Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 500

Filed 06/12/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

REPLY RE: PLAINTIFFS THOMAS RICHARDS' AND JOHN BARTLETT'S MOTION FOR REVIEW OF TAXATION OF COSTS

Plaintiffs Thomas E. Richards and John R. Bartlett, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Reply Re: Motion for Review of Taxation of Costs, and in support thereof, state as follows: The majority of the defendants' brief is spent on the irrelevant topic of whether the summary judgment order dismissing all claims of Bartlett and Richards was a "final judgment" pursuant to Fed R. Civ. P. 54. Plaintiffs' motion on page one acknowledges that the summary judgment order was not a final judgment when it stated that "On March 28, 2007, the court entered final judgment in the case." The relevant question is whether the ten-day time limit provided in D.C.COLO.LCivR 54.1 requires a "final judgment" before it begins to run. Plaintiffs' position is that it does not.

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

Document 500

Filed 06/12/2007

Page 2 of 5

Defendants spend little of their response actually addressing this issue. Defendants principally rely upon the case of Woodmen Accident & Life Ins. Co. v. Bryant, 784 F.2d 1052 (10th Cir. 1986). However, Woodmen does not decide the particular issue before the court, and the guidance it provides is as favorable to the plaintiffs' position as it is the defendants'. The Tenth Circuit itself acknowledged that there was very little guidance on the issue on the timing and finality of a cost order. Woodmen, 784 F.2d at 1057. In Woodmen the Tenth Circuit was reviewing a decision of the United States District Court for the District of New Mexico. Therefore, it was not determining the meaning of D.C.COLO.LCivR 54.1, or any other local rule for this district. Additionally, it does not appear that the district court in New Mexico had an applicable local rule, because the Tenth Circuit only looked at Fed. R. Civ. P. 54(d) and recognized that it did not specify a time in which motions for costs must be made. Woodmen, 784 F.2d at 1057. Any decision or statement regarding the timing for costs would have been dicta in any event, because the issue before the Tenth Circuit was whether a cost order had to be certified under Fed. R. Civ. P. 54(b) before it can be appealed prior to final judgment. Id. at 1057, 1058 fn 1. In Woodmen the trial court had dismissed all of the cross-claim plaintiff's claims but one, and had awarded costs on those claims to the cross-claim defendant. Woodmen, 784 F.2d at 1057-58 & fn 2. On a rule 54(b) interlocutory appeal, the cross-claim plaintiff sought review of the taxing of costs. Id. at 1057. However, the cross-claim plaintiff failed to seek certification of the issue. Id. at 1057. The Tenth Circuit did NOT rule that it was incorrect or inappropriate to rule on costs prior to a final judgment. The Tenth Circuit did not rule that the court lacked authority to award costs prior to a final judgment. The Tenth Circuit merely ruled that any award 2

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

Document 500

Filed 06/12/2007

Page 3 of 5

of costs prior to a final judgment was an interlocutory order subject to adjustment by the court, and would be treated as such by the Tenth Circuit unless certified pursuant to Fed. R. Civ. P. 54(b). Id. at 1057-58. Woodmen apparently recognizes the authority of the trial court to award costs in the absence of a final judgment, subject to further revision or adjustment. It also recognizes that Fed. R. Civ. P. 54 does not provided a time limit itself, meaning that local rule 54.1 will control. The Tenth Circuit's point in regard to "unnecessarily complicat[ing] matters" is well taken in regard to the specific facts of that case. In Woodmen there was an outstanding claim involving the cross-plaintiff. Woodmen, 784 F.2d at 1057-58 and fn 2. Thus, the outcome of that claim would require apportionment of costs, or a complete reversal of costs. Id. at 1057-58. However, in cases such as this, and Overton v. Board of Comm'rs, 2006 U.S. Dist. LEXIS 22677, *1 - *2 (D. Colo. April 19, 2006) where no claims remain involving a party, that complication does not exist. Costs will only need to be adjusted if a claim is reinstated, which is easy enough to do by vacating the cost order. Local Rule 54.1 itself does not use the term final judgment. Nor does it incorporate or refer to Fed. R. Civ. P. 54. It appears that by using the terminology "judgment or final order" the drafters meant a judgment or final order disposing of the case in regard to a particular party. As stated in plaintiffs' motion, this interpretation is sensible because it allows efficient decision making by the court. If a single plaintiff's claims are dismissed, the necessity of expenses can easily be determined within ten days. Determining such necessity becomes much harder after several years. Likewise, a defendant who has all claims against it dismissed can easily seek costs

3

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

Document 500

Filed 06/12/2007

Page 4 of 5

within ten days of such an order, but may have difficulty learning of a "final judgment" several years later in order to timely file a motion for costs. An award of costs prior to judgment regularly takes place in regard to discovery disputes. Fed. R. Civ. P. 37 provides for costs as sanctions in regard to motions to compel and motions for protective orders. It is typical that when the sanctions provision of rule 37 is invoked that an award of costs will be made, and an amount determined, prior to a final judgment. Such an award is subject to revision prior to final judgment. Pursuant to local rule 54.1, an award of costs pursuant to Fed. R. Civ. P. 54 should be treated the same way. As soon as a judgment or final order makes it clear that a party is or is not the prevailing party, the ten-day clock of D.C.COLO.LCivR 54.1 begins to run, regardless of whether there is yet a final judgment. RESPECTFULLY SUBMITTED this 12th day of June, 2007.

s/J. Keith Killian J. Keith Killian, Esq. Damon Davis, Esq. Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Thomas E. Richards John R. Bartlett Michael E. Clawson and Jared L. Dillon

4

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

Document 500

Filed 06/12/2007

Page 5 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 12 , 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Thomas E. Richards Post Office Box 391 Hotchkiss, Colorado 81419 John Bartlett 1945 Mahogany Way Windsor, Colorado 80550 United States Mail

United States Mail

s/J. Keith Killian J. Keith Killian, Esq. Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

5