Me. R. Civ. P. 54

As amended through February 27, 2023

Rule 54 - Judgments; Costs

(a) Definition; Form. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings or the record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties; Attorney Fees.

(1) Except as otherwise provided in paragraph (2) of this subdivision and in Rule 80(d), when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, except those enumerated in paragraph (2) of this subdivision and in the last sentence of Rule 80(d), which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(2) In an action in which there is a claim for attorney fees, a judgment entered on all other claims shall be final as to those claims unless the court expressly finds that the claim for attorney fees is integral to the relief sought. If the court so finds, any order or other form of decision, however designated, shall not terminate the action as to any claim and is subject to revision at any time before the entry of a final judgment adjudicating all claims including that for attorney fees.

(3) When final judgment has been entered on all claims except a claim for attorney fees, an application for the award of attorney fees shall be filed within 60 days after entry of judgment if no appeal has been filed. If an appeal has been filed, the application may be filed and acted upon in the trial court at any time after entry of the judgment appealed from and in any case shall be filed not later than 30 days after final disposition of the action. An application for attorney fees shall ordinarily be acted upon by the justice or judge who rendered the judgment on the merits.

(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every judgment shall grant the relief to which the party in whose favor it is rendered is entitled even if the party has not demanded such relief in his pleadings.

(d) Allowance of Costs. Costs shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs.

(e) Taxation of Costs. Costs shall be taxed by the clerk upon a bill to be made out by the party entitled to them or, if no such bill is presented, upon inspection of the proceedings and files. If the adverse party has notified the clerk in writing of a desire to be present at the taxation of costs, no costs shall be taxed without notice to such adverse party.

(f) Schedule of Fees. The following schedule of fees shall be taxable as costs: Costs and fees as allowed to a party or witness by statute or administrative order. Service as taxed by the officer or process server, subject to correction. Surveyors, commissioners and other officers appointed by the court, fees as charged by them subject to correction. Costs of reference as reported by the referee, and allowed by a justice of the court.

(g) Costs on Depositions. The taxing of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer's reasonable fee for attendance, and the cost of the original transcript and one copy of the testimony or such part thereof as the court may fix and, for depositions used at trial in lieu of live testimony, a reasonable fee for appearance by any expert and costs incident to preparing, editing and presenting the deposition at trial.

Me. R. Civ. P. 54

Advisory Committee's Notes

March 1, 1994

Rule 54(b) is amended to clarify the situation regarding finality of a judgment on the merits in a case where there is also a claim for attorney fees. In such a case, of course, the initial order of judgment may expressly include attorney fees as well as the judgment on the merits. If the judgment is silent as to attorney fees, however, new Rule 54(b)(2) provides that the judgment is final as to all substantive claims which it embraces (subject, of course, to the further provisions of Rule 54(b)(1) concerning a judgment on less than all of the substantive claims). Only if the court expressly finds that the claim for attorney fees "is integral to the relief sought" and defers decision on that claim, is the judgment on the substantive claims rendered non-final.

The purpose of the rule is to enable the parties to be clear on the question of finality. The rule differs from the practice established in the federal courts under Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), in which the Court adopted a "bright line rule" providing that the decision on the merits was always final whether or not the issue of attorney fees had been considered. The nature of state court litigation requires a more flexible rule. In matters such as divorce and mortgage foreclosure, attorney fees are in effect a part of the substantive remedy being awarded the prevailing party. In that sense, they are integral to the relief sought. Cf. Crossman v. Maccoccio, 792 F.2d 1, 3 (1st Cir. 1986). The rule is consistent with Law Court decisions permitting consideration of attorney fees issues after judgment on the merits. Cf. Peterson v. Leonard, 622 A.2d 87, 89-90 (Me. 1993) (on appeal disposing of merits of contempt motion in divorce action, remand for consideration of attorney fees); Rodrigues v. Tomes, 610 A.2d 262, 265 (Me. 1992) (in wrongful eviction proceedings under 14 M.R.S.A. §6014(2)(b), attorney fees could be awarded on motion to amend judgment).

New Rule 54(b)(3) provides a procedure for addressing an application for attorney fees after final judgment on other claims pursuant to paragraph (2). If there is no appeal, the application for fees must be filed within 60 days after entry of judgment. If there is an appeal, the application may be filed at any time between entry of judgment and 30 days after final disposition of the case, which ordinarily will be the entry of judgment in the lower court after receipt of the mandate. (A simultaneous amendment to Rule 73(f) adds actions under this paragraph to the list of those that the Superior Court may take after the appeal has been docketed in the Law Court.) Rule 54(b)(3) is similar to Rule 32 of the Local Rules of the United States District Court for the District of Maine. Rule 54(b)(3) also provides that, to assure continuity, attorney fees issues are, in the usual case, to be acted upon by the judge who decided the issues on the merits.

Advisory Committee's Notes

May 1, 1999

Rule 54(f) is amended to remove the schedule of fees, many of which were outdated, and to substitute an incorporation by reference of the governing statutes and administrative orders that may prescribe fees recoverable as costs. In addition, the rule now recognizes that process is frequently served by process servers whose fees should be recoverable as costs.

Advisory Committee's Notes

May 1, 2000

The last sentence of subdivision (f) refers to compensation to clerks or referees in damages hearings to be set by a justice but paid by the county. The counties have no such role at this time and the sentence is eliminated.

Advisory Note -January 1, 2003

The purposes of this amendment to M.R. Civ. P. 54(g) are to:

(1) allow compensation for expert witnesses who appear at trial by deposition in the same manner as compensation for expert witnesses who testify live at trial, see Poland v. Webb, 1998 ME 104, 12-15, 711 A.2d 1278, 1280-82; and, (2) allow recovery of costs for videotaping or other recording and for any necessary editing and any costs for presenting a deposition at trial in lieu of live testimony. With this amendment, costs may be recovered incident to any use and presentation of a deposition at trial in lieu of live testimony.

Annotations:

Rule 54: Tarbuck v. Jaekel, 2000 ME 105, 19-25.

Rule 54(b): Fleet National Bank v. Gardiner Hillside Estates, Inc., 2002 ME 120, 8-13.

Rule 54(b): Bates v. Eckhardt Telecommunications, Inc., 2002 ME 69, 5-7.

Rule 54(b): Mancini v. Scott, 2000 ME 19, 9-12.

Rule 54(b): Linscott v. Foy, 1998 ME 206, 16-17.

Rule 54(b): Factors to consider in attorney fees award. Villas By the Sea Owners Assoc. v. Garrity, 2001 ME 93, 8.

Rule 54(b)(1): Dexter v. Town of Norway, 1998 ME 195, 6.

Rule 54(d): Post-judgment interest waiver. Carter v. Williams, 2002 ME 50, 31.

Rule 54(d) & (g): Prevailing party determination and expert deposition costs. Landis v. Hannaford Bros., 2000 ME 111, 5-8 & 13.

Rule 54(d): Prevailing party determination. Seacoast Hangar Condo. v. Martel, 2001 ME 112, 29-32.

Rule 54(e): Trask v. Automobile Insurance Co. -1999 ME 94.

Rule 54(e): Fitzgerald v. Gamester -1999 ME 92, 12-14.

Rule 54(e): Poland v. Webb -1998 ME 104, 14-16.

Rule 54(e): Post-judgment interest waiver. A.F.A.B., Inc. v. Town of Old Orchard Beach, 2001 ME 128, 11-13.

COMMENTS

§ 54(b) Partial Final Judgment.

Rule 54(b) establishes a process to permit appeals of nonfinal judgments, conditioned upon certain findings by the court. A final judgment as to fewer than all claims or all parties can be entered, but only "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." M.R. Civ. P. 54(b)(1); see also Citicorp Mortgage, Inc. v. Keneborus, 641 A.2d 188, 190 (Me. 1994). "In limited instances, when the resolution of one part of an action may be dispositive of the remaining unresolved components of the action, the parties may seek appellate review of one component alone by obtaining a certification of final judgment pursuant to M.R. Civ. P. 54(b)(1)." Musson v. Godley, 1999 ME 193, 7, 742 A.2d 479, 481.

Rule 54(b) certifications are reviewed for an abuse of discretion. Fleet National Bank v. Gardiner Hillside Estates, Inc., 2002 ME 120 10; 802 A.2d 408, 411-12. There must be a good reason for immediate certification of a partial judgment. Id. In its certification, the trial court must make specific findings and a reasoned statement explaining the basis for its certification under Rule 54(b). See Bates v. Eckhardt Telecomm., Inc., 2002 ME 69, 5-7, 794 A.2d 648, 650-51; Citicorp Mortgage, Inc., 641 A.2d at 190; Key Bank of Maine v. Park Entrance Motel, 640 A.2d 211, 212 (Me. 1994). The statement may be short, but it must be more than a summary recitation of the provisions of Rule 54(b). See Citicorp Mortgage, Inc., 641 A.2d at 190.

Even when there is an appropriate certification, the Law Court is not required to consider the certified interlocutory appeal. The Court will consider a number of factors in determining whether to reach the merits of a certified appeal. The factors include: the relationship of the adjudicated and unadjudicated claims, the possibility that the need for review may be mooted by future development in the trial court, the chance that the same issues will be presented more than once to the appellate court, the possibility that an immediate appeal might expedite the trial court's work, and miscellaneous factors such as likely delay, economic and solvency considerations, the res judicata effect of a final judgment, and the like.

Dexter v. Town of Norway, 1998 ME 195, 6, 715 A.2d 169, 171 (quoting Durgin v. Robertson, 428 A.2d 65, 68 (Me. 1981)).

While the trial court decision to certify claims as final pursuant to Rule 54(b) is reviewed for an abuse of discretion, the listed factors suggest that the review conducted by the Law Court may be less deferential than the usual level of deference accorded in abuse of discretion reviews of trial court determinations. In some instances, it may be possible to make a partial final judgment appealable by an order severing claims or parties pursuant to M.R. Civ. P. 21. § 54(d)(e)(f)(g) Costs.

The general terms of M.R. Civ. P. 54(d), (e), (f), and (g) regarding recoverability of costs and interest are significantly governed by statute, 14 M.R.S.A. § § 1501-1522(costs), 14 M.R.S.A. § § 1602 (prejudgment interest), 1602-A (post-judgment interest), and 16 M.R.S.A. §251 (costs for attendance of witnesses at trial).

The important statutory costs provisions may be summarized as follow:

1. Costs may be awarded to the "party prevailing." 14 M.R.S.A. §1501.

2. Costs that shall be allowed--mandatory costs--§1502 -B, include:

A. Filing Fees.

B. Service Fees.

C. Attendance fees and travel costs of witnesses as allowed by 16 M.R.S.A. §251 or other laws.

D. Reasonable travel expenses within the state to the place of trial for the prevailing party or counsel "as directed by court" in absence of a rule. There is no rule.

E. Other costs required by rule.

3. Discretionary costs --§1502 -C, may include:

A. Reasonable expert witness fees allowed by 16 M.R.S.A. §251. Section 251 allows a "reasonable sum" for each day's attendance at trial by an expert. Only fees directly related to attendance at trial are allowed. Poland v. Webb, 1998 ME 104, 14, 711 A.2d 1278, 1281. Effective January 1, 2003, M.R. Civ. P. 54(g) was amended to allow recovery of expert fees for appearance at a deposition that is used at trial in lieu of live testimony. Costs may also be recovered for preparing, editing and presenting such a deposition at trial.

B. Costs of reasonable medical reports "prepared for the purpose of litigation" and "exchanged by the parties."

C. Visual aides not to exceed $500.

D. Deposition costs as allowed by rule.

E. Other costs allowed by rule.

4. Taxation of costs procedures -§1502 -D.

A. A bill of costs may be submitted "not later than 10 days after entry of judgment."

B. Any challenge to costs must be filed within 10 days after service of the bill of costs.

C. The prevailing party may then submit, within 10 days, records verifying challenged costs.

D. Whether any hearing will be held and the extent of any hearing is discretionary. Mack v. Acadia Insurance Co., 1998 ME 91, 9, 709 A.2d 1187, 1189.

E. If the court determines that imposition of costs "will cause a significant financial hardship" to a party, the court may waive "all or part" of the costs for that party. See A.F.A.B., Inc. v. Town of Old Orchard Beach, 2001 ME 128, 11-13, 777 A.2d 831, 836, regarding post-judgment interest waiver issues.

5. Costs are not recoverable for:

- Expenses for lodging. Poland v. Webb, 1998 ME 104, 16, 709 A.2d 1187, 1189.

- Fees charged for or paid to witnesses to prepare for or attend a deposition. Poland v. Webb, 1998 ME 104, 14, 711 A.2d at 1281. (But note the 2003 Amendment to M.R. Civ. P. 54(g) which authorizes payment of expert fees for appearance at depositions used at trial.)

- Records review and travel time for trial experts. Poland v. Webb, 1998 ME 104, 15, 711 A.2d at 1281-82.