UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HAARHUIS, PAUL

v.

LO, KUN NAN


98-7175a

D.C. Cir. 1999


*	*	*


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


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 




__________

n 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 




__________

n 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


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




__________

n 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


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




__________

n 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, 




__________

n 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


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




__________

n 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'


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




__________

n 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




__________

n [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


[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


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


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. 




__________

n 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


III. Conclusion


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


So ordered.