Free Objections - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO Civil Action No. 01-cv-0413-JLK M.D. MARK, INC. Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANT'S OBJECTIONS TO PLAINTIFF'S BILL OF COSTS Defendant Kerr-McGee ("Kerr-McGee") hereby submits its Objections to Plaintiff's Bill of Costs, stating as follows: INTRODUCTION A significant portion of Plaintiff's bill of costs does not comply with the applicable legal standards, set forth below. As a threshold matter, Plaintiff fails to provide supporting documentation for any of the items included its bill of costs. In addition, many of the costs Plaintiff requests are not taxable under Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920 ("§ 1920"), or any other applicable statute. Still other requested costs are excessive and unreasonable. A chart summarizing the costs and amounts to which Kerr-McGee objects is attached as Exhibit A. LEGAL STANDARD Federal law governs the taxation of costs in a diversity action. Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1292 (10th Cir. 1988). Federal statues

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such as § 1920 that permit taxation of certain costs are, to a degree, penal in nature. United States v. Pommerening, 500 F.2d 92, 102 (10th Cir. 1974). As a result, such statues are strictly construed, and items taxed must fall within the express language of the statute. Id. The final award of costs rests within the discretion of the trial court. Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476 (10th Cir. 1997). In exercising that discretion, however, the Court may only award costs contemplated by § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 437, 441 (1987). Even where a cost falls within a permitted category, the Court may still reject it based on a reasonableness determination. See e.g. Karsian v. Inter-Regional Financial Group, Inc., 13 F.Supp.2d 1085, 1088 (D. Colo. 1998). OBJECTIONS I. General Objections to Plaintiff's Bill of Costs. Kerr-McGee objects to each item listed in Plaintiff's Bill of Costs because Plaintiff has not submitted any supporting documentation (e.g., receipts, invoices). Kerr-McGee requests documentation for each item listed in Plaintiff's Bill of Costs, and reserves the right to make additional objections after it has the opportunity to review any documentation Plaintiff may provide. II. Objections to Plaintiff's Request for "Deposition Expenses for Trial." Section 1920 limits recovery of deposition-related costs to "fees of the court reporter . . . for transcripts necessarily obtained for use in the case." 28 U.S.C. § 1920(2). "Necessarily obtained" does not include depositions taken solely for discovery purposes or for counsel's convenience. Karsian, 13 F.Supp.2d at 1088; see

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also U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1233, 1245 (10th Cir. 1988). Further, several of the items for which Plaintiff seeks recovery are not related to the fees for deposition transcripts, and, therefore, are not recoverable. See 28 U.S. C. § 1920(2). A. Many of the Deposition Transcripts Were Not "Necessarily Obtained."

Plaintiff requests recovery for the transcripts of several depositions of discovery witnesses: (a) who did not testify at trial (neither in person, nor by deposition designation); and (b) whose deposition testimony played no role at trial. These deposition transcripts were obtained for no other reason than discovery and/or the convenience of counsel. Accordingly, Kerr-McGee objects to specific portions of Plaintiffs proposed taxation of deposition expenses for the following witnesses: Witness David Christian Brian Lindsay Robert Quillar Brian Lindsay Jay Skinner Patricia Horsfall TOTAL Amount $697.92 $585.75 $298.23 $230.13 $298.23 $813.20 $2395.51

B. Taxable.

The Listed Items Other Than Deposition Transcripts Are Not

Included in Plaintiff's request for deposition expenses are fees paid to expert witnesses, fees paid the Special Master who was assigned to govern discovery disputes, fees for service of subpoenas, and fees for meeting rooms. These are not recoverable because § 1920 expressly limits taxation of deposition-related expenses to the fees paid -3-

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for transcripts. See 28 U.S.C. § 1920(2); Pommerening, 500 F.2d at 102 (statutes governing taxation of costs must be strictly construed). Further, the Tenth Circuit has made expressly clear expert witness fees are limited to the amount set forth at 28 U.S.C. § 1821. Sorbo v. United Parcel Serv., 432 F.3d 1169, 1179 (10th Cir. 2005). For these reasons, Kerr-McGee objects to the following "Deposition Expenses" requested by Plaintiff: Claimed Expense Consultation fee with Expert, John Moye Special Master attendance at Deposition Service of Subpoena (Dan Hahn) Expert Report, John Moye Expert Deposition, John Moye Special Mastery Discovery Order Meeting Rooms Service of Subpoena (Mid-Con Data; Darren Helm) Supplemental Expert Report TOTAL Amount $5,000.00 $2,850.00 $50.00 $5,000.00 $5,000.00 $325.00 $655.59 $100.00 $850.00 $19,637.59

III.

Objections to Plaintiffs Request for "Printing Fees." Most items for "printing fees" relate to copies of trial exhibits. Plaintiff,

however, was overly inclusive in its list of trial exhibits. While Plaintiff requested that all of its stipulated exhibits be admitted into evidence at trial, Plaintiff discussed less than half of the exhibits on its list. Kerr-McGee, accordingly, objects to the amount requested for "Printing Fees" because they are excessive and unreasonable. KerrMcGee suggests that the requested amount be reduced by one-half, to $3,619.13.

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IV.

Objections to Plaintiff's Request for "Witness Fees and Expenses." A. Plaintiff's Requested Expert Witness Fees Are Excessive.

Recovery of fees and disbursements for witnesses, including expert witnesses is expressly limited by 28 U.S. §1821, 1920. See Sorbo, 432 F.3d at 1179. The $5,000 fee for Plaintiff's expert John Moye clearly exceeds the statutory limit. See id. For these reasons, Kerr-McGee objects to the following expert witness fees requested by Plaintiff: Claimed Expense Expert Witness Fee, John Moye TOTAL Amount $5,000.00 $6,474.40

B.

Plaintiff Selected a Forum Outside of its Home State.

At all times relevant to this litigation, both Plaintiff and Kerr-McGee conducted extensive business and had offices in Houston, Texas. In fact, Plaintiff's primary place of business is in Houston, Texas. Despite this, Plaintiff chose to file suit against KerrMcGee in Colorado. Having selected an out-of-state forum, it is unreasonable for Plaintiff to request travel and lodging expenses for two of its officers to participate in the trial. See Ryan v. Arabian Am. Oil Co., 18 F.R.D. 206, 208 (S.D.N.Y. 1955). For these reasons, Kerr-McGee objects to the following witness fees: Claimed Expense Accommodations, Leon Herzog Accommodations, Marilyn Davies Airfare, Leon Herzog Airfare, Marilyn Davies TOTAL Amount $696.98 $1,045.14 $500.00 $1,650.00 $3,880.95

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V.

Objections to Plaintiff's Request for "Exemplification, Copies of Paper Necessarily Obtained for Use in the Case and Print Copies of Papers." Again, Plaintiff provides no documentation to support any of the items included

in its Bill of Costs. This is particularly problematic regarding Plaintiff's request for exemplification and copy expenses because Plaintiff provides no meaningful description these claimed expenses. Without adequate description and supporting documentation, Kerr-McGee cannot evaluate whether any of the listed items was "necessarily obtained" for use in the case. See U.S. Indus., Inc., 854 F.2d at 1245. Therefore, Kerr-McGee objects to the entire amount of $23,367.57 requested by Plaintiff for "Exemplification, Copies of Paper Necessarily Obtained for Use in the Case and Print Copies of Papers." VI. Objections to Plaintiffs Request for "Costs Incident to Taking Depositions." Each of the items listed in Plaintiff's request for "Costs Incident to Taking Depositions" represents a travel expense, apparently attributable to Plaintiff's attorneys. It is well settled, however, that § 1920 does not authorize taxation of costs for travel expenses. Rodriquez v. Zavara, 22 F.Supp.2d 1196, 1203 (D. Colo. 1998); Sorbo, 432 F.2d at 1180. Therefore, Kerr-McGee objects to the entire amount of $10,903.91 requested by Plaintiff for Costs Incident to Taking Depositions." VII. Objections to Plaintiff's Request for "Other Costs: Delivery Service/Federal Express and Settlement Conference." None of the listed items in Plaintiff's requests for "Other Costs" (e.g., courier charges, trial supplies, hearing transcripts, settlement conference fees) are specifically authorized or even contemplated by § 1920. See 28 U.S.C. § 1920; see also Chaparral Resources, 849 F.2d at 1293 (professional fees for settlement conference not

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enumerated in § 1920). Since § 1920 must be strictly construed, the entire amount of $2,269.18 requested by Plaintiff for other costs should be denied. See Pommerening, 500 F.2d at 102. Dated this 9 th day of October, 2007. Respectfully submitted,

s/M. Antonio Gallegos____________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Denver, Colorado 80202 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected]

A TTORNEYS F OR D EFENDANTS

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Certificate Of Service I hereby certify that, on October 9, 2007, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system which will serve such filing by e-mail to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected] s/Randi L. Dixon ________________
3773641_1.DOC

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