Haarhuis v. Kunnan Enterprises, Ltd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 29, 1999 Decided May 28, 1999

No. 98-7175

Paul Haarhuis, et al.,
Appellants

v.

Kunnan Enterprises, Ltd., et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv02103)

---------

John W. Karr argued the cause and filed the briefs for
appellants.

Jed L. Babbin argued the cause for appellees. With him
on the brief was Sharon L. Babbin.

Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Appellants are nine professional
tennis players (collectively "Haarhuis") who filed an action in
the United States District Court for the District of Columbia

claiming breach of contract against Kunnan Enterprises
("Kunnan"), a Taiwanese corporation. While that action was
pending, appellees, reorganizers of Kunnan ("Reorganizers")
appointed by the Taichung District Court, Taiwan, Republic
of China pursuant to Taiwanese insolvency laws, filed an
action in the United States Bankruptcy Court for the District
of Columbia requesting that the bankruptcy court enjoin
further action against Kunnan on Haarhuis' breach of con-
tract claim. The Reorganizers sought this injunction under
11 U.S.C. s 304 ("s 304"), which allows a representative of a
foreign bankruptcy or reorganization to petition a United
States bankruptcy court to, inter alia, "enjoin the commence-
ment or continuation of any action against a debtor with
respect to property involved in such foreign proceeding." 11
U.S.C. s 304(b)(1)(A)(i). The Reorganizers' expressed intent
in filing the petition was to ensure that all claims against
Kunnan would be decided in one forum, namely, the reorgani-
zation proceeding already underway in Taiwan.

Haarhuis contested the Reorganizers' petition and a trial
was held before the bankruptcy court on August 5, 1997. As
an initial jurisdictional matter, Haarhuis argued that the
bankruptcy court lacked jurisdiction to hear the s 304 case
because Kunnan owned no assets in the United States. The
Reorganizers admitted that Kunnan owned no assets in the
United States but denied that the presence of such assets was
a necessary condition to jurisdiction under s 304. The bank-
ruptcy court agreed with the Reorganizers that its jurisdic-
tion did not turn on the presence or absence of foreign-owned
assets in the United States, and, after rejecting Haarhuis'
other arguments and objections, see below, enjoined the
continuation of the pending breach of contract case. Haar-
huis appealed the judgment of the bankruptcy court to the
district court below and the district court affirmed, explicitly
holding that s 304 did not require the presence of assets in
the United States in order for a bankruptcy court to exercise
jurisdiction thereunder.

On appeal, Haarhuis repeats his basic argument that the
bankruptcy court lacked jurisdiction because Kunnan owns no
assets in the United States. We agree with Haarhuis that

the question appears to be one of first impression; however,
we ultimately agree with the Reorganizers (and the district
and bankruptcy courts) that jurisdiction under s 304 does not
require the presence of assets within the United States.

Haarhuis also renews on appeal a panoply of other objec-
tions to the judgment of the bankruptcy court, all of which
the district court rejected and in none of which we find merit.
Accordingly, we affirm the judgment of the district court in
its entirety.

I. Background

Kunnan is a Taiwanese corporation which manufactures
sporting equipment. Both parties agree that Kunnan owns
no assets in the United States. In April 1995, a creditor of
Kunnan filed in a Taiwanese court for an involuntary reorga-
nization of Kunnan under the laws of Taiwan. The reorgani-
zation was approved by the Taichung District Court in Febru-
ary 1996, and a schedule was filed for various reorganization
activities.

In October 1995, Haarhuis filed a complaint in the United
States District Court for the District of Columbia, alleging
that Kunnan had signed endorsement contracts with the
players and then simply failed to pay its contractual obli-
gations. The complaint also alleged that the endorsement
contracts contained a clause to the effect that the contracts
would be construed in accordance with District of Columbia
law and that any legal action with respect thereto must be
taken in the District of Columbia.

In March 1996, Haarhuis received notice of the reorganiza-
tion proceeding going on in Taiwan. In response, counsel for
Haarhuis submitted a copy of the complaint filed in the
breach of contract case to the administrator of the reorgani-
zation in Taiwan, specifically pointing out the amount, as
listed in the complaint, allegedly owed to each tennis player.

In February 1997, counsel for Kunnan appeared in the
breach of contract case for the purpose of filing a motion to
dismiss for lack of subject matter jurisdiction or, alternative-

ly, for insufficient service of process. Haarhuis filed an
opposition to Kunnan's motion and a motion for leave to
amend (to attempt to fix the jurisdictional problems alleged
by Kunnan in its motions). Kunnan opposed Haarhuis' mo-
tion. In April 1997, before the district court had taken any
action with respect to the parties' motions, the Reorganizers
filed a Petition Commencing Case Ancillary to Foreign Pro-
ceeding under 11 U.S.C. s 304 ("Petition") in the United
States Bankruptcy Court for the District of Columbia, seek-
ing to enjoin further prosecution of the breach of contract
case.

The Reorganizers brought their s 304 Petition under
s 304(b)(1)(A)(i) and (b)(3), which provide that a representa-
tive of a foreign bankruptcy proceeding may file a petition
with a United States bankruptcy court which, if certain
factors are met, may enjoin the commencement or continua-
tion of an action against the debtor with respect to property
involved in the foreign proceeding and/or may order other
appropriate relief.

Haarhuis argues, based on the uncontroverted fact that
Kunnan owns no assets in the United States, that the bank-
ruptcy court lacked jurisdiction under s 304 to entertain the
Reorganizers' Petition. In support of this argument, Haar-
huis relies on the legislative history of s 304 and on the fact
that all of the cases relied upon by the Reorganizers assume
the foreign debtor has assets in the United States.

In addition to his jurisdictional challenge, Haarhuis lodges
a number of other objections to the judgment of the bank-
ruptcy court, arguing that it erred in granting relief under
s 304 because one of the factors governing a bankruptcy
court's determination of whether to grant relief under
s 304--comity--was not present in this case;1 that its finding

__________
1 The Supreme Court has defined "comity" as "the recognition
which one nation allows within its territory to the legislative,
executive, or judicial acts of another nation, having due regard both
to international duty and convenience, and to the rights of its own
citizens, or of other persons who are under the protection of its
laws." Hilton v. Guyot, 159 U.S. 113, 164 (1895).

that the other factors listed in s 304 were met was not
supported by competent or sufficient evidence; and that it
erred in qualifying the Reorganizers' witness, Dr. Hungdah
Chiu, as an expert; in admitting into evidence uncertified
foreign documents; in assessing costs against him; and in
awarding an expert witness fee to Dr. Chiu.

II. Discussion

A. Jurisdiction Under Section 304

The question of whether a bankruptcy court has jurisdic-
tion under s 304 where a foreign debtor owns no assets in the
United States appears to be one of first impression. Certain-
ly, there is no affirmative precedent holding that s 304
requires such assets,2 but Haarhuis is correct in noting that

__________
2 While the statement that no published opinion has explicitly
held that assets in the United States are required for jurisdiction
under s 304 is technically correct, we note an unpublished case, not
cited by the parties, where a court held without discussion that
s 304 was irrelevant in a case where the debtor owned no assets in
the United States. See United Kingdom Mutual S.S. Assurance
Ass'n, Ltd. v. Continental Maritime of San Francisco, Inc., No.
C-91-2798, 1992 WL 486937, at *7 (N.D. Cal. Aug. 31, 1992)
("Section[ ] 304 ... appear[s] to be irrelevant, however, since it
pertains to a foreign debtor with assets in the United States."). See
also Evan D. Flaschen & Brian N. Watkins, Current Developments
Concerning United States Treatment of International Insolvencies,
in 16th Annual Current Developments in Bankruptcy and Reorga-
nization, at 523 (PLI Commercial Law & Practice Course Hand-
books Series No. A4-4453 1994) (noting the Continental Maritime
court's holding that s 304 is irrelevant "when a debtor's request
does not influence assets located in the United States").

Additionally, two bankruptcy courts, In re Brierley, 145 B.R. 151,
169 (Bankr. S.D.N.Y. 1992) and In re Gee, 53 B.R. 891, 897-98
(Bankr. S.D.N.Y. 1985), did discuss the presence-of-assets issue but
in the context of whether assets in the United States were required
when a party seeks discovery under s 304. The courts concluded
that such assets were not required.

Finally, in In re Toga Manufacturing Ltd., 28 B.R. 165, 167
(Bankr. E.D. Mich. 1983), the court did state that in order for s 304

all of the cases relied upon by the Reorganizers dealt with
petitions where assets in the United States were in fact
involved. Haarhuis contends that the reason for this is that a
bankruptcy court has no jurisdiction unless there are assets
upon which it has authority to act. We can surmise an
alternative explanation, namely, that foreign representatives
are more likely to file s 304 petitions when the debtor has
assets in the United States that are vulnerable to attachment
than when a creditor can expect at most to obtain a judgment

__________
to be applicable, "it must be shown that there is a foreign bankrupt-
cy case concerning the debtor and that the debtor has assets in the
United States, more particularly, in the judicial district where it
filed its ancillary proceeding." The court provided support for this
statement by citing to an earlier bankruptcy case, In re Stuppel, 17
B.R. 413 (Bankr. S.D. Fla. 1981). The court in In re Stuppel held
that a petitioner under s 304 must allege, inter alia, the presence
within the district of property involved in the foreign proceeding.
We do not read either of these cases as addressing the jurisdictional
issue before us in this case but rather the venue requirements in 28
U.S.C. s 1410. 28 U.S.C. s 1410(a) provides that a "case under
section 304 of title 11 to enjoin the commencement or continuation
of an action or proceeding in a State or Federal court, or the
enforcement of a judgment, may be commenced only in the district
court for the district where the State or Federal court sits in which
is pending the action or proceeding against which the injunction is
sought." The Reorganizers brought their Petition in the District of
Columbia because that is where the breach of contract case against
Kunnan was commenced; venue was therefore proper in the Dis-
trict of Columbia under 28 U.S.C. s 1410(a). However, 28 U.S.C.
s 1410(b) provides that a "case under section 304 of title 11 to
enjoin the enforcement of a lien against a property, or to require
the turnover of property of an estate, may be commenced only in
the district court for the district in which such property is found."
The two cases cited above appear to confuse the venue requirement
of 28 U.S.C. s 1410(b) under which a petitioner must file in the
district where the property is located with the jurisdictional ques-
tion of whether assets in the United States are required for a s 304
action. (Here of course, 28 U.S.C. s 1410(b) is irrelevant because
venue lies in the district in which Haarhuis filed, namely, the
District of Columbia).

from a United States court which can only be satisfied abroad
where the debtor's assets are actually located.3

Speculations on the cause of the missing precedents aside,
we turn first to the language of the statute. 11 U.S.C. s 304
provides:

(a) A case ancillary to a foreign proceeding is com-
menced by the filing with the bankruptcy court of a
petition under this section by a foreign representative.

(b) Subject to the provisions of subsection (c) of this
section, if a party in interest does not timely controvert
the petition, or after trial, the court may--

(1) enjoin the commencement or continuation of--
(A) any action against--
(i) a debtor with respect to property involved in
such foreign proceeding; or
(ii) such property; or
(B) the enforcement of any judgment against the
debtor with respect to such property, or any act or
the commencement or continuation of any judicial
proceeding to create or enforce a lien against the
property of such estate;
(2) order the turnover of the property of such es-
tate, or the proceeds of such property, to such foreign
representative; or
(3) order other appropriate relief.

11 U.S.C. s 304(a), (b) (1994).

As a practical matter, it does appear that
ss 304(b)(1)(A)(ii), (b)(1)(B), and (b)(2) must be read as neces-
sitating assets under the jurisdiction of the United States.
For example, s 304(b)(1)(A)(ii) provides that the bankruptcy
court may enjoin the continuation of an action against the
property involved in a foreign proceeding, and a United

__________
3 Presumably, where there are no assets in the United States, a
creditor with a judgment from a United States court will have to
proceed to the foreign bankruptcy or reorganization proceeding and
stand in line with other creditors to get his judgment enforced.

States court must actually have jurisdiction over property in
order to entertain an in rem type suit against such property.
Similarly, s 304(b)(1)(B) appears to contemplate assets in the
United States because a United States court can only create
or enforce a lien against property over which it has jurisdic-
tion. Finally, s 304(b)(2) also appears to contemplate assets
in the United States; again, a United States court cannot
order the turnover (to the representative of the foreign
reorganization proceeding) of property over which it has no
jurisdiction.

However, while ss 304(b)(1)(A)(ii), (b)(1)(B), and (b)(2)
seem to require the presence of assets in the United States,
the Reorganizers did not bring their Petition under those
subsections. Instead, they brought their Petition under
ss 304(b)(1)(A)(i) and (b)(3). Section 304(b)(1)(A)(i) provides
for the enjoinment of an action against a debtor (i.e., not
property) with respect to property involved in a foreign
bankruptcy or reorganization proceeding (i.e., not property
necessarily located in the United States but rather property
tied up in the foreign bankruptcy or reorganization proceed-
ing). In fact, s 304(b)(1)(A)(i) describes precisely the case we
have here. The property involved in the reorganization pro-
ceeding with respect to Kunnan is in Taiwan (or maybe
elsewhere as well, but certainly not in the United States);
nevertheless, Haarhuis sued the debtor (Kunnan) here with
respect to property located abroad.

The Reorganizers also brought their Petition under
s 304(b)(3). The language of s 304(b)(3), providing that the
bankruptcy court can order other appropriate relief, does not
suggest the necessity of the presence of assets in the United
States and s 304(b)(3) has been read simply as further indica-
tion of the broad discretion of bankruptcy courts under s 304
"to mold appropriate relief 'in near blank check fashion.' " 3
Collier Bankruptcy Manual p 304.07 (1998) (quoting In re
Culmer, 25 B.R. 621, 624 (Bankr. S.D.N.Y. 1982)).4 In sum,

__________
4 Section 304(b)(3) has historically been used as the basis for,
inter alia, ordering entities to submit to discovery by a foreign
representative, appointing co-trustees with responsibility for a debt-

the plain language of s 304 compels the conclusion that a
bankruptcy court has jurisdiction under ss 304(b)(1)(A)(i) and
(b)(3), even where no assets are present in the United States.

Beyond the statutory text, however, Haarhuis argues that
the legislative history unambiguously indicates a congression-
al intent that all s 304 cases be limited to those involving
assets in the United States. The legislative history to which
Haarhuis refers does include the following:

This section [304] governs cases filed in the bankruptcy
courts that are ancillary to foreign proceedings. That is,
where a foreign bankruptcy case is pending concerning a
particular debtor and that debtor has assets in this
country, the foreign representative may file a petition
under this section, which does not commence a full
bankruptcy case, in order to administer assets located in
this country, to prevent dismemberment by local credi-
tors of assets located here, or for other appropriate
relief.

S. Rep. No. 95-989, at 35 (1978), reprinted in 1978
U.S.C.C.A.N 5787, 5821. It would be disingenuous to deny
that the foregoing language, read in isolation, supports an
inference that local assets will usually be involved in s 304
cases. However, as the district court below correctly pointed
out, "[n]owhere does the legislative history suggest that the
presence of debtor-owned property in the United States
which might be vulnerable to domestic process was a sine qua
non of bankruptcy court jurisdiction under s 304." Haar-
huis v. Kunnan Enterprises, Ltd., 223 B.R. 252, 254 (D.D.C.
1998). Congress may indeed have presumed that the usual
s 304 case would involve assets in the United States, and that
presumption seems to have been borne out by the dearth of
s 304 cases without such assets. Nevertheless, all by itself,
this one largely descriptive congressional statement does not
indicate a clear enough normative intent to limit s 304 cases
to those involving U.S. assets to override the statutory text
itself. See Garcia v. United States, 469 U.S. 70, 75 (1984)

__________
or's assets in the United States, and authorizing a foreign represen-
tative to maintain foreign causes of action under the umbrella of the
s 304 case. See 3 Collier Bankruptcy Manual p 304.07.

(asserting that "only the most extraordinary showing of con-
trary intentions from [the legislative history] would justify a
limitation on the 'plain meaning' of the statutory language").

Finally, Haarhuis points to a number of decisions that he
claims implicitly if not explicitly assume that s 304 only
applies when a debtor has assets in the United States. These
decisions often track the language of the Senate Report just
discussed with respect to the purpose of s 304, See, e.g.,
Victrix Steamship Co. v. Salen Dry Cargo, A.B., 825 F.2d
709, 714 (2d Cir. 1987) (noting that congressional purpose
behind s 304 was to allow "foreign bankrupts to prevent
piecemeal distribution of assets in this county by filing ancil-
lary proceedings in domestic bankruptcy courts"). However,
when push comes to shove, none of the cases addressed the
precise issue here; namely, does s 304 require the presence
of assets in the United States in order for jurisdiction to lie.
We now answer this question in the negative and accordingly
hold that the bankruptcy court below had jurisdiction to
entertain the Reorganizers' petition.

B. Comity

Haarhuis also argues that one of the factors governing a
bankruptcy court's decision to grant relief under s 304, comi-
ty, was not met in this case. Section 304(c) provides that, in
determining whether to grant relief under subsection (b), "the
court shall be guided by what will best assure an economical
and expeditious administration of such estate, consistent
with--"
(1) just treatment of all holders of claims against or
interests in such estate;

(2) protection of claim holders in the United States
against prejudice and inconvenience in the processing of
claims in such foreign proceeding;

(3) prevention of preferential or fraudulent dispositions
of property of such estate;

(4) distribution of proceeds of such estate substantially in
accordance with the order prescribed by this title;

(5) comity

11 U.S.C. s 304(c).5

"Comity is a doctrine that encourages deference to foreign
laws and judgments if macro systemic concepts, such as due
process and impartiality, are present in the foreign proceed-
ing." 3 Collier Bankruptcy Manual p 304.08(5)(b). Haarhuis
argues against the existence of comity based on a provision of
Taiwan's bankruptcy law that it submitted to the bankruptcy
court. This provision states that a bankruptcy adjudicated
outside of the Republic of China would not take effect with
respect to properties that the debtor possessed within the
Republic of China. The Reorganizers' expert witness, Dr.
Chiu, however, testified that the provision relied upon by
Haarhuis would not apply to Kunnan's case because Kunnan
was involved in a reorganization and the provision applied to
bankruptcies only. In other words, Dr. Chiu testified that,
even were the provision read as evidence against the exis-
tence of comity, the provision has no applicability to the case
involving Kunnan. Haarhuis provided no expert witness of
his own to rebut the testimony of Dr. Chiu.

Moreover, Dr. Chiu also affirmatively testified that Taiwa-
nese reorganization law was based on United States and
Japanese law and testified to the existence of a Friendship
Treaty between the United States and China. From this
testimony, the bankruptcy court found that the Taiwanese
provisions governing the reorganization would not be repug-
nant to provisions of United States reorganization law and
that Haarhuis would not be treated unfairly, vis-a-vis local
creditors, in the reorganization proceeding in Taiwan. The
bankruptcy court was entitled to rely on the testimony of Dr.
Chiu to find that comity existed, and, given the broad discre-
tion granted to bankruptcy courts under s 304, we cannot say
that the bankruptcy court here erred in so finding.6

__________
5 A sixth factor, "(6) if appropriate, the provision of an opportu-
nity for a fresh start for the individual that such foreign proceeding
concerns," is not applicable here.

6 As one court has noted:

C. Sufficient and Competent Evidence to Support the Other
Factors

Haarhuis also argues more generally that the other factors
of s 304 were not satisfied because the bankruptcy court
relied solely on the testimony of Dr. Chiu and that his
testimony was neither competent nor sufficient to support a
finding that these factors had been met. The bankruptcy
court found that there was no evidence of unjust treatment of
claims under Taiwanese law; that there was no showing that
Taiwanese law discriminates against foreign nationals; that
Taiwanese law protects against fraudulent dispositions of
property; that priority is generally accorded to claims similar
to those accorded priority in the United States; and that it
was in the interest of the United States with respect to
comity concerns to recognize the propriety of the reorganiza-
tion proceeding underway in Taiwan. The bankruptcy court
based these findings on a text submitted by the Reorganizers
pertaining to the major laws of Taiwan; Dr. Chiu's testimony
that the text was an accurate translation from the Chinese
and was deemed authoritative in the field; and Dr. Chiu's
substantive testimony with respect to the laws of Taiwan,
their relation to United States laws, and their applicability to
the reorganization proceeding involving Taiwan. We find this
evidence to be both competent and sufficient to sustain the
bankruptcy court's finding that the s 304(c) factors had been
met.

__________
[S]ection 304 was intended to arm the bankruptcy courts with
the maximum flexibility possible in handling ancillary cases in
light of principles of international comity and respect for the
laws and judgments of other nations. One of my colleagues in
an oft-quoted passage has likened the court's prerogative to the
molding of appropriate relief "in near blank check fashion...."
In re Culmer, 25 B.R. 621, 624 (Bankr. S.D.N.Y. 1982). As the
Goerg Court [In re Georg, 844 F.2d 1562 (11th Cir. 1988)]
concluded, this articulated legislative intent warrants construc-
tion of the statute so as to further rather than stymie the
Congressional desire.

In re Brierly, 145 B.R. at 160.

D. Qualification of Dr. Chiu

Haarhuis next objects to the qualification of Dr. Chiu as an
expert witness. This objection is based on Dr. Chiu's conces-
sion that he was not an expert with respect to the specialized
field of bankruptcy law. Dr. Chiu is, however, an expert on
Chinese and Taiwanese law and their relation to United
States law. Dr. Chiu holds degrees from National Taiwan
University and Harvard Law School. He is a professor of
international and Chinese law at the University of Maryland,
has written numerous books and articles on Chinese law, and
is currently president of the Chinese Society of International
Law. We find that Dr. Chiu was eminently qualified to
testify and, in any event, the decision whether to qualify an
expert witness is within the broad latitude of the trial court
and is reviewed for abuse of discretion. See Kumho Tire Co.
v. Carmichael, __ U.S. __, 119 S. Ct. 1167, 1176 (1999). The
bankruptcy court did not err in qualifying Dr. Chiu.

E. Admission of Foreign Documents

Haarhuis also objects to the admission into evidence of
documents consisting of notices and decisions of the Taichung
District Court involving the reorganization of Kunnan be-
cause these documents lacked final certification. The bank-
ruptcy court did admit the documents without final certifica-
tion, but Federal Rule of Civil Procedure 44(a)(2) allows for
such admission under certain circumstances, including (ac-
cording to the Advisory Committee Notes), as is true here,
where there is no United States consular service in the
foreign country to provide such certification. Rule 44(a)(2)
provides that if reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of foreign
documents, a court may, for good cause shown, admit an
attested copy of the foreign document without final certifica-
tion. The Advisory Committee Note to 44(a)(2) says:

[I]t is recognized that in some situations it may be
difficult or even impossible to satisfy the basic require-
ments of the rule. There may be no United States
consul in a particular foreign country.... Therefore,
the final sentence of subdivision (a)(2) provides the court

 with discretion to admit an attested copy of a record
without a final certification.
The bankruptcy court found that Haarhuis had a reason-
able opportunity to examine the authenticity and accuracy of
the foreign documents and that because there was no consu-
lar service in Taiwan, the documents could be admitted into
evidence without final certification. The bankruptcy court
did not abuse its discretion under Rule 44(a)(2) in so doing.
F. Award of Costs

Haarhuis objects to the costs that were assessed against
him by the bankruptcy court. The costs awarded totaled
$2,522.55 and included costs for clerk's fees, service of sum-
mons and complaint, and copying. While acknowledging that
Federal Rule of Civil Procedure 54(d)7 provides for the award
of costs against the losing party as a matter of course,
Haarhuis nevertheless objects to the award of costs, based on
what seems at base to be an argument that the Reorganizers
ought never to have brought the case in the first place. This
argument goes nowhere. The award of costs was proper.
G. Expert Witness Fee

Finally, Haarhuis objects to the award of an expert witness
fee to Dr. Chiu. The bankruptcy court awarded Dr. Chiu
$1,584.70 under Federal Rule of Civil Procedure 26(b)(4)(C)
for the time that Dr. Chiu spent in responding to Haarhuis'
discovery request, specifically, the time that Dr. Chiu spent
traveling to be deposed by Haarhuis' counsel, the deposition
itself, and the time spent returning from the deposition.
Haarhuis argues that under 28 U.S.C. s 1821(b), Dr. Chiu
was only entitled to a fee of $40. 28 U.S.C. s 1821(b) does in
fact limit witness fees to $40 per day. However, the fee here
was awarded under Rule 26(b)(4)(C), which applies where, as
here, an expert witness spends time responding to the oppos-
ing party's discovery request. See Marine Petroleum Co. v.

__________
7 Federal Rule of Civil Procedure 54(d)(1) provides that "costs
other than attorneys' fees shall be allowed as of course to the
prevailing party unless the court otherwise directs." See also Baez
v. United States Dep't of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982)
(in banc) (per curiam) ("[T]rial judges have rarely denied costs to a
prevailing party whose conduct has not been vexatious when the
losing party has been capable of paying such costs.").

Champlin Petroleum Co., 641 F.2d 984, 988-89 (D.C. Cir.
1979) ("Discovery into facts possessed and opinions enter-
tained by an adversary's expert is now regulated by the
Federal Rules of Civil Procedure. The governing principles
are set forth in Rule 26(b)(4)...."). Rule 26(b)(4)(C) pro-
vides that "[u]nless manifest justice would result, (i) the court
shall require that the party seeking discovery pay the expert
a reasonable fee for time spent in responding to discovery
under this subdivision...." The bankruptcy court found that
Dr. Chiu's hourly fee of $300 per hour was reasonable and
that he deserved to be paid portal-to-portal. We cannot say
that the bankruptcy court abused its discretion in so finding.

III. Conclusion

For the foregoing reasons, the judgment of the district
court is affirmed.

So ordered.