Page:Calnetics Corp. v. Volkswagen of America, Inc. (532 F.2d 674).pdf/22

 the role of ‘private attorney general’ * * *.” 353 F.Supp. at 1225. Such an award is now precluded by Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

B.&emsp;Costs.

VW and Subsidiary argue that the district court erred in awarding the plaintiff $5,955.92 in costs for counsel’s copies of depositions in contravention of a local rule of the district court which provided, with respect to deposition costs, that “[c]ounsel’s copies are not taxable.” Calnetics urges that the local rule was merely for the guidance of the Clerk of the Court and did not abrogate the district judge’s inherent discretion. Calnetics’ argument is foreclosed by Rio Grande Irrigation and Colonization Co. v. Gildersleeve, 174 U.S. 603, 608–09, 19 S.Ct. 761, 763, 43 L.Ed. 1103, 1105 (1899) (“ ‘A rule of the court thus authorized and made has the force of law, and is binding upon the court as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case * * *’ * * *,” quoting Thompson v. Hatch, 3 Pick. 512, 515, 20 Mass. 512 (1827); accord, Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 148, 73 L.Ed. 243, 248 (1929).

Calnetics relies on Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963), which held that a “trial judge [has] the power to tax the expense of * * * depositions * * [because] such power is ‘implicit in 28 U.S.C.A. § 1920(2)’ * * .” Independent Iron Works is inapposite because the cost award there did not contravene a local rule.

The award of costs for counsel’s copies of depositions was error.

Distributor appeals from an order of the district court denying in part a motion to amend its answer. Distributor sought to add three counterclaims. The first counterclaim was against Calnetics for breach of warranty. The second and third counterclaims were brought against Calnetics, certain officers and directors of Calnetics, and certain employees of Distributor. (Both the second and third counterclaims involve identical parties.) Additionally, both the second and third counterclaims are based on the same allegations of fact: that Calnetics paid substantial sums of money to certain Distributor employees to induce them to use their positions to see to it that Distributor purchased all, or substantially all, of its air-conditioner requirements from Calnetics.

The second and third counterclaims differ as to the nature of the damages caused, the remedy sought, and the theory of liability. The second counterclaim alleges commercial bribery in violation of § 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c). The second counterclaim alleges that this commercial bribery caused Distributor to continue to deal with plaintiff despite the inferior nature of plaintiff’s product, and that this caused Distributor to suffer damages in excess of $150,000, in lost sales due to customer dissatisfaction, damages to its good will and reputation, and costs in having to repair and remedy the defective products. The third counterclaim is based on state statutory prohibitions against inducing the breach of a fiduciary relationship. The third counterclaim seeks to recover the secret profits (i.e., the bribes) paid to Distributor’s employees, and exemplary damages.

The district court granted Distributor’s motion to amend in part, allowing the addition of the first and third counterclaims, but denying the addition of the second. The district court’s order does not explain its reasons for refusing to allow the addition of the second counterclaim.

Calnetics suggests several procedural reasons: the proposed amendment was tardy, would have caused undue confusion of the issues, would have caused undue delay. But these hindsight rationalizations are not convincing in light of the district court’s granting the motion to add two other counterclaims by Distributor, one of which (the third) would have posed the identical procedural problems.