Leo F. Baum v. United States of Am., Defendant-Third Party v. Jacksonville Shipyards, Inc., Third-Party, 432 F.2d 85 (3rd Cir. 1970). · Go Syfert
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Leo F. Baum v. United States of Am., Defendant-Third Party v. Jacksonville Shipyards, Inc., Third-Party, 432 F.2d 85 (3rd Cir. 1970). Cases Citing This Book View Copy Cite
46 citation events (5 in the last 25 years) across 23 distinct courts.
Strongest positive: Eddie Adams v. Norman Carlson (ca7, 1975-07-29) · Strongest negative: International Woodworkers of America, Afl-Cio and Its Local No. 5-376 v. Champion International Corporation (ca5, 1986-06-02)
Treatment trajectory · 1970 → 2026 · click a year to view as-of
1970 1998 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited "but see" International Woodworkers of America, Afl-Cio and Its Local No. 5-376 v. Champion International Corporation (2×)
5th Cir. · 1986 · signal: but see · confidence high
But see Baum v. United States, 432 F.2d 85 (5th Cir.1970) (Rule 54(d) discretion limited to statutory witness fees); United States v. Kolesar, 313 F.2d 835 (5th Cir.1963); Green v. American Tobacco Co., 304 F.2d 70 (5th Cir.1962) (no discretion to award expert witness fees) 73 Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1100 (5th Cir.1982) (Clayton Act) 74 Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 640 (6th Cir.1979); see also Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir.1983) (SEC action); but see Murphy v. International Union of Operating Engineers, …
cited Cited as authority (rule) Eddie Adams v. Norman Carlson
7th Cir. · 1975 · confidence medium
“This rule applies with equal force where the United States is a party.” Baum, supra at 86.
discussed Cited "see" Corwin v. Walt Disney Co. (2×)
11th Cir. · 2006 · signal: see · confidence high
See Baum v. United States, 432 F.2d 85 , 86 (5th Cir.1970) (per curiam); see also Soberay Mach. & Equip.
discussed Cited "see" Soberay MacHine & Equipment Company, (96-3946 97-3308)/cross-Appellee v. Mrf Limited, Inc., Defendant-Appellee/cross-Appellant (96-3997) (2×)
6th Cir. · 1999 · signal: see · confidence high
See Winston v. Town Heights Dev., Inc., 68 F.R.D. 431 , 433 n. 2 (1975) (citing Baum v. United States, 432 F.2d 85 , 86 (5th Cir.1970); 6 James Wm.
cited Cited "see" Inversiones Isleta Marina, Inc. v. United States
D.P.R. · 1986 · signal: see · confidence high
See Baum v. U.S., 432 F.2d 85 , 86 (5th Cir. 1970).
discussed Cited "see" Morris v. Carnathan
N.D. Miss. · 1974 · signal: see · confidence high
See, Baum v. United States, 432 F.2d 85 , 86 (5th Cir. 1970), where the court said “[E]xpert witness fees, above subsistence and travel, will not be taxed against the losing party”; see, Gerber v. Stoltenberg, 394 F.2d 179 (5th Cir. 1968).
discussed Cited "see, e.g." Reinhart v. Shaner
M.D. Ala. · 2006 · signal: see, e.g. · confidence low
See e.g., Baum v. United States, 432 F.2d 85 , 86 (5th Cir.1970); United States v. Kolesar, 313 F.2d 835 , 837 n. 1 (5th Cir.1963); Breiten- bach v. Neiman Marcus Group, 181 F.R.D. 544 (N.D.Ga.1998) aff'd 176 F.3d 495 (11th Cir.1999) (table); American Key Corp. v. Cumberland Associates, 102 F.R.D. 496 (N.D.Ga.1984). 4 Rule 6(b) provides that: “When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the …
discussed Cited "see, e.g." J.T. Gibbons, Inc. v. Crawford Fitting Company
5th Cir. · 1985 · signal: see also · confidence low
Burgess v. Williason, 506 F.2d 870, 879 (5th Cir.1975); see also Baum v. United States, 432 F.2d 85 , 86 (5th Cir.1970). 2 In conclusion we affirm the district court’s assessment of all costs except those representing expert witness fees and remand to the district court for a reassessment of costs consistent with this opinion.
cited Cited "see, e.g." 30 Fair empl.prac.cas. 1674, 29 Empl. Prac. Dec. P 32,747 Margaret Thornberry, Patricia Farmer, Delores O'sullivan, and Linda Magel, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/cross-Appellants v. Delta Air Lines, Inc., a Corporation, Defendant-Appellant/cross-Appellee
9th Cir. · 1982 · signal: see also · confidence low
See also Baum v. United States, 432 F.2d 85 (5th Cir. 1970).
cited Cited "see, e.g." Thornberry v. Delta Air Lines, Inc.
9th Cir. · 1982 · signal: see also · confidence low
See also Baum v. United States, 432 F.2d 85 (5th Cir. 1970).
discussed Cited "see, e.g." Pate v. General Motors Corp.
N.D. Miss. · 1981 · signal: see also · confidence low
See also, Baum v. United States, 432 F.2d 85 , 86 (5th Cir. 1970), Gerber v. Stoltenberg, 394 F.2d 179 (5th Cir. 1968), Jones v. Diamond, 594 F.2d 997, 1029 (5th Cir. 1979); Burgess v. Williamson, 506 F.2d 870, 879-80 (5th Cir. 1975); Green v. American Tobacco Company, 304 F.2d 70, 77 (5th Cir. 1922).
cited Cited "see, e.g." Bailey v. Meister Brau, Inc.
N.D. Ill. · 1974 · signal: see, e.g. · confidence low
See, e. g., Baum v. United States, 432 F.2d 85 (5th Cir. 1970); Hill v. Gonzalez, 53 F.R.D. 1 (D.Minn.1971).
Retrieving the full opinion text from the archive…
Leo F. BAUM, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. JACKSONVILLE SHIPYARDS, INC., Third-Party Defendant-Appellee
29119.
Court of Appeals for the Third Circuit.
Sep 8, 1970.
432 F.2d 85
George J. O’Neill, Richter, Syken, Ross, Binder & O’Neill, Philadelphia, Pa., Tom B. Stewart, Evans & Stewart, Jacksonville, Fla., for appellant; Seymour I. Toll, Philadelphia, Pa., of counsel., John L. Briggs, U. S. Atty., Jacksonville, Fla., Thomas J. Boyle, Admiralty & Shipping Section, Ralph A. Fine, Atty., Morton Hollander, Chief, Appellate Section, U. S. Dept, of Justice, Washington, D. C., for the United States., Charles Cook Howell, III, Jacksonville, Fla., for Jacksonville Shipyards.
Thornberry, Morgan, Clark.
Cited by 1 opinion  |  Published
PER CURIAM:

This is an appeal from an order of the District Court for the Middle District of Florida denying plaintiff Baum’s motion to review a prior order taxing costs to the plaintiff, which included the expense ($400) incurred by defendant Jacksonville Shipyards in presenting the testimony of three experts at the trial. [1] The expense of the prevailing party’s expert testimony cannot be taxed against the unsuccessful litigant in this case. Therefore plaintiff’s motion should have been granted and the district court’s order is reversed.

Rule 54(d) states generally that “costs shall be allowed as of course to the prevailing party”. This includes costs of subsistence and travel of witnesses within the 100-mile zone to which process extends. However, expert witness fees, above subsistence and travel, will not be taxed against the losing party. Dept. of Highways v. McWilliams Dredging Co., D.C.La., 1950, 10 F.R.D. 107, aff’d, 5 Cir., 187 F.2d 61. This rule applies with equal force where the United States is a party.

* * * we have categorically determined that expert witness fees are not taxable under 28 U.S..C.A. § 1821. (Citation omitted). This is the rule for private litigants. Nothing in the [Federal Tort Claims Act], or the policy behind it, affords any basis for a more liberal rule against the Government.
United States v. Kolesar, 5 Cir., 1963, 313 F.2d 835, 837.

So, regardless of the fact that the United States is a party in this case, the expert witness exception to Rule 54(d) applies and prevents the taxing of costs of expert witnesses used in its (and Jacksonville Shipyards’) defense against plaintiff Baum.

The case relied on by Jacksonville Shipyards, Henning v. Lake Charles Harbor and Terminal District, 5 Cir., 1968, 387 F.2d 264, which held that under the Erie doctrine the federal courts would apply state law as to what costs are taxable to the losing litigant, and that under state law (in Louisiana and Florida) expert witness costs are taxed against the losing party in the full amount, is not applicable here. That was a diversity case and the case here is under the Suits in Admiralty Act, which federal law has pre-empted substantive issues arising thereunder. There being nothing in the Suits in Admiralty Act pertaining to costs of expert witnesses, this is properly a question of procedure, not caught up in the Erie doctrine and is therefore discretionary with the courts under Rule 54(d). See 3 Barron and Holtzoff, §§ 1195, 1197.

In answer to Jacksonville Shipyards' contention that the plaintiff’s motion to retax was not timely made and was therefore a waiver, the Kolesar decision, supra, 313 F.2d footnote 1, page 837, provides ample precedent that

“ * * * the Court within its sound discretion could entertain and act upon it [the motion] even though tardy. F.R.Civ.P. 6.”

Therefore, plaintiff’s Bill of Costs should be reduced by the amount of costs for expert witnesses used by the defendants in excess of the subsistence and travel expenses of the expert witnesses.

The order of the district court is reversed and remanded for entry of an order in accordance with this opinion.

Reversed and remanded with instructions.

1

. The substantive issues presented by this ease have already been decided by this court in Baum v. United States, 5 Cir., 1970, 427 F.2d 215 [June 2, 1970].