Preview:

COURT OF CHANCERY OF THE STATE OF DELAWARE
STEPHEN P. LAMB VICE CHANCELLOR New Castle County Court House 500 N. King Street, Suite 11400 Wilmington, Delaware 19801

Submitted: October 2, 2006 Decided: October 11, 2006 Daniel F. Wolcott, Jr., Esquire Potter Anderson & Corroon, LLP 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 John A. Sergovic, Esquire Sergovic, Ellis & Shirey, P.A. 9 North Front Street P.O. Box 566 Georgetown, DE 19947

RE: Dewey Beach Lions Club v. Longacre, et al. C.A. No. 162-S Dear Counsel: I have reviewed and considered the submissions of the parties and, for the following reasons, conclude that the plaintiff's bill of costs should be approved in its entirety. This dispute arises from a bill of costs submitted by the plaintiff, the prevailing party in the litigation. The defendants challenge two line items therein: the $175 paid to the sheriff to obtain service of process on the out-of-state defendants, and the $994.90 paid to LexisNexis File & Serve for electronic filing fees. Court of Chancery Rule 54(d) provides, with certain exceptions, that "costs shall be allowed as of course to the prevailing party unless the Court otherwise directs." The rule, however, does not define the term "costs." Case law under Rule 54 explains that costs are "allowances in the nature of incidental damages awarded by law to reimburse the prevailing party for expenses necessarily incurred

Dewey Beach Lions Club v. Longacre, et al. C.A. No. 162-S October 11, 2006 Page 2

in the assertion of his rights in court."1 An allowance of "court costs does not amount to an attempt by the court to fully compensate a litigant for all the expenses the litigant incurred . . . ."2 The allowance of costs is more frequently litigated in the context of contracts requiring reimbursement than it is under Rule 54(d).3 After parsing out the contract cases that tend to expand the definition of costs beyond the scope of Rule 54(d), it appears that certain costs have been held to be recoverable under Rule 54(d). Courts have interpreted "costs" to include expert witness fees that are covered by statute,4 court filing fees, and the usual and customary costs incurred in serving of process.5 Courts have excluded the expense of computer legal research, transcript fees, miscellaneous expenses (such as travel and meals), and the cost of photocopying.6 The parties do not cite, and the court did not locate, any Delaware case considering whether LexisNexis File & Serve fees, as such, are recoverable as costs under Rule 54.7 The Court of Chancery requires that all cases be eFiled.8 Therefore, all required ordinary and reasonable fees the plaintiff incurred in the process of eFiling should generally be recoverable as costs under Rule 54(d) as "necessarily incurred in the assertion of [its] rights in court."9 In reviewing the LexisNexis
See Comrie v. Enterasys Networks, Inc., 2004 WL 936505, at *4 (Del. Ch. Apr. 27, 2004) (holding contract term "costs" co-extensive with its meaning under Rule 54) (citing Peyton v. William C. Peyton Corp., 8 A.2d 89, 91 (Del. 1939), quoted in Donovan v. Del. Water & Air Res. Comm'n, 358 A.2d 717, 723 (Del. 1976)). 2 Sliwinski v. Duncan, 608 A.2d 730 (Table), 1992 WL 21132, at *3 (Del. Jan. 15, 1992). 3 See, e.g., Cove on Herring Creek Homeowners' Ass'n, Inc. v. Riggs, 2005 WL 1377492 (Del. Ch. June 06, 2005); Comrie, 2004 WL 936505; All Pro Maids, Inc. v. Layton, 2004 WL 3029869 (Del. Ch. Dec. 20, 2004). 4 10 Del. C.

Download 83210.pdf

Delaware Law