Free Motion for Review - District Court of Colorado - Colorado

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

Document 478

Filed 05/04/2007

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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.

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 Motion for Review of Taxation of Costs, and in support thereof, state as follows: On March 15, 2005, the court entered summary judgment, dismissing all of the claims of Thomas Richards and John Bartlett in this case. Richards and Bartlett were removed from the caption and, in effect, were no longer involved in the case. On March 28, 2007, the court entered final judgment in the case. On April 10, 2007, defendants filed two bills of costs, seeking awards of costs against Richards and Bartlett, although they had been dismissed from the case over two years earlier. On April 27, 2007, costs in the amount of $1,286.84 were taxed by the clerk against Richards. That same day costs in the amount of $2,852.94 were taxed by the clerk against Bartlett.

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

Document 478

Filed 05/04/2007

Page 2 of 4

D.C.COLO.LCivR 54.1 requires that a bill of costs be filed within ten days after entry of judgment or final order. It is Richards' and Bartlett's position that entry of judgment or final order means the judgment or order that ends the litigation for the party in question. At the time summary judgment was granted against Richards and Bartlett it removed them from the case. This eliminated any continued accumulation of costs against them, and made the ascertainment of taxable costs feasible and appropriate. Defendants should have filed their bills of costs within ten days of the order of summary judgment. This interpretation makes sense because reasonable costs will be easier to ascertain in close proximity to the judgment. Reasonable costs are more difficult to ascertain two years later. For example, if a deposition was reasonably necessary to the litigation the resulting costs are generally allowable. Ramos v. Lamm, 713 F.2d 546, 560 (10th Cir. 1983). It is much easier to determine if a deposition was reasonably necessary ten days after judgment than it is to determine two years after judgment. Research has failed to locate any case law directly on point on this matter. However, an unpublished decision by Judge Miller suggests that Richards' and Bartlett's interpretation is correct. In that case, the plaintiff moved to voluntarily dismiss all claims against one defendant, but only after that defendant moved for summary judgment. Overton v. Board of Comm'rs, 2006 U.S. Dist. LEXIS 22677, *1 - *2 (D. Colo. April 19, 2006) (Exhibit 1). The court dismissed the claims with prejudice. Id. at *2 - *3. The court ordered costs were to be had by the dismissed defendant, upon compliance with D.C.COLO.LCivR 54.1. Id. at *3. The case remained pending against the remaining against the other defendants, meaning no final judgment had entered. Id.

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

Document 478

Filed 05/04/2007

Page 3 of 4

The fact that the court ordered costs before a final judgment was entered suggests the court understood "judgment or final order" in Local Rule 54.1 to mean the order ending the case for the particular party. This is sensible because it would be difficult for the dismissed defendant to know when the "final judgment" was entered, since he/she would no longer be a part of the case. Presumably "judgment or final order" means the same thing when applied to both plaintiffs and defendants. Just as in Overton, the judgment dismissing all of the claims of Richards and Bartlett made the determination of costs ripe. For all of the above reasons Bartlett and Richards request that the court find defendants' bills of costs to have been untimely and to deny all costs to the defendants against these two plaintiffs. RESPECTFULLY SUBMITTED this 4th day of May, 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

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

Document 478

Filed 05/04/2007

Page 4 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 4, 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] [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]

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