Free Motion for Review - District Court of Colorado - Colorado

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

Document 477

Filed 05/04/2007

Page 1 of 11

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.

PLAINTIFF CLAWSON'S MOTION TO REVIEW TAXATION OF COSTS

Plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submits this Motion to Review Taxation of Costs, and in support thereof, states as follows: I. PROCEDURAL HISTORY On April 27, 2007, the Clerk of the Court awarded Clawson costs pursuant to 18 U.S.C. § 1920 in the amount of $9,403.02. Plaintiff hereby petitions this Court to review the taxation of costs and award costs in addition to those granted by the Clerk of the Court pursuant to 18 U.S.C § 1920. Plaintiff's request is consistent with the judgment entered in plaintiff's favor on March 28, 2007, and is consistent with relevant case law. The Bill of Costs (Original Bill of Costs) dated April 10, 2007, and Amended Bill of Costs (Amended Bill of Costs) dated April 27, 2007, which was provided to the defendant and the Clerk of the Court and filed as document 469, and the supporting exhibits attached to both Bills of Costs are hereby incorporated into this motion by

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

Document 477

Filed 05/04/2007

Page 2 of 11

reference. Please refer to those documents and exhibits in support of the costs sought by this motion. F.R.C.P. 54(d)(1) states: "Except when express provision therefore is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs ...." 28 U.S.C. § 1920 indicates which costs are recoverable for a successful plaintiff. The plaintiff has been awarded costs pursuant to 28 U.S.C. § 1920, but argues that under that provision, additional costs should have been awarded. II. ARGUMENT FEES FOR TRANSCRIPTION OF DEPOSITIONS AND PRE-TRIAL HEARINGS 28 U.S.C. § 1920(2) provides for taxation of "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." Plaintiff requested $11,273.98 be taxed as deposition transcription costs pursuant to 28 U.S.C. § 1920(2), in the Original Bill of Costs filed with the Clerk of the Court on April 10, 2007. This amount represented the stenographic costs for all depositions conducted in this case, copies of the F.R.E. 702 hearings regarding plaintiff's expert, Ron Brennan, copies of final pretrial hearings, and copies of the trial testimony of Ed Langrand, Mountain Coal Human Resource Director. The plaintiff submitted the Amended Bill of Costs on April 27, 2007, requesting $8,730.98 be taxed under 28 U.S.C. § 1920 (2). Pursuant to the standards articulated by the Clerk of the Court, this amount only represented costs of depositions either used in motions for summary judgment or used at trial and transcriptions of pretrial hearings. In the Amended Bill of Costs, plaintiff did not include in the costs for depositions that were not used at trial (notably depositions of defendant's experts) and the transcription of Mr. Landgrand's trial testimony. Plaintiff was not

2

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

Document 477

Filed 05/04/2007

Page 3 of 11

making a waiver of these costs, which were included in the Original Bill of Costs, but was providing a simplified Bill of Costs in accordance with the standards given by the Clerk. This was based upon an agreement with the defendants and the Clerk. The parties agreed to preserve their arguments, but to amend their Bills of Costs based upon the standards the Clerk of the Court had provided at the initial hearing. Plaintiff also removed the $20.00 in costs incurred as a result of the deposition of Bill Olsen (renting space with the town of Paonia for the deposition) from the category of transcription costs to the category of costs incident to the taking of a deposition. The Clerk of the Court awarded $6,796.16 for deposition costs used in motions for summary judgment, by either defendants or plaintiff, and depositions read as testimony at trial (Shanks and Tweddell depositions). The Clerk denied the court reporter costs for transcriptions of pretrial hearings and the depositions used at trial for purposes other than being read into testimony. The following depositions were used at trial to cross-examine the witnesses and to impeach witnesses: Drema Scanlon; Stan Hopper; Lavon Turpin; and Pat Anctil. The following depositions were used at trial to prepare questions to cross-examine the witnesses: Mary Stahl, Steve O'Connell, and Jerome Darnell. The costs of the depositions of Scanlon, Hopper, Stahl, and Turpin amount to $969.40, reference number 99 in Exhibit 4 - 1920(2) Costs. (Grand Valley Reporting Appearance fee $130.00; Depo. of Scanlon $347.20; Depo. of Hopper $151.90, Depo. of Stahl $139.50, Depo. of Turpin $164.30, Exhibits $31.50, and Mailing $5.00). The cost of the deposition of Steve O'Connell amounts to $374.00, reference number 111 in Exhibit 4 - 1920(2) Costs. The cost of the deposition of Pat Anctil amounted to $577.05, reference number 103 in Exhibit 4 - 1920(2) Costs. The cost of the deposition of Jerome Darnell amounted to $512.10, reference number 100 in Exhibit 4 - 1920(2) Costs. As such, plaintiff required the transcripts of

3

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

Document 477

Filed 05/04/2007

Page 4 of 11

these depositions to properly prepare plaintiff's witnesses for trial, to prepare questions for direct and cross-examination of these witnesses, and for impeachment purposes. When 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). Whether a deposition is necessary for use in a case under the provisions of § 1920 is not determined solely by whether the deposition was used at trial or in ruling upon pending motions. Ross v. Hilltop Rehab. Hosp., 124 F.R.D. 660, 661 (D. Colo. 1988). "It would be grossly unfair to decide which depositions were reasonably and necessarily obtained by applying only the cold, clear light of 20-20 hindsight. Deposition costs should be allowed if the depositions were reasonably necessary when taken, even if not later used at trial." Moss v. Colorado Springs, 1986 U.S Dist. LEXIS 17856, *10 (D.Colo. November 10, 1986)(Exhibit 11)(emphasis added); see also Bruno v. Western Electric Co., 618 F. Supp. 398, 406 (D. Colo. 1985). In Ramos v. Lamm, 539 F. Supp. 730, 754 (D.Colo. 1982), Judge Kane held: In this complex case it would be unreasonable to find that certain depositions were not necessary because they were not actually used at trial; likewise it would be unreasonable to find that copies were not necessary. In truth, it would have constituted malpractice if the plaintiffs' attorney had failed to take depositions. These depositions costs were reasonable and necessarily incurred for use in the trial and for preparation for the trial. The deposition testimony was an integral part of the case because it was the foundation of both the direct and cross examination of each witness referenced above. The jury, of course, relied upon such testimony in rendering its decision. The 10th Circuit Court of Appeals ruled in a case dealing exclusively with the cost provision of 28 U.S.C. § 1920(2) that: A district court does not abuse its discretion in taxing transcription costs associated with depositions that were `actually utilized by the court in considering [the defendant's] motion for summary judgment.' Merrick v. Northern Natural Gass Co., 911 F.2d 426,

4

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

Document 477

Filed 05/04/2007

Page 5 of 11

434-35 (10th Cir. 1990); see also Gibson v. Greater Park City Co., 818 F.2d 722, 725 (10th Cir. 1987) (finding no abuse of discretion in allowing a defendant to recover the costs of several depositions when the court relied on the depositions in deciding the case). Tilton v. Capitol Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997). Here, the trier of fact was the jury and not the court. Therefore, it is reasonable to presume the jury, in rendering its decision, relied upon the trial testimony which was a natural consequence of the prior deposition testimony of witnesses and also relied on deposition testimony actually used for impeachment purposes. The depositions were also used by the attorneys in preparation for trial. As such, plaintiff is entitled to recover these stenographic costs. Likewise, plaintiff is entitled to recover the stenographic costs of transcripts of the court's oral Order on the F.R.E. 702 hearings regarding the fitness of Ronald Brennan to provide expert testimony in this matter. It is within the discretion of the trial court to tax the costs of obtaining copies of pretrial transcripts when the transcripts are necessarily obtained for use in the case. Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp. 2d 1085, 1091 (D. Colo. 1998). The F.R.E 702 hearing transcripts were integral and necessary for preparing the testimony of plaintiff's expert, Ronald Brennan. Oral orders were made and transcripts were necessary to determine to what Mr. Brennan could testify and upon what he may give conclusions. Plaintiff also needed the transcripts to prepare to respond to the arguments and/or impeachment of Mr. Brennan by defendants. While not specifically cited in the plaintiff's Motion for Back Pay, the ruling in the Rule 702 hearings were critical to plaintiff's argument in support of the jury verdict based on the expert testimony of Mr. Brennan at trial. In their motion to reduce back pay damages, defendants repeated many of the arguments made in the hearing. The transcripts assisted in reviewing how these arguments had been addressed previously and how they had been resolved by the court. The

5

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

Document 477

Filed 05/04/2007

Page 6 of 11

transcripts for Rule 702 hearings amount to a total costs of $218.29, reference numbers 108, 113, and 114 in Exhibit 4 - 1920(2) Costs. Plaintiff is entitled to recover the stenographic costs of transcripts of the court's oral Orders on pretrial motions when these transcripts were used in trial preparation. It is within the discretion of the trial court to tax the costs of obtaining copies of pretrial transcripts when the transcripts are necessarily obtained for use in the case. Karsian, supra. The transcripts of these hearings and the orders of the court regarding these hearings were necessary for plaintiff's trial preparation. The transcripts for pretrial motions and hearings amount to $170.08, reference numbers 109, 112, and 115 in Exhibit 4 - 1920(2) Costs. The Clerk of the Court taxed as costs $6,796.16 for stenographic costs under § 1920(2). Plaintiff respectfully requests that the Court award him an additional $2,820.92 to reimburse him for the remaining stenographic costs of the depositions and transcripts of the oral orders for the F.R.E. 702 hearings and pretrial motions. FEES FOR WITNESSES Fees for witness are recoverable pursuant to 28 U.S.C. § 1920(3). Plaintiff requested witness fees in the amount of $2,295.23 in the original Bill of Costs and $2,178.74 in the amended Bill of Costs. The Clerk taxed as costs $2,068.34 for witness fees. This taxation of costs did not include witness fees for depositions, unless the deposition was used in summary judgment motions or the deposition was read into evidence at trial. If plaintiff is awarded transcription costs for the depositions of Patricia Anctil and Jerome Darnell, defendants' two expert witnesses, then plaintiff also requests that witness fees of $40.00 for Ms. Anctil, reference number 21 in Exhibit 5 1920(3) Costs, and $40.00 for Mr. Darnell, reference number 22 in Exhibit 5 - 1920(3) Costs, be taxed in addition to the fees taxed by the clerk.

6

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

Document 477

Filed 05/04/2007

Page 7 of 11

The Clerk of the Court taxed as costs $2,068.34 for witness fees. Plaintiff respectfully requests that the Court award him an additional $80.00 for the witness fees of Ms. Anctil and Mr. Darnell which were incurred in trying this case. FEES FOR EXEMPLIFICATION AND COPIES Fees for exemplification and copying are recoverable pursuant to 28 U.S.C. 1920(4). Plaintiff requested $2,098.87 in his original Bill of Costs. This amount represented all of the costs of outside copies, costs of medical record copies charged to plaintiff by the medical providers, and costs of employment record copies charged to plaintiff by former employer or the Department of Labor. Plaintiff requested $327.52 in his Amended Bill of Costs, which consisted only of the actual copy costs for exhibits admitted at trial. The Clerk awarded $327.52 for exemplification and copy costs. Plaintiff is entitled to the incurred costs of $182.81 to obtain copies of plaintiff's medical records (reference 169-171,174 and 182 in Exhibit 8 ­ 1920(4) Costs, and reference number 190, 193, 193A, 196, and 198 in Exhibit 9 ­ 1920(4) Costs) and $27.03 to obtain employment and labor records (reference number 129 in Exhibit 1 -1920(1) Costs and reference number 134 in Exhibit 2 ­ 1920(1) Costs). Tilton, 115 F.3d at 1476 (upholding district court's determination that costs incurred in photocopying third party documents were reasonably necessary to the litigation). Plaintiff also incurred $58.00 in copy costs by the Gunnison County and District Courts for copies of the case file made when the case was moved from the state court system to the federal district court. This item was erroneously included in fees for service of summon and the complaint, reference number 128 in the Exhibit 1 - 1920(1) Costs. Pursuant to 28 U.S.C. § 1920(4) and the 10th Circuit opinion in Tilton, 115 F. 3d at 1475-76, plaintiff is entitled to recover these actual costs.

7

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

Document 477

Filed 05/04/2007

Page 8 of 11

Furthermore, the parties shared equally the entire copy costs of all the possible exhibits put in the exhibit notebooks for the trial. These copies were obtained and paid for by defendants originally, with plaintiff later reimbursing defendants for plaintiff's half of the costs. Plaintiff's half of the costs of copies of all the exhibit notebooks, with all possible exhibits to be admitted at trial, amounted to $1,013.22, reference numbers 13, 15, 16, and 17 in Exhibit 7 - 1920(4) Costs. The necessity of an exhibit, similar to a deposition, should not be analyzed in a moment of crystal clarity induced by hindsight. Copies of exhibits should be allowed if the copies of the exhibits were reasonably necessary when made, even if not later used at trial. Cf. Bruno, 618 F. Supp. at 406. Both sides contributed to the large number of exhibits used at trial, including defendants' insistence on the inclusion of medical records of Bartlett and Richards, the previously dismissed plaintiffs. This was in part due to the inherent uncertainty regarding how the trial will progress and the uncertainty regarding potential evidentiary rulings. Accounting for the Clerks taxing of $327.52 for exemplification and copies of exhibits admitted at trial, plaintiff requests an additional $685.70 be taxed for plaintiff's share of exemplification and copies of all exhibits for the required exhibit notebooks used at trial. In summary, plaintiff respectfully requests that the Court award him an additional $953.54 for the exemplification costs incurred in trying this case. This amount includes the following costs: $182.81 for Medical Records, $27.03 for Employment and Labor records, $58.00 for Gunnison County Courts, and $685.70 for exhibit notebooks for trial. COSTS INCIDENT TO TAKING A DEPOSITION Costs incident to taking a deposition are recoverable pursuant to Fed.R.Civ.P. 26(b)(4)(C). Plaintiff requested costs incident to taking a deposition in the amount of $1,781.00 in the original Bill of Costs (inappropriately included expert witness fees of Ms. Anctil $981.00 and Mr. Darnell

8

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

Document 477

Filed 05/04/2007

Page 9 of 11

$800.00) and $64.00 in the amended Bill of Costs. The Clerk taxed $20.00 for costs incident to taking a deposition. This taxation of costs did not include subpoena fees for deposition witnesses. If plaintiff is awarded transcription costs for the depositions of Patricia Anctil and Jerome Darnell, defendants' two expert witnesses, then plaintiff requests subpoena fees of $44.00 for Ms. Anctil, reference number 121 in Exhibit 2 - 1920(1) Costs, and $25.00 for Mr. Darnell, reference number 122 in Exhibit 2 - 1920(1) Costs, be taxed in addition to the fees taxed by the clerk. Plaintiff is requesting the expert witness fees of Ms. Anctil and Mr. Darnell in his motion for attorney fees, as reasonable and necessary expenses incurred in the litigation. The Clerk of the Court taxed as costs $20.00 for costs incident to taking a deposition. Plaintiff respectfully requests that the Court award him an additional $69.00 for the costs incident to taking the depositions of defendants' experts (subpoena fees). III. CONCLUSION The Clerk of the Court taxed as costs $9,403.02 for the costs of plaintiff's case. Plaintiff respectfully requests that the Court award him an additional $3,923.46 for the costs not taxed by the Clerk that were incurred in trying this case. This additional request includes: $2,820.92 for transcription costs related to depositions and hearing transcripts used in this litigation; $80.00 for deposition witness fees to depose defendants' expert witnesses; $953.54 for exemplification and copy costs; and $69.00 for costs incident (subpoena) to taking deposition of defendants' expert witnesses. Exhibit 12. WHEREFORE, Plaintiff respectfully requests that this Court review the taxation of costs and award additional costs as request by plaintiff in this Motion to Review Taxation of Costs

9

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

Document 477

Filed 05/04/2007

Page 10 of 11

RESPECTFULLY SUBMITTED this 4th day of May, 2007.

s/ J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiff Michael E. Clawson

10

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

Document 477

Filed 05/04/2007

Page 11 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 10th day of April, 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 nonCM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mail

s/J. Keith Killian ___ J. Keith Killian, Esq. No. 9042 Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, Colorado 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

11