#### BROOKSIDE THEATRE CORP. v. TWENTIETH CENTURY-FOX FILM CORP. et al.

No. 6006.

United States District Court W. D. Missouri, W. D.

March 15, 1951.

*261William G. Boatright, Arthur C. Popham of Popham, Thompson, Popham, Mandell & Trusty, all of Kansas City, Mo., Nick C. Spanos of Los Angeles, Cal., for plaintiff.

John F. Caskey of Dwight, Harris, Koegel & Caskey, New York City, Byron Spencer and Joseph J. Kelly, Jr., of Spehcer, Britt & Browne, and Richard P. Brous, all of Kansas City, Mo., for defendant Twentieth Century-Fox Film Corp.

William E. Kemp of Kemp, Koontz, Clag-gett & Norquist and Wallace Sutherland of Cooper, Neel, Sutherland & Rogers, all of Kansas City, Mo., for defendants Paramount Pictures, Inc., Loew’s Inc., RKO Radio Pictures, Inc., Warner Bros. Pictures, Inc.; Warner Bros.' Picture Distributing: Corp., Columbia Pictures Corp., Universal Film Exchange, Inc., United Artists Corp.

DUNCAN, District Judge.

Heretofore on March 8, 1951 the “Petition. for allowance of necessary costs and expenses incurred by plaintiff” was submitted to the court and evidence intrpduced in support thereof, and said petition was by the court taken under consideration:

The plaintiff has set out the various items which it seeks to recover as- expenses. The expenditures were made through the office of Mr._ William G. Boatright; through the office of Mr. Nick Spanos, and by W. D. Fulton and Stanley H. Schwartz in behalf of the plaintiff. The - items are as follows:

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It will be observed that the petition asks for “necessary *costs*and *expenses*incurred by plaintiff?’ (E.S.) Title 15 § 15 U.S.C.A. provides: “ * * * and shall recover threefold the damages by him sustained, and the *cost*of suit, including a reasonable attorney’s fee.” (Emphasis supplied.)

There is no provision in the -statute f-or allowing all the expenses incurred by the plaintiff in the preparation and trial of a lawsuit under this Act, and I' think the amounts allowed as costs of suit should reasonably conform to what is commonly understood to be the “cost of suit”. It seems to me that long distance 'calls are not a part of the “cost of suit”. They may be expenses incident to the preparation of suit, but they are not a part of the costs. The amount of the long distance calls in the sum of $113.98 will therefore, be denied.

Likewise the item’ of January 9, 1950 of $258.48 paid to Miles & Behrens for “copying excerpts of narrative statement of evidence in Rolsky v. Fox Midwest, No. 2814, Equity”- will be disallowed as an improper item.

The item of July 11, 1950 paid to Miles & Behrens for “excerpts from argument on objections to interrogatories” in the -sum of 75{i will be disallowed.

Likewise the item of July 14, 1950 paid to Miles & Behrens for “excerpts from transcript of arguments on application for production and inspection” in the sum of 500 will be disallowed.

The item of August 23, 1950 of $8.50 paid to Miles & Behrens for “excerpts of argument on dbjections to interrogatories” will-be disallowed.

The item of October 14, 1950 in the sum of $117.20 paid to Bernice M. Jackson Reporting Company for “services in’ preparation of briefs on statute of limitations in- Sept, and Oct” will be disallowed. This type of service may be classified as “overhead” in a law office, and is not properly chargeable as costs in a case.

■’ The item of November-10, 1950 in the sum of $198.90 to Miles & Behrens for “carbon copy of depositions of W. D. Fulton and Stanley H. Schwartz” will be disallowed. ' ''

*266The item of November 20, 1950 in the sum of $6.00 paid to Bernice M. Jackson Reporting Company for “copying lists of exhibits” is disallowed, it being an item of overhead office expense.

The item of June 28, 1950 to Bernice M. Jackson Reporting Company for “Depositions of Oscar Brewer, Ruth Hall & Byron Spencer” in the sum of $37.69 is allowed.

The item of August 10, 1950 in the sum of $61,15 to Bernice M. Jackson Reporting Company for “deposition of Lon Cox” is allowed.

The item of September 14, 1950 in the sum of $6.25 paid to Miles & Behrens for “carbon copy of excerpts from hearing of pre-trial conference” is allowed. It being the opinion of the court that in view of the nature and extent of the pre-trial conferences and the matters covered therein, a proper understanding of such matters could not be properly had without a transcript thereof.

The item of October 9, 1950 paid to John F. Caskey of New York for “copy of decrees” (apparently these were decrees in the Paramount case in the Southern District of New York) is allowed, in the sum of $15.20.

The item of October 20, 1950 in the sum of $100.00 to John F. Ennis, Pittsburgh, Pennsylvania, for “Deposition of Leland Hazard” is allowed. (This item seems unusually excessive, but there is no evidence to indicate to what extent).

The item of October 25, 1950 in the sum of $14.50 paid Miles & Behrens for “copy of pre-trial conference as of this date” is allowed.

The item of November 10, 1950 in the sum of $14.75 paid Miles & Behrens for “copy of pre-trial conference of November 9th” is allowed.

The item of May 2, 1950 to Bernice M. Jackson Reporting Company for “Deposition of Harold Bradley” in the sum of $63.00 is allowed.

The item of September 22, 1950 to R. Forrest Brenner, for “deposition of Harris Wolfberg” in the sum of $266.10 is allowed.

The last item under this group is to Miles & Behrens under date of January 4, 1951 for “carbon copy of daily transcript” which was supplied to the plaintiff pursuant to its request. It is the understanding of the court that defendants likewise obtained such daily copy. The amount is $1252.20 and the correctness or reasonableness thereof is not questioned by the defendants.

I agree with Judge Barnes of the District Court of Illinois in the case of Milwaukee Towne 'Corporation v. Loew’s, Inc.,1 that obtaining daily copy in the trial of a long complicated case extending over a period of seven weeks and running into more than 4000 pages of record, is essential both to the court and to counsel for a proper understanding of the case as it progresses, and therefore is a, proper item of court costs, and the amount of $1252.20 should be and is allowed.

The next group in plaintiff’s petition is headed “Photostating, printing and preparation of exhibits, charts and maps.”

The item of October 2, 1950 to Demaree Stationery Co., for “files for exhibits” in the sum of $9.53 is disallowed. This is not an item of cost and cannot be properly so charged.

The item of Nov. 10, 1950 to Gallup Map & Stationery Co., for “Greater K. C. map 38.36; U. S. Outline map 3.21” making a total of $41.57 is disallowed as not a proper item of cost.

The item of Nov. 20, 1950 Demaree Stationery Co., for “folders and trans. cases for exhibits, etc.” $14.01 is disallowed, for the reason that it is not a proper item of cost.

The item of Nov. 30, 1950 to Lewis Printing Co., for “printing or charts for exhibits on paying and playing position” in the sum of $388.37 is disallowed. These charts were unquestionably of considerable value to the plaintiff in the preparation of its testimony. However, in most' respects they were the means of accentuating the testimony of witnesses who testified orally to the same facts that appeared in the charts.

*267Where the court is likely to be requested to tax costs, particularly in large amounts, in addition to the usual costs authorized by the statute to be taxed by the clerk, it is the opinion of the court that before such costs are incurred, they should first be authorized by the court in pre-trial conference, or otherwise.

The item of Dec. 1, 1950 to Manncraft for “easel for mounting exhibits on paying and playing position” in the amount of $18.-36 is disallowed. This is not a proper item of cost.

The item of October 4, 1950 Kansas City Blue Print 'Co., for “photostating exhibits” in the sum of $617.57 is allowed.

The item of Oct. 31, 1950 to Photocraft for “enlargement of exhibits” in the sum of $20.23 is allowed.

■ The item of Nov. 3, 1950 to K. C. Blue Print Co., for “photostating exhibits” in the sum of $5.55 is allowed.

The item of Nov. 7, 1950 to Western Blue Print Co., for “photostating exhibits” in the sum of $1.53 is allowed.

The items of Nov. 14 K. C. Blue Print Co., for “photostating exhibits” in the amounts of $.80 and $.86 are allowed.

The item of Nov. 29, 1950 to K. C. Blue Print Co., for “photostating code hearing” in the sum of $3.12 is allowed.

The items of August 20 and of September 16, 1950 in the sum of $194.96 expended by Mr. William Boatright, one of the attorneys for the plaintiff in two trips to Denver, Colorado on August 20 $93.40 to interview a witness, and on September 16 $101.56 for the purpose of taking depositions of the witness interviewed, are disallowed as not proper items of cost.

'[8] The next group is headed *"Court Costs,*Subpoenas, *Clerk’s Charges.”*

The item of May 23, 1950 to U .S. Marshal for serving subpoenas in the sum of $1.50 is allowed.

The item of Oct. 24,1950 to A. L. Arnold, Clerk—“copy of opinion” $2.00 is allowed.

• The item of Nov. 2, 1950 to Recorder of Deeds, Jackson County for “certified copy of Art. of Incorp.” in the sum of $3.00 is allowed.

The item of Nov. 7, 1950 Walter H. Toberman, Secy, of State in the sum of $3.75 for fee for certified copy of “Certif. of Incorp. and Art. of Ass’n” is allowed.

The item of Nov. 8, 1950 U.S. Marshal “serving subpoenas $2.00 less refund of 80 cents” is allowed in the sum of $1.20.

The item of Dec. 13, 1950 U. S. Marshal “serving subpoenas” in the sum of $1.20 is allowed.

The next items are under the heading *"Expert Witnesses, Witness Fees and Auditors.”*

The item of Dec. 1, 1950 to 'Charles C. Scott for “opinion and photographs and exhibits re obliterated typing on Paramount contract with Fox Midwest, and testimony in court” in the sum of $400.00 is disallowed.

This item is disallowed for two reasons. First: the court does not believe that the cost of expert testimony may be properly charged as costs in a case beyond the statutory allowance for witness fees. The second is that in the opinion of the court, such items, if they are to be contracted and charged as costs in a case, as heretofore stated, should first be submitted to the court as being essential to a proper understanding of the issues in the case, and authority to incur such costs approved by the court.

The item of Jan. 29, 1951 Edward Fraser, C.P.A.—“attendance in court” in the sum of $25.00 is disallowed.

The item of Jan. 31, 1951 for amounts paid or contracted for payment, or obligated to be paid by the plaintiff to Sernes & Chandler for “auditing records of Brook-side, Plaza, Warrick, Waldo and preparation of charts and exhibits; analyzing advertising material in Kansas City Star, and preparing reports and schedules, and testimony of Sernes and Chandler in court” in the sum of $6750.00 is allowed in the sum of $5145.00.

This portion of the amount it is agreed was the cost of the audit. These audits were authorized by the court pursuant to an application filed by the plaintiff and after iwe-trial conferences, and were nec*268essary to .a prppqr understanding of' the issues with respect to the profits of the Brookside Theatre, and in the opinion of the court it is a proper charge as costs in this type of case.

The remainder of the amount—$1605.00 —was for analyzing advertising material in the Kansas City Star, and preparing reports and schedules,' etc., with respect thereto, and the testimony of Sernes and '.Chandler in court., It is ,the opinion of the court, that the defendant is not liable for the charges for expert witnesses, and I am unable to determine from the petition what portion of the latter amount was for testifying. ‘

- The service rendered -by the accountants jn. checking the newspapers aijd making a report with respect thereto it is contended by the plaintiff was a difficult task requiring the expert knowledge of 'the accountants. With this contention I am unable to agree. It is my impression that such work was a part of the detailed preparation of the case for -trial, -and that the charges which the plaintiff seeks to make cannot be justified therefor, 'and the item to that extent is disallowed; '

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j The next group in the petition is entitled: *fExpenditures by Nick C. Spanos in Brook-side case."*

The first item is for traveling expenses to March 8, 1951 in the sum of $1182.22, composed ,of two items, $924.93 for aii; travel and $357.29 for train fare. It is the understanding of the court that these items were incurred by Mr. Spanos, a resident of Los Angeles, incident- to the obtaining of information in New York preparatory to the filing o'f the complaint, and thereafter in the preparation Of trial, this information being found in the records and files in the Paramount case in the Southern District of New York. The expenses incident to obtaining the information for the preparation of the complaint is not an item of'cost which may be charged to the defendants.

The case was transferred 'frbm California to Missouri under the authority of Section 1404(a) Title 28 U.S.C.A. Where venue of cases are transferred under that section,, the convenience of counsel and expenses incident thereto may not be charged as items of cost.

The next item is made up of hotel expenses to . March 8, 1951 aggregating $593.02. These items like the above, are the personal expenses of counsel and cannot be charged as costs.

The next item for $103.23 for photostat-ing is allowed.

The next item for “Typing and Stenographic Services” in the sum of $380.79 which apparently were contracted and paid in California in preparation of the complaint for filing and other matters incident to the opposition to the transfer of the case to Missouri, are items of ordinary office overhead and cannot be properly charged as costs. :

The next item “Filing Fees & Official Documents” which as I understand were certified copies of necessary documents, is allowed in the sum of $94.80.

The next item for long distance and telegraph chargesdn the sum of $143.89 like the first item in the group paid by Mr. Boat-right, is also -disallowed.

■ The -next item “Depositions & Reporters’ Transcripts” paid to-Noon & Pratt for depositions and services incident thereto in the sum' of $62.00 is allowed.

The next item to Albert IT. Bargion in the sum of $12.00 is disallowed.

The next item in the sum of $28.36 to the “U. S. Marshal”- is allowed. , ■

The next item in the sum of $8.00 as “Witness Fees” to Toplikar is allowed.

The next item of $50.00 to Stanley Howell for “Legal Fees” is disallowed as- not being a proper item of court costs.

The next group is entitled *“Expenditures by W. D. Fulton and Stanley H. Schwartz in Brookside Case "*on behalf of plaintiff.

The 'first -item March 2, 1950 to Western Blue Print Co., “photostating exhibits” in the sum of $2.55 is allowed.

The next item June 1, 1950 Gallup Map & Stationery Co., “making up Greater K. C. map (the mounting of which was paid by Boatright and is so shown under his expenses)”, in the-sum of $40.00. is disallowed for the reasons heretofore stated.

*269The item of December 20, 1950 to Wm. Toplikar, (California) “Expenses of trip to Kansas City from California,” in the sum of $241.75 is disallowed.

It was represented to the court that although Toplikar’s deposition was taken and was on file, it was thought advisable to have the witness here prior to the close of the trial. Witness fees may not be taxed as costs beyond 100 miles from'the place of the trial.

The' total amount of costs allowed to the plaintiff herein is the sum of $7987.09.'

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. No opinion for publication.