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

Case 1:01-cv-01250-RPM-CBS

Document 171

Filed 12/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 01-cv-01250-RPM-CBS ANA PATRICIA MONTES; NELY DAVILA; JOSEFA C. DIAZ; MARGARITA ERAZO; EVA ESCOBEDO; ERNESTO GARCIA; WILLIE MAE HOPKINS; ELIZABETH JARAMILLO; ANGELICA NUNEZ; and MERVIN D. VARGAS, Plaintiffs, v. VAIL CLINIC, INC., d/b/a VAIL VALLEY MEDICAL CENTER, INC., and SERVICEMASTER MANAGEMENT SERVICES LIMITED PARTNERSHIP, Defendants. ______________________________________________________________________________ ORDER DENYING DEFENDANTS' MOTIONS FOR COSTS UNDER FED.R.CIV.P. 68 ______________________________________________________________________________ By Order dated June 29, 2005, upon motion for summary judgment filed by the defendants, this court dismissed defendant Servicemaster Management Services Limited Partnership with prejudice, dismissed the plaintiffs' state law claims without prejudice, and dismissed the plaintiffs' remaining claims with prejudice. Judgment was entered for both defendants on June 29, 2005. More than ten days prior to trial, the defendants had served written offers of judgment upon eight of the named plaintiffs. None of these plaintiffs responded to the offers.

Case 1:01-cv-01250-RPM-CBS

Document 171

Filed 12/05/2007

Page 2 of 3

The plaintiffs appealed the June 29, 2005 order and judgment. Defendants submitted Bills of Costs under Fed.R.Civ.P. 54(d) and 68, totaling $51,807.47. On July 27, 2005, the defendants were awarded costs of $18,119.59 under Rule 54(d). No motion to review taxation was filed. On October 26, 2005, the defendants filed their Motion for Court to Deem Defendants' Motion Regarding Bills of Costs Confessed, requesting an award under Rule 68 of the difference between the total costs claimed and that awarded under Rule 54(d). On August 14, 2007, the judgment of this court was affirmed by the United States Court of Appeals for the Tenth Circuit. On November 30, 2007, the defendants filed Defendants' Request for a Ruling on Defendants' Motion Regarding Additional Costs. Rule 68 provides, in relevant part, that "[i]f the judgment finally obtained by the offeree [the plaintiffs] is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." (Emphasis supplied.) In this case, the judgment was obtained by the defendants, not the plaintiffs/offerees. In Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981), the United States Supreme Court ruled that "it is clear that it [Rule 68] applies only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment." Id. at 352. See also Fry v. Board of County Comm'rs of County of Baca, 7 F.3d 936 (10th Cir. 1993); Carillon Square v. Ernst Home Center, Inc., No. 93-4218, 34 F.3d 1076, 1994 WL 468104 (10th Cir. 1994).

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Case 1:01-cv-01250-RPM-CBS

Document 171

Filed 12/05/2007

Page 3 of 3

It is therefore ORDERED that the defendants' motions for additional costs [Doc. ## 151, 164 & 170] are denied.

Dated: December 5, 2007

BY THE COURT: s/Richard P. Matsch _________________________________ Richard P. Matsch, Senior District Judge

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