If you think like me, you were thinking that the $1,000 fee for designating a case to the Business Court would be recoverable as an item of costs if you were successful in the case.
But I’m wrong. Last Thursday, in an Order in Prospect Marketing Group, Inc. v. Chasnan, Inc., Judge Jolly ruled that there is no statutory basis for the recovery of the designation fee as a cost.
In looking at the statute governing costs, that is absolutely correct. Section 7A-305 of the General Statutes, which is titled "Costs in civil actions," says in subsection (d) that "[t]he following expenses, when incurred, are assessable or recoverable, as the case may be. The expenses set forth in this subsection are complete and exclusive and constitute a limit on the trial court’s discretion to tax costs pursuant to G.S. 6-20."
The designation fee is not included in the items listed in Section 7A-305(d). So that’s out as an item of recovery.
And what did the prevailing party in Prospect Marketing Group recover on its application for $2,248.19 in costs, which included the $1,000 designation fee? A whopping $7.56, which represented the only recoverable amount: the cost incurred for service of process by certified mail, which is specifically allowed by G.S. §7A-305(d)(4).
I’m sure that the Prospect application for costs cost more than $7.56 to prepare, making it a losing exercise financially. It seems like that is true for most applications for costs — that they generate so little that they are not worth pursuing.