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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
_________________________
Nos. 92-2312
92-2313
IN RE: TWO APPEALS ARISING OUT OF THE
SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
_________________________
Before
Selya and Cyr, Circuit Judges,
______________
and Fuste,* District Judge.
______________
_________________________

Paul K. Connolly, Jr., with whom Damian R. LaPlaca, LeBoeuf,


_____________________
_________________ ________
Lamb, Leiby & MacRae, Ralph W. Dau, Peter B. Ackerman, Jeffrey W.
____________________ ____________ _________________ __________
Kilduff, O'Melveny & Myers, Raul E. Gonzalez-Diaz, A.J. Bennazar_______ _________________ _____________________ ______________
Zequeira, Gonzalez & Bennazar, Andrew K. Epting, Jr., G. Trenholm
________ ___________________ _____________________ ___________
Walker, Wise & Cole, Homer L. Marlow, William G. Liston, Marlow,

______
___________ _______________ _________________ _______
Shofi, Connell, Velerius, Abrams, Lowe & Adler, Deborah A. Pitts,
______________________________________________ ________________
Hancock, Rothert & Bunshoft, Bethany K. Culp, Patrick McCoy,
_____________________________
________________ ______________
Oppenheimer Wolff & Donnelly, Lon Harris, Harris & Green, Stuart
____________________________ ___________ ______________ ______
W. Axe, Lester, Schwab, Katz & Dwyer, Adrian Mercado, Mercado &
______ _____________________________ ______________
_________
Soto, Virgilio Mendez
Cuesta, Ernesto Rodriguez-Suris, and
____
_________________________
________________________
Latimer, Biaggi, Rachid, Rodriguez-Suris & Godreau were on
_______________________________________________________
consolidated briefs, for appellants.
Gary L. Bostwick, with whom R. Lance Belsome was on brief,
________________
________________
for appellees Hotel Systems International, et al.
Alvaro Calderon, with whom Will Kemp and Monita F. Sterling,
_______________
_________
__________________
PSC Liaison, were on brief, for appellee Plaintiffs' Steering
Committee.
_________________________
_________________________
_______________
*Of the District of Puerto Rico, sitting by designation.

SELYA,
SELYA,
require
in

Circuit Judge.
Circuit Judge.
______________

These

us to grapple for the first

modern

expenses

federal
indigenous

judicially

determined?

how,

court's handling

litigation be reallocated once the


Here,

appeals

time with a looming problem

court practice:
to

consolidated

if
of

at all,
mass

should

disaster

winners and losers have


the

appellants,

been

late-joined

defendants

and

underlying
coincident

defendants

litigation.
with the

either seeking

otherwise

lobbying

thousands

of
that

the court's

in

district

judgment, effectively

reallocation
in

prevailed

the

costs under Fed.

for

dollars

cross-claim,

Nonetheless,

entry of

them from

Finding

in

the

court,

foreclosed

R. Civ. P.

54(d) or

of

several

hundreds

court-ordered

expense

assessments.

abrupt

slamming of

improvident, we vacate the relevant

these

of

doors was

portion of the judgment

and

remand for further proceedings.


I.
I.

BACKGROUND
BACKGROUND

In 1987, the Judicial Panel on Multidistrict Litigation


appointed

the

District
270

Raymond

Judge for the District

cases

engulfed

Honorable

arising
the

out of

San Juan

L. Acosta,

United

of Puerto Rico,

the

deadly

Dupont

Plaza

fire

to handle some

that had

Hotel.

States

See
___

earlier

In re Fire
___________

Disaster at Dupont Plaza Hotel, 660 F. Supp. 982 (J.P.M.L. 1987)


_______________________________
(per curiam).

Judge Acosta's

stewardship proved

judicial craftsmanship and practical

ingenuity."

"a model

of

In re Nineteen
______________

Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire
_________________________________________________________________
Litig.,
______

982 F.2d

603,

606 (1st

Cir.

1992).

Among

the many

successful

innovations

that

celeritous conclusion were


Depository (JDD),
discovery

brought

litigation

(1) the creation of

which housed

to

a Joint Document

and copied for

materials, see Pretrial Order


___

at 66; (2) the appointment

the

distribution all

No. 127 (Dec. 2, 1988),

of liaison counsels (plaintiffs'

and

defendants'), each of whom was responsible for dispersing filings


among his

or her

formation

of

constituents, see
___

a Joint

devising means of
Foam Corp.,
___________

mandatory

859 F.2d

series

1000,

court periodically

1001 (1st

Cir.

of

case-management

(JDC) dedicated

the

to

In re Recticel
______________

1988) (describing

orders

all litigants.1

requisitioned fresh

In

which

imposed

this

way, the

monies as funds

The orders were silent as to

the court planned to

and (3)

To fund these innovations, the district court

assessments upon

were depleted.

Committee

expediting the litigation, see


___

operation of JDC).
entered

Discovery

id. at 61-63;
___

on hand

(i) whether or not

readjust defendants' contributions in light

of future developments,

and (ii) the court's authority,

if any,

____________________
1Because

the mechanics

of the

allocation process

are not

critical for present purposes, we supply merely a thumbnail


sketch.
The Plaintiffs' Steering Committee (PSC) and the
defendant San Juan Dupont Plaza Hotel Corporation were assessed a
total of $100,000 to defray the JDD's start-up costs.
See
___
Pretrial Order No. 127, at 69-70. Thereafter, each litigant paid
for JDD-related services actually used. See id. at 70. To cover
___ ___
costs that were not offset by service charges (e.g., the JDD's
____
overhead
expenses), the
district court
imposed mandatory
assessments.
Initially, at least, the PSC bore 15% of the
incremental cost and the defendants, collectively, bore 85%. See
___
id. at 71. Within the defense collective, per-member assessments
___
were presumably equal.
3

to effectuate such reallocations.2


Roughly
litigation

two

years

after

first

shots

in

the

had been fired, a group of defendants involved in the

hotel's ownership and operation


fire

the

victims

and

their

settled with the plaintiffs (the

families)

and

cross-claimed

for

indemnification against various insurers whose liability policies


had

expired before the fire started (the pre-fire insurers).

August

9, 1989,

lead,

adding the

P.R. Laws Ann.


had

the

plaintiffs

followed the

pre-fire insurers

tit. 26,

as direct

2001, 2003 (1976).

On

cross-claimants'

defendants under

Because discovery

formally closed on December 15, 1988, see Pretrial Order No.

___
127, at 96-97, the pre-fire insurers' investigation of

the newly

emergent claims against them necessarily centered around a review


of documents stored in the JDD.3
____________________

2We add a small qualifier to this statement. Pretrial Order


No. 127 is a document in excess of 200 pages dealing with a
potpourri of matters. The portion of the order that discusses
defendants' assessments does not address either of the two points
mentioned in the text. However, in the portion of the document
that addresses assessments imposed on plaintiffs' attorneys to
fund the
PSC
and enable
it to
make its
cost-sharing
contributions,
the
district court
provides
for possible
"reallocation of expenses based
upon the actual, relative
recovery" achieved by the various plaintiffs. Id. at 39. At the
___
very end of the document, the district court states that "[t]his
Order may be either amended or modified by the Court sua sponte
___ ______
or upon good cause shown."
Id. at 205.
None of the parties
___
argue that either of the provisions we have identified relate to
the possible reallocation of cost-sharing assessments levied
against appellants (or any defendants, for that matter). And,
none of the other orders contain any language, general or
specific, similar to that which we have quoted.

3In one attempt to conduct some independent discovery, the


pre-fire insurers moved to reopen discovery for ninety days. The
docket sheet indicates that this motion was granted on March 19,
1991, albeit only for a three-day period.
4

The

pre-fire

insurers

quickly

filed

dispositive

motions.

The district court,

was slow in addressing

faced with more pressing problems,

the motions.

Finally, the

court granted

them on September 11, 1992, see In re San Juan Dupont Plaza Hotel
___ _________________________________
Fire Litig., 802
___________
(1st

Cir.

F. Supp. 624 (D.P.R. 1992), aff'd,


_____

1993),

entered judgment

insurers on all claims,

in

favor

989 F.2d 36

of

the pre-fire

and decreed that the parties

would bear

their own costs.


On

appeal, seventeen

the district court abused


both an

cost-sharing assessments.4

Hotel

a complete or partial
The

Steering Committee

Systems International

(Associates), filed

complain that

its discretion by summarily precluding

award of costs and

Plaintiffs'

pre-fire insurers

refund of the

fire victims, represented by the


(PSC), and

(HSI) and

opposition briefs

two cross-claimants,

Dupont

Plaza Associates

and participated

in oral

argument.
II.
II.

NATURE OF THE STAKES


NATURE OF THE STAKES
In

expenditures

the

expectation

that

in greater detail will

describing
help to put

the

disputed

matters in the

____________________

4The appellants are: Continental Insurance Company, Federal


Insurance Company, First State Insurance Company, Granite State
Insurance Company, Highlands
Insurance Company,
Industrial
Underwriters Insurance Company, International Insurance Company,
Landmark Insurance Company, Protective National Insurance Company
of Omaha, Puerto Rico American Insurance Company, Safety Mutual
Casualty Corporation, St. Paul Fire & Marine Insurance Company,
St. Paul Mercury Insurance Company, California Union Insurance
Company, Central National Insurance Company of Omaha, Insurance
Company of North America, and Pacific
Employers Insurance
Company. The latter four carriers filed a separate notice of
appeal.
Because the arguments are much the same, we treat the
two appeals as a unit.

proper perspective, we travel that route.


A.
A.
The
mandatory

Court-Ordered Assessments.
Court-Ordered Assessments.
_________________________

vast

majority

of

payments imposed by six

See Pretrial Order No. 48 (Feb.


___
(Apr. 18,
No. 135

comprise

orders of the district court.

No. 127, supra;


_____

Pretrial Order

(Jan. 17, 1989); Pretrial Order No. 212 (July 31, 1989);
259 (Aug. 21, 1990).

eventuated
required

at

outlays

11, 1988); Pretrial Order No. 67

1988); Pretrial Order

Order No.

after

appellants'

before

appellants

appellants to

pay

Although the first


entered the

the sums

filing entries of appearance.

71;

Pretrial

Order No.

assessments

under

$705,500.

Eighty-three

$586,500

135,

protest.5

percent

represents assessments

those

orders

assessed therein

shortly

See Pretrial Order No. 127,


___
at 9.

The

fray,

four orders

Appellants

compulsory
of this

paid the

payments

aggregate

total

amount

levied under the four earliest

cost-sharing orders.
Appellants'

tribute

helped

to

fund

the

various

instrumentalities that Judge Acosta had


the litigation.
($41,500),

Thus, out of each

$18,000

went toward

expenses, see Pretrial Order


___
defraying the JDC's

set in place to expedite

insurer's total contribution

defraying

the JDD's

No. 127, at 72; $3,500

expenses, see id.;


___ ___

operating

went toward

and $10,000 went

toward

____________________

5We fully understand appellants' submissiveness, inasmuch as


refusal to pay would have resulted in sanctions, see Pretrial
___
Order No. 127, at 72; Pretrial Order No. 135, at 10, and this
court had made no secret of its disinclination to review such
orders prior to entry of final judgment. See Recticel, 859 F.2d
___ ________
at 1006.
6

paying costs
Person (DLP).6
259,

at

remaining

1.

associated with

the office of

See id.; Pretrial Order No. 212, at 1; Order No.


___ ___
The district

$10,000

court

would subsidize

courtroom and related facilities.


9.

The

idea

Defendants' Liaison

was abandoned

and

originally intended
the

construction

that the
of a

new

See Pretrial Order No. 135, at


___
the

funds in

question

were

eventually utilized for

operational costs

of the

JDD and

DLP.

See In re San Juan Dupont Plaza Hotel Fire Litig., 142 F.R.D. 41,
___ _____________________________________________
46 n.20

(D.P.R. 1992).

insofar

as

they

Therefore,

pertain

to

the

the figures
JDD

and

recited above,

DLP,

are

minimum

estimates.
B.
B.

Ordinary Costs.
Ordinary Costs.
______________

Presumably, the

payments made

pursuant

sharing orders, though substantial, do not comprise


appellants'
successful

investment
defense

expenditures,

such

routinely associated

in

this sprawling

doubtless required
as photocopy

costs

with litigation.

to the

the whole of

litigation.

other,
of

Their

more commonplace

the

See,
___

cost-

type and

e.g., 28
____

kind

U.S.C.

1920 (1988) (listing fees and expenses taxable as costs).


III.
III.

WAIVER
WAIVER
Having

described

recoup, we pause to
submit

the

expenses

appellants

address a threshold matter.

that the pre-fire

insurers waived any

seek

to

The plaintiffs

claim for expense

____________________

6The DLP was responsible for receiving, on behalf of all


defendants, and disseminating, among all defense counsel, court
orders and discovery materials.
See Pretrial Order No. 127, at
___
62-63.
7

recovery

by

entered.
demur:

failing

to

file

See id. (requiring


___ ___

bills

of

bill of

costs

after judgment

costs to be

filed).

We

the doctrine of waiver presents no barrier to appellants'

attempt to recover court

costs or request a reallocation

of the

mandatory cost-sharing assessments.


To
costs

be sure, the failure

with the

district

seasonably to file

court may,

in certain

a bill of

circumstances,

constitute a waiver of a party's right to recoup costs under Rule


54(d).

See Mason
___ _____

v.

Belieu, 543
______

F.2d

215, 222

(D.C. Cir.)

(vacating a cost award where plaintiffs had failed to file a bill


of costs), cert. denied, 429 U.S. 852 (1976).
_____ ______
here,

however,

because

coincident with the entry


own

district

and did so

prevailing

parties

ten days

of costs. In the face

purpose.7
errands.

The law

by

ordering,

bear its

opportunity to file

despite D.P.R. Loc.

filing of an itemized bill

court,

of judgment, that each party

costs, preempted appellants'

costs

bills

the

There is no waiver

a bill of

R. 331.1, which

after notice

of judgment

allows

to file

of this flat ruling, the subsequent


of costs would have served

does not

require

litigants to

no useful

run fools'

Thus, a party who forgoes an obviously futile task will

not ordinarily be held thereby to have waived substantial rights.

See Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d 581,
___ _________________
_________________________
____________________

7Similarly, given the clarity and definiteness of the trial


court's order, a post-trial motion for reconsideration was not
required as a condition precedent to taking an appeal.
See
___
Sherrill v. Royal Indus., Inc., 526 F.2d 507, 509 n.2 (8th Cir.
________
__________________
1975); Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d
_________________
_________________________
581, 587 (3d Cir. 1975).
8

587 (3d Cir. 1975) (refusing to allow waiver to be

grounded in a

party's dereliction

Northern Heel
_____________

Corp.
_____

of a

futile task);

see also
___ ____

v. Compo Indus., Inc., 851 F.2d 456,


___________________

(stating, in a different
construed

461 (1st Cir. 1988)

context, that "[t]he law should

idly to require parties

to perform futile

not be

acts or to

engage in empty rituals").


A somewhat
failing to
readjust the

ask the

closer question

is whether appellants,

district court, after

judgment entered,

mandatory assessments, thereby waived

raise that issue here.


largely pragmatic.

We

hold they have not.

There is

to

the right to

Our decision

no rule specifically

by

is

limiting the

time

within

which

reallocating

a party

case-management

may

make a

expenses.

Hampshire Dep't of Employment Sec.,


____________________________________

request
Cf.
___

455 U.S.

for

an order

White
_____

v.

445, 455

New
___

(1982)

(holding that no general federal rule governs the timing of postjudgment motions for
Should

we

refuse

presumably return
reallocation.
considering

attorneys' fees
to

entertain

the

to the district
Thus, as

issue

now

the

protracted litigation.
rather than fact, can

under 42
issue,

U.S.C.
appellants

court and formally

practical matter,
would

only

1988).

to

prolong

would

request a

abstain from
an

already

To the extent that an issue is one of law


be resolved without doubt on

the existing

record, and is likely to arise in other cases, an appellate court

may, in the interests of justice, choose to overlook a procedural


default.

See Singleton
___ _________

v. Wulff,
_____

428

U.S. 106,

121 (1976);

United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990).
_____________
__________
9

Here,
problem

we

think it
head-on,

best to
and excuse

exercise

our discretion,

appellants'

failure

meet the

to move

for

reallocation below.
IV.
IV.

ANALYSIS
ANALYSIS
We

turn now to

Appellants

ask

opportunity

to

assessments

either under

other source

us

to

the meat of
order

recover

that

their

the consolidated appeals.


they

court

Fed. R.

of judicial power.

be

afforded

costs

Civ. P.

and

fair

cost-sharing

54(d) or

We address

under some

these alternatives

separately.
A.
A.

Rule 54(d).
Rule 54(d).
__________

Appellants assert that the district court's unexplained


denial of costs constituted an abuse of discretion.
prevailed

on

all

claims

presumptively entitled
R. Civ. P. 54(d)
In

order

review

to

prevailing

runs,

they are

to recover their costs of suit under Fed.

this

mandatory assessments.

multifaceted

general operation

particular, the leeway


costs

thesis

and these include the

to evaluate

the

below, their

Because they

of

it gives
parties.

Rule

contention, we

54(d), elucidating,

trial courts to
We

first

then

grant or

analyze

the

in

deny

rule's

implications in the context of this case.


1.
1.
type

General Operation.
General Operation.
__________________

of expenses that

U.S.C.

1920.8

Rule

Congress has

a federal court
54(d) works in

____________________
8The section provides:

enumerated the

"may tax as

costs."

tandem with the

28

statute.

A judge . . . may tax as costs the following:


10

It

provides, with

exceptions

shall be allowed as

of

the

here, that

"costs

of course to the prevailing party unless the

court otherwise directs."


effect

not pertinent

Fed.

statute and

R. Civ. P. 54(d).

rule

is

to

The

combined

cabin district

court

discretion in two ways.


First,

section 1920

has

an esemplastic

effect.

It

fills

the void resulting from Rule 54(d)'s failure to define the

term

"costs," see Crawford Fitting Co. v. J. T. Gibbons, Inc.,


___ _____________________
____________________

482 U.S.
the

437, 441 (1987)

term

`costs' as

(holding that "[section]

used

in

constrains the district court's

Rule 54(d)"),

in that

way

power to determine which expense

categories constitute taxable costs.


and

and

1920 defines

In other words, the statute

rule, read together, signify that a district court lacks the

ability to assess "costs" under Rule 54(d) above and beyond those
that come within the statutory litany.
In light of the foregoing, we
confers

no

discretion

on

See id.
___ ___

conclude that Rule 54(d)

federal courts

independent

of

the

____________________
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any
part
of
the
stenographic
transcript
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and copies of
papers necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters . . . and costs
of special interpretation services . . . .
28 U.S.C.

1920.
11

statute

to

tax various types

of expenses as

costs.

See
___

id.;
___

accord Denny v. Westfield State College, 880 F.2d 1465, 1468 (1st
______ _____
_______________________

Cir. 1989) (reasoning that, in light of Crawford, Rule 54(d) does


________

not constitute a separate source of judicial discretion); Freeman


_______
v.

Package Mach. Co., 865


___________________

(similar).
solely

F.2d

Rather, the discretion

a negative
________

discretion, "a

1331,

1346

(1st Cir.

that Rule 54(d)


power to

1988)

portends is

decline to

tax, as

costs, the

items enumerated in

442; accord
______

1920."

Rodriguez-Garcia v.
________________

Crawford, 482
________

Davila, 904
______

F.2d 90,

U.S. at

100 (1st

Cir. 1990).
We further believe that
power

to deny recovery of costs

for taxation under Rule 54(d)


background
parties.
"costs
rule

presumption
This

this negative discretion

that are categorically eligible


operates in the long

favoring

cost

presumption emanates

recovery
from the

shall be allowed as of course."


permits a nisi prius
____ _____

the

shadow of a

for prevailing

rule's language:

Notwithstanding that the

court to deviate

from this baseline,

see, e.g., Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4,


___ ____ _____________
________________________

9 (1st Cir. 1993); Heddinger v. Ashford Memorial Community Hosp.,


_________
________________________________

734 F.2d 81, 86 (1st Cir. 1984); Emerson v. National Cylinder Gas
_______
_____________________
Co., 251
___

F.2d 152,

prevailing
August,
______

party

450

U.S.

158 (1st
is the
346,

Cir. 1958),

norm.

352 (1981)

(stating

obtain costs

Crossman
________

F.2d

Marcoccio,
_________

806

costs to

See Delta Air Lines, Inc. v.


___ _______________________

plaintiffs presumptively will


v.

awarding

329,

that

"prevailing

under Rule
331

(1st

Cir.

(observing that Rule 54(d) "generally permits prevailing


12

54(d)");

1986)

parties

to

recover their

Castro
______

costs"), cert. denied,


_____ ______

v. United States,
______________

(noting

that

775 F.2d

a prevailing

party

481 U.S.

399,

1029 (1987);

410 (1st

"ordinarily

Cir.

1985)

is entitled"

to

recoup the costs enumerated in section 1920).


This

presumption,

then,

constitutes

the

second

constraint on a district court's ability to freewheel in the Rule


54(d) environment.

After all,

proposition

court's

which

that a

articulates

norm

discretion in applying a
Inc.
____

it is difficult

discretion in
is

more

implementing a

confined

nondirective rule.

than

the

rule

court's

See White & White,


___ _______________

v. American Hosp. Supply Corp., 786 F.2d


____________________________

Cir. 1986); Coyne-Delany Co.


________________

to dispute

728, 731-32 (6th

v. Capital Dev. Bd., 717


________________

F.2d 385,

392 (7th Cir. 1983).


Beyond

the

presumption

favoring

cost

recovery

for

prevailing parties, there is also fairly general agreement that a


district
prevailing

court

may not

party's bill

articulating reasons.

exercise its
of costs

discretion to

in whole

or in

disallow a

part without

See Schwarz v. Folloder, 767 F.2d 125, 131


___ _______
________

(5th Cir. 1985); Gilchrist


_________

v. Bolger, 733 F.2d 1551,


______

1557 (11th

Cir. 1984); Baez v. United States Dep't of Justice, 684 F.2d 999,
____
______________________________
1004

&

n.28

circuits).

(D.C.

Cir.

1982)

(collecting

cases

from

ten

The Sixth Circuit has gone so far as to catalogue the

justifications

that it

denying costs in

deems

acceptable

the Rule 54(d) milieu.

and unacceptable
See
___

for

White & White, 786


_____________

13

F.2d

at 730.9

In the Seventh

when the losing party


misconduct, default,
winner's side.

Circuit, costs may be denied only

is indigent or "there has been some fault,


or other action

worthy of penalty"

on the

Burroughs v. Hills, 741 F.2d 1525, 1542 (7th Cir.


_________
_____

1984), cert. denied, 471 U.S. 1099 (1985).


_____ ______
To
about a
about

the present,

this court

district judge's duty to


the

addressing

reasons
those

district courts to

that

may

has been more

explain a denial

warrant

subjects today,
state reasons or

we

such
stop

muted both

of costs and

denial.10

short of

In

requiring

make elaborate findings

in

every case when acting under Rule 54(d).

Instead, we hold that,

if the basis for denying costs is readily apparent on the face of


the record, a trial
explanation's

court need not explain its action merely for

sake.11

If,

however, the situation

is less than

____________________

9The White & White court articulated four circumstances in


______________
which it believed costs might be denied (the taxable expenditures
are unnecessary or unreasonably large; the prevailing party
needlessly prolonged the proceedings; a prevailing plaintiff's
recovery is so insignificant that his or her victory amounts to a
defeat; the issues prove to be close and difficult), two
circumstances that a district court must ordinarily ignore (the
jury's seeming generosity; the prevailing party's ability to pay
his or her own costs), and two circumstances which, though
relevant,
are insufficient, standing alone, to warrant an
exercise of negative discretion (a losing party's good faith; the
propriety with which the loser conducted the litigation).
See
___
White & White, 786 F.2d at 730.
_____________

10We have, however, reversed a district court's denial of


costs to a prevailing party when the court neglected to furnish
any valid explanation for the denial. See Templeman v. Chris
___ _________
_____
Craft Corp., 770 F.2d 245, 249 (1st Cir.), cert. denied, 474 U.S.
___________
_____ ______
1021 (1985).

11Although we do not impose an absolute duty to set forth


findings in all cases, we remind the district courts that
"reasonably complete findings at the trial court level invariably
14

obvious, the court must offer some statement as to why it

denied

statutory costs to a prevailing party.


Adopting

this

rule

against the proliferation of


the

district courts.

It

balances

the need

for

findings

busywork that threatens to inundate


also parallels

served us well in analogous contexts.

an approach

that has

See, e.g., Foster v. Mydas


___ ____ ______
_____

Assocs., Inc., 943 F.2d 139, 141-43 (1st Cir. 1991) (reaffirming,
_____________
in the context
that

of both 42 U.S.C.

a district

court, absent

articulate the reasons

1988 and
a readily

Fed. R. Civ. P. 11,


apparent basis,

undergirding a fee award);

Figueroa-Ruiz
_____________

v. Alegria, 905 F.2d 545,


_______

549 (1st Cir. 1990) ("While we

hold

court

that

the

district

must

make

must

findings

do not

and

give

explanations every time a party seeks sanctions under Rule 11, we


do

require a statement

obvious

or apparent

when the reason for

from the

the decision is not

record."); Figueroa-Rodriguez
__________________

v.

Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir. 1988) (discussing the
____________
need

for findings when the reasons

for invoking Fed. R. Civ. P.

16(f)'s sanction provisions are less than evident).


2.
2.
Rule 54(d)

Application.
Application.
___________

to the facts of this case.

district court
under

Rule

entertaining

Our overview completed, we now

erred by summarily
54(d)

without

a bill

of

costs.

Appellants argue that the

precluding an award

explanation
We

apply

and

think the

of costs

without

even

contention

has

partial merit.
____________________
facilitate the appellate task."

United States v. De Jesus, 984


_____________
_________

F.2d 21, 22 n.4 (1st Cir. 1993).


15

a.
a.
__
To the extent that
appellants

from

assessments

through

error.

the district court's order prevents

reclaiming

their

the medium

of

mandatory
Rule 54(d),

we

discern no

As evidenced by the record, these payments were primarily

directed into

the operating budgets

prior ruling,

the district court explained

helped

cost-sharing

subsidize

such

general

of the JDD

overhead

28 U.S.C.
expenses . .

1920 does

expenses

as

rent,

See Hotel Fire


___ __________

We agree with Judge Acosta that

not identify "[t]hese

. as taxable."

In a

that the assessments

utilities, telephone charges, and staff salaries.


Litig., 142 F.R.D. at 46 & n.19.
______

and DLP.

general litigation

Id. at 46; see also Wahl v. Carrier


___
___ ____ ____
_______

Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975) (disallowing similar
_________
overhead expenses);
Practice
________
"general
1920]

54.77[8],

James W.

Moore et

at 54-480

(2d

ed.

al., Moore's Federal


________________
1993)

(stating that

overhead expense[s] . . . are not costs within [section

and Rule 54(d)").

assessments in an attempt

Nor can parties dissect case-management


to trace every last penny

and thereby

attribute fractional shares to expenses which, if freely incurred


by an individual litigant, might qualify as taxable costs.
We

will

stretched beyond

not paint

the lily.

the parameters

Rule 54(d)

defined in

cannot be

section 1920.

See
___

Denny, 880 F.2d at 1468; Templeman v. Chris Craft Corp., 770 F.2d
_____
_________
_________________

245, 249-50 (1st Cir.), cert. denied, 474 U.S. 1021 (1985); Bosse
_____ ______
_____
v. Litton Unit Handling Sys., 646 F.2d 689,
_________________________
Accordingly,

district courts

possess

695 (1st Cir. 1981).

no authority

under

Rule

16

54(d) to tax

as costs case-management charges of

unenumerated in 28 U.S.C.

a type or kind

1920, including, without limitation,

general overhead expenses paid pursuant to case-management orders


in

mass disaster

litigation.

It follows

inexorably

that the

court below correctly treated these expenditures as lying outside


the stunted reach of Rule 54(d).
b.
b.
__

The district court's September 11, 1992 final judgment


regarding the
recovery

of

claims against
any ordinary

district court

gave no

the pre-fire insurers

costs

incurred by

explanation for

also barred

appellants.

its curt

taxable costs, and none is evident from the record.

The

preclusion of

Moreover, by

acting in so peremptory a manner, the court foreclosed appellants


from requesting
generally
_________
days

ordinary

D.P.R. Loc.

costs in

R. 331.1

the ordinary

(allowing prevailing

from entry of judgment in which

costs).

fashion.

party ten

to file a verified bill of

On this record, we think that the

its discretion by depriving appellants

See
___

district court abused

of an opportunity to seek

ordinary costs, presumptively taxable under Rule 54(d), without a


word of explanation.12
c.
c.
__
To sum up, Rule

54(d) provides appellants only limited

comfort; upon the filing of bills of costs, the pre-fire insurers


____________________

12Appellants indicate that they incurred


some taxable
photocopy expenses. See generally Rodriguez-Garcia, 904 F.2d at
___ _________ ________________

100 (holding certain photocopying expenses recoverable under Rule


54(d)).
We have adequate reason to believe that they may also
have incurred other expenses taxable as costs.
17

will

recover

any

allowable, unless
denying costs.
rule

as

itemized

the district court

constitute the

of

retrieving

are

statutorily

offers a sound

the

reason for

big-ticket

centerpiece of these appeals

cost-sharing assessments

items

that

the court-ordered

they are fishing in an empty stream.

Reallocation of Court-Ordered Assessments.


Reallocation of Court-Ordered Assessments.
_________________________________________

Appellants

also

assessments fall outside


reallocated.
unrelated

that

However, to the extent that appellants invoke the


means

B.
B.

expenses

argue

that, even

54(d),

the

Rule 54(d)'s domain, they

This asseveration supposes a

to Rule

if

mandatory

may still be

federal court power,

to redistribute,

after judgment,

an

initial division of discovery expenses among all parties, despite


the absence of an explicit reservation of the right to do so.
We
district
imposed

think appellants' premise is sound.

court

possesses

case-management

the authority
expenses if,

considered judgment, it determines

in

to
the

We hold that a

reallocate

court-

exercise of

its

that equity and the interests

of justice so require.
derivation of

In the sections that follow, we trace the

that power, propose broad guidelines

for its use,

and discuss what remains to be done in this instance.


1.
1.

Source of Power.
Source of Power.
_________________

The

exigencies

of

complex,

multidistrict litigation change the ordnance with which courtroom


battles are
and

fought.

Traditional procedures for

gathering information

promoting
Litigation
__________

economy

and

must

often give

efficiency.

20.22, at 15

See
___

serving papers

way to

innovations

Manual for Complex


____________________

(2d ed. 1985).

Moreover, the

sheer

18

number of parties and issues produces a "critical need for early,


active involvement
facilitate

this

contained in the
inherent

by the judiciary."

power

involvement,

20.1, at

grants

of

5.

To

authority

Civil Rules, which supplement the trial court's


to

manage

litigation,

exercise substantial control and


the litigation."

explicit

Id.
___

Id. at 6.
___

"enable

the

judge

to

supervision over the conduct of

Recent amendments to the Civil Rules have augmented the


trial judge's
the 1983

arsenal of case-management weapons.

overhaul of

Rule 16 "encourage[s]

that meets the needs of


advisory

committee's notes.

would be disposed
delay" if
stage to

"a

The drafters

of "more

trial judge

must have at

Fed. R. Civ.

P. 16

thought that

cases

less cost

intervene[s] personally

at an

early

Id.; see
___ ___

also
____

(acknowledging that

in a

878 F.2d

time "of increasingly

pretrial management

efficiently and with

assume judicial control

Figueroa-Rodriguez,
__________________

judges

modern litigation."

For example,

over a case."

at 1490

complicated cases and burgeoning

and

filings,

their fingertips smooth-running, productive

machinery for conducting litigation and managing caseloads").


In

this multidistrict litigation,

involving upward of

2000 parties and raising a googol of issues, Judge Acosta's power


to

mandate contributions

depository

document

at

inter alia,
_____ ____

can scarcely be doubted.

1001, 1004;
9.7.3,

to,

see also David


___ ____
205

(1986)

depository as

See Recticel,
___ ________

discovery

859 F.2d at

F. Herr, Multidistrict Litigation


_________________________

(recognizing
a

a central

means of
19

"the potential
facilitating

use

of

efficiency").

While no procedural rule directly addresses pretrial cost-sharing


orders

per se,
___ __

following

Rule

26(f) expressly

discovery

allocation

of

conferences,

expenses[]

management of discovery."
that

this rule

is

as

to

are

enter

orders

necessary

for

for imposing

to serve

judges,
for

the

Fed. R. Civ. P. 26(f).13

flexible enough

judicial authority

authorizes trial

"the

proper

We believe

as the

source of

cost-sharing orders in

complex

cases.14
The

expense allocation

orders

Rule 26(f)

authorizes

"may be altered or

amended whenever justice so requires."

R. Civ. P. 26(f).

For that reason, as

common sense,

a trial

orders must carry with

mandamus

addressed to

it the power to

the

"reshape

and

refashion

of

promulgate cost-sharing
readjust such orders

as

Indeed, in denying a petition for

propriety of

orders here at issue, we acknowledged


to

well as on the basis

judge's power to

changed circumstances require.

Fed.

its

the very

cost-sharing

the district court's power

cost-sharing

orders

as

new

information comes to light, or as information already known takes


on added significance."

Recticel, 859 F.2d at 1004.


________

We reaffirm

____________________

13Fed. R. Civ. P. 26(f) was adopted in 1980 in the hope that


judicial intervention would curb discovery abuse. See Fed. R.
___

Civ. P. 26(f) advisory committee's notes.


Among other things,
the rule interjects the trial court in developing "a reasonable
program or plan for discovery." Id.
___

14This court has already remarked the striking similarity


between ordinary discovery orders and the case-management orders
that Judge Acosta tailored for use in this litigation.
See
___
Recticel, 859 F.2d at 1002-03.
________
20

this message today,15


does not loose
litigants.

confident that our

some strange

In the last

power to alter its


to many other

new beast to

prey on

analysis, a district

sorts of pretrial orders.

1115, 92-1116, slip op.

See,
___

___, ___ (1st

unsuspecting

one, applicable

e.g., Poliquin v.
____ ________

Cir. 1993)

at 20] (noting that

26(f)

court's intrinsic

own directives is a familiar

Garden Way, Inc., ___ F.2d


_________________

orders

reading of Rule

[Nos. 92-

pretrial protective

are "always subject to the inherent power of the district

court to relax or terminate the order, even after judgment").


Consequently, we hold that,
language in a cost-sharing order

despite the absence of any

reserving a trial judge's right

to rearrange the burdens therein imposed


certain beyond peradventure

that [a]

at a later date, "it is

district court can

. .

entertain motions
859 F.2d at

for the reallocation of

1004-05.

This power is the

expenses."

Recticel,
________

logical (and, we think,

necessary) extension of the court's authority to fashion pretrial


cost-sharing orders in the first place.
To say

that the power to

reallocate assessments under

cost-sharing orders can fairly be implied from the Civil Rules is


____________________

15While we emphasize that the power we describe here is an


implied power derived from the Civil Rules, we note that the
Supreme Court has, in limited circumstances, sanctioned federal
court resort to an intrinsic power analogous to its statutory
prerogative to assess costs and attorneys' fees. See Chambers v.
___ ________
NASCO, Inc., 111 S. Ct. 2123, 2133 (1991) (discussing federal
____________
courts' inherent power to shift fees in certain circumstances);
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
___________________________
_________________
258-59 (1975) (similar). Be that as it may, we need not decide
today whether, apart from the power derived from the Civil Rules,
a district court possesses the inherent power to effectuate
reallocation of cost-sharing assessments previously imposed.
21

not to say that


unbridled.
fairness

the district court's

exercise of that power

is

In our view, the power is coupled with an interest in


and its

exercise must,

therefore, comport

with first

principles of equity.

It is to this unexplored

terrain that we

now turn.
2.
2.

The Standards Governing Reallocation.


The Standards Governing Reallocation.
_____________________________________

cost-sharing

orders

constitute a way
devices

subsequent

sui
___

generis,
_______

of fueling an array of

designed

equitable,

are

to

sort

efficient,
decision

and

to readjust

the

almost

always

hand-crafted procedural

resolve

comparatively

they

Although

myriad

claims

inexpensive
burdens

in

manner.

imposed by

an

such

orders, and the specific redistribution that results, must remain


faithful to that
exercised
shaped

in

by the

aim.16

The power to

accordance with
circumstances

rooted in the concept

upon

set

of equitable

indigenous to

the litigation

court-ordered

certain fundamental

expenses is

but

in the

In the paragraphs that follow, we


principles that

inform the determination of whether a post-judgment


of

be

principles,

that court-imposed burdens should,

end, balance derived benefits.


touch lightly

readjust, then, must

advisable,

and

should

reallocation

if so,

to

what

____________________

16We limit our discussion to cases where, as here, mandatory


cost-sharing orders are largely silent on the matter of an
eventual redistribution of expenses.
A district court may, of
course, build into a cost-sharing order a mechanism for eventual
redistribution, the structure and propriety of which would have
to be considered on its own merits against the backdrop of the
particular litigation. Indeed, the court below formulated such a
mechanism, but limited its operation to cost-sharing assessments
levied against plaintiffs' attorneys.
See Pretrial Order No.
___
127, at 39-40; see also supra note 2.
___ ____ _____
22

extent.
a.
a.
__
Upon

motion,

reallocating costs after

district

court

should

consider

entry of judgment when, with the acuity

of hindsight, it determines that a

party or group of parties has

significantly failed to derive the expected benefits from burdens


imposed

under

litigation,

or has

greater or
This rule

cost-sharing

orders

derived

entered

those benefits

lesser extent than other

earlier
to a

in

the

significantly

similarly situated parties.

dominates the constellation of factors

bearing on the

decision to reallocate.
b.
b.
__
In

contrast

to the

well-recognized

presumption that

prevailing parties should recover

their taxable costs under Rule

54(d),

parallel presumption

there is

no basis

for a

winners' case-management expenses should


Thus,

favorable

prevailing

party

reallocation,

but

will
must

not

that the

be borne by the losers.


automatically

persuade

the

receive

court

of

an

entitlement

to one.

This conclusion

flows naturally

from the

idea that derived benefit is the shining star in the readjustment


galaxy:

when

all is said and done, the

benefit a party secures

from forced contributions to joint ventures in complex litigation


may

be unrelated,

or

vastly disproportionate,

to the

party's

success on the merits.


c.
c.
__
To say

that prevailing parties

are not

presumptively

23

entitled to a favorable
is not to say

reallocation of cost-sharing assessments

that either the fact or the scope

of a litigant's

victory

is irrelevant to a district

court's reassessment of the

matter.

The inherent clarity of a

case and the ease with which

it

can be decided

affect the

without resort to

degree of benefit

heroic measures ordinarily

the prevailing party

the availability of innovative procedural mechanisms.


extent

to which

success

not

necessarily

a litigant
correlated

inform the

achieves a
with

Hence, the

swift, across-the-board

case-management

district court's

obtains from

tools

must

reallocation decision.

The

presence

tradition,

of

knotty

from rock to

other way.

Close

dominated,

tend

issues,

fought,

rock and tree

be

cases

in

the

Stalingrad

to tree, often

cases, particularly

to

in

those

which

all

that

cuts the
are

parties

fact-

derive

considerable benefit from the availability of sophisticated casemanagement tools.


d.
d.
__
When a
reallocate sums

district court

previously assessed, the

shoulder

the expense

attempts

to distribute

they should not be


pockets,
to

is

immaterial.
systemic costs

request to

requestor's ability to
Cost-sharing orders
in an

are

equitable manner;

transmogrified into a method of

forcing deep

whenever and for whatever reason they appear in a suit,

bear the

Equity in
the

considers a party's

crushing financial

burdens of

readjusting cost-sharing

end, garnered a

complex litigation.

orders depends upon

disproportionate slice of

who, in

the benefits the

24

orders
pay.17

sought

to

provide, not

Although the

upon

who

can

best afford

operative considerations are

to

not entirely

the

same,

this

principle

parallels

the

Sixth

Circuit's

longstanding view that a prevailing party's ability to pay his or


her own

costs is

an improper

basis for

against the loser under Rule 54(d).


at 730;

refusing to

tax costs

See White & White, 786 F.2d


___ _____________

Lewis v. Pennington, 400 F.2d 806, 819 (6th Cir.), cert.


_____
__________
_____

denied, 393 U.S. 983 (1968).


______
e.
e.
__
Cost-sharing
benefit

of

particular
heavy,

all contributing
circumstances may

even

free

affords

way

example,

are

ride.
of

a party's

designed

parties.
reveal

excessive, loads,

relatively
a

orders

while

Reallocating

balancing

of

that some
other

to

the

history

and

parties carried

parties enjoyed

cost-sharing assessments
inequities.

unmeritorious issues

unnecessarily lengthen the litigation might


that others have paid too

inure

A case's

case-specific

interjection

to

For

that

favor the conclusion

much and the interjector has

paid too

____________________
17We recognize that the presence
affect the reallocation decision.

of an indigent party may


Cf., e.g., Neitzke v.
___
____
_______
324 (1989) (discussing Congress's desire

Williams, 490 U.S. 319,


________
to "ensure that indigent litigants have meaningful access to the
federal courts"); Adkins v. E. I. DuPont de Nemours & Co., 335
______
_______________________________
U.S. 331,
339 (1948) (refusing to
require litigants "to
contribute to payment of costs[] the last dollar they have or can
get" before becoming entitled to forma pauperis standing);
_____ ________
Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 728 (1st Cir.
________
_______________________
1984) (warning that courts must go slowly in allowing "toll-

booths [to]

be placed across the

courthouse doors"); Burroughs,


_________
741 F.2d at 1542 (allowing a district court to deny costs under
Rule 54(d) when the losing party is indigent).
We do not probe
the point, however, because no party involved in these appeals
has asserted such a claim.
25

little.

Cf. Lichter Found., Inc. v.


___ _____________________

Welch, 269 F.2d


_____

142, 146

(6th Cir. 1959) (approving denials of costs to prevailing parties


under

Rule 54(d) on this basis).

like all decisions grounded

A cost-readjustment analysis,

in equity, must leave room

for such

case-specific factors.
f.
f.
__

We believe that we have said enough to erect a flexible


framework for reallocation analysis
modicum of general guidance
that the

relative weight

and, hopefully, to provide a

to the district courts.


and impact of

We caution

relevant considerations

will vary from situation to situation, and, moreover, that, given


the

virtually

limitless number

of

permutations

likely to

be

encountered in civil litigation, our compendium of factors is not


all-encompassing.
3.

Remedy.

The

question of remedy

remains.

It

is

3.
clear
for

Remedy.
______

that an appellate court

is not the

most propitious forum

shaking up a preexisting expense allocation.

cost-sharing
component
district

orders

of the

originate

with

the district

court's case-management

judge's intimate

By definition,
court

function.

knowledge of the

as

Given the

circumstances under

which the imposts were conceived, his familiarity with the nature
and purposes of

the assessments, his

front row seat

throughout

the litigation, and his matchless ability to measure the benefits


and

burdens of

litigation's
district

cost-sharing

progress

judge

has

to the

and stakes,
the

coign

parties
we

of

are

in light

of

the

convinced that

the

vantage

best

suited

to

26

determining,

in the first instance, whether, and if so, how, the

initial cost-sharing orders should be modified.


aware
endless

that this litigation has


amounts

of

judicial

reluctant to prolong matters.


remanding is plain:
address the remaining

We

are

exhibited a capacity
resources and

we

are

keenly

to chew up

extremely

Here, however, the necessity

for

not only is the trial judge best equipped to


problems, but also,

as we explain

below,

there is at least a prima facie case for some reallocation of the


_____ _____
assessments.

Indeed, the collocation of

suggests

that the

pre-fire insurers

benefits

associated with several

they helped to fund.


More

the

than

economical

discovery.
claims

half

of the

of

each

reap in

full the

procedural innovations

and

speedy

the benefit

assessment

motions

short of

devoted

completion

pre-fire insurers defeated

through dispositive

was most likely minimal.

appellant's

JDC and JDD, facilities

coordination

Because the

legal grounds,

did not

We run the gamut.

supplemented the budgets of the


to

circumstances strongly

all adverse

trial, on

they derived from

of

purely

these innovations

The near-complete closure of

discovery

prior to appellants' appearance in the litigation, see supra p. 4


___ _____
& note 3, rendered the JDC, established to

stimulate expeditious

resolution of discovery disputes, of dubious value to appellants.


As for the JDD,

the documents housed there were

relevance vis-a-vis appellants because they


earlier
issues.

litigation
To be

phases

that

settled a

sure, appellants probably


27

of questionable

were gathered during


host

of

derived some

different

benefit

from

the facilities they helped

free to
What

peruse whatever useful

is more,

the

to fund.

Certainly, they were

evidence the JDD

DLP presumably

did contain.18

facilitated the

movement of

papers to appellants' behoof; and appellants probably saved money


through

the avoidance of

unnecessary duplication.

difficult to fathom how contributions on a par with


other

defendants to

fact

gathering largely

claims against appellants constituted


. . . [appellants'] resources."
The early
all claims

But,

it is

those of all

irrelevant to

the

the "most efficient use of

Pretrial Order No. 127, at i.

stage at which the

against appellants also

district court dismissed

creates doubt as

to whether

the substantial assessments, geared largely toward efficient fact


gathering,
degree.

inured
The

to

appellants'

pre-fire insurers

matter

of

having

determined that no issue

appellees'
802 F.

law, without

benefit

to

prevailed on

going to

trial.

any

meaningful

all claims,

as a

The

district court,

of fact needed

debate and that

arguments had no basis in law, see Hotel Fire Litig.,


___ _________________

Supp. at 635, 644, might be hard-pressed to conclude that

appellants' huge expenditures,


in large part, to collect,

diverted to facilities

designed,

sort, and maintain factual documents,

were integral to, or even marginally connected with,

the pursuit

of their cause.
In sum,

it

appears from

appellants have a colorable


____________________

the

record before

basis for arguing that they

us

that

derived

18Nevertheless, thirteen appellants


contend that
utilized no evidence contained in the JDD to support
__
dispositive motions.

they
their

28

minimal

benefits

from

the

assessments.

hypothesis remains unproven.


the

eye; for one

any

detail to

decline

Inc.,
____

There may be more here

thing, the appellate record

the equities.

to remand where

see, e.g.,
___ ____

Nonetheless,

Although

does not speak in

be an

633, 642

(1st Cir.

court may

empty exercise,

Societe des Produits Nestle, S.A. v.


__________________________________

982 F.2d

than meets

an appellate

remanding would

this

Casa Helvetia,
______________

1992) (declining

to remand

where, once the court of appeals decided the correct rule of law,
the district

court's preexisting

result obvious), that


pregnant
the

is not the case

questions to be mulled

trial

judge's

conclude, therefore,

findings of fact

viewpoint
that

on remand
is

the

case must

no

proceedings.

opinion

as to

the

Rather,

there are

questions on which

especially

district court for further proceedings


intimate

here.

rendered the

be

important.
to

the

before Judge Acosta.

We

appropriate

returned

We

outcome

of those

V.
V.

BANKRUPTCY OF AN AFFILIATED ENTITY


BANKRUPTCY OF AN AFFILIATED ENTITY
We

Associates

are
and

not yet
HSI,

provision, 11 U.S.C.
that an

at

invoke

journey's
the

end.

so-called

Two

automatic

362 (1988), in an endeavor to

affiliated firm's bankruptcy

stay of proceedings on appeal.

stay

persuade us

should have resulted

in a

We are not convinced.

The essential facts are as follows.


Corporation

appellees,

Holders

Capital

Because

HSI is a wholly owned subsidiary of HoCap and Associates

is a limited partnership

(HoCap)

On August 5, 1991,

filed

for

bankruptcy.

whose general partner is also

a wholly

29

owned subsidiary
prosecution of

of HoCap, both appellees

assert that continued

the pre-fire insurers' appeals,

constitutes an impermissible attempt

to obtain possession of the

debtor's property in violation of 11 U.S.C.


This
section

assertion need not detain us.

362(a)'s automatic

debtor in bankruptcy.

See
___

F.2d 1, 4 (1st Cir.), cert.


_____

stay

as against them,

362(a)(3).

As a general rule,

provisions apply

only to

the

Austin v. Unarco Indus., Inc.,


______
____________________

705

dismissed, 463 U.S. 1247 (1983); see


_________
___

generally
_________
In re Western Real Estate Fund, Inc.,
______________________________________
Cir.

grounds, 932 F.2d


_______

898 (10th Cir.

As entities legally

distinct from HoCap,

see Parkview___ _________

Gem, Inc. v. Stein,


_________
_____
where

leasehold

516 F.2d 807, 811

debtor,
rights

to

terminate the lease


fact

600 (10th

1990), modified on other


________ __ _____

1991).

that

922 F.2d 592,

(8th Cir. 1975)

qua
___

lessee, had

previously

subsidiary,

the

could not be

(holding

assigned

lessor's

all

action

enjoined because, despite

to

the

that the termination would likely have "an adverse [e]ffect

upon the debtor," no

claim was asserted against the

re Bank Ctr., Ltd.,


____________________
(refusing to stay
partnership

15

B.R. 64,

an action

because a

"partner

protection of

extant in the HoCap


implicate

no

(Bankr.

against the partner


is a

partnership"), the two corporate


entitled to the

65

W.D. Pa.

1981)

of a

bankrupt

separate entity

from the

appellees are not presumptively


any automatic stay

bankruptcy proceeding.

attempt to

debtor); In
__

assert, enforce

which may

Since these
or recover

against HoCap or its property, the appeals may proceed.


30

be

appeals

any claim

See 11 U.S.C.
___
of" or

362(a)(3) (staying actions to "obtain

"exercise control

over" the

possession

bankrupt estate);

see also
___ ____

Fragoso v. Lopez,
F.2d
,
(1st Cir. 1993),
_______
_____ ____
____ ____

[No. 92-

2046, slip op. at 14] (noting federal court reluctance to refrain


from "deciding legal issues
federal

in a

bankruptcy proceeding"); Picco v. Global Marine Drilling


_____
______________________

Co., 900
___
the

pertaining to a party involved

F.2d 846, 850 (5th

bankruptcy

court

jurisdiction to hear

does

Cir. 1990) ("The

automatic stay of

not

other

divest

every claim that

all

is in any way

courts

of

related to

the bankruptcy proceeding.").


VI.
VI.

CONCLUSION
CONCLUSION
We need go no further.

erred

in

ordinary

precluding,

without

We hold that the district court


explanation,

the

Hence, we remand to allow appellants an

opportunity to file bills of costs in the usual form.

The lower

did not err, however, in refusing to treat case-management

expenditures as

taxable costs within

the purview of

and its statutory helpmeet, 28 U.S.C.


We
implied

of

costs under Rule 54(d) in favor of appellants (who were

the prevailing parties).

court

taxation

also hold

power, under

that
Fed.

1920.

the district
R. Civ.

Rule 54(d)

P.

court possesses

26(f), to

revisit

the

the

initial allocations of case-management

expenses and readjust the

same as

the lower

equity may

require.

Because

court did

not

afford appellants a fair opportunity to seek such a reallocation,


we remand for that purpose as well.
motions to

reallocate

with the

Appellants shall file their

district

court no

later

31

thirty days from the date our mandate issues.19

Vacated and remanded; one-half costs to appellants.


Vacated and remanded; one-half costs to appellants.
__________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

than

Nos. 92-2312
92-2313

IN RE:

TWO APPEALS ARISING OUT OF THE

SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.

_________________________
____________________

19In this connection we urge the district courts within this


circuit to consider framing local rules to the effect that,
henceforth, any application for reallocation of court-imposed
cost-sharing expenses must be filed within thirty days of the
entry of final judgment.
Cf. White, 455 U.S. at 454 (observing
___ _____
that district courts are free "to adopt local rules establishing
timeliness standards for the filing of claims for attorney's
fees"); Obin v. District No. 9, Int'l Ass'n of Machinists &
____
_______________________________________________
Aerospace
Workers, 651
F.2d
574, 583
(8th Cir.
1981)
___________________
(recommending a rule that claims for attorneys' fees must be
filed within twenty-one days after entry of judgment).
32

APPEALS FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]


___________________

_________________________

Before

Selya and Cyr, Circuit Judges,


______________

and Fuste,* District Judge.


______________

_________________________

Paul K. Connolly, Jr., with


_______________________

whom Damian R. LaPlaca,


__________________

LeBoeuf, Lamb, Leiby & MacRae, Ralph W. Dau, Peter B. Ackerman,


______________________________ ____________ __________________
Jeffrey W. Kilduff,
___________________

O'Melveny & Myers, Raul E. Gonzalez-Diaz,


__________________ ______________________

A.J. Bennazar-Zequeira,
______________________

Gonzalez & Bennazar, Andrew K. Epting,


____________________ __________________

Jr., G. Trenholm Walker, Wise & Cole, Homer L. Marlow, William G.


___ __________________ ___________ _______________ __________

Liston, Marlow, Shofi, Connell, Velerius, Abrams, Lowe & Adler,


______ ________________________________________________________

Deborah A. Pitts, Hancock, Rothert & Bunshoft, Bethany K. Culp,


________________ ____________________________ ________________

Patrick McCoy, Oppenheimer Wolff & Donnelly, Lon Harris, Harris &
_____________ ____________________________ __________ ________
Green,
_____
Mercado,
_______

Stuart W. Axe,
______________

Lester, Schwab, Katz & Dwyer,


_______________________________

Mercado &
Soto,
_________________

Rodriguez-Suris,

Virgilio Mendez
Cuesta,
_________________________

and Latimer, Biaggi,

Adrian
______

Ernesto
_______

Rachid, Rodriguez-Suris &

_______________

___________________________________________

Godreau were on consolidated briefs, for appellants.


_______
Gary L. Bostwick, with
_________________

whom R. Lance Belsome was


_________________

on

33

brief, for appellees Hotel Systems International, et al.


Alvaro Calderon, with
________________
Sterling, PSC
________

Liaison, were

whom

Will Kemp
_________

on brief, for

and Monita F.
__________

appellee Plaintiffs'

Steering Committee.
_________________________
June 4, 1993
_________________________

_______________
*Of the District of Puerto Rico, sitting by designation.

34

SELYA,
SELYA,
require
in

Circuit Judge.
Circuit Judge.
______________

us to grapple for the

modern

expenses

federal
indigenous

to

judicially

determined?

defendants

and

defendants

litigation.

consolidated

how,

court's handling

if
of

at all,
mass

once the winners and losers


Here,
in

appeals

first time with a looming problem

court practice:

litigation be reallocated

underlying

These

the

appellants,

cross-claim,

Nonetheless,

the

should

disaster

have been

late-joined

prevailed
district

in

the

court,

coincident with
them

the

entry of

from either seeking

otherwise

lobbying

thousands

of

Finding

that

costs under Fed.

for

reallocation

dollars

in

the court's

improvident, we vacate

judgment, effectively

foreclosed

R. Civ.

P. 54(d) or

of

several

hundreds

court-ordered

expense

assessments.

abrupt

slamming of

these

the relevant portion of the

of

doors was

judgment and

remand for further proceedings.


I.
I.

BACKGROUND
BACKGROUND

In 1987, the Judicial Panel on Multidistrict Litigation


appointed

the

District
270

Honorable

Raymond

Judge for the District

cases

arising

out of

San

Juan Dupont

engulfed the

L. Acosta,

United

of Puerto Rico,

the

deadly
Plaza

fire

Hotel.

States

to handle some

that had
See
___

earlier

In re Fire
____________

Disaster at Dupont Plaza Hotel, 660 F. Supp. 982 (J.P.M.L. 1987)


_______________________________
(per

curiam).

Judge Acosta's

stewardship

judicial craftsmanship and practical

proved "a

ingenuity."

model of

In re Nineteen
______________

Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire
_________________________________________________________________
Litig.,
______

982 F.2d

603,

606 (1st

successful

innovations

that

celeritous

conclusion were (1) the

Cir. 1992).

brought

35

the

Among the
litigation

many
to

creation of a Joint Document

Depository (JDD),

which housed

and copied for

discovery materials, see Pretrial Order


___
at 66; (2) the

distribution all

No. 127 (Dec. 2,

1988),

appointment of liaison counsels (plaintiffs'

and

defendants'), each of whom was responsible for dispersing filings


among

his or

formation

her constituents, see


___

of

a Joint

devising means

F.2d

operation of JDC).

mandatory

series

1000, 1001

depleted.

(1st

of

case-management

(JDC) dedicated

to

In re Recticel
______________

Cir. 1988)

orders

litigants.20

requisitioned fresh

The orders were silent

the court planned to

(3) the

(describing

To fund these innovations, the district court

assessments upon all

court periodically
were

Committee

61-63; and

of expediting the litigation, see


___

Foam Corp., 859


___________

entered

Discovery

id. at
___

which

In this

monies as funds

imposed

way, the

on hand

as to (i) whether or not

readjust defendants' contributions in light

of future developments,

and (ii) the court's

authority, if any,

to effectuate such reallocations.21


____________________

20Because the mechanics of the allocation process are not


critical for present purposes, we supply merely a thumbnail
sketch.
The Plaintiffs' Steering Committee (PSC) and the
defendant San Juan Dupont Plaza Hotel Corporation were assessed a
total of $100,000 to defray the JDD's start-up costs.
See
___
Pretrial Order No. 127, at 69-70. Thereafter, each litigant paid
for JDD-related services actually used. See id. at 70. To cover
___ ___
costs that were not offset by service charges (e.g., the JDD's
____
overhead
expenses), the
district court
imposed mandatory

assessments.
Initially, at least, the PSC bore 15% of
incremental cost and the defendants, collectively, bore 85%.

the
See
___
Within the defense collective, per-member assessments

id. at 71.
___
were presumably equal.

21We add a small qualifier to this statement.


Pretrial
Order No. 127 is a document in excess of 200 pages dealing with a
potpourri of matters. The portion of the order that discusses
defendants' assessments does not address either of the two points
mentioned in the text.
However, in the portion of the document
that addresses assessments imposed on plaintiffs' attorneys to
fund
the PSC
and enable
it
to make
its cost-sharing
contributions,
the
district court
provides
for possible
36

Roughly
litigation

two

years

after

first

shots

in

the

had been fired, a group of defendants involved in the

hotel's ownership and operation


fire

the

victims

and

their

settled with the plaintiffs (the

families)

and

cross-claimed

for

indemnification against various insurers whose liability policies


had

expired before the fire started (the pre-fire insurers).

August

9, 1989,

lead,

adding the

the

P.R. Laws Ann. tit.


had

plaintiffs

followed the

pre-fire insurers
26,

as direct

2001, 2003 (1976).

On

cross-claimants'

defendants under

Because discovery

formally closed on December 15, 1988, see Pretrial Order No.


___

127, at 96-97, the pre-fire insurers' investigation

of the newly

emergent claims against them necessarily centered around a review


of documents stored in the JDD.22

The
motions.

pre-fire

insurers

The district court,

was slow in addressing

quickly

filed

dispositive

faced with more pressing problems,

the motions.

Finally, the

court granted

them on September 11, 1992, see In re San Juan Dupont Plaza Hotel
___ _________________________________
Fire Litig., 802 F.
___________
(1st Cir.

1993),

Supp. 624 (D.P.R. 1992), aff'd, 989


_____
entered

judgment in

favor

of

the

F.2d 36

pre-fire

____________________

"reallocation of expenses based


upon the actual, relative
recovery" achieved by the various plaintiffs. Id. at 39. At the
___
very end of the document, the district court states that "[t]his
Order may be either amended or modified by the Court sua sponte
___ ______
or upon good cause shown."
Id. at 205.
None of the parties
___
argue that either of the provisions we have identified relate to
the possible reallocation of cost-sharing assessments levied
against appellants (or any defendants, for that matter). And,
none of the other orders contain any language, general or
specific, similar to that which we have quoted.
22In one attempt to conduct
pre-fire insurers moved to reopen
docket sheet indicates that this
1991, albeit only for a three-day

some independent discovery, the


discovery for ninety days. The
motion was granted on March 19,
period.

37

insurers on all claims,

and decreed that the parties

would bear

their own costs.


On

appeal, seventeen

pre-fire insurers

complain that

the district court abused


both an

award of costs and

cost-sharing
the

its discretion by summarily precluding

assessments.23

Plaintiffs'

claimants,

a complete or partial
The fire

Steering

Hotel

refund of the

victims, represented

Committee

(PSC),

Systems International

and

(HSI) and

two

by

cross-

Dupont Plaza

Associates (Associates), filed opposition briefs and participated


in oral argument.
II.
II.

NATURE OF THE STAKES


NATURE OF THE STAKES
In

expenditures

the

expectation

that

in greater detail will

describing
help to put

the

disputed

matters in the

proper perspective, we travel that route.


A.
A.
The

vast

Court-Ordered Assessments.
Court-Ordered Assessments.
_________________________
majority

mandatory payments imposed

of

appellants'

by six orders of

See Pretrial Order No. 48 (Feb. 11,


___
(Apr. 18, 1988);
No. 135 (Jan. 17,

Pretrial Order No.

outlays

comprise

the district court.

1988); Pretrial Order No. 67


127, supra; Pretrial
_____

Order

1989); Pretrial Order No. 212 (July 31, 1989);

____________________

23The
appellants are:
Continental Insurance Company,
Federal Insurance Company, First State Insurance Company, Granite
State Insurance Company, Highlands Insurance Company, Industrial
Underwriters Insurance Company, International Insurance Company,
Landmark Insurance Company, Protective National Insurance Company
of Omaha, Puerto Rico American Insurance Company, Safety Mutual
Casualty Corporation, St. Paul Fire & Marine Insurance Company,
St. Paul Mercury Insurance Company, California Union Insurance
Company, Central National Insurance Company of Omaha, Insurance
Company of North America, and Pacific
Employers Insurance
Company. The latter four carriers filed a separate notice of

appeal.
Because the arguments
two appeals as a unit.

are much the

same, we treat the

38

Order No.

259 (Aug. 21, 1990).

eventuated
required
after
at

before

Although the first

appellants

appellants to

pay

entered
the sums

filing entries of appearance.

71;

Pretrial Order

No.

assessments

under

$705,500.

Eighty-three

$586,500

The

percent

represents assessments

fray, those

orders

assessed therein

shortly

See Pretrial Order No. 127,


___

135, at

protest.24

the

four orders

9.

Appellants paid

compulsory
of this

payments

aggregate

the

total

amount

levied under the four earliest

cost-sharing orders.
Appellants'

tribute

helped

to

fund

instrumentalities that Judge Acosta had set in


the litigation.
($41,500),

Thus,

toward

expenses, see Pretrial Order


___
defraying the
paying costs

Person (DLP).25
No. 259, at 1.

See
___

id.; and $10,000


___

the office of

id.; Pretrial Order


___

contribution

the JDD's

No. 127, at 72; $3,500

JDC's expenses, see


___
associated with

defraying

various

place to expedite

out of each insurer's total

$18,000 went

the

operating

went toward

went toward

Defendants' Liaison
No. 212, at

1; Order

The district court originally intended

that the

remaining

$10,000

would subsidize

courtroom and related facilities.


9.

The

idea was

abandoned

the

construction

of a

new

See Pretrial Order No. 135, at


___

and

the funds

in

question

were

____________________

24We fully understand appellants' submissiveness, inasmuch


refusal to pay would have resulted in sanctions, see Pretrial
___
Order No. 127, at 72; Pretrial Order No. 135, at 10, and this
court had made no secret of its disinclination to review such
orders prior to entry of final judgment. See Recticel, 859 F.2d
___ ________
at 1006.
as

25The DLP was responsible for receiving, on behalf of all


defendants, and disseminating, among all defense counsel, court
orders and discovery materials.
See Pretrial Order No. 127, at
___
62-63.
39

eventually utilized

for operational

costs of

the JDD and

DLP.

See In re San Juan Dupont Plaza Hotel Fire Litig., 142 F.R.D. 41,
___ _____________________________________________
46

n.20 (D.P.R.

insofar

as

they

1992).
pertain

Therefore, the figures


to

the

JDD

and

DLP,

recited above,
are

minimum

estimates.
B.
B.
Presumably,

Ordinary Costs.
Ordinary Costs.
______________

the payments

made pursuant

to the

cost-

sharing orders, though substantial, do


appellants'

investment

successful

defense

expenditures,
routinely

such

in

this

not comprise the whole of

sprawling

doubtless required
as

photocopy

associated with

litigation.

other,

costs of

litigation.

Their

more commonplace

the

type

and kind

See, e.g., 28
___ ____

U.S.C.

1920 (1988) (listing fees and expenses taxable as costs).


III.
III.

WAIVER
WAIVER
Having

described

recoup, we pause to
submit that
recovery
entered.
demur:

the

expenses

address a threshold matter.

the pre-fire insurers

by

failing

See
___

appellants

to

file

id. (requiring bill


___

of

for expense

costs after

of costs

to

The plaintiffs

waived any claim

bills

seek

to be

judgment

filed).

We

the doctrine of waiver presents no barrier to appellants'

attempt to recover court

costs or request a reallocation

of the

mandatory cost-sharing assessments.


To
costs

be sure, the failure

with the

district

seasonably to file

court may,

in certain

a bill of

circumstances,

constitute a waiver of a party's right to recoup costs under Rule


54(d).

See
___

Mason
_____

v. Belieu,
______

543 F.2d

215,

222 (D.C.

Cir.)

(vacating a cost award where plaintiffs had failed to file a bill


of costs), cert. denied, 429 U.S. 852 (1976).
_____ ______
40

There is no waiver

here,

however,

because

the

coincident with the entry


own costs,
costs

court,

prevailing

despite D.P.R.

parties ten

purpose.26

The

ordering,

notice

of judgment

of this flat ruling, the

not require

bill of

which allows

litigants to

to file

subsequent

bill of costs would have served

law does

bear its

to file a

Loc. R. 331.1,

days after

bills of costs. In the face


filing of an itemized

by

of judgment, that each party

preempted appellants' opportunity

and did so

errands.

district

no useful

run fools'

Thus, a party who forgoes an obviously futile task will

not ordinarily be held thereby to have waived substantial rights.


See
___

Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d 581,
_________________
________________________

587 (3d Cir. 1975) (refusing to


party's dereliction of
Corp. v.
_____

allow waiver to be grounded in a

a futile

Compo Indus., Inc., 851


__________________

(stating, in a different
construed

task); see
___

also Northern Heel


____ ______________

F.2d 456, 461

(1st Cir. 1988)

context, that "[t]he law should

idly to require parties

to perform futile

not be

acts or to

engage in empty rituals").


A
failing to
readjust the

somewhat closer
ask the

district court,

appellants, by

after judgment entered,

mandatory assessments, thereby waived

raise that issue here.


largely pragmatic.
time

question is whether

within which

We hold they have not.

There is no
a

party

the right to

Our decision is

rule specifically limiting

may make

request

to

for an

the

order

reallocating

case-management

expenses.

Cf.
___

White
_____

v.

New
___

____________________

26Similarly, given the clarity and definiteness of the trial


court's order, a post-trial motion for reconsideration was not
required as a condition precedent to taking an appeal.
See
___
Sherrill v. Royal Indus., Inc., 526 F.2d 507, 509 n.2 (8th Cir.
________
__________________
1975); Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d
_________________
_________________________
581, 587 (3d Cir. 1975).
41

Hampshire Dep't of Employment Sec.,


____________________________________

455 U.S.

445,

455 (1982)

(holding that no general federal rule governs the timing of postjudgment


Should

motions for
we

presumably

refuse

to

entertain

return to the

reallocation.
considering

attorneys' fees

Thus,
the

as

issue

protracted litigation.
rather than fact, can

the

under 42 U.S.C.
issue,

district court and


a practical
now

would

appellants

would

formally request a

matter,
only

1988).

to abstain

prolong

an

from

already

To the extent that an issue is one of law


be resolved without doubt on

the existing

record, and is likely to arise in other cases, an appellate court

may, in the interests of justice, choose to overlook a procedural


default.

See Singleton
___ _________

v. Wulff,
_____

428

U.S. 106,

121 (1976);

United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990).
_____________
__________
Here,

we

problem

think it
head-on,

best to

exercise

our discretion,

meet the

and excuse

appellants'

failure

to move

for

now to the

meat of the

consolidated appeals.

reallocation below.
IV.
IV.

ANALYSIS
ANALYSIS
We turn

Appellants

ask

opportunity

to

assessments

either under

other source of

us

to

order

recover

that

their

they

court

Fed. R.

judicial power.

be

costs

Civ. P.

afforded
and

fair

cost-sharing

54(d) or

We address these

under some

alternatives

separately.
A.
A.

Rule 54(d).
Rule 54(d).
__________

Appellants assert that the district court's unexplained


denial of costs constituted an abuse of discretion.
prevailed on

all

claims

presumptively entitled to

below,

their thesis

Because they

runs,

they

are

recover their costs of suit under Fed.


42

R. Civ. P. 54(d)
In

order

review

the

and these include the

to evaluate

this

general operation

multifaceted
of

Rule

mandatory assessments.
contention, we

first

54(d), elucidating,

in

particular, the leeway


costs

to

prevailing

it gives

trial courts to

parties.

We

then

grant or

analyze

the

deny

rule's

implications in the context of this case.


1.
1.
type

of expenses that

U.S.C.
It

General Operation.
General Operation.
__________________

1920.27

a federal court

Rule 54(d) works in

provides, with

shall

Congress has

exceptions

enumerated the

"may tax as

costs."

tandem with the

not pertinent

28

statute.

here, that

"costs

be allowed as of course to the prevailing party unless the

court otherwise directs."


effect

of

the

Fed. R. Civ. P. 54(d).

statute and

rule

is

to

The combined

cabin district

court

discretion in two ways.


First,

section 1920

has

an esemplastic

effect.

It

fills

the void resulting from Rule 54(d)'s failure to define the

term

"costs," see Crawford Fitting Co. v. J. T. Gibbons, Inc.,


___ _____________________
____________________

____________________
27The section provides:
A judge . . . may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any
part
of
the
stenographic
transcript
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and copies of
papers necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters . . . and costs
of special interpretation services . . . .
28 U.S.C.

1920.

43

482 U.S. 437,


the

441 (1987) (holding

term `costs'

as

used in

that "[section] 1920

Rule

constrains the district court's

54(d)"),

that

way

power to determine which expense

categories constitute taxable costs.


and

and in

defines

In other words, the statute

rule, read together, signify that a district court lacks the

ability to assess "costs" under Rule 54(d) above and beyond those
that come within the statutory litany.
In light of the foregoing,
confers

no

discretion

on

statute

to

tax various types

See id.
___ ___

we conclude that Rule 54(d)

federal courts

independent

of expenses as

costs.

of
See
___

the

id.;
___

accord Denny v. Westfield State College, 880 F.2d 1465, 1468 (1st
______ _____
_______________________

Cir. 1989) (reasoning that, in light of Crawford, Rule 54(d) does


________

not constitute a separate source of judicial discretion); Freeman


_______
v.

Package Mach. Co., 865


___________________

(similar).
solely

F.2d

1331,

Rather, the discretion

a negative
________

costs, the items

discretion, "a
enumerated in

1346

(1st Cir.

that Rule 54(d)


power to

1920."

1988)

portends is

decline to

tax, as

Crawford, 482
________

U.S. at

442; accord
______

Rodriguez-Garcia v. Davila,
________________
______

904 F.2d

90, 100

(1st

this negative discretion

the

Cir. 1990).
We further believe that
power to deny recovery

of costs that are categorically

for taxation under Rule 54(d)


background
parties.
"costs
rule

presumption
This

operates in the long

favoring

cost

presumption emanates

recovery
from the

shall be allowed as of course."


permits a nisi prius
____ _____

eligible

shadow of a

for prevailing

rule's language:

Notwithstanding that the

court to deviate

from this baseline,

see, e.g., Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4,


___ ____ _____________
________________________

9 (1st Cir. 1993); Heddinger v. Ashford Memorial Community Hosp.,


_________
________________________________
44

734 F.2d 81, 86 (1st Cir. 1984); Emerson v. National Cylinder Gas
_______
_____________________
Co.,
___

251 F.2d

prevailing
August,
______

152,

party is

450

U.S.

158 (1st
the norm.
346,

Cir. 1958),
See
___

352 (1981)

plaintiffs presumptively

will obtain

Crossman
________

806

v.

Marcoccio,
_________

F.2d

awarding costs

to a

Delta Air Lines, Inc. v.


_______________________
(stating

that

"prevailing

costs under Rule


329,

331

(1st

54(d)");

Cir.

1986)

(observing that Rule 54(d)

"generally permits prevailing parties

to recover

cert. denied,
_____ ______

Castro
______

their costs"),

v. United States,
______________

(noting

that

775 F.2d

a prevailing

party

481 U.S.

399,

1029 (1987);

410 (1st

"ordinarily

Cir.

1985)

is entitled"

to

recoup the costs enumerated in section 1920).


This

presumption,

then,

constitutes

the

second

constraint on a district court's ability to freewheel in the Rule


54(d) environment.

After all,

proposition

court's

which

that a

articulates

norm

discretion in applying a
Inc.
____

it is difficult

discretion in
is

more

implementing a

confined

nondirective rule.

than

the

rule

court's

See White & White,


___ _______________

v. American Hosp. Supply Corp., 786 F.2d


____________________________

Cir. 1986); Coyne-Delany Co.


________________

to dispute

728, 731-32 (6th

v. Capital Dev. Bd., 717


________________

F.2d 385,

392 (7th Cir. 1983).


Beyond

the

presumption

favoring

cost

recovery

for

prevailing parties, there is also fairly general agreement that a


district

court may

prevailing

not exercise

party's bill

articulating reasons.

of costs

its

discretion to

in whole

or in

disallow a

part without

See Schwarz v. Folloder, 767 F.2d 125, 131


___ _______
________

(5th Cir. 1985); Gilchrist


_________

v. Bolger, 733 F.2d 1551,


______

1557 (11th

Cir. 1984); Baez v. United States Dep't of Justice, 684 F.2d 999,
____
______________________________
1004

&

n.28

(D.C.

Cir.

1982)
45

(collecting

cases

from

ten

circuits).

The Sixth Circuit has gone so far as to catalogue the

justifications that

it

deems acceptable

denying costs in

the Rule 54(d) milieu.

F.2d

In

at 730.28

only when the

the Seventh

losing party is

and

unacceptable

See
___

for

White & White, 786


_____________

Circuit, costs

may be

indigent or "there has

denied

been some

fault, misconduct, default, or other action worthy of penalty" on


the winner's side.

Burroughs v. Hills,
_________
_____

741 F.2d 1525, 1542 (7th

Cir. 1984), cert. denied, 471 U.S. 1099 (1985).


_____ ______
To the

present, this court

has been

about

a district judge's

duty to explain a

about

the

may

addressing

reasons
those

that

subjects today,

district courts to
every case

warrant

state reasons or

we

such
stop

more muted

denial of costs and


a

denial.29

short of

In

requiring

make elaborate findings

when acting under Rule 54(d).

both

in

Instead, we hold that,

if the basis for denying costs is readily apparent on the face of


the record, a trial court need not explain its action

merely for

____________________

28The White & White court articulated four circumstances in


_____________
which it believed costs might be denied (the taxable expenditures

are unnecessary or unreasonably large; the prevailing party


needlessly prolonged the proceedings; a prevailing plaintiff's
recovery is so insignificant that his or her victory amounts to a
defeat; the issues prove to be close and difficult), two
circumstances that a district court must ordinarily ignore (the
jury's seeming generosity; the prevailing party's ability to pay
his or her own costs), and two circumstances which, though
relevant, are insufficient, standing
alone, to warrant an
exercise of negative discretion (a losing party's good faith; the
propriety with which the loser conducted the litigation). See
___
White & White, 786 F.2d at 730.
_____________

29We have, however, reversed a district court's denial of


costs to a prevailing party when the court neglected to furnish
any valid explanation for the denial. See Templeman v. Chris
___ _________
_____
Craft Corp., 770 F.2d 245, 249 (1st Cir.), cert. denied, 474 U.S.
___________
_____ ______
1021 (1985).
46

explanation's sake.30

If, however, the

situation is less

obvious, the court must offer some statement as to

than

why it denied

statutory costs to a prevailing party.


Adopting this

rule

against the proliferation of


the

district courts.

It

balances

the

need

for

findings

busywork that threatens to inundate


also parallels

served us well in analogous contexts.

an approach

that has

See, e.g., Foster v. Mydas


___ ____ ______
_____

Assocs., Inc., 943 F.2d 139, 141-43 (1st Cir. 1991) (reaffirming,
_____________
in the context of both 42

U.S.C.

1988 and Fed. R. Civ.

P. 11,

that

a district

court, absent

articulate the reasons

a readily

undergirding a fee

apparent

award); Figueroa-Ruiz
_____________

v. Alegria, 905
_______

F.2d 545, 549 (1st Cir. 1990)

hold

district

that

the

court

must

basis, must

make

("While we do not
findings

and

give

explanations every time a party seeks sanctions under Rule 11, we


do require

a statement when the

obvious or

apparent

from the

reason for the decision

is not

record."); Figueroa-Rodriguez
__________________

v.

Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir. 1988) (discussing the
____________
need for findings when

the reasons for invoking Fed. R.

Civ. P.

16(f)'s sanction provisions are less than evident).


2.
2.

Application.
Application.
___________

Rule 54(d) to the facts of

Our overview completed,

this case.

Appellants argue that the

district court erred

by summarily precluding

under

54(d)

without

a bill

of

Rule

entertaining

explanation

costs.

We

we now apply

an award of
and

think the

costs

without

even

contention

has

____________________

30Although we do not impose an absolute duty to set forth


findings in all cases, we remind the district courts that
"reasonably complete findings at the trial court level invariably
facilitate the appellate task."
United States v. De Jesus, 984
_____________
_________
F.2d 21, 22 n.4 (1st Cir. 1993).
47

partial merit.
a.
a.
__
To the extent that
appellants

from

reclaiming

assessments through
error.

the district court's order prevents

the

their

medium of

mandatory

Rule

cost-sharing

54(d), we

discern

no

As evidenced by the record, these payments were primarily

directed into the


prior ruling,
helped

operating budgets of

the JDD and

the district court explained

subsidize

such

general

28 U.S.C.

1920 does

overhead

expenses

as

rent,

See Hotel Fire


___ __________

We agree with Judge Acosta that

not identify "[t]hese

expenses . . . as taxable."

In

that the assessments

utilities, telephone charges, and staff salaries.


Litig., 142 F.R.D. at 46 & n.19.
______

DLP.

general litigation

Id. at 46; see also Wahl


___
___ ____ ____

v. Carrier
_______

Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975) (disallowing similar
_________
overhead

expenses); 6

Practice
________

54.77[8],

"general

James W.
at

54-480

Moore et
(2d

al., Moore's Federal


________________

ed. 1993)

(stating

that

overhead expense[s] . . . are not costs within [section

1920] and Rule 54(d)").


assessments in an attempt

Nor can parties

dissect case-management

to trace every last penny

and thereby

attribute fractional shares to expenses which, if freely incurred


by an individual litigant, might qualify as taxable costs.

We

will

stretched beyond

not paint

the lily.

the parameters

Rule 54(d)

defined in section

cannot be
1920.

See
___

Denny, 880 F.2d at 1468; Templeman v. Chris Craft Corp., 770 F.2d
_____
_________
_________________

245, 249-50 (1st Cir.), cert. denied, 474 U.S. 1021 (1985); Bosse
_____ ______
_____
v. Litton Unit Handling Sys., 646
_________________________
Accordingly,

district courts

F.2d 689, 695 (1st Cir. 1981).

possess

54(d) to tax as costs case-management

no

authority under

Rule

charges of a type or

kind

48

unenumerated in 28 U.S.C.

1920, including, without limitation,

general overhead expenses paid pursuant to case-management orders


in mass

disaster litigation.

It

follows

inexorably that

the

court below correctly treated these expenditures as lying outside


the stunted reach of Rule 54(d).
b.
b.
__

The district court's September 11, 1992 final judgment


regarding the
recovery

claims against

of any

district court

ordinary
gave no

the pre-fire insurers

costs incurred

explanation for

by

also barred

appellants.

its curt preclusion

taxable costs, and none is evident from the record.

The

of

Moreover, by

acting in so peremptory a manner, the court foreclosed appellants


from

requesting

generally
_________

ordinary costs

D.P.R. Loc.

days from entry


costs).

in the

R. 331.1

ordinary fashion.

(allowing prevailing

of judgment in which to file

party ten

a verified bill of

On this record, we think that the district

its discretion by depriving appellants

See
___

court abused

of an opportunity to seek

ordinary costs, presumptively taxable under Rule 54(d), without a


word of explanation.31
c.
c.
__
To sum up, Rule

54(d) provides appellants only limited

comfort; upon the filing of bills of costs, the pre-fire insurers


will

recover

any

allowable, unless

itemized

expenses

the district court

that

are

offers a sound

statutorily

reason for

____________________

31Appellants indicate that they incurred


some taxable
photocopy expenses. See generally Rodriguez-Garcia, 904 F.2d at
___ _________ ________________
100 (holding certain photocopying expenses recoverable under Rule
54(d)).
We have adequate reason to believe that they may also
have incurred other expenses taxable as costs.
49

denying costs.

However, to the extent that appellants invoke the

rule

as

means

constitute the

of

retrieving

items

that

the court-ordered

they are fishing in an empty stream.

Reallocation of Court-Ordered Assessments.


Reallocation of Court-Ordered Assessments.
_________________________________________

Appellants
assessments fall
reallocated.
unrelated

big-ticket

centerpiece of these appeals

cost-sharing assessments
B.
B.

the

also

argue

that, even

if

the

outside Rule 54(d)'s domain, they

This asseveration supposes a

to Rule

54(d),

mandatory

may still be

federal court power,

to redistribute,

after judgment,

an

initial division of discovery expenses among all parties, despite


the absence of an explicit reservation of the right to do so.
We
district
imposed

think appellants' premise is sound.

court

possesses

case-management

the authority
expenses if,

considered judgment, it determines


of justice so require.
derivation of that

to

in

We hold that a

reallocate

the

court-

exercise of

its

that equity and the interests

In the sections that follow, we trace the

power, propose broad guidelines

for its use,

and discuss what remains to be done in this instance.


1.
1.

Source of Power.
Source of Power.
_________________

The

exigencies

of

complex,

multidistrict litigation change the ordnance with which courtroom


battles are
and

fought.

Traditional procedures for

gathering information

promoting
Litigation
__________

economy

and

must

often give

efficiency.

20.22, at 15

See
___

(2d ed. 1985).

serving papers

way to

innovations

Manual for Complex


____________________
Moreover,

the sheer

number of parties and issues produces a "critical need for early,

active involvement
facilitate

by the judiciary."

this

contained in the

involvement,

Id.
___

explicit

20.1, at

grants

of

5.

To

authority

Civil Rules, which supplement the trial court's


50

inherent

power

to

manage

litigation,

exercise substantial control and


the litigation."

"enable

the

judge

to

supervision over the conduct of

Id. at 6.
___

Recent amendments to the Civil Rules have augmented the


trial judge's
the 1983
that

arsenal of case-management weapons.


Rule 16 "encourage[s]

pretrial management

meets the needs of modern litigation."

Fed. R. Civ. P. 16

advisory

overhaul of

For example,

committee's notes.

would be disposed
delay"
stage to

if "a

of "more

trial judge

intervene[s] personally

878 F.2d

over a case."

at 1490

have at their fingertips

cases

less cost
at

and

an early

Id.; see
___ ___

also
____

(acknowledging that

in a

increasingly complicated cases and

judges must

thought that

efficiently and with

assume judicial control

Figueroa-Rodriguez,
__________________
time "of

The drafters

burgeoning filings,

smooth-running, productive

machinery for conducting litigation and managing caseloads").


In this multidistrict

litigation, involving upward

of

2000 parties and raising a googol of issues, Judge Acosta's power


to

mandate contributions

depository
1001,

at 205

document

inter alia,
_____ ____

can scarcely be doubted.

1004; see also


___ ____

9.7.3,

to,

depository

See Recticel,
___ ________

David F. Herr,

(1986)

means

discovery

859 F.2d at

Multidistrict Litigation
________________________

(recognizing
as a

a central

"the

of

potential

use

of

facilitating efficiency").

While no procedural rule directly addresses pretrial cost-sharing


orders

per se,
___ __

Rule

following

discovery

allocation

of

26(f) expressly
conferences,

expenses[]

as

authorizes trial

to

are

enter

necessary

orders
for

judges,
for

the

"the

proper

51

management of discovery."
that

this rule

is

judicial authority

Fed. R. Civ. P. 26(f).32

flexible enough

to serve

for imposing cost-sharing

We believe

as the

source of

orders in

complex

cases.33
The expense

allocation

orders Rule

26(f)

authorizes

"may be altered or

amended whenever justice so requires."

R. Civ. P.

For that

26(f).

reason, as well as on

Fed.

the basis of

common sense,

a trial

orders must carry with

judge's power to
it the power to

changed circumstances require.


mandamus

addressed to

orders here
to

"reshape

the

promulgate cost-sharing
readjust such orders

as

Indeed, in denying a petition for

propriety of

the very

cost-sharing

at issue, we acknowledged the district court's power


and

refashion

its

cost-sharing

orders

as

new

information comes to light, or as information already known takes


on added significance."
this message today,34

Recticel, 859 F.2d at 1004.


________
confident that our

We reaffirm

reading of Rule

26(f)

____________________

32Fed. R. Civ. P. 26(f) was adopted in 1980 in the hope that


judicial intervention would curb discovery abuse. See Fed. R.
___
Civ. P. 26(f) advisory committee's notes.
Among other things,
the rule interjects the trial court in developing "a reasonable
program or plan for discovery." Id.
___

33This court has already remarked the striking similarity


between ordinary discovery orders and the case-management orders
that Judge Acosta tailored for use in this litigation.
See
___
Recticel, 859 F.2d at 1002-03.
________

34While we emphasize that the power we describe here is an


implied power derived from the Civil Rules, we note that the
Supreme Court has, in limited circumstances, sanctioned federal
court resort to an intrinsic power analogous to its statutory
prerogative to assess costs and attorneys' fees. See Chambers v.
___ ________
NASCO, Inc., 111 S. Ct. 2123, 2133 (1991) (discussing federal
____________
courts' inherent power to shift fees in certain circumstances);
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
___________________________
________________
258-59 (1975) (similar).
Be that as it may, we need not decide
today whether, apart from the power derived from the Civil Rules,
a district court possesses the inherent power to effectuate
52

does not loose


litigants.

some strange

In the

last analysis, a

power to alter its


to many other

prey on

sorts of pretrial orders.


___ F.2d ___,

1115, 92-1116, slip

unsuspecting

district court's intrinsic

own directives is a familiar

Garden Way, Inc.,


________________

orders

new beast to

See,
___

___ (1st Cir.

op. at 20] (noting

one, applicable

e.g., Poliquin v.
____ ________
1993) [Nos.

92-

that pretrial protective

are "always subject to the inherent power of the district

court to relax or terminate the order, even after judgment").


Consequently, we hold that,
language in a

despite the absence of any

cost-sharing order reserving a trial judge's right

to rearrange the burdens therein imposed


certain beyond peradventure
entertain motions

that [a]

district court can

for the reallocation of

859 F.2d at 1004-05.

at a later date, "it is


. .

expenses."

Recticel,
________

This power is the logical (and,

we think,

necessary) extension of the court's authority to fashion pretrial


cost-sharing orders in the first place.
To say

that the power to

reallocate assessments under

cost-sharing orders can fairly be implied from the Civil Rules is


not to say that
unbridled.
fairness

the district court's

exercise of that power

is

In our view, the power is coupled with an interest in


and its

exercise must,

therefore, comport

with first

principles of equity.

It is to this unexplored

terrain that we

now turn.
2.
2.

The Standards Governing Reallocation.


The Standards Governing Reallocation.
_____________________________________

cost-sharing

orders

constitute a way

are

sui
___

generis,
_______

of fueling an array

they

Although

almost

always

of hand-crafted procedural

____________________
reallocation of cost-sharing assessments previously imposed.
53

devices

designed

to

sort

equitable,

efficient,

subsequent

decision

and

resolve

comparatively
to readjust

the

myriad

claims

inexpensive
burdens

in

an

manner.

imposed by

such

orders, and the specific redistribution that results, must remain


faithful to that
exercised
shaped

in

by the

rooted in the

aim.35

The

power to readjust,

accordance with
circumstances

inform
of

set

of equitable

indigenous to

lightly upon

certain

be

principles,

the litigation

concept that court-imposed burdens

end, balance derived benefits.


touch

then, must

but

should, in the

In the paragraphs that follow, we


fundamental principles

that should

the determination of whether a post-judgment reallocation

court-ordered

expenses

is advisable,

and

if

so,

to what

extent.
a.
a.
__
Upon

motion,

district

court

should

consider

reallocating costs after entry of judgment when, with the


of hindsight, it

acuity

determines that a party or group of parties has

significantly failed to derive the expected benefits from burdens


imposed

under

litigation,
greater or

cost-sharing

or has

derived

orders

those benefits

lesser extent than other

This rule dominates the

entered

earlier
to a

in

the

significantly

similarly situated parties.

constellation of factors bearing

on the

____________________

35We limit our discussion to cases where, as here, mandatory


cost-sharing orders are largely silent on the matter of an
eventual redistribution of expenses.
A district court may, of
course, build into a cost-sharing order a mechanism for eventual
redistribution, the structure and propriety of which would have
to be considered on its own merits against the backdrop of the
particular litigation. Indeed, the court below formulated such a
mechanism, but limited its operation to cost-sharing assessments
levied against plaintiffs' attorneys.
See Pretrial Order No.
___
127, at 39-40; see also supra note 2.
___ ____ _____
54

decision to reallocate.
b.
b.
__

In

contrast to

the

well-recognized presumption

that

prevailing parties should recover

their taxable costs under Rule

54(d),

parallel presumption

there is

no basis

for a

winners' case-management expenses should


Thus,

prevailing

favorable

party

reallocation,

entitlement to

one.

will

but

This

must

not

that the

be borne by the losers.


automatically

persuade

conclusion flows

the

receive

court

of

naturally from

an

the

idea that derived benefit is the shining star in the readjustment


galaxy:

when all is

said and done, the benefit a

party secures

from forced contributions to joint ventures in complex litigation


may

be unrelated,

or

vastly disproportionate,

to the

party's

success on the merits.


c.
c.
__
To

say that prevailing

parties are

not presumptively

entitled to a favorable reallocation of cost-sharing


is not to say that either

the fact or the scope of a

victory

is irrelevant to a

matter.

The inherent clarity

it can

be decided without

affect the degree

assessments

litigant's

district court's reassessment of the


of a case and the ease

resort to heroic

of benefit the

with which

measures ordinarily

prevailing party obtains

the availability of innovative procedural mechanisms.


extent

to which

success

not

necessarily
The

a litigant

correlated
inform the

presence

tradition, from

of

knotty
rock to

achieves a
with

issues,

tools

must

reallocation decision.

fought,

rock and tree

Hence, the

swift, across-the-board

case-management

district court's

from

in

the

to tree, often

Stalingrad

cuts the

55

other way.

Close

dominated,

tend

cases, particularly

to

be

cases

in

those

which

that

all

are

parties

fact-

derive

considerable benefit from the availability of sophisticated casemanagement tools.


d.
d.
__
When a

district court

reallocate sums

considers a party's

request to

previously assessed, the requestor's

ability to

shoulder

the expense

attempts

to distribute

they should not be


pockets,
to

bear the

the

systemic costs

crushing financial

in an

burdens of

readjusting cost-sharing

sought

pay.36

Cost-sharing orders

are

equitable manner;

transmogrified into a method of

end, garnered a

orders

immaterial.

forcing deep

whenever and for whatever reason they appear in a suit,

Equity in
the

is

to

this

orders depends upon

disproportionate slice of
provide, not

Although the
same,

complex litigation.

upon

who

the benefits the

can

best afford

operative considerations are

principle

parallels

the

who, in

to

not entirely

Sixth

Circuit's

longstanding view that a prevailing party's ability to pay his or


her own

costs is

an improper basis

for refusing

to tax

costs

____________________
36We recognize that the presence
affect the reallocation decision.

of an indigent party may


Cf., e.g., Neitzke v.
___
____
_______
324 (1989) (discussing Congress's desire

Williams, 490 U.S. 319,


________
to "ensure that indigent litigants have meaningful access to the
federal courts"); Adkins v. E. I. DuPont de Nemours & Co., 335
______
_______________________________
U.S. 331,
339 (1948) (refusing to
require litigants "to
contribute to payment of costs[] the last dollar they have or can
get" before becoming entitled to forma pauperis standing);
_____ ________
Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 728 (1st Cir.
________
_______________________
1984) (warning that courts must go slowly in allowing "tollbooths [to] be placed across the courthouse doors"); Burroughs,
_________
741 F.2d at 1542 (allowing a district court to deny costs under
Rule 54(d) when the losing party is indigent).
We do not probe
the point, however, because no party involved in these appeals
has asserted such a claim.
56

against the loser under Rule 54(d).

See White & White, 786 F.2d


___ ______________

at 730; Lewis v. Pennington, 400 F.2d 806, 819


_____
__________

(6th Cir.), cert.


_____

denied, 393 U.S. 983 (1968).


______
e.
e.
__
Cost-sharing
benefit

of

particular

orders

all contributing
circumstances may

are

designed

parties.
reveal that

to

A case's

inure

to

the

history

and

some parties

carried

heavy,

even

excessive, loads,

relatively

free

affords

way

example,

ride.
of

party's interjection

Cf.
___

of

parties enjoyed

cost-sharing

case-specific

assessments

inequities.

For

unmeritorious issues

that

the litigation might favor the conclusion

others have paid too much

little.

other

Reallocating

balancing

unnecessarily lengthen
that

while

and the interjector has paid too

Lichter Found., Inc.


____________________

v. Welch, 269
_____

F.2d 142, 146

(6th Cir. 1959) (approving denials of costs to prevailing parties


under Rule

54(d) on this basis).

like all decisions grounded

A cost-readjustment analysis,

in equity, must leave room

for such

case-specific factors.
f.
f.
__

We believe that we have said enough to erect a flexible


framework for reallocation analysis
modicum of general guidance
that the

relative weight

and, hopefully, to provide a

to the district courts.


and impact of

We caution

relevant considerations

will vary from situation to situation, and, moreover, that, given


the

virtually

limitless number

of

permutations

likely to

be

encountered in civil litigation, our compendium of factors is not


all-encompassing.
3.
3.

Remedy.
Remedy.
______

The question of

57

remedy remains.

It is

clear

that an appellate court

is not the

most propitious forum

for shaking up a preexisting expense allocation.


cost-sharing
component

orders

of the

originate

with

the district

court's case-management

district judge's

intimate knowledge

By definition,
court

function.

as

Given the

of the circumstances

under

which the imposts were conceived, his familiarity with the nature
and purposes of

the assessments, his

front row seat

throughout

the litigation, and his matchless ability to measure the benefits


and

burdens of

litigation's
district

cost-sharing

progress

judge

determining,

has

to the

and stakes,
the

coign

parties
we

of

are

in light

of

the

convinced that

the

vantage

best

that this litigation has

endless

amounts

reluctant to

of

judicial

We

are

exhibited a capacity
resources and

prolong matters.

remanding is plain:
address the

to

in the first instance, whether, and if so, how, the

initial cost-sharing orders should be modified.


aware

suited

Here, however,

we

keenly

to chew up

are

extremely

the necessity for

not only is the trial judge best equipped to

remaining problems, but

also, as we

explain below,

there is at least a prima facie case for some reallocation of the


_____ _____
assessments.
suggests

Indeed, the collocation of

that the

pre-fire insurers

benefits associated with


they helped to fund.
More

than

several of

circumstances strongly

did not

reap in

the procedural

full the

innovations

We run the gamut.


half

of

each

appellant's

assessment

supplemented the
to

the

economical

discovery.
claims

budgets of the JDC and


coordination

Because the

JDD, facilities devoted

and

speedy

completion

pre-fire insurers defeated

through dispositive

motions

short of

of

all adverse

trial, on

purely

58

legal grounds,

the benefit

was most likely minimal.

they derived from

The near-complete

these innovations

closure of discovery

prior to appellants' appearance in the litigation, see supra p. 4


___ _____
& note 3, rendered the JDC,

established to stimulate expeditious

resolution of discovery disputes, of dubious value to appellants.


As for the JDD,

the documents housed there were

relevance vis-a-vis appellants because


earlier
issues.

litigation
To

phases

that

be sure, appellants

from

the facilities they helped

free

to peruse whatever

What is

more, the

they were gathered during

settled a

host

probably derived
to fund.

of

different

some benefit

Certainly, they were

useful evidence the

DLP presumably

of questionable

facilitated

JDD did contain.37


the movement

of

papers to appellants' behoof; and appellants probably saved money


through the

avoidance of

unnecessary duplication.

difficult to fathom how contributions on


other

defendants to

fact

But, it

is

a par with those of all

gathering largely

irrelevant to

the

claims against appellants constituted


. . . [appellants'] resources."
The early
all

the "most efficient use of

Pretrial Order No. 127, at i.

stage at which the

claims against appellants

district court dismissed

also creates doubt

as to whether

the substantial assessments, geared largely toward efficient fact


gathering,
degree.

inured
The

to

appellants'

pre-fire insurers

matter

of

law, without

having

determined that no issue

benefit

to

prevailed on

going to

trial.

any

meaningful

all claims,

as a

The

district court,

of fact needed

debate and that

____________________
37Nevertheless, thirteen appellants
contend that
utilized no evidence contained in the JDD to support
__
dispositive motions.

they
their

59

appellees'

arguments had no basis in law, see Hotel Fire Litig.,


___ _________________

802 F. Supp. at 635, 644, might be hard-pressed


appellants' huge

expenditures, diverted to

in large part, to collect, sort,


were

to conclude that

facilities designed,

and maintain factual documents,

integral to, or even marginally connected with, the pursuit

of their cause.
In

sum,

appellants have a

it appears

from

the record

colorable basis for arguing

before

us that

that they derived

minimal

benefits

from

the

assessments.

hypothesis remains unproven.


the

eye; for one thing,

any

detail to

see,
___

There may be more here

the appellate record

the equities.

decline to remand

Nonetheless,

Although

where remanding

does not speak in

an empty

e.g., Societe des Produits Nestle, S.A.


____ __________________________________

Inc.,
____

982 F.2d

633, 642

(1st Cir.

than meets

an appellate

would be

this

court may

exercise,

v. Casa Helvetia,
______________

1992) (declining

to remand

where, once the court of appeals decided the correct rule of law,
the district

court's preexisting

result obvious), that


pregnant
the

is not the case

questions to be mulled

trial

conclude,

judge's

viewpoint

therefore,

that

district court for further


intimate

findings of fact

no

opinion as

here.

Rather, there

on remand
is

must

be

important.
returned

We

to the

proceedings before Judge Acosta.


to

the

are

questions on which

especially

the case

rendered the

appropriate

outcome of

We

those

proceedings.
V.
V.

BANKRUPTCY OF AN AFFILIATED ENTITY


BANKRUPTCY OF AN AFFILIATED ENTITY
We

Associates

are
and

not yet
HSI,

provision, 11 U.S.C.

at

invoke

journey's
the

end.

so-called

Two

appellees,

automatic

stay

362 (1988), in an endeavor to persuade us


60

that an affiliated

firm's bankruptcy should

stay of proceedings on appeal.

have resulted in

We are not convinced.

The essential facts are as follows.


Corporation

Holders

Capital

Because

HSI is a wholly owned subsidiary of HoCap and Associates

is a limited partnership
owned subsidiary
prosecution of

(HoCap)

On August 5, 1991,

filed

of HoCap, both appellees

the pre-fire insurers' appeals,

debtor in bankruptcy.
F.2d 1,

stay

See
___

as against them,

to obtain possession of the

assertion need not detain us.

362(a)'s automatic

a wholly

assert that continued

debtor's property in violation of 11 U.S.C.

section

bankruptcy.

whose general partner is also

constitutes an impermissible attempt

This

for

362(a)(3).

As a general rule,

provisions apply

only to

the

Austin v. Unarco Indus., Inc.,


______
____________________

705

4 (1st Cir.), cert. dismissed, 463 U.S. 1247 (1983); see


_____ _________
___

generally
_________
In re Western Real Estate Fund, Inc., 922 F.2d
______________________________________
Cir.

(10th

1990), modified on other


________ __ _____

grounds, 932 F.2d


_______

898 (10th Cir.

As entities legally

distinct from HoCap,

see Parkview___ _________

1991).

Gem, Inc. v. Stein,


_________
_____
that

592, 600

where

leasehold

516 F.2d 807,

debtor,
rights

terminate the lease

to

811 (8th Cir. 1975)

qua
___

lessee, had

previously

subsidiary,

the

could not be

(holding

assigned

lessor's

action

enjoined because, despite

all

to

the

fact

that the termination would likely have "an adverse [e]ffect

upon the debtor," no

claim was asserted against the

re Bank Ctr., Ltd.,


____________________
(refusing to stay
partnership

15

B.R. 64,

an action

because a

65

(Bankr. W.D.

against the partner

"partner

is a

partnership"), the two corporate

debtor); In
__
Pa.

1981)

of a

bankrupt

separate entity

from the

appellees are not presumptively


61

entitled to the

protection of

extant in the HoCap bankruptcy


implicate no

attempt to

any automatic stay


proceeding.

assert, enforce

which may

Since these
or

be

appeals

recover any

claim

against HoCap or its property, the appeals may proceed.


See
___

11 U.S.C.

of" or

362(a)(3) (staying actions to "obtain possession

"exercise control

over" the

bankrupt estate);

see also
___ ____

Fragoso v. Lopez,
F.2d
,
(1st Cir. 1993),
_______
_____ ____
____ ____

[No. 92-

2046, slip op. at 14] (noting federal court reluctance to refrain


from "deciding legal issues

pertaining to a party involved

in a

federal bankruptcy proceeding"); Picco v. Global Marine Drilling


_____
_______________________
Co.,
___
the

900 F.2d 846, 850


bankruptcy

court

(5th Cir. 1990)


does

not

divest

("The automatic stay of


all

other

courts

of

jurisdiction to

hear every claim

that is in any

way related to

the bankruptcy proceeding.").


VI.
VI.

CONCLUSION
CONCLUSION
We need go no further.

erred

in

precluding,

ordinary

without

We hold that the district court


explanation,

opportunity to
court did

of

Hence, we remand to allow appellants an

file bills of costs in the usual form.

The lower

not err, however, in refusing to treat case-management

expenditures as taxable

costs within the

and its statutory helpmeet, 28 U.S.C.


We

also hold

power, under

initial allocations
same

taxation

costs under Rule 54(d) in favor of appellants (who were

the prevailing parties).

implied

the

as equity

that
Fed.

purview of Rule

1920.

the district
R. Civ.

54(d)

P.

court possesses

26(f), to

revisit

the

the

of case-management expenses and readjust the

may require.

Because the

lower court

did not

afford appellants a fair opportunity to seek such a reallocation,


62

we remand for that purpose as


motions to

reallocate

well.

with the

Appellants shall file their

district

court no

thirty days from the date our mandate issues.38

later

than

Vacated and remanded; one-half costs to appellants.


Vacated and remanded; one-half costs to appellants.
__________________________________________________

____________________

38In this connection we urge the district courts within this


circuit to consider framing local rules to the effect that,
henceforth, any application for reallocation of court-imposed
cost-sharing expenses must be filed within thirty days of the
entry of final judgment.
Cf. White, 455 U.S. at 454 (observing
___ _____
that district courts are free "to adopt local rules establishing
timeliness standards for the filing of claims for attorney's
fees"); Obin v. District No. 9, Int'l Ass'n of Machinists &
____
_______________________________________________
Aerospace
Workers, 651
F.2d
574, 583
(8th Cir.
1981)
___________________
(recommending a rule that claims for attorneys' fees must be
filed within twenty-one days after entry of judgment).

63