute and Rules of Procedure are part of
the substantive law of the Commonwealth, we have allowed attorney's fees
thereunder in diversity cases. Pan American World Airways, Inc. v. Ramos, 357
F.2d 341, 342 (1st Cir.1966). The applicability of state statutes awarding
attorney's fees and other expenses in diversity cases was established in Cohen
v. Beneficial Finance Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528
(1949). But we have never extended the allowance of such costs arising under
federal law. We noted this in Betancourt v. J.C. Penney Co., Inc., 554 F.2d
1206 (1st Cir.1977): "The federal court in a diversity case although not
otherwise, of course recognizes the Puerto Rican rule allowing attorney's fees to
be awarded specially for obstinancy, ..." (emphasis added). See also Alicea
Rosado v. Garcia Santiago, 562 F.2d 114, 118 (1st Cir.1977).
30
Sanabria v. International Longshoremen's Association Local 1575, 597 F.2d

312, 313-14 (1st Cir.1979) (first emphasis added), noted in 6 Moore's Federal
Practice Sec. 54.77 at 143-44 (1984-1985 Supp). Sanabria controls here. This is
not "a typical diversity case" in which the federal court would apply Puerto
Rico substantive law. The law applicable was federal admiralty law. See
Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052 (1st Cir.1973); MooreMcCormack Line, Inc. v. Amirault, 202 F.2d 893, 896 (1st Cir.1953). Plaintiffs
have no legal basis for invoking Rule 44.4(d) of the Puerto Rico Rules of Civil
Procedure.
31
Under admiralty law, a court has inherent power "to assess attorneys' fees when
a party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'
" Gradmann & Holler v. Continental, 679 F.2d at 274 (quoting F.D. Rich Co. v.
United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157,
2165, 40 L.Ed.2d 703 (1974) ). Nothing in the record convinces us that an
exercise of this "equitable power" is appropriate. While it is true that the
litigation lasted for ten years, the record is replete with delays caused by both
sides. Indeed, the plaintiffs' attorneys were reprimanded by the district court for
"their failure to prosecute the case in a diligent and orderly manner." Some of
the delay was caused by the untimely death of two former chief judges of the
District Court of Puerto Rico, both of whom had been handling the case.
Summary
32
We affirm the district court's denial of prejudgment interest, expert witness fees
and attorney's fees. We reverse as to deposition costs and docket fees. The
amount of $2,796.45 must be taxed to the defendant.
33
Affirmed in part and reversed in part. Remanded.
34
No costs to either party on appeal.

ALVIN B. RUBIN, Judge, concurring:
35
In the First Circuit, a party's failure to object to a magistrate's recommendations

with respect to both findings of fact and conclusions of law constitutes a waiver
of the right to contest those issues on appeal.1 Accordingly, I concur. Other
circuits, however, apply this waiver rule only to a magistrate's findings of fact.2
It is my opinion that the latter construction of 28 U.S.C. Sec. 636(b)(1) is the
better. Therefore, had I the choice, I would reach the merits of appellants' claim
that Michigan rather than admiralty law applies.
Of the Fifth Circuit, sitting by designation
The Federal Magistrate's Act, 28 U.S.C. Sec. 636, provides in pertinent part:
(C) the magistrate shall file his proposed findings and recommendations under
subparagraph (B) with the court and a copy shall forthwith be mailed to all
parties.
Within ten days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided
by rules of court.
Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); Park Motor Mart, Inc. v.
Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); accord United States v.
Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.), cert. denied, --- U.S. ----, 104 S.Ct.
2395, 81 L.Ed.2d 352 (1984); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir.1981); cf. John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588
F.2d 24, 29-30 (2nd Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59
L.Ed.2d 773 (1979)
Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454-55 (9th Cir.1983);
Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (Unit B);
accord Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir.1983); see
also United States v. Schronce, 727 F.2d 91, 94-95 & n. 2 (4th Cir.)
(Murnaghan, J., concurring), cert. denied, --- U.S. ----, 104 S.Ct. 2395, 81
L.Ed.2d 352 (1984)

William Templeman and Alyce Templeman v. Chris Craft Corporation, 770 F.2d 245, 1st Cir. (1985)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

William Templeman and Alyce Templeman v. Chris Craft Corporation, 770 F.2d 245, 1st Cir. (1985)

Uploaded by

Copyright:

Available Formats

770 F.

William TEMPLEMAN and Alyce Templeman, Plaintiffs,

United States Court of Appeals,

Theodore T. Schuld, Chicago, Ill., with whom Patrick J. Mazza, Arthur L.

Plaintiffs brought suit on the basis of diversity jurisdiction under theories of

In September of 1983, plaintiffs filed a "Petition and Memorandum of Law

The failure of plaintiffs to object to the magistrate's report and recommendation

(1) Fees of the clerk and marshal;

(3) Fees and disbursements for printing and witnesses;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and

Under Federal Rule of Civil Procedure 54(d), "costs shall be allowed as of

A subsidiary question is whether the expense of copying the depositions,

Plaintiffs included in their bill of costs $6,975.15, the entire expense of

under 28 U.S.C. Sec. 1821 plus air fare to San Juan.

Sanabria v. International Longshoremen's Association Local 1575, 597 F.2d

Affirmed in part and reversed in part. Remanded.

No costs to either party on appeal.

In the First Circuit, a party's failure to object to a magistrate's recommendations

Of the Fifth Circuit, sitting by designation

You might also like