Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF CLAWSON'S MOTION TO REVIEW TAXATION OF COSTS (DKT. NO. 477) Defendants Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, hereby submit their Response to Plaintiff Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), filed May 4, 2007. I. FACTUAL BACKGROUND

This action was originally brought by four Plaintiffs, alleging claims for failure to accommodate their alleged disabilities under the Americans with Disabilities Act ("ADA"), wrongful termination in violation of the ADA, retaliation in violation of the ADA, wrongful discharge in violation of public policy under Colorado law, breach of implied contract, and promissory estoppel. In its March 3, 2005 Order (Dkt. No. 280), the Court granted Defendants' Motion to Dismiss Plaintiff Clawson's wrongful termination claim and all four initial Plaintiffs' retaliation claims based on lack of subject matter jurisdiction (Dkt. No. 269). Then, in its March

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15, 2005 Order (Dkt. No. 287), the Court granted in part and denied in part Defendants' Revised Motion for Summary Judgment, dismissing all claims as to Plaintiffs Bartlett and Richards, and all claims as to Plaintiffs Clawson and Dillon, except for Plaintiff Clawson's claim for failure to accommodate and Plaintiff Dillon's claims for failure to accommodate and wrongful termination under the ADA. The remaining claims of Clawson and Dillon were tried to a jury, which found in favor of both Plaintiffs. Verdict Form (Dkt. No. 402). Post-trial, Defendants renewed the arguments made in their Rule 50(a) motion, upon which the Court had reserved ruling. The Court upheld the jury verdict as to Clawson, but granted Defendants' motion as to Dillon, holding that Defendants were entitled to judgment as a matter of law on Dillon's claims. Order (Dkt. No. 447), dated January 24, 2007. The Court also reduced Clawson's economic damage award. Id. On March 27, 2007, the Court entered its Judgment in favor of Plaintiff Clawson in the amount of $540,991.07, consisting of $219,011.00 in economic damages, $71,980.07 in interest on economic damages, and $250,000.00 in non-economic damages (Dkt. No. 457). Defendants thereafter filed a Motion for Remittitur of the non-economic damage award (Dkt. No. 459), which motion is still pending. Plaintiff Clawson filed his Motion to Review Taxation of Costs (Dkt. No. 477) on May 4, 2007. Plaintiff also filed a Motion for Attorneys' Fees, Costs and Interest ("Plaintiff's Motion for Attorneys' Fees") (Dkt. No. 464), on April 10, 2007, and a Motion to Supplement Motion for Attorneys' Fees, Costs and Interest ("Plaintiff's Motion to Supplement") (Dkt. No. 482), on May 14, 2007. Those two motions have been referred to Magistrate Judge Hegarty. Dkt. No. 472, entered May 1, 2007; Dkt. No. 483, entered May 14, 2007.

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Defendants previously filed a consolidated response to Plaintiff's Motion to Review Taxation of Costs, Plaintiff's Motion for Attorneys' Fees, and Plaintiff's Motion to Supplement. Dkt. No. 492, filed June 1, 2007 ("Consolidated Response"). At that time, Defendants mistakenly believed that the Motion to Review Taxation of Costs had already been referred to Magistrate Judge Hegarty. By Minute Order (Dkt. No. 494) filed June 5, 2007, Magistrate Judge Hegarty pointed out that a consolidated response to all three motions could not be filed because the Motion for Taxation of Costs had not been referred to him; thus, he directed Defendants to refile their Response to Plaintiff's Motion to Review Taxation of Costs. On June 7, 2007, Defendants filed their Unopposed Motion to Refer Plaintiff Clawson's Motion to Review Taxation of Costs to Magistrate Judge Hegarty (Dkt. No. 495), as the Motion to Review Taxation of Costs addresses similar legal and factual issues as Plaintiff's Motion for Attorneys' Fees and Plaintiff's Motion to Supplement. The Motion to Refer remains pending. Accordingly, Defendants are now filing their separate Response to Plaintiff's Motion to Review Taxation of Costs. II. ARGUMENT

As explained in Plaintiff Clawson's Motion to Review Taxation of Costs and Plaintiff's Motion to Supplement, the Clerk allowed costs to Clawson pursuant to 28 U.S.C. §1920 in the amount of $9,403.02, but disallowed certain other costs, which Plaintiff now seeks either as Section 1920 costs or, in the alternative, as expenses under Section 1988. For ease of reference, Defendants will address such costs in the order set out in Plaintiff Clawson's Motion to Supplement at 3-6. See also Ex. 53 to Plaintiff's Motion to Supplement. Several of these costs should be disallowed, in part, for the reasons set forth below.

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A.

Deposition Costs Defendants have no objection to the costs of the depositions of Scanlan, Hopper, Turpin,

and O'Connell ($1,343.40). However, the depositions of Defendants' expert witnesses, Anctil and Darnell, related to each of the four Plaintiffs, and therefore, such costs should be reduced by 75%, or $816.86. As discussed in Defendants' Consolidated Response, Dkt. 492, at 37-38, fees and costs should not be awarded for time spent on claims by other plaintiffs who were ultimately unsuccessful. Rather, in such instances, the court should limit the award by considering the extent to which the time spent on other plaintiffs "aided or was reasonably calculated to aid the claims of successful plaintiffs." Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1175 (6th Cir. 1990) (remanding for determination of this issue). See also Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) ("where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained"); Ross v. Buckeye Cellulose Corp., 764 F. Supp. 1543, 1551-52 (M.D. Ga. 1991) (reducing award by 25% because only 6 of 13 plaintiffs were awarded damages), rev'd on other grounds, 980 F.2d 648 (11th Cir. 1993); Santiago v. Mercado, 175 F. Supp.2d 164, 169 (D.P.R. 2001) (reducing award by 50% because, inter alia, claims by 20 of 25 plaintiffs were dismissed at summary judgment). Thus, only $272.29 should be awarded with respect to the Anctil and Darnell depositions. B. Rule 702 Hearing Transcript Costs Plaintiff seeks $218.29 in transcript costs. However, these costs were the direct result of Plaintiffs' own lack of preparation and inability to clearly articulate their expert's opinions, all of which led the Court to have to conduct three separate Rule 702 hearings and to disallow the vast majority of their expert's opinions. Thus, half of the transcript costs should be disallowed.

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On March 18, 2005, Defendants filed their Motion in Limine to Exclude Testimony of Plaintiffs' expert Ron Brennan (Dkt. No. 288). The Court set an evidentiary hearing for April 6, 2005. Prior to the hearing, Plaintiffs filed their Response to Defendants' Motion (Dkt. No. 307), dated April 4, 2005. To put it mildly, the hearing on April 6 was a fiasco; the Court was frustrated with the inability of Plaintiffs' counsel to properly articulate Brennan's opinions and the bases therefor, and instructed counsel to go back, start over by restating Brennan's opinions and the objections thereto, and return for a continued hearing on August 25, 2005. See Courtroom Minutes of April 6, 2005 hearing (Dkt. No. 310); Transcript (Dkt. No. 312). The next Rule 702 hearing on August 25, 2005 was only somewhat better. Again, the Court became frustrated with Plaintiffs' counsel and took over the questioning of Brennan. See Courtroom Minutes of August 26, 2005 hearing (Dkt. No. 374); Transcript (Dkt. No. 375). The parties did not finish the Rule 702 hearing, and therefore, a third session of the hearing was required to be held, on September 8, 2005. See Courtroom Minutes of September 8, 2005 (Dkt. No. 376); Transcript (Dkt. No. 377). Ultimately, on October 31, 2005, at the final pretrial conference, the Court ruled on Defendants' Daubert/Rule 702 challenge to Brennan's testimony. In all, 31 of Brennan's 61 listed opinions related to Plaintiff Clawson; of the 31, only 3 were allowed by the Court. Similarly, 30 of Brennan's 61 listed opinions related to Plaintiff Dillon; of the 30, only 3 were allowed by the Court. 1 Defendants do not dispute that Plaintiffs were successful to some extent, as Brennan was allowed to testify at trial on economic damages issues. However, the vast majority of his

Of course, any part of the Daubert/Rule 702 motion and hearings related to Dillon should not be recoverable.

1

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opinions were disallowed, and the Rule 702 hearing was made unnecessarily lengthy ­ extending over three separate sessions ­ because of Plaintiffs' inability to articulate for the Court Brennan's opinions and the bases therefor in a clear and succinct fashion. Accordingly, the Rule 702 hearing transcript costs should be reduced by 50%, and only $109.15 awarded to Plaintiff. See also Consolidated Response, Dkt. 492, at 39-42 (discussing this same issue with respect to Plaintiffs' Motion for Attorneys' Fees and Plaintiff's Motion to Supplement). C. Pretrial Hearing Transcript Costs Plaintiff seeks transcript costs in the amount of $170.08. Defendants do not object to such expense. D. Deposition Witness Fees for Anctil and Darnell Plaintiff seeks $80.00 for such fees. Defendants do not object to such expense. E. Additional Copying Expenses Plaintiff seeks $953.54 for such expenses. Defendants object only to the $685.70 expense for copying trial exhibits. In submissions to the Court in preparation for the final pretrial conference, Plaintiff insisted on designating over 600 exhibits for trial; ultimately, only 141 exhibits (on both sides) were admitted at trial, many by stipulation and which were never actually used with any witness. Plaintiff should not be rewarded for unnecessarily multiplying the trial exhibits in this case, and therefore, the expenses sought by Plaintiff in this category should be reduced by $685.70, for an award of $267.84. See also Consolidated Response, Dkt. 492, at 44 (discussing this same issue with respect to Plaintiffs' Motion for Attorneys' Fees and Plaintiff's Motion to Supplement); Karp Report, Ex. A, at 4 (discussing this same issue).

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F.

Subpoena Fees for Expert Witness Depositions Plaintiff seeks $69.00 for such fees. Defendants do not object to such expense.

G.

Checkmate Fees for Rush Filing Services Plaintiff seeks $107.00 for two rush deliveries to the Court in this case. Defendants

object to the award of such amounts. Both would appear to be the result of counsel's failure to prepare and submit such documents in a timely fashion; there is no explanation as to why such courtesy copies could not have been transmitted to the Court in another, less-expensive way (e.g., via e-mail or fax). Defendants should not be required to pay for counsel's procrastination, and therefore, such expenses should be denied. H. Outside Copying Costs Plaintiff seeks $316.89 for such outside copy costs. Defendants do not object to such expenses, since a reasonable allocation to the unsuccessful Plaintiffs (Bartlett, Richards, and Dillon) has been made. III. CONCLUSION

In sum, Plaintiff seeks a total of $4,347.35 in Section 1920 costs disallowed by the Clerk, or in the alternative, as additional Section 1988 expenses. Defendants object to $1,718.70 of such expenses, as set forth above, but do not object to an award of $2,628.65.

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Dated: June 26, 2007.

Respectfully submitted,

s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2007, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] (Keith Killian) [email protected] (Damon Davis)

s/ Jeffrey T. Johnson

3728004_1.DOC

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