Free Order on Motion for Costs - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

Document 89

Filed 03/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff, v. JOHN HYATT, et al., Defendants. _______________________________________________________________________ ORDER _______________________________________________________________________ Magistrate Judge Craig B. Shaffer This civil action is before the court on: (1) Baldauf's " Motion for Order to Serve and Time" (filed March 3, 2006) (doc. # 81); and (2) Baldauf's " Request to Tax Costs of Appeal" (filed March 1, 2006) (doc. # 79). Pursuant to the Order of Reference dated October 23, 2001 (doc. # 14) and the memoranda dated March 3, 2006 (doc. # 83 and doc. # 84), the motions were referred to the Magistrate Judge. The court has reviewed the motions,

Defendants' Responses (filed March 8, 2006) (doc. # 87 and doc. # 88), the entire case file, and the applicable law and is sufficiently advised in the premises. First, Baldauf indicates that he has not received a copy of Defendants' Motion to Dismiss Plaintiff's Complaint (doc. # 76) (filed on February 17, 2006). On March 3, 2006, the Clerk of the Court mailed a copy of Defendants' Motion to Dismiss Plaintiff's Complaint (doc. # 76) to Baldauf. The court will afford Baldauf 30 additional days to file any response he may have to Defendants' Motion. Second, Baldauf seeks, pursuant to Fed. R. App. P. 39(e)(4), an order taxing Defendants for his $255.00 fee for filing the notice of appeal. The Federal Rules of Appellate Procedure provide that costs for several items, including the fee for filing the notice of appeal, " taxable in the district court for the benefit of the party entitled to are costs under this rule." Fed. R. App. P. 39(e)(4). On January 26, 2005, the United States
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Case 1:01-cv-01315-REB-CBS

Document 89

Filed 03/08/2006

Page 2 of 2

Court of Appeals for the Tenth Circuit remanded this civil action " the district court for to further proceedings concerning whether, under the Heck doctrine, the district court has jurisdiction to hear Mr. Baldauf's claims. If the court determines that it has jurisdiction, it should decide the merits, conducting any further proceedings that it deems necessary." Baldauf v. Hyatt, 120 Fed. Appx. 288 (10th Cir. (Colo.) Jan. 26, 2005). The appeal was not dismissed, affirmed or reversed. The remand on a jurisdictional issue does not appear to bring Baldauf under the category of a " party entitled to costs under this rule." The United States Court of Appeals for the Tenth Circuit has not yet made a determination on the merits of this civil action. Baldauf's request for taxation of costs is properly denied at this time. Accordingly, IT IS ORDERED that: 1. Baldauf's " Motion for Order to Serve and Time"(filed March 3, 2006) (doc.

# 81) is GRANTED. The Clerk of the Court mailed a copy of Defendants' Motion to Dismiss Plaintiff's Complaint (doc. # 76) to Baldauf on March 3, 2006. Baldauf may file his response to Defendants' Motion to Dismiss Plaintiff's Complaint (doc. # 76) on or before April 8, 2006. 2. is DENIED. DATED at Denver, Colorado, this 8th day of March, 2006. BY THE COURT: Baldauf's " Request to Tax Costs of Appeal" (filed March 1, 2006) (doc. # 79)

s/Craig B. Shaffer United States Magistrate Judge

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