The opinion of the court was delivered by: DAWSON
This is a motion to review taxation of costs in the above actions. The costs have been taxed by the Clerk only in those cases in which a final judgment was directed to be entered on behalf of the defendants. There are four actions which still await trial on the issue of damages. In those cases no costs have been taxed. There were originally nine lawsuits, in which there were a total of twelve sets of plaintiffs. Each lawsuit alleged a cause of action based on fraud and also a cause of action based on violations of the antitrust laws.
In accordance with a pre-trial order entered on September 22, 1961 all of the actions for fraud were consolidated for trial pursuant to Rule 42(a) of the Rules of Civil Procedure, 28 U.S.C.A. A trial was had and findings of fact and conclusions of law were filed on February 7, 1962. Thereafter the causes of action based on alleged violations of the antitrust laws went to trial. These also were consolidated for trial. Findings of fact and conclusions of law in the antitrust causes of action were filed on June 7, 1962. All of the actions for fraud were dismissed for failure of proof. All of the actions for alleged violations of the antitrust laws, with the exception of four, were dismissed. In those four cases the Court decided that the plaintiffs had established violations of the antitrust laws and directed that a hearing be held on the issue of damages. This hearing on the issue of damages has not yet been had and no costs are sought in those cases at the present time.
Since the causes of action of the various plaintiffs were different causes of action involving different sets of facts it became necessary to determine separately the facts as to each set of plaintiffs, both on the fraud causes of action and on the antitrust causes of action, and findings of fact and conclusions of law were handed down separately.
There were a total of sixteen defendants in the fraud causes of action and a total of twenty-three defendants in the antitrust causes of action. It appears from the motion papers submitted by plaintiffs' attorneys that plaintiffs are challenging only the taxation of costs secured by the so-called 'Carvel' defendants and not by the supplier defendants.
1. The Prevailing Parties
The first contention of the plaintiffs on this motion for retaxation of costs is that plaintiffs are the prevailing parties and therefore not liable for costs. They assert that since the actions were consolidated for trial and four of the plaintiffs won on the actions for violations of the antitrust laws all plaintiffs should be deemed to be prevailing parties and therefore not liable for costs. This, of course, is erroneous. The fact that the actions were consolidated for trial does not mean that they were any less separate cases. Such consolidation was for the convenience of parties and the Court. There were the same number of cases tried in both the fraud and antitrust aspects and each case must stand on its own feet so far as costs are concerned. The consolidation of separate causes of action involving separate plaintiffs for trial purposes does not free a losing plaintiff from the duty of paying costs simply because another one of the plaintiffs was successful.
'Where two causes of action, each by a different plaintiff and each against the same defendant, are consolidated for trial, and but one plaintiff is successful, the successful plaintiff is entitled to costs, and defendant is entitled to costs against the unsuccessful plaintiff. * * *' 20 C.J.S. Costs § 95, p. 346; Cornell v. Gulf Oil Corp., 35 F.Supp. 448 (E.D.Pa.1940).
In the Pierce action there were four plaintiffs, each alleging separate causes of action sounding in fraud and violation of the antitrust laws. Here again certain plaintiffs won and certain plaintiffs lost, depending upon the facts of the case. The Court, so far as allowance of costs is concerned, will have to treat each plaintiff separately; those who lost will have to pay costs and those who won will be treated as prevailing parties. The mere fact that plaintiffs joined their causes of action in one suit does not change this rule. Since the four sets of plaintiffs joined in this action did not complain of damages arising out of a single transaction or occurrence, and since the evidence and proof at trial involved four separate claims, with four separate factual situations, each plaintiff will be treated separately in determining the prevailing party entitled to costs.
Where a plaintiff was the prevailing party no costs have been assessed against him. Where plaintiff was not the prevailing party costs were properly assessed against him, even though his action had been joined with that of another plaintiff and even though the action was consolidated for trial.
Plaintiffs urge, in the second place, that there should be only a single docket fee in all nine cases since there was a consolidation for trial. This overlooks the fact that docket fees were incurred in each of the actions and that the actions were consolidated only a relatively short time before trial. A docket fee in each case was properly assessed.
Plaintiffs also complain about the allowance of costs for depositions.
It is well established that the cost of taking deposition is taxable in favor of the prevailing party when 'the taking of the deposition was reasonably necessary even though it may not have been used at the trial.' 4 Moore, Federal Practice § 1207. Title 28 U.S.C. § 1920(2) sets forth clearly that the standard for taxing deposition costs is the necessity for use in the case. This language was changed from on the trial to indicate that discovery expenses, as well as trial expenses, ...