Sca Servs., Inc., & Counterdefendant-Appellant & Cross-Appellee v. Lucky Stores, & Counterclaimant-Appellee v. Sca Servs., Inc., Third-Party & Counterdefendant-Appellant & Cross-Appellee v. Gen. Mill Supply Co., Third-Party & Counterclaimant-Appellee & Cross-Appellant, 599 F.2d 178 (3rd Cir. 1979). · Go Syfert
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Sca Servs., Inc., & Counterdefendant-Appellant & Cross-Appellee v. Lucky Stores, & Counterclaimant-Appellee v. Sca Servs., Inc., Third-Party & Counterdefendant-Appellant & Cross-Appellee v. Gen. Mill Supply Co., Third-Party & Counterclaimant-Appellee & Cross-Appellant, 599 F.2d 178 (3rd Cir. 1979). Cases Citing This Book View Copy Cite
69 citation events (4 in the last 25 years) across 22 distinct courts.
Strongest positive: Ammerman, Paul v. Seaman (wiwd, 2021-12-30)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
discussed Cited as authority (rule) Ammerman, Paul v. Seaman
W.D. Wis. · 2021 · confidence medium
Moreover, “the practicalities of preparing a case for trial often require that the attorneys have frequent and ready access to the [copies of] depositions.” SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir. 1979).
discussed Cited as authority (rule) Scallet v. Rosenblum
W.D. Va. · 1997 · confidence medium
Traditionally, costs for copies of transcripts were disfavored, see SCA Services, Inc. v. General Mill Supply Co., 599 F.2d 178, 180 (7th Cir.1979), citing, 6 Moore’s Federal Practice P. 54.77(4), at 1720 (2d ed.1976).
cited Cited as authority (rule) Gregory v. Weigler
C.D. Ill. · 1995 · confidence medium
Estate of Borst, 979 F.2d at 517 ; SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) Green Construction Co. v. Kansas Power & Light Co.
D. Kan. · 1994 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir. 1979).
cited Cited as authority (rule) David B. WEIHAUPT, Plaintiff-Appellant, v. AMERICAN MEDICAL ASSOCIATION, Defendant-Appellee
7th Cir. · 1989 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) American Home Assurance Company v. Dykema, Gossett, Spencer, Goodnow & Trigg
7th Cir. · 1987 · confidence medium
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 , 61 S.Ct. 1020, 1021 , 85 L.Ed. 1477 (1941); SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) American Home Assurance Co. v. Dykema, Gossett, Spencer, Goodnow & Trigg
7th Cir. · 1987 · confidence medium
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 , 61 S.Ct. 1020, 1021 , 85 L.Ed. 1477 (1941); SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
examined Cited as authority (rule) Equal Employment Opportunity Commission v. Sears, Roebuck & Co. (3×) also: Cited "see, e.g."
N.D. Ill. · 1987 · confidence medium
Id.; SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) Equal Employment Opportunity Commission v. Sears, Roebuck & Co.
N.D. Ill. · 1986 · confidence medium
Sangamo, 657 F.2d at 867 ; SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180-81 (7th Cir.1979). .
cited Cited as authority (rule) Lock v. Jenkins
N.D. Ind. · 1986 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
discussed Cited as authority (rule) Henry Hudson v. Nabisco Brands, Inc. (2×)
7th Cir. · 1985 · confidence medium
Sec. 1920 , and cases such as SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) McHenry v. Joseph T. Ryerson Co.
N.D. Ind. · 1985 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir.1979).
discussed Cited as authority (rule) J.T. Gibbons, Inc. v. Crawford Fitting Co.
E.D. La. · 1984 · confidence medium
In SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir.1979), the Seventh Circuit held that “[t]he expense of deposition copies reasonably necessary for use in the case may be included in the award of costs” and that this rule “applies to copies of both an opponent’s and the prevailing party’s own depositions.” Accord Murphy v. Amoco Production Co., 558 F.Supp. 591, 594 (D.N.D.1983), aff'd on other grounds, 729 F.2d 552 (8th Cir.1984); Principe v. McDonald’s Corp., 95 F.R.D. 34, 37 (E.D.Va.1982).
discussed Cited as authority (rule) Ramos v. Lamm
10th Cir. · 1983 · confidence medium
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).
discussed Cited as authority (rule) Ramos v. Lamm
10th Cir. · 1983 · confidence medium
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).
discussed Cited as authority (rule) Bennie Lenard, Cross-Appellant v. Robert Argento & Joseph Sansone v. Village of Melrose Park
7th Cir. · 1983 · confidence medium
Deposition costs are allowable within the discretion of the trial court, Bailey v. Meister Brau, Inc., 535 F.2d 982, 996 (7th Cir. 1976), as are copying costs, SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited as authority (rule) Independence Tube Corp. v. Copperweld Corp.
N.D. Ill. · 1982 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979); Fey v. Walston & Co., 493 F.2d 1036, 1056 (7th Cir. 1974).
cited Cited as authority (rule) Kraeger v. University of Pittsburgh
W.D. Pa. · 1982 · confidence medium
SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979); Wehr v. Burroughs Corp., 477 F.Supp. 1012, 1022 (E.D.Pa.1979).
discussed Cited as authority (rule) State of Illinois v. Sangamo Construction Co. And J. L. Simmons Company, Inc., Defendants
7th Cir. · 1981 · confidence medium
It is well established that “[t]he charges of the court reporter for transcripts of the trial and of depositions reasonably necessary for use in the case even though not used at trial are recoverable upon a proper showing as provided in 28 U.S.C. § 1924 .” 16 Wahl, 511 F.2d at 217 ; SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979).
discussed Cited as authority (rule) Ingersoll Milling Machine Co. v. Otis Elevator Co.
N.D. Ill. · 1981 · confidence medium
Costs Incident to Taking Depositions Ingersoll requests taxation of $5,170.20 as the cost of depositions, relying on our Court of Appeals’ decision in SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180-81 (7th Cir. 1979).
cited Cited "see" Goluba v. Brunswick Corp.
E.D. Wis. · 1991 · signal: see · confidence high
See SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
discussed Cited "see" Agfa-Gevaert, A.G., and Agfa-Gevaert, N v. V. A.B. Dick Company (2×)
7th Cir. · 1989 · signal: see · confidence high
See SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
cited Cited "see" James T. Crues v. Kfc Corporation
8th Cir. · 1985 · signal: see · confidence high
See generally SCA Services v. Lucky Stores, 599 F.2d 178, 180-81 (7th Cir.1979) (discussing conflict over this issue).
cited Cited "see, e.g." Loubna Hizouni v. Progressive Advanced Insurance Company
E.D. Pa. · 2025 · signal: see also · confidence medium
Ed. 2d 385 (1987); see also SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979); but see Weeks v. Samsung Heavy Indus.
cited Cited "see, e.g." Neita v. City of Chicago
N.D. Ill. · 2023 · signal: see, e.g. · confidence medium
See, e.g., SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir. 1979).
cited Cited "see, e.g." William Cefalu and Tyrone Cefalu, Plaintiffs-Appellants/cross-Appellees v. Village of Elk Grove, Defendants-Appellees/cross-Appellants
7th Cir. · 2000 · signal: see also · confidence low
Ibid.; see also SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178 , 180 (7th Cir.1979); but see Weeks, 126 F.3d at 945 (“the court must award costs unless it states good reasons for denying them”).
cited Cited "see, e.g." Cefalu, William v. Village Elk Grove
7th Cir. · 2000 · signal: see also · confidence medium
Ibid.; see also SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979); but see Weeks, 126 F.3d at 945 ("the court must award costs unless it states good reasons for denying them").
cited Cited "see, e.g." Estate of Daniel A. Borst v. River Grove Police Officer Richard O'brien, Star No. 16, in His Individual and Official Capacity
7th Cir. · 1992 · signal: see, e.g. · confidence low
See, e.g., SCA Servs., Inc. v. Lucky Stores, 599 F.2d 178 (7th Cir.1979); Sarkes Tarzian, Inc. v. Philco Corp., 351 F.2d 557 (7th Cir.1965).
cited Cited "see, e.g." Sonoco Buildings, Inc., a Division of Sonoco Products Company v. American Home Assurance Company
7th Cir. · 1989 · signal: see also · confidence medium
Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981); see also SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979).
discussed Cited "see, e.g." Economu v. Borg-Warner Corp.
D. Conn. · 1987 · signal: see also · confidence medium
Plaintiff provides no authority for his convoluted proposition nor has any been found. 1 When [parties] ... choose the state which is to furnish the law governing the validity of their contract, the parties almost certainly have the “local law,” rather than the “law,” of that state, in mind____ To apply the “law” of the chosen state would introduce the uncertainties of choice of law into the proceedings and would serve to defeat the basic objectives, namely those of certainty and predictability, which the choice-of-law provision was designed to achieve. 1 Restatement (Second) Confl…
discussed Cited "see, e.g." George R. Hall, Inc. v. Superior Trucking Co.
N.D. Ga. · 1982 · signal: see also · confidence medium
See also, SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979). *995 The strongest argument against the taxation of costs incurred for deposition copies is that because the prevailing attorney has access to the deposition in the clerk’s office, “the copies [must] be charged off as a convenience to counsel.
Retrieving the full opinion text from the archive…
Sca Services, Inc., and Counterdefendant-Appellant and Cross-Appellee
v.
Lucky Stores, and Counterclaimant-Appellee v. Sca Services, Inc., Third-Party and Counterdefendant-Appellant and Cross-Appellee v. General Mill Supply Company, Third-Party and Counterclaimant-Appellee and Cross-Appellant
78-1266.
Court of Appeals for the Third Circuit.
May 18, 1979.
599 F.2d 178
Cited by 3 opinions  |  Published

599 F.2d 178

50 A.L.R.Fed. 466

SCA SERVICES, INC., Plaintiff and Counterdefendant-Appellant
and Cross-Appellee,
v.
LUCKY STORES, Defendant and Counterclaimant-Appellee,
v.
SCA SERVICES, INC., Third-Party Plaintiff and
Counterdefendant-Appellant and Cross-Appellee,
v.
GENERAL MILL SUPPLY COMPANY, Third-Party Defendant and
Counterclaimant-Appellee and Cross-Appellant.

Nos. 78-1266, 78-1267.

United States Court of Appeals,
Seventh Circuit.

Argued Feb. 26, 1979.
Decided May 18, 1979.

James C. Donnelly, Jr., Boston, Mass., for plaintiff and counterdefendant-appellant and cross-appellee.

Brian G. Shannon, Detroit, Mich., for defendant and counterclaimant-appellee.

Before FAIRCHILD, Chief Judge, and SPRECHER and TONE, Circuit Judges.

TONE, Circuit Judge.

[*~178]1

This opinion deals with the allowability to the prevailing party of interest on a judgment and the cost of copies of depositions.

2

SCA Services, Inc. entered into a contract with Lucky Stores, which operates more than one hundred supermarkets in various Midwestern states, to purchase used cardboard from Lucky's supermarkets. The contract also obligated SCA to install machines to bale the cardboard at the supermarkets. SCA also entered into a contract with General Mill Supply Company in which it was agreed that General Mill, acting as broker, would sell to paper mills all the cardboard SCA bought from Lucky. Disputes among the parties concerning the quality of the cardboard and whether SCA was including in its shipments cardboard from stores other than Lucky's were aggravated by the falling market price of the cardboard. Unable to settle their differences, SCA and Lucky terminated their relationship, and SCA stopped picking up Lucky's cardboard on April 30, 1975. General Mill continued to act as broker in the sale of other cardboard for SCA until July 1975.

3

SCA sued Lucky in the United States District Court for the Eastern District of Virginia for breach of their contract. Lucky then sued SCA on the same contract in the Southern District of Illinois. The district court in Virginia transferred its case to the Southern District of Illinois, where the cases were consolidated, with SCA as the plaintiff-counterdefendant and Lucky as the defendant-counterclaimant. SCA then filed a third-party complaint against General Mill, alleging a breach of contract and, further, that if Lucky prevailed against SCA, General Mill should be liable to SCA for the damages because SCA relied on General Mill's representations as to the quality of the cardboard in terminating the Lucky contract. General Mill responded with a counterclaim against SCA, asserting in Count I that SCA breached the contract with General Mill described above by failing to continue to supply paper to be sold by General Mill, and asserting in three other counts breaches of other contracts between the parties. The court stayed proceedings on the latter three counts pending arbitration and eventually dismissed them without prejudice.

4

After a trial of the remaining issues before a jury, the court entered judgment on the verdicts as follows: Lucky was found liable to SCA for the unpaid balance due on the baling machines in the amount of $433,339.21. SCA was found liable to Lucky for breach of contract in the amount of $220,776. SCA was also found liable to General Mill in the amount of $82,000. The court also denied General Mill's motion for interest from the date its counterclaim was filed and refused to include deposition expenses in the award of costs.

5

SCA settled with Lucky and appeals from the judgment in favor of General Mill, which cross appeals from the rulings on interest and costs. This opinion addresses only the issues raised by General Mill's cross-appeal. They are (1) whether General Mill was entitled to interest on its judgment in accordance with Michigan law in view of the provision in the contract that Michigan law would govern the rights and liabilities of the contracting parties, and (2) whether the district court abused its discretion by excluding from the award of costs the entire expense of deposition copies claimed by General Mill. The portion of our decision dealing with the questions presented by the appeal of SCA does not meet the criteria for publication stated in Circuit Rule 35 and is therefore filed as an unpublished order.

1. Interest

6

Included among the laws of the state in which the district court sits that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), makes applicable in diversity cases are the state's conflict of laws rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The district court in the case at bar was therefore required to apply the conflict rules of Illinois.

7

The contract between SCA and General Mill contained the following choice of law provision:

8

All questions with respect to the construction of this Agreement and the rights and liabilities of the parties hereunder shall be determined in accordance with the provisions of the laws of the State of Michigan.

[*~179]9

The term "liabilities" includes the measure of recovery in the event of breach. Interest is a part of the measure of recovery. See Restatement (Second) of Conflict of Laws § 207 & Comment E (1971). Illinois courts give effect to choice of law clauses. E. g., Hofeld v. Nationwide Life Ins. Co., 59 Ill.2d 522, 529, 322 N.E.2d 454, 458 (1975). See Restatement, supra, §§ 186, 187, and 207. Consequently, Michigan law applies. Under Mich. Comp. Laws § 600.6013, Mich.Stat.Ann. § 27A.6013 (Callaghan 1977), General Mill was entitled to interest in the amount of 6% per year, calculated from March 22, 1976, the date General Mill filed its counterclaim against SCA.

2. Deposition Copies

10

Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920 give the district court discretion in determining whether expenses claimed by the prevailing party are taxable as costs against the losing party, but this discretion is not unfettered. Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 774 (7th Cir. 1975). General Mill requested reimbursement in the amount of $10,640.42, which included both the costs of transcribing the depositions taken by General Mill and the cost of copies of transcripts of depositions taken by SCA and Lucky. The district court excluded all deposition expenses from the costs assessed against SCA.

11

" The charges of the court reporter for transcripts . . . of depositions reasonably necessary for use in the case even though not used at trial are recoverable upon a proper showing as provided in 28 U.S.C. § 1924." Wahl v. Carrier Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975); 6 Moore's Federal Practice, P 54.77(4), at 1720 (2d ed. 1976). The expense of discovery depositions which meet this test are recoverable as costs. Bailey v. Meister Brau, Inc., 535 F.2d 982, 996 (7th Cir. 1976).

12

Disallowance of General Mill's deposition costs in their entirety was not justified. It is apparent from our sampling of parts of the depositions taken by General Mill that at least some of those parts were reasonably necessary for use in the case. The fact that General Mill did not use them as evidence at trial is not controlling.

13

Courts have reached differing results on the appropriateness of awarding costs for copies of depositions. In a number of district court cases such costs have been refused, and, largely on the authority of these cases, Professor Moore states that costs for deposition copies are generally not allowable.[1] See 6 Moore's Federal Practice, supra, P 54.77(4), at 1724 & n. 21, and 1978-79 Supp. 56. We are persuaded, however, that the Fifth Circuit was correct in United States v. Kolesar, 313 F.2d 835, 838-840 (5th Cir. 1965), which held the cost of copies to be allowable. Attorneys' offices are often distant from the courthouse where the original transcript of the deposition is filed; but, even if they are not, the practicalities of preparing a case for trial often require that the attorneys have frequent and ready access to the depositions, and that they be able to mark annotations and cross-references on the pages. The expense of deposition copies reasonably necessary for use in the case may be included in the award of costs. Id.; Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678-679 (9th Cir. 1963). This applies to copies of both an opponent's and the prevailing party's own depositions. E. g., Independent Iron Works, supra,322 F.2d at 678-679.

14

Omission of all deposition expenses from the award of costs was an abuse of discretion. We appreciate the difficulty of the task confronting the district court in attempting to determine what parts of the voluminous depositions were reasonably necessary for use in the case. On remand, the court may award General Mill one-half of its claimed deposition expenses, $5,320.21, as costs in addition to costs already awarded, on condition that, if either party is not satisfied with this allocation, the court will refer the matter to a master for a hearing on the question of costs and conduct such further proceedings as may be necessary.

[*~180]15

The judgment on the merits is affirmed for the reasons stated in the unpublished order referred to above. With respect to interest and costs, the case is remanded to the district court for further proceedings in conformity with this opinion.

1

The only Court of Appeals decisions Professor Moore refers to as disallowing the awarding of costs of the expense of deposition copies are Fireman's Fund Ins. Co. v. Standard Oil Co., 339 F.2d 148 (9th Cir. 1964), and United States v. Portland Cement Co., 338 F.2d 798 (10th Cir. 1964). Both cases involved special circumstances and are distinguishable from the case at bar. The Ninth Circuit distinguished Fireman's Fund Ins. Co. from cases in which the expense of copies was allowed as costs, including its own decision in Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678-679 (9th Cir. 1963), solely because it was an admiralty case to which "ordinary rules of Civil Procedure" did not apply. 339 F.2d at 160-161. Portland Cement Co. involved costs against the United States which are allowable only to the extent permitted by law; the Tenth Circuit held that the governing statute, 28 U.S.C. § 2412(b), did not encompass the cost of deposition copies. 338 F.2d at 803 & n. 22