Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 05/29/2007

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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' RESPONSE TO PLAINTIFFS RICHARDS AND BARTLETT'S MOTION FOR REVIEW OF TAXATION OF COSTS

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 Plaintiffs Richards and Bartlett's Motion for Review of Taxation of Costs (Dkt. No. 478), filed May 4, 2007. For the reasons set forth below, Plaintiffs' Motion should be denied. I. FACTUAL BACKGROUND Plaintiffs Thomas E. Richards and John R. Bartlett were two of the four original plaintiffs in this case. Richards and Bartlett's retaliation claims were dismissed for lack of subject matter jurisdiction pursuant to the Court's March 3, 2005 Order (Dkt. No. 280). Their remaining claims were dismissed by the Court's March 15, 2005 Summary Judgment Order (Dkt. No. 287). Neither order was certified pursuant to Rule 54(b). In a motion filed March 31, 2005, Defendants sought certification of the Summary Judgment Order for interlocutory appeal under

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28 U.S.C. § 1292(b) (Dkt. No. 300). Plaintiffs opposed this motion, see Response filed April 11, 2005 (Dkt. No. 317), and the motion was denied, see Order of April 19, 2005 (Dkt. No. 327). Nearly three months later, on July 15, 2005, Plaintiffs filed a motion for partial reconsideration of the Summary Judgment Order (Dkt. No. 352). This motion was also denied. See Courtroom Minutes of Oct. 31, 2005 hearing (Dkt. No. 378); Order of Nov. 1, 2005 (Dkt. No. 379). The two remaining plaintiffs, Michael E. Clawson and Jared L. Dillon, proceeded to trial on their remaining claims. Plaintiff Dillon's claims were dismissed post-trial under Rule 50(a). Order of Jan. 24, 2007 (Dkt. No. 447). On March 28, 2007, after ruling on the post-trial motions, the Court entered the final judgment (Dkt. No. 457). Defendants timely filed their bills of costs on April 10, 2007 (Dkt. Nos. 460, 461, 462). On April 27, 2007, costs were taxed against Richards in the amount of $1,286.84 (Dkt. No. 467) and against Bartlett in the amount of $2,852.94 (Dkt. No. 468). II. ARGUMENT Plaintiffs Richards and Bartlett's sole argument in their Motion for Review is that Defendants' bills of costs were untimely since they were not filed within ten days of the Court's Summary Judgment Order, which disposed of the last of Plaintiffs' claims. Plaintiffs do not dispute that the bills of costs were filed within ten days of the Court's final entry of judgment. Because the bills of costs were not due until the tenth day after entry of judgment, and because there was no judgment against Plaintiffs Richards and Bartlett until the final judgment was entered after trial, the bills of costs were timely. D.C.Colo.LCivR 54.1 provides, in relevant part, "A bill of costs must be filed on the form provided by the court within ten days after entry of the judgment or final order." Under the

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plain meaning of this rule, bills of costs are not due until ten days after the "judgment" or "final order" is entered. Plaintiffs' argument is premised on the faulty assumption that the Summary Judgment Order was such a judgment or final order. However, they have cited no authority whatsoever for such a proposition. Indeed, the authority on point is to the contrary. An order that does not dispose of all claims as to all parties is not a final order or a judgment, absent a certification by the court pursuant to Federal Rule of Civil Procedure 54(b). Rule 54(b) provides, When more than one claim for relief is presented in an action, . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Applying this rule, the Court have could entered judgment as to the claims by Plaintiffs Richards and Bartlett following the Summary Judgment Order (just as the Court could have done as to the claims that were dismissed in the Court's March 3, 2005 Order), so long as the judgment complied with the requirements of Rule 54(b). However, in the absence of such an order, the rulings against Plaintiffs remained interlocutory. Id. See also Charles A. Wright, Arthur R. Miller & Mary K. Kane, 10 Fed. Prac. & Proc. Civ.3d § 2654 ("[a]bsent a certification under Rule 54(b) any order in a multiple-party or multiple-claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory"); Montgomery v. City of Ardmore, 365 F.3d 926, 934 (10th Cir. 2004) (noting that prior interlocutory orders that adjudicate fewer than

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all of the parties' claims are merged into the final judgment unless previously certified under Rule 54(b)); McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (same). Because no certification was made under Rule 54(b), the summary judgment ruling did not become a final order or judgment until the final judgment was entered following the trial of the remaining plaintiffs' claims. Indeed, the Tenth Circuit has expressed that "unless the trial court -- as part of its Rule 54(b) certification -- directs taxing and apportionment of costs, the time for taxing costs begins to run only from the entry of what would ordinarily be a final judgment as to all parties and all issues." Woodmen Accident & Life Ins. Co. v. Bryant, 784 F.2d 1052, 1057 (10th Cir. 1986) (emphasis removed). In that case, the appellant had obtained a certification under Rule 54(b) for the underlying summary judgment order, but not for the cost order. Id. The Tenth Circuit dismissed the appeal from the district court's order awarding costs, holding that absent a Rule 54(b) certification specific to the issue of costs, costs should not be taxed until a final judgment is entered as to all parties and all issues. Id. at 1057-58. Thus, bills of costs should not be due and costs should not be taxed by a court until a judgment is entered, whether under Rule 54(b) or following the final resolution of all claims asserted in the case. In reaching its holding, the Woodmen court was particularly concerned about later proceedings in the case that could alter the assessment of costs. Id. This concern applies equally where some parties' claims are dropped from the case, because until a judgment is entered, any orders disposing of those claims remain interlocutory and, thus, "subject to revision." Fed. R. Civ. P. 54(b). Indeed, Plaintiffs themselves acknowledged this point when they moved for partial reconsideration of the Summary Judgment Order nearly four months after it was entered. In their motion for reconsideration, Plaintiffs argued that:

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The court has yet to enter a final judgment in this case because the claims of Clawson and Dillon remain before it. Fed. R. Civ. P. 54(b). This court did not make the findings to enter a final judgment on less than all of the claims as the rule requires and consequently did not enter such a judgment. A court retains the authority to reconsider orders of partial summary judgment until a final judgment is entered. Dkt. No. 352, filed July 15, 2005, at 9. 1 Because, as even Plaintiffs acknowledge, no judgment was entered until the final judgment was entered on March 28, 2007, the bills of costs were not due until ten days after that final judgment. Plaintiffs' citation to Overton v. Board of Commissioners is inapposite and does not lend support to their contrary interpretation of Rule 54(b) and Local Rule 54.1. 2006 U.S. Dist. LEXIS 22677 (D. Colo. 2006) (attached as Ex. 1 to Pls.' Mot. for Review). In that case, the court did not hold that the bill of costs would be due or that costs would be taxed prior to the entry of judgment. Rather, the court merely indicated that the defendant who was being dismissed from the case would need to comply with Local Rule 54.1 in order to recover its costs. Id. at *2-3. Nor did the court have to resolve the issue of the proper timing of the taxation of costs, as the parties did not dispute this point and reached a stipulation as to the amount of costs. Overton v. Bd. of Comm'rs, U.S. District Court for the District of Colorado, Case No. 1:05-cv00186, Dkt. No. 153 (entered May 10, 2006).

Given Plaintiffs' acknowledgement in July 2005 -- nearly four months after the Summary Judgment Order was entered -- that the summary judgment ruling was not final and thus could be amended, their argument now that as of the date the Summary Judgment Order was entered they "were removed from the caption and, in effect, were no longer involved in this case" and were "removed . . . from the case," Mot. to Review at 1, 2, would appear to be directly contradictory. Following Plaintiffs' current logic, their motion for reconsideration was improper, they had no valid reason to oppose Defendants' Motion for Certification under 28 U.S.C. § 1292(b), and their time for filing an appeal has already run.

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III. CONCLUSION THEREFORE, for the foregoing reasons, Plaintiffs Richards and Bartlett's Motion for Review of Taxation of Costs should be denied. Dated: May 29, 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) 295-8019 Fax: (303) 713-6202 [email protected] [email protected]. ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on May 29, 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] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/ Jeffrey T. Johnson Jeffrey T. Johnson HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8019 Fax: (303) 713-6202 [email protected] ATTORNEYS FOR DEFENDANTS

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