Free Motion for Referral - District Court of Colorado - Colorado

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

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Filed 06/07/2007

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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' UNOPPOSED MOTION REQUESTING REFERRAL OF PLAINTIFF'S MOTION TO REVIEW TAXATION OF COSTS TO THE MAGISTRATE JUDGE Defendants, by and through their attorneys, Holland & Hart LLP, hereby request that Plaintiff Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), filed May 4, 2007, be referred to Magistrate Judge Hegarty, the magistrate judge assigned to this case. As grounds for this Motion, Defendants state as follows: 1. Plaintiff Clawson filed his Motion to Review Taxation of Costs (Dkt. No. 477) on

May 4, 2007. Defendants' response was due on May 29, 2007. On May 23, 2007, Defendants filed an unopposed Motion for Extension of Time until June 1, 2007 to Respond to Plaintiff's Motion to Review Taxation of Costs (Dkt. No. 489), which motion is still pending. Pursuant to the Court's Order dated May 22, 2007 (Dkt. No. 488), Defendants' responses to Plaintiff's Motion for Attorneys' Fees, Costs and Interest (Dkt. No. 464), filed April 10, 2007 ("Plaintiff's Motion for Attorneys' Fees"), and to Plaintiff's Motion to Supplement Motion for Attorneys'

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

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Fees, Costs and Interest (Dkt. No. 482), filed May 14, 2007 ("Plaintiff's Motion to Supplement"), were also due on June 1, 2007. 2. Plaintiff's Motion for Attorneys' Fees and Plaintiff's Motion to Supplement have

been referred to Magistrate Judge Hegarty. See Dkt. No. 472, entered May 1, 2007 (referring Plaintiff's Motion for Attorneys' Fees); Dkt. No. 483, entered May 14, 2007 (referring Plaintiff's Motion to Supplement). 3. Because the issues in Plaintiff's Motion to Review Taxation of Costs are

interrelated with those in Plaintiff's Motion and Plaintiff's Motion to Supplement, Defendants filed a consolidated Response to all three motions on June 1, 2007. See Dkt. No. 492, filed June 1, 2007. At that time, Defendants mistakenly believed that the Motion to Review Taxation of Costs had also been referred to Magistrate Judge Hegarty. 4. 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, absent the granting of this Motion, Defendants will be required to refile their Response, carving off the issue of Section 1920 costs, and addressing such issue in a separate pleading. 5. The three motions at issue address largely the same legal and factual issues. More

specifically, in Plaintiff's Motion for Attorneys' Fees and Plaintiff's Motion to Supplement, Plaintiff seeks as expenses under 42 U.S.C. §1988 many of the same costs which he also seeks in his Motion to Review Taxation of Costs. Indeed, Plaintiff's Motion to Review Taxation of Costs seeks recovery of various costs either as allowable costs under 28 U.S.C. §1920 or, in the

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

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alternative, as expenses under 42 U.S.C. §1988. Plaintiff's Motion to Supplement makes the same arguments, in the alternative. 6. Moreover, the issue of whether certain costs or expenses are allowable under

either statute overlaps with various issues relating to Plaintiff's request for attorneys' fees ­ for example, whether the fees and expenses associated with Plaintiff's hiring of a trial consultant should be disallowed and what reduction in fees, expenses and costs is proper to account for the time and expense associated with the unsuccessful plaintiffs' claims. 7. For these reasons, Defendants submit that it would be more efficient and a better

use of the Court's resources to have the same judicial officer consider all three pending motions. Thus, because the issues concerning attorneys' fees and Section 1988 expenses (in Plaintiff's Motion for Attorneys' Fees and Plaintiff's Motion to Supplement Motion) have already been referred to the Magistrate Judge, the issues concerning costs under Section 1920 (in Plaintiff's Motion to Review Taxation of Costs) should likewise be referred to him. 8. In accordance with D.C.COLO.LCivR 7.1(A), Defendants state that they have

conferred with counsel for Plaintiff Clawson regarding this motion. Plaintiff does not object to the relief sought by this motion. WHEREFORE, Defendants respectfully request that Plaintiff Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), filed May 4, 2007, be referred to Magistrate Judge Hegarty.

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

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Dated: June 7, 2007.

Respectfully submitted,

s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez HOLLAND & HART LLP D.C. Box 6 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on June 7, 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 email addresses: [email protected] (J. Keith Killian) [email protected] (Damon J. Davis)

s/ Jeffrey T. Johnson Jeffrey T. Johnson

3720234_1.DOC

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