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NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
PERSON COUNTY FILE NO. 92 CVS 548   
NORTH CAROLINA COURT OF APPEALS
LEE ANNE JARRELL, Administratrix )
of the Estate of Robert E. L. Jarrell, II,                     )
deceased,                                    )
)
                     Plaintiff, )
)
                              vs. )
)
JAMES N. FINCH, M.D., )
)
                     Defendant. )
_____________________________________________)
     PLAINTIFF'S MEMORANDUM
     IN OPPOSITION TO DEFENDANT'S
     MOTION FOR COSTS



    
 

I. INTRODUCTION

          This cause is before the Court on defendant' s motion to tax the plaintiff with costs in the amount of $27,007.53. Plaintiff filed this action in Durham County Superior Court on May 6, 1992 against defendant Finch and Person County Memorial Hospital (" Hospital" ) alleging medical negligence/wrongful death arising out of the defendant' s discharge of plaintiff' s husband from the emergency department of Person County Memorial Hospital on February 14, 1992, within thirty-five minutes after plaintiff' s husband presented with symptoms including " chest tightness, arms tingling." Mr. Jarrell died of a myocardial infarction on February 15, 1992. Claims were also brought on behalf of decedent' s minor son and widow for negligent infliction of emotional distress. The Complaint subsequently was amended to add as additional defendants Coastal Emergency Services of the Carolinas, Inc. and Coastal Emergency Services, Inc., who provided the defendant Finch, a resident of Durham, who is employed by the Durham County Mental Health Department, for part-time emergency services at the hospital.

          On December 29, 1992 the Superior Court of Durham County transferred venue of this action to Person County on motion of the hospital based upon a finding that the hospital was a "public officer." During October of 1994 the Court entered summary judgments in favor of the hospital and the Coastal defendants on claims alleging that defendant Finch was acting as their agent in providing medical care and treatment to decedent and the Court also entered summary judgments in favor of all defendants on the claim for negligent infliction of emotional distress that was brought by decedent' s minor son. The Court denied the motion of defendant Finch for summary judgment on the issue of punitive damages. Plaintiff appealed the summary judgments to the Court of Appeals of North Carolina and, although that Court initially issued an order staying trial against the defendant Finch pending resolution of the appeal, the Court later entered an order that plaintiff' s appeal was interlocutory.

          The case was set for trial against defendant Finch for April 8, 1996. Plaintiff filed a Notice of Voluntary Dismissal without Prejudice as to defendant Finch on March 28, 1996. Subsequently, the decedent' s widow, as Administratrix of his Estate, filed an action in the Superior Court of Durham County (97 CVS 01115), the county of defendant Finch' s residence and employment, on March 26, 1997, within one year of taking the voluntary dismissal of the wrongful death action. Defendant' s motion to transfer venue from his county of residence to Person County was denied by the Superior Court in Durham County on June 13, 1997. Defendant now brings this motion on for hearing seeking an order taxing in excess of $27,000 as costs against the plaintiff.

II. SUMMARY OF ARGUMENT

A. Defendant Cannot Recover His Expert Witness Fees Because His Experts Did Not Attend Court Pursuant to Subpoenas.

          Defendant' s motion to tax plaintiff with $21,400 in expert witness fees of defendant' s experts must be denied as a matter of law because fees are only allowed in North Carolina where the witness testifies pursuant to a subpoena. G.S. ' 7A-314 (App. 1); G.S. ' 6-53 (App. 2). State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972) (App. 3); Wade v. Wade, 72 N.C.App. 372, 384, 325 S.E.2d 260, disc. rev. denied, 313 N.C. 612, 616 (1985); Couch v. Couch, 18 N.C.App. 108, 196 S.E.2d 64 (1973). The case was set for trial on April 8, 1996. The action was dismissed on March 28, 1996. None of the defendant' s expert witnesses ever testified pursuant to a subpoena and defendant' s motion in this respect must be denied.

B. Defendant Cannot Recover Expert Witness Fees Paid to Plaintiff' s Experts Because They Did Not Testify Pursuant to Subpoena.

          Defendant' s motion seeking to tax the plaintiff in the amount of $1,476.14 for fees the defendant paid to plaintiff' s experts in connection with their discovery depositions must also be denied. As shown above, expert witness fees are only allowed pursuant to G.S. ' 7A-314. The law is clear that the trial court may award expert witness fees only for time actually spent testifying and only if the witness has testified pursuant to subpoena. Defendant did not subpoena plaintiff' s experts in connection with the taking of their depositions. Therefore, these expenses are not recoverable pursuant to Chapter 7A. Holtman v. Reese, 119 N.C.App. 747, 406 S.E.2d 338 (1995) (App. 4).

          Defendant' s motion seeking to tax plaintiff with costs in the amount of $150.00 for expert witness fees paid to Carolyn C. Barker, M.D., plaintiff' s psychiatrist, must also be denied because, on information and belief, Dr. Barker did not testify pursuant to subpoena. Holtman, supra. In addition, although defendant subpoenaed Janie Endres and Sarah Peach (clinical social workers who counseled with decedent' s widow) in connection with the taking of their depositions and paid their employer a total of $162.50 for time spent in their depositions, this amount is not taxable to plaintiff because these witnesses did not testify at trial. G.S. ' 7A-314; G.S.' 6-53; Brandenburg Land v. Champion International, 107 N.C. App. 102, 418 S.E.2d 526 (1992) (App. 5).

C. Defendant Should Not Be Awarded Deposition Expenses Because the Depositions Will
Be Used in the Pending Action And the Issues Between the Parties Have Not Been
Determined.

          Defendant' s motion to tax plaintiff with costs in the amount of $3,390.09 in connection with deposition expenses for the taking of nineteen depositions, should also be denied. The information contained in these deposition transcripts will be useful to defendant in the pending litigation arising out of the same subject matter as this case. Defendant is not entitled to a windfall of free discovery in the pending action. Plaintiff has a substantial and meritorious claim that will be heard by a jury in the pending action. Rule 41(d) is not intended to make one

          Rule 32(a)(5) of the North Carolina Rules of Civil Procedure provides that when an action has been dismissed and another action involving the same subject matter is afterward brought forward between the same parties, depositions taken in the former action can be used in the latter action.

party pay the other party' s trial preparation expenses. The Rule is intended to punish vexatious litigation, and deter frivolous suits. Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750 (1990). This action does not fall into that category as shown by the fact that at the summary judgment hearing in this Court in October of 1994, the Honorable Robert H. Hobgood, Superior Court Judge Presiding, denied defendant' s motion for summary judgment on the issue of punitive damages after considering discovery materials in the case and noting that although it is undisputed that plaintiff' s husband was in pain during the entire time he was in the emergency department of the hospital on February 14, 1992, he received no treatment whatsoever from defendant Finch.

          The deposition expenses which defendant seeks to tax to Ms. Jarrell will be useful to defendant in the trial between the parties. See Brown v. Zackert, 701 P.2d 711, (Kan.App. 1985) (reimbursement pursuant to Rule 41(d) should only include that amount that would not benefit defendant in pending litigation or litigation to be filed in another form). See e.g. Cauley v. Wilson, 754 F.2d 769, 772 (7th Cir. 1985) (award pursuant to Rule 41(d) should only reimburse defendant for expenses incurred in preparing work product that will not be used in subsequent litigation of the same claim.) If defendant prevails in the pending action it can request the Court in that action to tax plaintiff with deposition expenses incurred in the initial action. Sealey v. Grine, 115 N.C.App. 343, 444 S.E.2d 632 (1994)(A trial court in one action can tax costs incurred in an earlier action that was voluntarily dismissed). If the plaintiff is taxed with deposition expenses in this action and ultimately prevails in the pending action, the anomalous result would be that the losing party would have been awarded costs against the party in whose favor the verdict and judgment are rendered.

III. THE LAW OF COSTS IN NORTH CAROLINA

A. Costs May Be Awarded Only Pursuant to Express Statutory Provisions.

          The fundamental, basic tenet of law applicable to any award of costs is that A costs@ are solely a creature of statute. Clerk' s Office v. Commissioners, 121 N.C. 29, 30, 27 S.E. 1003 (1897); City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179 (1972) (App. 6). Parties at common law were forced to bear their own litigation expenses, so costs today are awarded only pursuant to statutory authority. McNeely, supra; Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, disc. rev. denied, 313 N.C. 612 (1985).

          Only those costs which are expressly allowed by statute may be taxed against a losing party, and these " costs" are not to be equated with litigation " expenses." State v. Johnson, supra. A Since the right to tax costs did not exist at common law and costs are considered penal in their nature, ' [s]tatutes relating to costs are strictly construed.'" " McNeely, 281 N.C. at 692, 190 S.E.2d at 186(citation omitted)(emphasis added). Costs are not granted upon

          Defendant should not be awarded any deposition expenses in this action because of the reasoning and authorities cited above. However, it should also be noted that defendant is seeking to tax plaintiff with transcript and travel expenses in connection with the depositions of three emergency medicine expert witnesses of defendant (Bateman, Podgorny and Allison). G.S. ' 7A-314 (e) provides that " If more than two witnesses are subpoenaed...to prove a single material fact, the expense of additional witnesses shall be borne by the party issuing or requesting the subpoena." Likewise, a party should not be allowed to tax deposition expenses of more than two expert witnesses it has designated in a particular speciality.

"'mere equitable or moral grounds."'  Id., 281 N.C. at 691, 190 S.E.2d at 185 (citation omitted).

B. Costs That This Court May Allow

          Rule 41(d) of the North Carolina Rules of Civil Procedure provides in relevant part that , " A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of this action..." Rule 41 therefore authorizes this Court to tax costs, but the delineation of which " costs" may be allowed is controlled by other statutory provisions and their judicial interpretation.

          Chapters 6 and 7 of the General Statutes govern the award of costs. See N.C. Gen. Stat. ' 6-1 (1986) (A to the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this chapter.")

          Chapter 7A sets out the specific costs that shall be awarded upon judgment. The following costs must be assessed:

              (1) A $10 facilities fee;
              (2) A $55 fee for support of the General Court of Justice.

N.C.G.S. ' 7A-305(a)(1) and (2). The following costs may be assessed:

              (1) Witness fees, as provided by law;
       
(2) Expenses of service of process by certified mail;
              (3) Fees for personal service and civil process and other sheriff" s fees.

N.C.G.S. ' 7A-305(d)(1), (4), and (6).

          N.C.G.S. ' 7A-314 governs witness and expert witness fees. In relevant part, this statute provides for the mandatory assessment of the following costs:

(1) Witnesses under subpoena are entitled to compensation at the rate of five dollars per day of testimony. See N.C.G.S. ' 7A-314(a).

(2) Witnesses that so qualify pursuant to (1) are also entitled to reimbursement of travel expenses at an established rate. See N.C.G.S. ' 7A-314(b)(1).

(3) Expert witnesses who testify pursuant to subpoena are entitled to receive such compensation as the court in its discretion may authorize. See N.C.G.S. ' 7A-314(d); State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972).

          The Section 7A-314 mandatory and permissive witness fee provisions are restricted by N.C.G.S. ' 7A-314(e), which provides that if more than two witnesses are subpoenaed to prove a single material fact the party offering the duplicate witnesses must bear the expense. Moreover, the above provisions in Chapter 7A regarding court costs and witness fees are the exclusive statement regarding these costs. N.C.G.S. ' 7A-320 establishes that " [t]he costs set forth in this Article are complete and exclusive, and in lieu of any other costs and fees."

C. Costs That This Court May Not, As a Matter of North Carolina Law, Allow.

          It is apparent from the delineation of costs in Chapter 7A that may be taxed to the losing party that the word "costs" has a very specific legal meaning. See Nichols v. Goldston, 231 N.C. 581, 58 S.E.2d 348 (1950) (the costs of transporting witnesses was not a  "cost" but an " expense" ). "Costs" refers to those standard court costs and litigation costs that the legislature in its careful consideration has deemed compensable. " Costs" are not intended to cover each and every litigation  "expense." Indeed, the list of potential expenses that could, in a broad sense, be termed expenses of litigation is endless; meals for attorneys who work late, staff time, postage, etc. The legislature has made the policy determination as to where the cut-off line is and which "expenses" can be allowed as "costs."  This legislative determination must be strictly followed. Clearly defendant, in his Motion, seeks to recover mostly for  "expenses" rather than " costs."

          This distinction was noted by the Supreme Court in Nichols v. Goldston, 231 N.C. 581, 58 S.E.2d 348 (1950). In Nichols plaintiff sought recovery from defendant pursuant to a prior court order allowing a change of venue but requiring defendant to pay the reasonable "costs" for transportation of witnesses. The Supreme Court held that such transportation expense was not recoverable as "costs" :

Patently the word  "cost," appearing in the order, was used in the sense of  "expense" of providing transportation for plaintiff and his witnesses to and from the place of trial of the action. Such cost of transportation is not "costs" incident to the action, for which defendant would become liable in the event the judgment was against him. Costs incident to the action, or costs of the action are " entirely creatures of legislation and constitute an incident of the judgment," -- and the liability for such costs depends upon the nature of the final judgment, and the party cast in the suit is the one upon whom the costs must fall... And there was and is no statute in this State pertaining to the cost of transporting a party and his witnesses as "costs" in the sense of costs of the action for which the losing party may be liable.

231 N.C. at 584.

          Other bright line guidelines for awarding costs were established by the Supreme Court decision of City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). Among the principles established by this decision are the following:

1. The expense of procuring surveys, maps, plans, photographs and       "documents" are not taxable as costs unless there is clear statutory authority therefor or they have ordered by the Court. 281 N.C. at 691-92.

2. Parties to the lawsuit are not entitled to compensation for time spent in preparing for and attending hearings and they are also not entitled to an A expert witness" fee. 281 N.C. at 692-93.

3. Parties to the lawsuit are not entitled to compensation for travel expenses, including mileage, meals and hotel bills expended for securing evidence and attending hearings. 281 N.C. at 694.

          These rules establishing a distinction between "expenses" and " costs," and G.S. ' 7A-314, which prohibits the taxing of expert witness fees for witnesses who do not attend court pursuant to a subpoena, show that the overwhelming amount of money claimed by defendant by his motion are mostly for litigation expenses that cannot be taxed as costs. In particular, the following expenses claimed by defendant as  "costs" are not recoverable as a matter of law pursuant to the statutory provisions discussed above in ' III.B. and North Carolina case law:

1. Expert witness fees may not be recovered for experts who do not testify pursuant to a subpoena. G.S. ' ' 7A-314, 7A-320; Johnson; G.S. ' 6-53.

2. Fees paid to other witnesses may not be recovered if they do not attend court pursuant to a subpoena. G.S. ' ' 7A-314, 7A-320; G.S. ' 6-53.

          When these rules are considered in combination with the fact that the expenses claimed by defendant in this suit are expenses that he will be saved in plaintiff' s pending action on the same claim, it is apparent that defendant' s extraordinary request for costs must be denied.

IV. FEES PAID BY DEFENDANT TO HIS EXPERT WITNESSES ARE NOT RECOVERABLE.

          Defendant seeks $21, 400 for fees paid to his expert witnesses. Fees paid by a party to expert witnesses are not recoverable as part of the costs of the action unless specifically authorized by statute. 20 Am.Jur.2nd Costs Section 65 (1965). In North Carolina the allowance of fees for expert witnesses is controlled by N.C.G.S. ' 7A-314. N.C.G.S. ' 7A-314 allows expert witness fees in the discretion of the Court, but the case law interpreting this provision has explicitly established that fees are only allowed where the witness testifies pursuant to a subpoena. State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972); Wade v. Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, disc. rev. denied, 313 N.C. 612, 616 (1985); Couch v. Couch, 18 N.C. App. 108, 196 S.E.2d 64 (1973).

          These requirements have two implications for the expenses claimed by defendant. First, only the expert fees relating to time spent testifying is potentially recoverable. Second, the experts must have testified pursuant to subpoena. These requirements bar recovery of fees in this case. Quite simply, none of defendant' s experts testified at any point in this litigation pursuant to subpoena. Also, it should be noted that plaintiff paid defendant' s experts for the time spent in giving their deposition testimony. Defendant is asking this Court to ignore the controlling statutes and case law and award him fees paid to his experts for time spent reviewing case materials and consulting with defense counsel. Although defendant says his expert witnesses had been subpoenaed for the trial that was scheduled for April 8, 1996, plaintiff served her Notice of Voluntary Dismissal without Prejudice on March 27, 1996, and none of defendant' s expert witnesses attended court and testified pursuant to such subpoenas.

          "Simply put, it is error for a trial court to tax an expert witness fee as part of the costs when the expert has not testified pursuant to a subpoena." (citations omitted)(emphasis added). Craven v. Chambers, 56 N.C.App. 151, 287 S.E.2d 905, 911 (1982). Defendant' s Motion for Costs includes the following statements in support of his contention that he is entitled to costs for fees paid to expert witnesses who never attended court and testified pursuant to subpoena:

Expert witness fees may be taxed against an adverse party when the testimony of the witness examined or tendered was or would have been material and competent. Costs may properly include preparation time outside of time spent testifying at trial. The testimony of each expert tendered by this defendant was material and competent. Each expert witness who was expected to testify in court during the trial of this action was under subpoena to appear in court and testify. (Defendant' s Motion for Costs, & 4).

          In support of his theory which conflicts with controlling statutes and case law, defendant apparently seeks to rely on some language found in City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972), in which our Supreme Court noted that,

...expert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent. Chadwick v. Insurance Co., supra; 20 C.J.S. Costs ' 244 (1940).

Therefore, it is important to examine the case law to determine if a witness can be "tendered" so a party can recover his fees as costs when the witness does not attend court in obedience to a subpoena. The unequivocal answer to that question is no. The expert witness fee at issue in McNeely involved an expert who was present and testified at the trial, but his fees were disallowed as costs by the Supreme Court because the witness'  testimony was irrelevant to the issues in the case.

          The case cited by our Supreme Court in McNeely, Chadwick v. Life Ins. Co. of Virginia, 158 N.C. 380, 74 S.E. 115 (1912) (App. 7), also involved expert witness fees in a case that went to trial. At the conclusion of plaintiff' s evidence the judge nonsuited the plaintiff' s case. The Supreme Court disallowed expert witness fees of defendant' s experts who had appeared in court but who were not examined or tendered by the defendant after plaintiff' s case was nonsuited. In Chadwick, the Supreme Court relied on Cureton v. Garrison, 111 N.C. 271, 16 S.E. 338 (1892)(App. 8) in support of the rule that expert witness fees can be taxed as costs to the losing party only if the witness is " ...subpoenaed and examined or tendered." Chadwick, supra, 74 S.E. at 116.

          In Cureton the trial court ruled that if the witnesses were not sworn, and examined or tendered, even though attending under subpoena, and though they would have given material evidence, their fees could not be taxed against the losing party. The Supreme Court found no error, ruling as follows: "Where a witness, though duly subpoenaed, is neither examined nor tendered to the opposite party on the trial, his attendance can be taxed only against the party who summoned him." (citations omitted)(emphasis added).

          In Brandenburg Land v. Champion Intern., supra, the plaintiff in a title dispute involving real property took a voluntary dismissal and the trial court taxed plaintiff with the costs of defendant' s expert witness fee. Before plaintiff took a voluntary dismissal without prejudice defendant had filed a motion for summary judgment with a voluminous affidavit prepared by its expert witness. Plaintiff appealed the order taxing costs on the ground that the defendant' s expert witness had not been subpoenaed. Our Court of Appeals unanimously reversed, noting that, "[a]ll of the decisions reported refer to awards of costs after the case had been calendared for and indeed had gone to trial." Id., 418 S.E.2d at 528.

          In Brandenburg Land the defendant cited Henderson v. Williams, 120 N.C. 339, 27 S.E. 30 (1897) (App. 9) in support of its unsuccessful argument that the costs of witnesses who are A available and present and prepared to testify" may be taxed as costs when their testimony is rendered unnecessary by the plaintiff' s voluntary dismissal. Id. However, the Court of Appeals rejected defendant' s argument, noting the distinction that in the Henderson case the trial court called the case for trial and the plaintiff took a voluntary nonsuit in open court. At the time the voluntary nonsuit was taken defendant' s witnesses were  "properly...present." Henderson, 120 N.C. at 340, 27 S.E. at 30. Accordingly, as the Court of Appeals correctly observed in Brandenburg Land, supra, 418 S.E.2d at 529, our Supreme Court in Henderson decided that witnesses must be present in court before they can be examined or tendered.

          Indeed, the applicable statutes require, at a minimum, that the witness be present in court pursuant to a subpoena before any consideration can be given to taxing the witness' fees as costs to the opposing party. G.S. ' 7A-314(a) provides that, " [a] witness under subpoena...shall be entitled to receive...during his attendance, which ...must be certified to the clerk of superior court." (emphasis added). Furthermore, G.S.' 6-53, which is cited by our Supreme Court in McNeely, supra, provides as follows:           

Every person summoned, who shall attend as a witness in any suit, shall, before the clerk of the court, or before the referee or officer taking the testimony, ascertain by his own oath or affirmation the sum due for traveling to and from court, attendance and ferriage, which shall be certified by the clerk; and on failure of the party, at whose instance such witness was summoned (witnesses for the State and municipal corporations excepted), to pay the same previous to the departure of the witness from court, such witness may at any time sue for and recover the same from the party summoning him; and the certificate of the clerk shall be sufficient evidence of the debt. (emphasis added).

V. DEFENDANT CANNOT RECOVER FEES PAID TO PLAINTIFF= S EXPERT WITNESSES.

          Defendant is also seeking to recover $1,476.14 in fees paid to plaintiff' s expert witnesses in connection with taking their discovery depositions (See Appendix B-3, Defendant' s Motion for Costs). However, as discussed hereinabove, expert witness fees are only allowed pursuant to N.C.G.S. ' 7A-314(d). Section 7A-314(d) and the case law interpreting that Section establish two crucial requirements: First, the trial court may award expert witness fees only for the time actually spent testifying; and second, the trial court may award expert witness fees only if the witness has testified pursuant to subpoena. Defendant did not subpoena plaintiff' s experts in taking their depositions. Therefore, these expenses are not recoverable pursuant to Chapter 7A. Holtman, supra. Moreover, it appears from the foregoing that even if Dr. Nazari and Dr. Lee had been subpoenaed for their depositions, the fees paid to them by defendant could not be taxed to the plaintiff as costs because these witnesses never appeared at trial. Brandenburg Land, supra. (Notes that all the reported decisions refer to awards of costs after the case had gone to trial and suggests that the legislature may want to reconsider this area of law, including the question of whether a party can tax as costs fees paid to an expert subpoenaed for a deposition.)

VI. DEFENDANT IS NOT ENTITLED TO RECOVER FEES PAID TO TREATING HEALTH CARE PROVIDERS OF LEE ANNE JARRELL.

          Defendant' s Motion also requests that the Court award as costs $312.50 defendant paid to treating health care providers of Lee Anne Jarrell in connection with the taking of their depositions. (See Appendix B-4, Defendant' s Motion for Costs) However, as noted hereinabove, pursuant to N.C.G.S. ' 7A-314 and G.S. ' 6-53, fees paid to witnesses in connection with the taking of their testimony are not allowed to be recovered as costs unless they were subpoenaed and attended court. None of the treating health care providers of Lee Anne Jarrell attended court.

VII. THE PLAINTIFF IS UNABLE TO BEAR THE EXPENSE OF DEFENDANT' S DISCOVERY.

          Plaintiff in this action is the widow of Robert E. L. Jarrell, II, as Administratrix of his Estate. Mr. Jarrell died leaving no substantial property and the Estate has no assets. The Administratrix is unable to pay the costs of the Estate' s litigation, much less the deposition transcript and travel expenses of the defendant, who will use the depositions in defense of the pending action.

          Sections 7A-305(a) and (d) are clear that there are two kinds of costs: mandatory and discretionary. The only mandatory costs are filing and facilities fees, which plaintiff has paid. Defendant is not entitled to recover for fees plaintiff has paid. Remaining costs, those relating to deposition transcripts and travel expenses, if allowed, are discretionary.

           An award of discretionary costs against the Estate of anything other than the filing and facilities fees would be contrary to the spirit of Rule 41. By its own terms Rule 41(d) prohibits the award of costs against those suing as paupers. While the Estate did not bring suit as a pauper, the situation is such that the policy of the Rule 41(d) pauper provision should be entertained by this Court in its discretion. In addition, defendant will be able to use the discovery it obtained in the initial action in the pending action. Moreover, as discussed hereinabove, if defendant is the prevailing party in the pending action, it can request the court in that action to tax as costs the expenses for deposition transcripts and travel that were incurred in this action.

          The pending action will be heard by a jury. It will be for the jury to decide the factual issues in the case, and only upon that decision will it be appropriate to make a final determination as to which party should bear the "costs" of the litigation. If this Court exercises its discretion in favor of defendant now and awards some or all of the deposition transcript and travel costs claimed by defendant that are discretionary, and plaintiff later secures a jury verdict against defendant, the plaintiff will have unfairly carried the financial burden of defendant' s defense. See Brown v. Zackert, 701 P.2d 711, 714, (Kan. App. 1985) (reimbursement pursuant to Rule 41(d) should only include that amount which will not benefit defendant in pending litigation or litigation to be filed in another forum). In Brown, the Court of Appeals of Kansas held that the trial court abused its discretion by ordering plaintiff to pay defendant' s costs without considering whether the expenses would benefit defendant in future litigation. The appellate court noted that a trial court cannot "...shift responsibility for litigation expenses unaffected by the dismissal." Id.

          The North Carolina Rules of Civil Procedure are modeled on the Federal Rules, and our Rule 41(d) is substantially the same as the federal rule. Alsup v. Pitman, supra.; Sutton v. Duke, 277 N.C. 94, 99, 176 S.E.2d 161, 163 (1970). This Court should take guidance from the federal decisions interpreting Rule 41(d) which allow recovery only for those costs not associated with information that will be useful in subsequent litigation of the same claim. E.g., Cauley v. Wilson, 754 F.2d 769, 772 (7th Cir. 1985) (award pursuant to Rule 41(d) should only reimburse defendant for expenses incurred in preparing work product that will not be used in subsequent litigation of the same claim); McLaughlin v. Cheshire, 676 F.2d 855, 857 (D.C. Cir. 1982) (when plaintiff seeks dismissal in one forum, defendant is not entitled to reimbursement for expenses in preparing work product that has been or will be useful in continuing litigation); Bready v. Geist, 85 F.R.D. 36, 38 (E.D. Pa. 1979) (potential prejudice to defendant by dismissal would be offset by requiring plaintiff to stipulate that defendant could use discovery in subsequent litigation).

VIII CONCLUSION

          Based on the foregoing reasoning and authorities, plaintiff respectfully requests the Court to deny defendant' s Motion for Costs.

                 This the _______ day of ___________________, 1997.

                                                                                          BENTLEY & ASSOCIATES, P.A.

 

                                                                                          _________________________________  

Charles A. Bentley, Jr.
Post Office Box 52089
Durham, North Carolina 27717-2089
Telephone: (919) 489-1330
Attorneys for Plaintiff

 

CERTIFICATE OF SERVICE

          I do hereby certify that on this _____ day of _______________, 1997, I served copies of the foregoing PLAINTIFF' S RESPONSE IN OPPOSITION TO DEFENDANT' S MOTION FOR COSTS and PLAINTIFF' S MEMORANDUM IN OPPOSITION TO DEFENDANT' S MOTION FOR COSTS on counsel for the defendants by hand delivery in the Person County Courthouse, addressed as follows: 


                                                            Samuel G. Thompson
                                                            John D. Madden
                                                            James Y. Kerr, II
                                                            Smith, Anderson,Blount, Dorsett, Mitchell & Jernigan
                                                            Post Office Box 2611
                                                            Raleigh, North Carolina 27602

 

 

                                                            ___________________________________               
                                                            Charles A. Bentley, Jr.


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