Professional Documents
Culture Documents
______
___________ _______________ _________________ _______
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
modern
expenses
federal
indigenous
judicially
determined?
how,
court's handling
appeals
court practice:
to
consolidated
if
of
at all,
mass
should
disaster
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
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
these
of
doors was
and
BACKGROUND
BACKGROUND
the
District
270
Raymond
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
___________
Judge Acosta's
stewardship proved
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
brought
litigation
which housed
to
a Joint Document
the
distribution all
and
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
and (3)
assessments upon
were depleted.
Committee
operation of JDC).
entered
Discovery
id. at 61-63;
___
on hand
of future developments,
if any,
____________________
1Because
the mechanics
of the
allocation process
are not
two
years
after
first
shots
in
the
the
victims
and
their
families)
and
cross-claimed
for
August
9, 1989,
lead,
adding the
the
plaintiffs
followed the
pre-fire insurers
tit. 26,
as direct
On
cross-claimants'
defendants under
Because discovery
___
127, at 96-97, the pre-fire insurers' investigation of
the newly
The
pre-fire
insurers
quickly
filed
dispositive
motions.
the motions.
Finally, the
court granted
them on September 11, 1992, see In re San Juan Dupont Plaza Hotel
___ _________________________________
Fire Litig., 802
___________
(1st
Cir.
1993),
entered judgment
in
favor
989 F.2d 36
of
the pre-fire
would bear
appeal, seventeen
cost-sharing assessments.4
Hotel
a complete or partial
The
Steering Committee
Systems International
(Associates), filed
complain that
Plaintiffs'
pre-fire insurers
refund of the
(HSI) and
opposition briefs
two cross-claimants,
Dupont
Plaza Associates
and participated
in oral
argument.
II.
II.
expenditures
the
expectation
that
describing
help to put
the
disputed
matters in the
____________________
Court-Ordered Assessments.
Court-Ordered Assessments.
_________________________
vast
majority
of
comprise
Pretrial Order
(Jan. 17, 1989); Pretrial Order No. 212 (July 31, 1989);
259 (Aug. 21, 1990).
eventuated
required
at
outlays
Order No.
after
appellants'
before
appellants
appellants to
pay
the sums
71;
Pretrial
Order No.
assessments
under
$705,500.
Eighty-three
$586,500
135,
protest.5
percent
represents assessments
those
orders
assessed therein
shortly
The
fray,
four orders
Appellants
compulsory
of this
paid the
payments
aggregate
total
amount
cost-sharing orders.
Appellants'
tribute
helped
to
fund
the
various
$18,000
went toward
defraying
the JDD's
operating
went toward
toward
____________________
paying costs
Person (DLP).6
259,
at
remaining
1.
associated with
the office of
$10,000
court
would subsidize
The
idea
Defendants' Liaison
was abandoned
and
originally intended
the
construction
that the
of a
new
funds in
question
were
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
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.
WAIVER
WAIVER
Having
described
recoup, we pause to
submit
the
expenses
appellants
seek
to
The plaintiffs
____________________
recovery
by
entered.
demur:
failing
to
file
bills
of
bill of
costs
after judgment
costs to be
filed).
We
of the
with the
district
seasonably to file
court may,
in certain
a bill of
circumstances,
See Mason
___ _____
v.
Belieu, 543
______
F.2d
215, 222
(D.C. Cir.)
however,
because
district
and did so
prevailing
parties
ten days
purpose.7
errands.
The law
by
ordering,
bear its
opportunity to file
court,
costs
bills
the
There is no waiver
a bill of
R. 331.1, which
after notice
of judgment
allows
to file
does not
require
litigants to
no useful
run fools'
See Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d 581,
___ _________________
_________________________
____________________
grounded in a
party's dereliction
Northern Heel
_____________
Corp.
_____
of a
futile task);
see also
___ ____
(stating, in a different
construed
to perform futile
not be
acts or to
ask the
closer question
is whether appellants,
judgment entered,
We
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.
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
practical matter,
would
only
1988).
to
prolong
would
request a
abstain from
an
already
the existing
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
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).
__________
on
all
claims
presumptively entitled
R. Civ. P. 54(d)
In
order
review
to
prevailing
runs,
they are
this
mandatory assessments.
multifaceted
general operation
thesis
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
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."
28
statute.
It
provides, with
exceptions
shall be allowed as
of
the
here, that
"costs
not pertinent
Fed.
statute and
R. Civ. P. 54(d).
rule
is
to
The
combined
cabin district
court
section 1920
has
an esemplastic
effect.
It
fills
term
482 U.S.
the
term
`costs' as
used
in
Rule 54(d)"),
in that
way
and
1920 defines
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.
___ ___
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
of expenses as
costs.
See
___
id.;
___
accord Denny v. Westfield State College, 880 F.2d 1465, 1468 (1st
______ _____
_______________________
(similar).
solely
F.2d
a negative
________
discretion, "a
1331,
1346
(1st Cir.
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
presumption
This
favoring
cost
presumption emanates
recovery
from the
the
shadow of a
for prevailing
rule's language:
court to deviate
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
awarding
329,
that
"prevailing
under Rule
331
(1st
Cir.
54(d)");
1986)
parties
to
recover their
Castro
______
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
presumption,
then,
constitutes
the
second
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
to dispute
F.2d 385,
the
presumption
favoring
cost
recovery
for
court
may not
party's bill
articulating reasons.
exercise its
of costs
discretion to
in whole
or in
disallow a
part without
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
justifications
that it
denying costs in
deems
acceptable
and unacceptable
See
___
for
13
F.2d
at 730.9
In the Seventh
worthy of penalty"
on the
the present,
this court
addressing
reasons
those
district courts to
that
may
explain a denial
warrant
subjects today,
state reasons or
we
such
stop
muted both
of costs and
denial.10
short of
In
requiring
in
sake.11
If,
is less than
____________________
denied
this
rule
district courts.
It
balances
the need
for
findings
an approach
that has
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
1988 and
a readily
Figueroa-Ruiz
_____________
hold
court
that
the
district
must
make
must
findings
do not
and
give
require a statement
obvious
or apparent
from the
record."); Figueroa-Rodriguez
__________________
v.
Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir. 1988) (discussing the
____________
need
Application.
Application.
___________
district court
under
Rule
entertaining
erred by summarily
54(d)
without
a bill
of
costs.
precluding an award
explanation
We
apply
and
think the
of costs
without
even
contention
has
partial merit.
____________________
facilitate the appellate task."
a.
a.
__
To the extent that
appellants
from
assessments
through
error.
reclaiming
their
the medium
of
mandatory
Rule 54(d),
we
discern no
directed into
prior ruling,
helped
cost-sharing
subsidize
such
general
of the JDD
overhead
28 U.S.C.
expenses . .
1920 does
expenses
as
rent,
. as taxable."
In a
and DLP.
general litigation
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.
(stating that
assessments in an attempt
and thereby
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
no authority
under
Rule
16
54(d) to tax
unenumerated in 28 U.S.C.
a type or kind
mass disaster
litigation.
It follows
inexorably
that the
of
claims against
any ordinary
district court
gave no
costs
incurred by
explanation for
also barred
appellants.
its curt
The
preclusion of
Moreover, by
ordinary
D.P.R. Loc.
costs in
R. 331.1
the ordinary
(allowing prevailing
costs).
fashion.
party ten
See
___
of an opportunity to seek
will
recover
any
allowable, unless
denying costs.
rule
as
itemized
constitute the
of
retrieving
are
statutorily
offers a sound
the
reason for
big-ticket
cost-sharing assessments
items
that
the court-ordered
Appellants
also
that
B.
B.
expenses
argue
that, even
54(d),
the
to Rule
if
mandatory
may still be
to redistribute,
after judgment,
an
court
possesses
case-management
the authority
expenses if,
in
to
the
We hold that a
reallocate
court-
exercise of
its
of justice so require.
derivation of
Source of Power.
Source of Power.
_________________
The
exigencies
of
complex,
fought.
gathering information
promoting
Litigation
__________
economy
and
must
often give
efficiency.
20.22, at 15
See
___
serving papers
way to
innovations
Moreover, the
sheer
18
this
contained in the
inherent
by the judiciary."
power
involvement,
20.1, at
grants
of
5.
To
authority
manage
litigation,
explicit
Id.
___
Id. at 6.
___
"enable
the
judge
to
overhaul of
Rule 16 "encourage[s]
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
pretrial management
Figueroa-Rodriguez,
__________________
judges
modern litigation."
For example,
over a case."
at 1490
and
filings,
involving upward of
mandate contributions
depository
document
at
inter alia,
_____ ____
1001, 1004;
9.7.3,
to,
(1986)
depository as
See Recticel,
___ ________
discovery
859 F.2d at
(recognizing
a
a central
means of
19
"the potential
facilitating
use
of
efficiency").
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
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
R. Civ. P. 26(f).
common sense,
a trial
mandamus
addressed to
it the power to
the
"reshape
and
refashion
of
promulgate cost-sharing
readjust such orders
as
propriety of
judge's power to
Fed.
its
the very
cost-sharing
cost-sharing
orders
as
new
We reaffirm
____________________
some strange
In the last
new beast to
prey on
analysis, a district
See,
___
unsuspecting
one, applicable
e.g., Poliquin v.
____ ________
Cir. 1993)
26(f)
court's intrinsic
orders
reading of Rule
[Nos. 92-
pretrial protective
that [a]
. .
entertain motions
859 F.2d at
1004-05.
expenses."
Recticel,
________
is
exercise must,
therefore, comport
with first
principles of equity.
It is to this unexplored
terrain that we
now turn.
2.
2.
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
in
by the
aim.16
The power to
accordance with
circumstances
upon
set
of equitable
indigenous to
the litigation
court-ordered
certain fundamental
expenses is
but
in the
be
principles,
advisable,
and
should
reallocation
if so,
to
what
____________________
extent.
a.
a.
__
Upon
motion,
district
court
should
consider
under
litigation,
or has
greater or
This rule
cost-sharing
orders
derived
entered
those benefits
earlier
to a
in
the
significantly
bearing on the
decision to reallocate.
b.
b.
__
In
contrast
to the
well-recognized
presumption that
54(d),
parallel presumption
there is
no basis
for a
favorable
prevailing
party
reallocation,
but
will
must
not
that the
persuade
the
receive
court
of
an
entitlement
to one.
This conclusion
flows naturally
from the
when
be unrelated,
or
vastly disproportionate,
to the
party's
are not
presumptively
23
entitled to a favorable
is not to say
of a litigant's
victory
is irrelevant to a district
matter.
it
can be decided
affect the
without resort to
degree of benefit
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,
be
cases
in
the
Stalingrad
to tree, often
cases, particularly
to
in
those
which
all
that
cuts the
are
parties
fact-
derive
district court
shoulder
the expense
attempts
to distribute
is
immaterial.
systemic costs
request to
requestor's ability to
Cost-sharing orders
in an
are
equitable manner;
forcing deep
bear the
Equity in
the
considers a party's
crushing financial
burdens of
readjusting cost-sharing
end, garnered a
complex litigation.
disproportionate slice of
who, in
24
orders
pay.17
sought
to
provide, not
Although the
upon
who
can
best afford
to
not entirely
the
same,
this
principle
parallels
the
Sixth
Circuit's
costs is
an improper
basis for
refusing to
tax costs
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
inure
A case's
case-specific
interjection
to
For
that
paid too
____________________
17We recognize that the presence
affect the reallocation decision.
booths [to]
little.
142, 146
A cost-readjustment analysis,
for such
case-specific factors.
f.
f.
__
relative weight
We caution
relevant considerations
virtually
limitless number
of
permutations
likely to
be
Remedy.
The
question of remedy
remains.
It
is
3.
clear
for
Remedy.
______
is not the
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
throughout
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,
of
judicial
We
are
exhibited a capacity
resources and
we
are
keenly
to chew up
extremely
for
as we explain
below,
suggests
that the
pre-fire insurers
benefits
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
through dispositive
appellant's
coordination
Because the
legal grounds,
did not
circumstances strongly
all adverse
trial, on
of
purely
these innovations
discovery
stimulate expeditious
litigation
To be
phases
that
settled a
of questionable
of
derived some
different
benefit
from
free to
What
is more,
the
to fund.
DLP presumably
did contain.18
facilitated the
movement of
the avoidance of
unnecessary duplication.
defendants to
fact
gathering largely
But,
it is
those of all
irrelevant to
the
creates doubt as
to whether
inured
The
to
appellants'
pre-fire insurers
matter
of
having
appellees'
802 F.
law, without
benefit
to
prevailed on
going to
trial.
any
meaningful
all claims,
as a
The
district court,
of fact needed
diverted to facilities
designed,
the pursuit
of their cause.
In sum,
it
appears from
the
record before
us
that
derived
they
their
28
minimal
benefits
from
the
assessments.
any
detail to
decline
Inc.,
____
the equities.
to remand where
see, e.g.,
___ ____
Nonetheless,
Although
be an
633, 642
(1st Cir.
court may
empty exercise,
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
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
here.
rendered the
be
important.
to
the
We
appropriate
returned
We
outcome
of those
V.
V.
Associates
are
and
not yet
HSI,
provision, 11 U.S.C.
that an
at
invoke
journey's
the
end.
so-called
Two
automatic
stay
persuade us
in a
appellees,
Holders
Capital
Because
is a limited partnership
(HoCap)
On August 5, 1991,
filed
for
bankruptcy.
a wholly
29
owned subsidiary
prosecution of
362(a)'s automatic
debtor in bankruptcy.
See
___
stay
as against them,
362(a)(3).
As a general rule,
provisions apply
only to
the
705
generally
_________
In re Western Real Estate Fund, Inc.,
______________________________________
Cir.
As entities legally
leasehold
debtor,
rights
to
600 (10th
1991).
that
qua
___
lessee, had
previously
subsidiary,
the
could not be
(holding
assigned
lessor's
all
action
to
the
15
B.R. 64,
an action
because a
"partner
protection of
no
(Bankr.
65
W.D. Pa.
1981)
of a
bankrupt
separate entity
from the
bankruptcy proceeding.
attempt to
debtor); In
__
assert, enforce
which may
Since these
or recover
be
appeals
any claim
See 11 U.S.C.
___
of" or
"exercise control
over" the
possession
bankrupt estate);
see also
___ ____
Fragoso v. Lopez,
F.2d
,
(1st Cir. 1993),
_______
_____ ____
____ ____
[No. 92-
in a
Co., 900
___
the
bankruptcy
court
jurisdiction to hear
does
automatic stay of
not
other
divest
all
is in any way
courts
of
related to
CONCLUSION
CONCLUSION
We need go no further.
erred
in
ordinary
precluding,
without
the
The lower
expenditures as
the purview of
of
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
same as
the lower
equity may
require.
Because
court did
not
reallocate
with the
district
court no
later
31
_________________________
than
Nos. 92-2312
92-2313
IN RE:
_________________________
____________________
_________________________
Before
_________________________
A.J. Bennazar-Zequeira,
______________________
Patrick McCoy, Oppenheimer Wolff & Donnelly, Lon Harris, Harris &
_____________ ____________________________ __________ ________
Green,
_____
Mercado,
_______
Stuart W. Axe,
______________
Mercado &
Soto,
_________________
Rodriguez-Suris,
Virgilio Mendez
Cuesta,
_________________________
Adrian
______
Ernesto
_______
_______________
___________________________________________
on
33
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.
______________
modern
expenses
federal
indigenous
to
judicially
determined?
defendants
and
defendants
litigation.
consolidated
how,
court's handling
if
of
at all,
mass
appeals
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
otherwise
lobbying
thousands
of
Finding
that
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
of
doors was
judgment and
BACKGROUND
BACKGROUND
the
District
270
Honorable
Raymond
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
____________
curiam).
Judge Acosta's
stewardship
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
Cir. 1992).
brought
35
the
Among the
litigation
many
to
Depository (JDD),
which housed
distribution all
1988),
and
his or
formation
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
(3) the
(describing
court periodically
were
Committee
61-63; and
entered
Discovery
id. at
___
which
In this
monies as funds
imposed
way, the
on hand
of future developments,
authority, if any,
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.
Roughly
litigation
two
years
after
first
shots
in
the
the
victims
and
their
families)
and
cross-claimed
for
August
9, 1989,
lead,
adding the
the
plaintiffs
followed the
pre-fire insurers
26,
as direct
On
cross-claimants'
defendants under
Because discovery
of the newly
The
motions.
pre-fire
insurers
quickly
filed
dispositive
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),
judgment in
favor
of
the
F.2d 36
pre-fire
____________________
37
would bear
appeal, seventeen
pre-fire insurers
complain that
cost-sharing
the
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
expenditures
the
expectation
that
describing
help to put
the
disputed
matters in the
vast
Court-Ordered Assessments.
Court-Ordered Assessments.
_________________________
majority
of
appellants'
by six orders of
outlays
comprise
Order
____________________
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.
38
Order No.
eventuated
required
after
at
before
appellants
appellants to
pay
entered
the sums
71;
Pretrial Order
No.
assessments
under
$705,500.
Eighty-three
$586,500
The
percent
represents assessments
fray, those
orders
assessed therein
shortly
135, at
protest.24
the
four orders
9.
Appellants paid
compulsory
of this
payments
aggregate
the
total
amount
cost-sharing orders.
Appellants'
tribute
helped
to
fund
Thus,
toward
Person (DLP).25
No. 259, at 1.
See
___
the office of
contribution
the JDD's
defraying
various
place to expedite
$18,000 went
the
operating
went toward
went toward
Defendants' Liaison
No. 212, at
1; Order
that the
remaining
$10,000
would subsidize
The
idea was
abandoned
the
construction
of a
new
and
the funds
in
question
were
____________________
eventually utilized
for operational
costs of
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
the
JDD
and
DLP,
recited above,
are
minimum
estimates.
B.
B.
Presumably,
Ordinary Costs.
Ordinary Costs.
______________
the payments
made pursuant
to the
cost-
investment
successful
defense
expenditures,
routinely
such
in
this
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.
WAIVER
WAIVER
Having
described
recoup, we pause to
submit that
recovery
entered.
demur:
the
expenses
by
failing
See
___
appellants
to
file
of
for expense
costs after
of costs
to
The plaintiffs
bills
seek
to be
judgment
filed).
We
of the
with the
district
seasonably to file
court may,
in certain
a bill of
circumstances,
See
___
Mason
_____
v. Belieu,
______
543 F.2d
215,
222 (D.C.
Cir.)
There is no waiver
here,
however,
because
the
court,
prevailing
despite D.P.R.
parties ten
purpose.26
The
ordering,
notice
of judgment
not require
bill of
which allows
litigants to
to file
subsequent
law does
bear its
to file a
Loc. R. 331.1,
days after
by
and did so
errands.
district
no useful
run fools'
Franki Found. Co. v. Alger-Rau & Assocs. Inc., 513 F.2d 581,
_________________
________________________
a futile
(stating, in a different
construed
task); see
___
to perform futile
not be
acts or to
somewhat closer
ask the
district court,
appellants, by
question is whether
within which
There is no
a
party
the right to
Our decision is
may make
request
to
for an
the
order
reallocating
case-management
expenses.
Cf.
___
White
_____
v.
New
___
____________________
455 U.S.
445,
455 (1982)
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,
would
appellants
would
formally request a
matter,
only
1988).
to abstain
prolong
an
from
already
the existing
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).
__________
all
claims
presumptively entitled to
below,
their thesis
Because they
runs,
they
are
R. Civ. P. 54(d)
In
order
review
the
to evaluate
this
general operation
multifaceted
of
Rule
mandatory assessments.
contention, we
first
54(d), elucidating,
in
to
prevailing
it gives
trial courts to
parties.
We
then
grant or
analyze
the
deny
rule's
of expenses that
U.S.C.
It
General Operation.
General Operation.
__________________
1920.27
a federal court
provides, with
shall
Congress has
exceptions
enumerated the
"may tax as
costs."
not pertinent
28
statute.
here, that
"costs
of
the
statute and
rule
is
to
The combined
cabin district
court
section 1920
has
an esemplastic
effect.
It
fills
term
____________________
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
term `costs'
as
used in
Rule
54(d)"),
that
way
and in
defines
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
See id.
___ ___
federal courts
independent
of expenses as
costs.
of
See
___
the
id.;
___
accord Denny v. Westfield State College, 880 F.2d 1465, 1468 (1st
______ _____
_______________________
(similar).
solely
F.2d
1331,
a negative
________
discretion, "a
enumerated in
1346
(1st Cir.
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
the
Cir. 1990).
We further believe that
power to deny recovery
presumption
This
favoring
cost
presumption emanates
recovery
from the
eligible
shadow of a
for prevailing
rule's language:
court to deviate
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
that
"prevailing
331
(1st
54(d)");
Cir.
1986)
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
presumption,
then,
constitutes
the
second
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
to dispute
F.2d 385,
the
presumption
favoring
cost
recovery
for
court may
prevailing
not exercise
party's bill
articulating reasons.
of costs
its
discretion to
in whole
or in
disallow a
part without
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).
justifications that
it
deems acceptable
denying costs in
F.2d
In
at 730.28
the Seventh
losing party is
and
unacceptable
See
___
for
Circuit, costs
may be
denied
been some
Burroughs v. Hills,
_________
_____
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.29
short of
In
requiring
both
in
merely for
____________________
explanation's sake.30
situation is less
than
why it denied
rule
district courts.
It
balances
the
need
for
findings
an approach
that has
Assocs., Inc., 943 F.2d 139, 141-43 (1st Cir. 1991) (reaffirming,
_____________
in the context of both 42
U.S.C.
P. 11,
that
a district
court, absent
a readily
undergirding a fee
apparent
award); Figueroa-Ruiz
_____________
v. Alegria, 905
_______
hold
district
that
the
court
must
basis, must
make
("While we do not
findings
and
give
obvious or
apparent
from the
is not
record."); Figueroa-Rodriguez
__________________
v.
Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir. 1988) (discussing the
____________
need for findings when
Civ. P.
Application.
Application.
___________
this case.
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
____________________
partial merit.
a.
a.
__
To the extent that
appellants
from
reclaiming
assessments through
error.
the
their
medium of
mandatory
Rule
cost-sharing
54(d), we
discern
no
operating budgets of
subsidize
such
general
28 U.S.C.
1920 does
overhead
expenses
as
rent,
expenses . . . as taxable."
In
DLP.
general litigation
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
ed. 1993)
(stating
that
dissect case-management
and thereby
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
possess
no
authority under
Rule
charges of a type or
kind
48
unenumerated in 28 U.S.C.
disaster litigation.
It
follows
inexorably that
the
claims against
of any
district court
ordinary
gave no
costs incurred
explanation for
by
also barred
appellants.
The
of
Moreover, by
requesting
generally
_________
ordinary costs
D.P.R. Loc.
in the
R. 331.1
ordinary fashion.
(allowing prevailing
party ten
a verified bill of
See
___
court abused
of an opportunity to seek
recover
any
allowable, unless
itemized
expenses
that
are
offers a sound
statutorily
reason for
____________________
denying costs.
rule
as
means
constitute the
of
retrieving
items
that
the court-ordered
Appellants
assessments fall
reallocated.
unrelated
big-ticket
cost-sharing assessments
B.
B.
the
also
argue
that, even
if
the
to Rule
54(d),
mandatory
may still be
to redistribute,
after judgment,
an
court
possesses
case-management
the authority
expenses if,
to
in
We hold that a
reallocate
the
court-
exercise of
its
Source of Power.
Source of Power.
_________________
The
exigencies
of
complex,
fought.
gathering information
promoting
Litigation
__________
economy
and
must
often give
efficiency.
20.22, at 15
See
___
serving papers
way to
innovations
the sheer
active involvement
facilitate
by the judiciary."
this
contained in the
involvement,
Id.
___
explicit
20.1, at
grants
of
5.
To
authority
inherent
power
to
manage
litigation,
"enable
the
judge
to
Id. at 6.
___
pretrial management
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
cases
less cost
at
and
an early
Id.; see
___ ___
also
____
(acknowledging that
in a
judges must
thought that
Figueroa-Rodriguez,
__________________
time "of
The drafters
burgeoning filings,
smooth-running, productive
of
mandate contributions
depository
1001,
at 205
document
inter alia,
_____ ____
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").
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
flexible enough
to serve
We believe
as the
source of
orders in
complex
cases.33
The expense
allocation
orders Rule
26(f)
authorizes
"may be altered or
R. Civ. P.
For that
26(f).
reason, as well as on
Fed.
the basis of
common sense,
a trial
judge's power to
it the power to
addressed to
orders here
to
"reshape
the
promulgate cost-sharing
readjust such orders
as
propriety of
the very
cost-sharing
refashion
its
cost-sharing
orders
as
new
We reaffirm
reading of Rule
26(f)
____________________
some strange
In the
last analysis, a
prey on
unsuspecting
orders
new beast to
See,
___
one, applicable
e.g., Poliquin v.
____ ________
1993) [Nos.
92-
that [a]
expenses."
Recticel,
________
we think,
is
exercise must,
therefore, comport
with first
principles of equity.
It is to this unexplored
terrain that we
now turn.
2.
2.
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
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
then, must
but
should, in the
that should
court-ordered
expenses
is advisable,
and
if
so,
to what
extent.
a.
a.
__
Upon
motion,
district
court
should
consider
acuity
under
litigation,
greater or
cost-sharing
or has
derived
orders
those benefits
entered
earlier
to a
in
the
significantly
on the
____________________
decision to reallocate.
b.
b.
__
In
contrast to
the
well-recognized presumption
that
54(d),
parallel presumption
there is
no basis
for a
prevailing
favorable
party
reallocation,
entitlement to
one.
will
but
This
must
not
that the
persuade
conclusion flows
the
receive
court
of
naturally from
an
the
when all is
party secures
be unrelated,
or
vastly disproportionate,
to the
party's
parties are
not presumptively
victory
is irrelevant to a
matter.
it can
be decided without
assessments
litigant's
resort to heroic
of benefit the
with which
measures ordinarily
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,
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
district court
reallocate sums
considers a party's
request to
ability to
shoulder
the expense
attempts
to distribute
bear the
the
systemic costs
crushing financial
in an
burdens of
readjusting cost-sharing
sought
pay.36
Cost-sharing orders
are
equitable manner;
end, garnered a
orders
immaterial.
forcing deep
Equity in
the
is
to
this
disproportionate slice of
provide, not
Although the
same,
complex litigation.
upon
who
can
best afford
principle
parallels
the
who, in
to
not entirely
Sixth
Circuit's
costs is
an improper basis
for refusing
to tax
costs
____________________
36We recognize that the presence
affect the reallocation decision.
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
little.
other
Reallocating
balancing
unnecessarily lengthen
that
while
v. Welch, 269
_____
A cost-readjustment analysis,
for such
case-specific factors.
f.
f.
__
relative weight
We caution
relevant considerations
virtually
limitless number
of
permutations
likely to
be
Remedy.
Remedy.
______
The question of
57
remedy remains.
It is
clear
is not the
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
throughout
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
endless
amounts
reluctant to
of
judicial
We
are
exhibited a capacity
resources and
prolong matters.
remanding is plain:
address the
to
suited
Here, however,
we
keenly
to chew up
are
extremely
also, as we
explain below,
that the
pre-fire insurers
than
several of
circumstances strongly
did not
reap in
the procedural
full the
innovations
of
each
appellant's
assessment
supplemented the
to
the
economical
discovery.
claims
Because the
and
speedy
completion
through dispositive
motions
short of
of
all adverse
trial, on
purely
58
legal grounds,
the benefit
The near-complete
these innovations
closure of discovery
litigation
To
phases
that
be sure, appellants
from
free
to peruse whatever
What is
more, the
settled a
host
probably derived
to fund.
of
different
some benefit
DLP presumably
of questionable
facilitated
of
avoidance of
unnecessary duplication.
defendants to
fact
But, it
is
gathering largely
irrelevant to
the
as to whether
inured
The
to
appellants'
pre-fire insurers
matter
of
law, without
having
benefit
to
prevailed on
going to
trial.
any
meaningful
all claims,
as a
The
district court,
of fact needed
____________________
37Nevertheless, thirteen appellants
contend that
utilized no evidence contained in the JDD to support
__
dispositive motions.
they
their
59
appellees'
expenditures, diverted to
to conclude that
facilities designed,
of their cause.
In
sum,
appellants have a
it appears
from
the record
before
us that
minimal
benefits
from
the
assessments.
any
detail to
see,
___
the equities.
decline to remand
Nonetheless,
Although
where remanding
an empty
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
questions to be mulled
trial
conclude,
judge's
viewpoint
therefore,
that
findings of fact
no
opinion as
here.
Rather, there
on remand
is
must
be
important.
returned
We
to the
the
are
questions on which
especially
the case
rendered the
appropriate
outcome of
We
those
proceedings.
V.
V.
Associates
are
and
not yet
HSI,
provision, 11 U.S.C.
at
invoke
journey's
the
end.
so-called
Two
appellees,
automatic
stay
that an affiliated
have resulted in
Holders
Capital
Because
is a limited partnership
owned subsidiary
prosecution of
(HoCap)
On August 5, 1991,
filed
debtor in bankruptcy.
F.2d 1,
stay
See
___
as against them,
362(a)'s automatic
a wholly
section
bankruptcy.
This
for
362(a)(3).
As a general rule,
provisions apply
only to
the
705
generally
_________
In re Western Real Estate Fund, Inc., 922 F.2d
______________________________________
Cir.
(10th
As entities legally
1991).
592, 600
where
leasehold
debtor,
rights
to
qua
___
lessee, had
previously
subsidiary,
the
could not be
(holding
assigned
lessor's
action
all
to
the
fact
15
B.R. 64,
an action
because a
65
(Bankr. W.D.
"partner
is a
debtor); In
__
Pa.
1981)
of a
bankrupt
separate entity
from the
entitled to the
protection of
attempt to
assert, enforce
which may
Since these
or
be
appeals
recover any
claim
11 U.S.C.
of" or
"exercise control
over" the
bankrupt estate);
see also
___ ____
Fragoso v. Lopez,
F.2d
,
(1st Cir. 1993),
_______
_____ ____
____ ____
[No. 92-
in a
court
not
divest
other
courts
of
jurisdiction to
that is in any
way related to
CONCLUSION
CONCLUSION
We need go no further.
erred
in
precluding,
ordinary
without
opportunity to
court did
of
The lower
expenditures as taxable
also hold
power, under
initial allocations
same
taxation
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
may require.
Because the
lower court
did not
reallocate
well.
with the
district
court no
later
than
____________________
63