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DUNN v. MERRILL LYNCH

February 16, 1968

Burton D. DUNN, Plaintiff,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, Defendant


Pollack, District Judge.


The opinion of the court was delivered by: POLLACK

MEMORANDUM

POLLACK, District Judge.

 This action was brought under the Securities Exchange Act of 1934 and under common law fraud and negligence counts by a customer against his stockbroker. After a verdict of a jury and judgment in its favor, the successful defendant moves for review under Rule 54(d) of the Federal Rules of Civil Procedure of the taxation of costs against the unsuccessful plaintiff as determined by the Clerk of this Court. The unsuccessful plaintiff cross-moves for review of two items of defendant's bill, which were allowed by the Clerk.

 The plaintiff is a resident of Cannes, France and maintained a securities account in the defendant's Cannes office. He transacted business with and through Gerald Troncin at first and later, through John J. Turrell; successively, they were the managers of defendant's Cannes office and both of them are residents of France. The issues in the case turned largely on the acts and transactions of these men in relation to the plaintiff's ownership and sale of 1200 shares of Syntex stock.

 During the course of the litigation, the plaintiff served a notice of examination before trial of the defendant by its employees, Troncin and Turrell said depositions to be taken by the plaintiff in New York. The defendant resisted the production of these witnesses and the taking of such oral depositions on the ground that the men named were not defendant's managing agents. This contention was overruled and the plaintiff was given the right to examine the defendant in this litigation by Troncin and Turrell as managing agents.

 The order of Judge Tyler entered at plaintiff's instance read:

 
"Since I find that, upon the facts here presented and within the meaning of that term as contemplated by the Rules, Messrs. Turrell and Troncin are managing agents of defendant, at least for the purposes of this litigation, defendant is directed to produce these two individuals in New York City for examination upon oral depositions seven (7) days before trial of this action is scheduled to begin. So Ordered."

 The defendant complied and the defendant produced the two in this District and they were examined at length before trial by the plaintiff; their testimony was actually utilized to some extent on the trial itself by the plaintiff. Their presence in New York at the trial was reasonably necessary and their testimony relevant, indeed "vital". The issue of credibility was of critical importance in the jury's determination, and since the plaintiff himself testified as to his version of the facts, the personal appearance of Messrs. Troncin and Turrell was not reasonably dispensable.

 The items of costs now in controversy are the following:

 
I. $965.29 of transportation costs representing the round trip air fare of Messrs. Troncin and Turrell from France which the Clerk has taxed at $32.00 or $16.00 a piece;
 
II. $910.49 of maintenance expenses of the same two witnesses from France for 8 days maintenance in New York, the Clerk having taxed $68.00 for each;
 
III. $582.00 of court reporters' fees for the trial transcript furnished to the Court which the Clerk taxed in full;
 
IV. $472.70 of costs incident to taking of the pretrial deposition of the plaintiff which the Clerk taxed in full.

 The statute, 28 U.S.C. § 1821, provides that a witness attending before any person authorized to take his deposition pursuant to an order of a Court of the United States as well as a witness attending in any Court of the United States, shall receive $4.00 for each day's attendance and for the time necessarily occupied in going to and returning from the Court and 8 cents per mile for going from and returning to his place of residence. Witnesses who attend at points so far removed from their respective residences as to prohibit return thereto from day to day are entitled to an additional allowance of $8.00 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the place of attendance. It is further provided in the statute that in lieu of the mileage allowance provided for therein, ...


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