Artisan Contractors Ass'n of America, Inc. v. Frontier Insurance

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-10477 DECEMBER 14, 2001
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00941-CV-ORL-31

ARTISAN CONTRACTORS ASSOCIATION
OF AMERICA, INC., a Delaware corporation,

Plaintiff-Appellant,

versus

FRONTIER INSURANCE COMPANY,
a New York business organization,
FRONTIER PACIFIC INSURANCE COMPANY,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 14, 2001)

Before ANDERSON, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:

Artisan Contractor’s Association of America, Inc. (ACA), the prevailing party
in a copyright infringement suit, appeals the district court’s decision to deny its

motion to recover all of its expert witness fees from Frontier Insurance Company

(Frontier).1 Pursuant to 17 U.S.C. § 505,2 the court in its discretion may allow “full

costs” against a party other than the United States or an officer thereof. The question

in this appeal is whether the “full costs” language of § 505 permits the recovery of

expert witness fees beyond the limitations specified in 28 U.S.C. §§ 1920 and 1821.

We join the United States Court of Appeals for the Eighth Circuit in holding that it

does not. We therefore affirm the district court’s decision.

ACA sued Frontier for infringing its copyright on an insurance policy. The

jury found that Frontier had willfully infringed that copyright and had used ACA’s

service marks. The jury awarded zero damages for the copyright infringement,

$15,000 for the service mark infringement, and $62,000 in profits. After including

statutory damages and prejudgment interest, the district court entered judgment in the

amount of $89,593.00.

1
ACA also challenges the district court’s refusal to award attorney’s fees. After oral
argument and careful review of the record and the district court’s opinion, we conclude that the
district court did not abuse its discretion in declining to award attorney’s fees. ACA’s brief on
appeal fails to assert any other challenges to the judgment of the district court with sufficient
specificity for this court to entertain them.
2
17 U.S.C. § 505 states:
In any civil action under this title, the court in its discretion may allow the
recovery of full costs by or against any party other than the United States or an
officer thereof. Except as otherwise provided by this title, the court may also
award a reasonable attorney’s fee to the prevailing party as part of the costs.

2
Following Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996), the district

court held that 28 U.S.C. § 1920 and 28 U.S.C. § 1821 limit the costs that can be

assessed in favor of a prevailing party to reimburse the party for fees paid to its own

expert witnesses, thus rejecting ACA’s argument that 17 U.S.C. § 505 and its “full

costs” language constitute a clear expression of congressional intent to override the

limitation on expert witness fees in 28 U.S.C. § 1821. ACA appeals, challenging this

holding.

We agree with the district court, and affirm its judgment. We follow the

holding and reasoning of the Eighth Circuit in Pinkham. Pinkham in turn relied upon

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494 (1987).

There the Supreme Court noted that 28 U.S.C. § 1920 embodies Congress’

considered choice as to the kinds of expenses that a federal court may tax as costs

against the losing party.3 The Court noted that the taxable expert witness fees

specified in § 1920(3) are defined in 28 U.S.C. § 1821(b), which provides as follows:

(a)(1) Except as otherwise provided by law, a witness in attendance at
any court of the United States . . . shall be paid the fees and allowances
provided by this section.

(b) A witness shall be paid an attendance fee of $40 per day for each day’s

3
28 U.S.C. § 1920 states, in relevant part:
“A judge or clerk of any court of the United States may tax as costs the following:
...
(3) fees and disbursements for printing and witnesses.”
3
attendance. A witness shall also be paid the attendance fee for the time
necessarily occupied in going to and returning from the place of attendance at
the beginning and end of such attendance or at any time during such
attendance.

28 U.S.C. 1821(b). Rejecting an argument that the court could assess as costs a

prevailing party’s expert witness fees in excess of the amount specified in § 1821, the

Court held:

We will not lightly infer that Congress has repealed §§ 1920 and 1821,
either through Rule 54(d) or any other provision not referring explicitly
to witness fees. As always, “‘[w]here there is no clear indication
otherwise, a specific statute will not be controlled or nullified by a
general one, regardless of the priority of enactment.’” . . . Any argument
that a federal court is empowered to exceed the limitations explicitly set
out in §§ 1920 and 1821 without plain evidence of congressional intent
to supersede those sections ignores our longstanding practice of
construing statutes in pari materia.

Crawford Fitting, 482 U.S. at 445 (citations omitted).

The Eighth Circuit in Pinkham held that the “full costs” language in 17 U.S.C.

§ 505 does not constitute clear, explicit or plain evidence of “congressional intent to

treat 17 U.S.C. § 505 costs differently from costs authorized in other statutes.”

Pinkham, 84 F.3d at 295. Thus, the Eighth Circuit held that expert witness fees

taxable as costs pursuant to § 505 are limited as provided in 28 U.S.C. §§ 1920 and

1821(b). We agree. We follow the Eighth Circuit, and hold that costs that may be

assessed to reimburse a prevailing party for its expert witness fees are limited to the

$40 limit provided for in 28 U.S.C. § 1821(b). Section 505 makes no clear reference

4
to witness fees, nor otherwise evinces a clear congressional intent to supercede the

limitations imposed by § 1821.

Accordingly, the judgment of the district court is

AFFIRMED.