Free Objections - District Court of Colorado - Colorado

Case 1:00-cv-02444-REB-PAC

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Filed 10/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-2444-REB-PAC ______________________________________________________________________ KEVIN J. RUTHERFORD, Plaintiff, v. DR. LOUIS CABILING, Defendant. ______________________________________________________________________ OPPOSITION TO DEFENDANT'S BILL OF COSTS ______________________________________________________________________ Kevin J. Rutherford, ("Plaintiff") through his attorneys, Burns, Figa & Will, P.C., opposes Defendant's Bill of Costs as follows: I. INTRODUCTION Mr. Rutherford raises specific objections, noted below, to Defendant's Bill of Costs. Mr. Rutherford objects to Defendant's request for costs incurred for court reporter fees, exemplification and copies of papers, expenses incident to taking depositions, and "other costs." Each objection is addressed in turn. II. DEFENDANT'S REQUEST FOR COURT REPORTER FEES SHOULD BE DENIED Defendant seeks recovery of $2,449.40 for court reporter fees and transcript costs. Although a taxing of costs for depositions, reasonably necessary at the time they were taken, is typically approved, the party seeking costs must provide supporting

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documentation or specific itemization to establish such costs were reasonably necessary for trial. Allison v. Bank One Denver, 289 F.3d 1223, 1249 (10th Cir. 2002). Defendant has provided copies of two invoices and two checks, which do not correspond. While the two invoices indicate with specificity the deponent, Defendant has not provided documentation of payment. The check copies show only that checks were in fact written to two court reporting firms; the checks do not correspond to an invoice, case number, or specific deponent. Without evidence of payments and itemization of payments, this Court cannot evaluate and, therefore, should deny this request. In the alternative, 28 U.S.C. § 1920(2) authorizes recovery of costs for transcripts of depositions only if necessarily obtained for use in the case. "Necessarily obtained" does not mean that the depositions made the task of the trial judges easier but were actually used by counsel or by the court. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245-46. This Court, in granting Defendant's summary judgment motion relied only upon Mr. Rutherford's deposition. Although Defendant submitted portions of each of the four depositions taken in this matter, Defendant relied upon 16 out of 142 pages of Mr. Rutherford's deposition (11 percent), 28 of 257 pages of Dr. Gottula's deposition (11 percent), 24 of 168 pages of Dr. Cabiling's deposition (fourteen percent), and 4 of 78 pages of Ms. Dunlop's deposition (five percent). This Court should limit Defendant's recovery of deposition costs to the percentage of the deposition transcript actually used by either this Court or counsel. Id. Under this scenario, this Court should award $87.12 (eleven percent of total cost) for Mr. Rutherford's deposition and $12.86

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(four percent of total cost) for Ms. Dunlop's deposition. It is not possible to itemize costs for other depositions because Defendant has not provided sufficient information to determine what costs are attributable to such depositions. III. DEFENDANT'S REQUEST FOR EXEMPLIFICATION AND COPIES OF PAPERS SHOULD BE DENIED The defendant seeks $3,179.84 for "exemplification and copies of papers necessarily obtained for use in the case." The federal cost statute does not authorize a court to tax as costs all copying performed throughout the life of the action. Instead, it restricts such costs to copying "necessarily obtained for use in the case." 28 U.S.C. §1920(4). The phrase "for use in the case," refers to material actually prepared for the use in presenting evidence to the court. United Int'l Holdings, Inc. v. The Warf (Holdings) Ltd., 174 F.R.D. at 484 (D.Colo. 1997). With few exceptions, Defendant fails to identify the materials copied or otherwise explain how this additional copying was necessarily used in this case. The cost of copying exhibits or other evidence attached to a dispositive motion or related brief may be taxable when the party seeking costs prevailed on that motion. Id. To recover such costs, the Defendant must direct the Court to the existing record or supplement it with additional proof showing that the copying claim was used in this litigation for presenting evidence to the court. U.S. Indus., Inc., 854 F.2d at 1246. Absent a demonstration, with sufficient specificity, of why it was necessarily obtained for use in the case, Defendant's photocopying costs are not recoverable. See Karsian v. Inter-Regional Fin. Group, Inc., 13 F.Supp.2d 1087, 1093 (D.Colo. 1998). Defendant has provided no specificity why its photocopying costs are recoverable.

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Neither the federal cost statute nor Tenth Circuit case law contemplates recovery for overhead copying costs. See Anderson v. Secretary of Health & Human Servs., 80 F.3d 1500, 1508 (10th Cir. 1996) (finding such expenses "subsumed in the overall costs of doing business"); see also Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1258-59 (10th Cir. 1998) (denying recovery for copying costs where the party had made no effort to prove the necessity or reasonable of their copies). Defendant makes no attempt to establish the reasonableness or necessity of his claimed costs and his cost motion provides little more than a bottom line for all copying expenses incurred over the last 21 months. Defendant's Motion for Summary Judgment contained 76 pages of exhibits. Defendant's Reply in Support of Motion for Summary Judgment contained 43 pages of exhibits. Otherwise, with few exceptions, it is not clear what was copied by Defendant or for what purpose the copying was performed. Except for 119 pages supporting Defendant's Motion for Summary Judgment, as submitted, a determination cannot be made finding all of Defendant's copying was "necessarily obtained for use in the case." See 28 U.S.C. §1920 (4). Having failed to make the required showing of necessity, Defendant's copying expenses should be reduced or denied as taxable as costs in this case. IV. DEFENDANT'S REQUEST FOR COSTS INCIDENT TO TAKING DEPOSITIONS SHOULD BE DENIED Defendant's request for $3,469.80 for costs incident to taking depositions includes attorney mileage and expert witness fees, and must be denied. Congress has chosen to expressly limit the taxing of witness costs to specific activities and amounts.

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28 U.S.C. § 1821. Any recovery for expert fees must be limited to those amounts specified by 28 U.S.C. § 1821. Fees for attorney mileage are not recoverable in any amount. 28 U.S.C. § 1920; Harkins v. Riverboat Services, Inc., 286 F.Supp.2d 976, 983 (N.D.Ill. 2003). Federal law does not permit recovery of expert witness fees beyond the amounts provided for by statute. Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1478 (10th Cir. 1990) (citing Chaparral Resources, Inc., v. Monsanto Co., 849 F.2d 1286, 1292 (10th Cir. 1988) (absent an explicit statutory authorization, a trial court has no discretion under Fed. R. Civ. P. 54(d) to tax the actual costs of expert witness fees)); see also United Int'l Holdings, Inc. v. The Warf (Holdings) Ltd., 174 F.R.D. 479, 485 (D. Colo. 1997) (finding no Tenth Circuit authority for an award of expert fees and travel expenses beyond the amounts set out in 28 U.S.C. §1821). Although 28 U.S.C. § 1920 generally authorizes a federal court to tax costs for witnesses, Congress has chosen to expressly limit the taxing of such costs to specific activities and amounts. Congress has not authorized recovery of costs of an attorney's travel expenses. Thus, all costs incident to taking depositions should be denied. V. DEFENDANT'S REQUEST FOR "OTHER COSTS" SHOULD BE DENIED Defendants claim entitlement to items that that are office overhead expenses, namely, $14.80 for computerized research and $195.04 for postage, couriers, and UPS expenses. Postage and computerized legal research should be limited or excluded according to whether they are related to actual costs incurred at trial. There is no discretion to award general overhead expenses not expressly authorized by 28 U.S.C. §

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1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987); Karsian v. Inter-Regional Fin. Group, Inc., 13 F.Supp.2d 1087 (D.Colo. 1998); see also Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (affirming a district court's refusal to tax computer research costs). Expenses generally subsumed in office overhead are not recoverable as costs. Anderson v. Secretary of Health & Human Servs., 80 F.3d 1500, 1508 (10th Cir. 1996) (declining to tax as costs expenses "subsumed in the overall costs of doing business"); see also Farmer v. Arabian Oil Co., 379 U.S. 227, 235 (1964) (holding that a district court does not have unrestrained discretion to tax costs to reimburse a winning litigant for every expense he incurred in the conduct of this case ). Thus, Defendant's claim for "other costs" in the amount of $209.84 must be denied. WHEREFORE, Plaintiff requests the Deputy Clerk deny Defendant's Bill of Costs.

Submitted this 14th day of October, 2005. /s/ David M. "Merc" Pittinos_____ D. Sean Velarde David M. "Merc" Pittinos Burns, Figa & Will, P.C. 6400 S. Fiddler's Green Circle, Suite 1030 Englewood, CO 80111 Telephone: 303-796-2626 Attorneys for Plaintiff Kevin Rutherford

Case 1:00-cv-02444-REB-PAC

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Filed 10/14/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of October 2005, I electronically filed the foregoing OPPOSITION TO DEFENDANT'S BILL OF COSTS using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Daniel Christopher, Esq. David Gerbus, Esq. Molly Walsh, Esq. Kennedy & Christopher P.C. 1050 17th St., #2500 Denver, CO 80265 [email protected] [email protected] [email protected] Joseph P. Sanchez Assistant Attorney General Litigation Section 1525 Sherman Street 5th Floor Denver, CO 80203 [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participants in the manner indicated by the non-participant's name: By U.S. Mail Kevin Rutherford 138 West Uintah Street Colorado Springs, CO 80903

/s/ David M. "Merc" Pittinos D. Sean Velarde David M. "Merc" Pittinos Attorneys for Plaintiff Kevin Rutherford BURNS, FIGA & WILL, P.C. Plaza Tower One, Suite 1030 6400 South Fiddlers Green Circle Englewood, CO 80111 Telephone: 303-796-2626 FAX: 303-796-2777 E-mail: [email protected]