The opinion of the court was delivered by: VAN DUSEN JUSTICE
In this treble damage suit brought under the Robinson-Patman Act, 15 U.S.C.A. 13 et seq., by wholesale fruit and produce merchants in their capacity as buyers at defendant's auction, the legal principles to be followed are different in certain instances than those which would normally be applicable in personal injury actions such as Groenveld v. Reading Co. (Civil Action No. 8324, opinion of May 15, 1950) and Prashker v. Beech Aircraft Corporation, D.C.D.Del.1959, 24 F.R.D. 305. In this case, plaintiffs were business men who were claiming substantial sums.
The controlling statute is 28 U.S.C.A. 1920.
II. Fees of the Court Reporter
28 U.S.C.A. 1920(2) provides:
'A judge or clerk of any court of the United States may tax as costs the following: * * *
'(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.'
B. & C. The transcripts of the hearings and arguments on January 11 and 18, 1961, will be allowed, as these were essentially pre-trial proceedings made necessary by the failure of plaintiffs to have made timely preparation for the trial.
See Bank of America v. Loew's International Corp., D.C.S.D.N.Y.1958, 163 F.Supp. 924, 931-932. Cf. Delaware Valley Marine Supply Company v. The American Tobacco Company et al., D.C., 199 F.Supp. 560.
D. The transcript of the trial will be allowed at the non-daily rate. See Consolidated Fisheries Co. v. Fairbanks Morse & Co., D.C.E.D.Pa. 1952, 106 F.Supp. 714; Delaware Valley Marine Supply Company v. The American Tobacco Company et al., D.C., 199 F.Supp. 560. Under normal circumstances, the trial judge would allow this item at the daily rate in a case such as this since he makes use of the daily copy and did so in this case. See Bank of America v. Loew's International Corp., D.C.S.D.N.Y.1958, 163 F.Supp. 924, 926-928; Perlman v. Feldmann, D.C.D.Conn.1953, 116 F.Supp. 102, 105-109; and cases cited at page 5 of defendant's brief, being Document No. 104. However, there were two special factors in this case which have caused the trial judge to disallow the daily rate:
A. The trial did not last a full two weeks, even though it was expected to last longer than this time, so that it might have been possible to do without the daily transcript.
B. The transcript will not be of controlling weight in the trials of the other plaintiffs in this spurious class action, since defendant refused to agree that the liability verdict as to the plaintiffs whose cases were tried first should control in the cases of the other plaintiffs.
These depositions were taken in good faith and within the bounds of the discovery rules. Under such circumstances, they were 'necessarily obtained for use in the case' under 28 U.S.C.A. 1920(2). See Bank of America v. Loew's International Corp., supra, 163 F.Supp. at pages 930-931, and the many authorities there cited.
However, the depositions of Collinson, Zeitz, Gorberg, Hyman, Pontari and Robinson should be taxed against, or in favor of, them in the trial of their claims, since defendant refused to agree that the January 1961 trial ...