Free Response to Motion - District Court of Colorado - Colorado

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

Document 88

Filed 03/08/2006

Page 1 of 4

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.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO TAX COSTS OF APPEAL

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (hereinafter collectively "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., hereby submit this Response to Plaintiff's Request to Tax Costs of Appeal, as follows: 1. Plaintiff filed his Request to Tax Costs on Appeal requesting this Court

pursuant to Fed. R. App. P. 39(e)(4) tax his filing fee for his appeal in Case No. 03-1191 as costs asserting that he is the "prevailing party" on the appeal as a result of this Court's recent decision that it has jurisdiction over the Plaintiff's claims pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). [See Plaintiff's Request to Tax Costs of

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

Document 88

Filed 03/08/2006

Page 2 of 4

Appeal]. Defendants now respond to the Plaintiff's Motion. No basis exists for this Court to tax the costs of the Plaintiff's prior appeal pursuant to Fed. R. App. P. 39(e)(4) or otherwise. 2. Plaintiff is correct that Fed. R. App. P. 39(e)(4) provides a potential

mechanism for this Court to tax the filing fee in favor of a prevailing party in an appeal. However, Fed. R. App. P. 39(e)(4) must be read in the context of the entirety of Fed. R. App. P. 39 as well as the procedural history of this matter. Fed. R. App. P. 39(a) provides when costs are assessed against a party to an appeal. In this case, the Tenth Circuit remanded the Heck issue for further proceedings before this Court. None of the four different circumstances outlined in Fed. R. App. P. 39(a) where costs are appropriately taxed exist here. The Tenth Circuit neither affirmed nor reversed this Court's judgment and nothing in the Tenth Circuit's Order and Judgment awarded costs to either the Plaintiff or the Defendants. [See Order and Judgment, 1/26/05]. Based upon the Order and Judgment the Plaintiff cannot be considered a prevailing party entitled to costs pursuant to Fed. R. App. P. 39(a). 3. Further, contrary to the Plaintiff's suggestion, the Defendants have not

conceded the propriety of this Court's Order determining this Court possesses jurisdiction under Heck. No basis exists for the Defendants to appeal this Court's

interlocutory order at this time. Any appeal by the Defendants would not be appropriate pursuant to applicable federal law. Defendants filed their recent Motion to Dismiss Plaintiff's Complaint because this Court has determined it possesses subject matter jurisdiction over the Plaintiff's claims and no appeal of this Court's decision is presently

2

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

Document 88

Filed 03/08/2006

Page 3 of 4

available to the Defendants. Under these circumstances, Plaintiff cannot be described as a prevailing party entitled to costs pursuant to Fed. R. App. P. 39, Fed. R. Civ. P. 54(d) or D.C.Colo.LCiv.R. 54.1. WHEREFORE, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court deny the Plaintiff's Request to Tax Costs of Appeal, and for all other and further relief as this Court deems just and appropriate. Dated this 8th day of March, 2006. Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

3

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

Document 88

Filed 03/08/2006

Page 4 of 4

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 8th day of March, 2006, 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: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 (via U.S. Mail) Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN
H:\Users\RINGELA\colorado\Baldauf\gnplead\response to motion to tax costs.doc

4