From Casetext: Smarter Legal Research

Johnson v. Pacific Lighting Land Co.

United States Court of Appeals, Ninth Circuit
Jun 26, 1989
878 F.2d 297 (9th Cir. 1989)

Summary

holding that allowable costs are limited to the items authorized in Rule 39

Summary of this case from Exxon Valdez v. Exxon Mobil

Opinion

No. 88-1635.

Argued and Submitted March 14, 1989.

Decided June 26, 1989.

Richard D. Engler, Yuma, Ariz., for plaintiffs-appellants.

Stephen E. Richman, Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BRUNETTI, KOZINSKI and NOONAN, Circuit Judges.


This case of first impression involves the question of whether the costs of a letter of credit used to secure a supersedeas bond are properly taxable as costs of the appeal.

FACTS

In this class action the plaintiff class secured a trial verdict of over $4 million against the defendant Pacific Lighting Land Company (Pacific). The defendant appealed and obtained a supersedeas bond in the amount of $5.3 million. In order to obtain the bond Pacific was required by the bonding company to obtain a letter of credit as security. Pacific paid premiums on the bond and costs for the letter of credit.

This court reversed the judgment against the defendant and, remanding the case for trial, ordered that appellate costs be taxed. Johnson v. Pacific Lighting Land Co., 817 F.2d 601 (9th Cir. 1987). Pacific submitted its bill of costs to the clerk of the district court showing that it had paid $40,368 for bond premiums and $42,473.64 as letter of credit costs. Over the plaintiff's objections to taxation of the letter of credit costs, the clerk allowed both items in taxing costs, and the district court approved this figure. The plaintiff appealed the taxation of the letter of credit costs.

ANALYSIS

The general rule on the taxation of costs is that the district court has discretion to fix the costs. Farmer v. Arabian American Oil Co., 379 U.S. 227, 233, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964). The discretion exists under Fed.R.Civ.P. 54(d). Such court discretion does not include the authority to tax costs beyond those authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-43, 107 S.Ct. 2494, 2496-98, 96 L.Ed.2d 385 (1986). The discretion conferred by the rule is necessarily restricted by the specific rule governing costs on appeal, which reads as follows:

Costs on appeal taxable in the district courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule. Fed.R.App.P. 39(e).

It is apparent that the rule itself does not provide for costs paid for letters of credit.

Where a letter of credit has been used and the total cost has been no greater than a supersedeas bond without collateral, the charge for the letter of credit has been treated as the equivalent of premiums paid for the cost of a supersedeas bond. Bose Corp. v. Consumers Union of U.S., Inc., 806 F.2d 304, 305 (1st Cir. 1986). Again, where the parties agree to less expensive substitutes for the costs explicitly authorized in Rule 39(e), there was no problem in allowing these costs. Lerman v. Flynt Distributing Co., 789 F.2d 164, 166 (2d Cir. 1986). But this case is a case where there was no agreement by the parties and where the costs paid for the letter of credit were in addition to the cost of the premiums paid for the supersedeas bonds. There was no authorization in Rule 39 for such costs. It was an abuse of discretion to allow them.

REVERSED.


Summaries of

Johnson v. Pacific Lighting Land Co.

United States Court of Appeals, Ninth Circuit
Jun 26, 1989
878 F.2d 297 (9th Cir. 1989)

holding that allowable costs are limited to the items authorized in Rule 39

Summary of this case from Exxon Valdez v. Exxon Mobil

holding that a party may not recover the cost of a letter of credit used to obtain a supersedeas bond

Summary of this case from Republic Tobacco Co. v. North Atlantic Trading Co.

holding that while the district court has discretion to fix the taxation of costs, such discretion does not include the authority to tax costs beyond those authorized by statute

Summary of this case from PCT Int'l Inc. v. Holland Elecs. LLC

reviewing taxation of costs under 39(e) for abuse of discretion

Summary of this case from Campbell v. Rainbow City

In Johnson, the Ninth Circuit rejected the defendant's attempt to include letter of credit costs as appellate costs in addition to bond premiums.

Summary of this case from Ericsson Inc. v. TCL Commc'n Tech.

In Johnson v. Pacific Lighting Land Co., 878 F.2d 297 (9th Cir. 1989), the Ninth Circuit framed the question before it as follows: "This case of first impression involves the question of whether the costs of a letter of credit used to secure a supersedeas bond are properly taxable as costs of the appeal."

Summary of this case from Hynix Semiconductor Inc. v. Rambus Inc.

explaining that the cost for a letter of credit "has been treated as the equivalent of premiums paid for the cost of a supersedeas bond"

Summary of this case from Klapmeier v. Cirrus Indus., Inc.

noting the rule adopted in Bose, but disallowing costs paid for a letter of credit that were in addition to the cost of the premiums paid for supersedeas bonds, where there was no agreement by the parties for such costs

Summary of this case from North Pointe Ins Co v. Steward
Case details for

Johnson v. Pacific Lighting Land Co.

Case Details

Full title:NORMAN R. JOHNSON; LOUISE C. JOHNSON; FREEMAN L. VACHER; HILMA I. VACHER…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 26, 1989

Citations

878 F.2d 297 (9th Cir. 1989)

Citing Cases

PCT Int'l Inc. v. Holland Elecs. LLC

Furthermore, "[t]he general rule on the taxation of costs is that the district court has discretion to fix…

Ericsson Inc. v. TCL Commc'n Tech.

Ericsson argues that neither interest nor corporate guarantees fall within any of the four categories…