Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1263-REB-KLM ROBERT M. FRIEDLAND, Plaintiff, v. TIC-- THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC Defendants. ________________________________________________________________________ TIC ­THE INDUSTRIAL COMPANY' REPLY IN SUPPORT OF ITS MOTION TO S REVIEW TAXATION OF COSTS ________________________________________________________________________

Defendant TIC-- The Industrial Company (" TIC" through its attorneys, respectfully ), submits this Reply in Support of Its Motion to Review Taxation of Costs under Fed.R.Civ.P. 54(d). I. INTRODUCTION Contrary to Plaintiff' contention that TIC seeks an " s award of costs that go far beyond the scope of section 1920,"TIC seeks to recover only the small portion of the enormous costs it incurred defending this case. TIC has provided concrete facts demonstrating that these costs were reasonably and necessarily incurred. It is Plaintiff' burden to show why s costs falling within the statute should not be awarded, and although the Plaintiff has cited to authority establishing that this Court has the discretion not to award TIC all of its requested

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costs, the Plaintiff has failed to provide any valid reasons why the Court should decline to award these costs in this case. Because the small subset of costs TIC now seeks to recover were all reasonably and necessarily incurred to defend this case, this Court should award TIC all of its requested costs. II. ARGUMENT A. TIC is Entitled to Recover Its Costs That Were Reasonably and Necessarily Incurred to Defend This Case. TIC is entitled to recover all of its costs that were reasonably necessary in light of the facts known to TIC at the time they were incurred. Plaintiff' contention that TIC is entitled s to recover only those costs that were " presented to the court in the context of the motion for summary judgment that terminated the litigation"is contrary to well established Tenth Circuit precedent. Response at 4, 6. See Mitchell v. City of Moore, 218 F.3d 1190, 1205 (10th Cir. 2000). Indeed, the Tenth Circuit has expressly directed that the district courts are not to adopt such a rule. See Merrick v. Northern Natural Gas Co., 911 F.2d 426, 434 (10th Cir. 1990) (holding that " district court rule that permits costs only for depositions received a into evidence or used by the court in ruling upon a motion for summary judgment is narrower than section 1920" See also, Mitchell, 218 F.3d at 1205; Hernandez v. George, 793 F.2d ). 254, 268-69 (10th Cir. 1987). Ignoring this clear Tenth Circuit precedent, Plaintiff instead relies on a district court case from the District of Maryland to support its flawed argument. Response at 3. Where courts in the Tenth Circuit have limited the award of costs to those directly tied to a dispositive motion, it has been through the exercise of the court' discretion under s

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Section 1920. E.g., Merrick, 911 F.2d at 434 (holding that the district court did not abuse its discretion in limiting costs to those tied to a dispositive motion). It has not been because this Court is required to do so. Id. This Court should not exercise its discretion in such a way here. Faced with the threat of over $20 million in damages, TIC was more than justified to defend this case forcefully. Although TIC happened to prevail on summary judgment, it had to prepare as if this case would go to trial. Discretionarily limiting TIC' costs only to those s that can be tied to a single summary judgment motion is " inequitable"and would " essentially penalize"TIC for prevailing at this stage. Mitchell, 218 F.3d at 1204-1205. Rather, the proper approach for this Court is to award TIC all of its requested costs, because each cost was reasonably necessary in light of the facts known to TIC at the time the cost was incurred. Id. at 1205. B. TIC Has Provided Concrete Reasons Why Its Costs Were Reasonably Necessary at the Time the Costs Were Incurred. TIC is entitled to recover all of its requested costs because the costs were reasonably necessary in light of the facts known to TIC at the time they were incurred. Mitchell, 218 F.3d at 1204-1205. The Plaintiff' assertion that TIC' " s s motion is completely devoid of any justification for the award of the requested costs"is incorrect and overlooks the fact that TIC' motion has pointed to multiple facts that demonstrate the necessity of the costs at s issue. Response at 2. With regard to deposition costs, every one of the depositions listed in TIC' bill of s costs was for a witness listed on this Court' pretrial order. TIC-The Industrial Company' s s Motion to Review Taxation of Costs Under Fed. R. Civ. P. 54(d) (" Motion" at 4. This fact )

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alone is sufficient to demonstrate the necessity of these costs and make them taxable. Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp. 2d 1085, 1088 (D. Colo. 1998). TIC has also, however, pointed to subsets of depositions: 1) requested and taken by the Plaintiff; and 2) cited in summary judgment briefs. Motion at 5. These facts provide additional and overlapping justification of the depositions'necessity. Mitchell, 218 F.3d at 1204; Karsian, 13 F. Supp. 2d at 1088. TIC has therefore adequately demonstrated it is entitled to an award of its deposition costs. With regard to copy costs, TIC has sought to recover only those costs incurred to obtain and manage a single copy of relevant documents from the Plaintiff and third-parties. Contrary to Plaintiff' contention, these costs are clearly taxable if they were necessarily s obtained for use in the case. Karsian, 13 F. Supp. 2d at 1093; Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1475 (10th Cir. 1997). Plaintiff challenges costs incurred by TIC for use of a document management system. Response at 5. But Plaintiff cites no authority, and provides no reason, for why this Court should fail to follow the precedent of the Tenth Circuit and this Court cited in TIC' Motion establishing that these costs are taxable. See s Motion at 7. See also Tilton, 115 F.3d at 1475; Karsian, 13 F. Supp. 2d at 1093. Plaintiff also states that " [m]aterials collected in discovery or pursuant to Rule 26(a)(1) . . . are not eligible to be taxed as costs." Response at 5. This statement is incorrect because " test is not whether the documents copied were discovery documents or other the types of documents, but rather, whether the documents were necessarily obtained for use in the case." Karsian, 13 F. Supp. 2d at 1093. Plaintiff' reliance on James v. Coors Brewing s

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Co., 73 F. Supp. 2d 1250, 1260 (D. Colo. 1999) is misplaced. In that case, the Court denied recovery of discovery-related costs because it has " discretion to deny these costs,"not because of any rule requiring it to do so. Id. This Court should not exercise its discretion in such a way here. Because this was a complicated, document-intensive case, obtaining and reviewing these documents was not only reasonable, but essential, in order to adequately prepare for trial. These facts are sufficient to demonstrate the reasonableness of the costs at issue. But if the Court still has questions about the reasonableness of any cost incurred, TIC has requested an evidentiary hearing to resolve these issues. Motion at 7. C. Plaintiff Has Failed to Carry Its Burden of Showing Why TIC is Not Entitled to Recover Its Costs. Despite Plaintiff' claim that TIC has failed to state how its costs fall within Section s 1920, it is the Plaintiff, not TIC, who has failed to satisfy its burden. Response at 2. As described above and in its Motion, TIC has given concrete, factual reasons why its costs fall within the statute. The burden is thus on the Plaintiff to show why those costs should not be taxed. Serna v. Manzano, 616 F.2d 1165, 1167-68 (10th Cir. 1980). Although the taxing of costs " rests within the sound discretion of the trial court,"TIC is " presumptively entitled to costs." Id. at 1167. The Plaintiff " must overcome such presumption, since the denial of costs is in the nature of a penalty." Id. The Plaintiff has cited many cases demonstrating that this Court has the discretion to award or deny costs. But the Plaintiff has given no reason why this Court should exercise that discretion in this case to

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deny TIC valid costs that fall within Section 1920. Because the Plaintiff has not satisfied its burden, TIC should be awarded its costs.

WHEREFORE, Defendant TIC respectfully requests that this Court GRANT its Motion to Review Taxation of Costs by entering an Order awarding it $79,854.40 in additional costs, and any other relief the Court deems just.

Dated: April 9, 2008

s/ Colin C. Deihl Colin C. Deihl Faegre & Benson LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 Telephone: (303) 607-3651 Facsimile: (303) 607-3600 E-mail: [email protected]

Delmar R. Ehrich Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 Telephone: 612-766-7000 Facsimile: 612-766-1600 E-mail: [email protected] Attorneys for Defendant TIC - The Industrial Company

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CERTIFICATE OF SERVICE

I hereby certify that on April 9, 2008, true and correct copies of the foregoing were electronically filed via Electronic Case Filing (ECF) with the United States District Court for the District of Colorado and served electronically on the following:

Perry L. Glantz, Esq. Fritz W. Ganz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, Colorado 80203 [email protected] Terence M. Ridley, Esq. Marian L. Carlson, Esq. Wheeler Trigg Kennedy LLP 1801 California St., Suite 3600 Denver, Colorado 80202-2617 [email protected] Paul J. Sanner, Esq. Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, California 94105-2173 [email protected]

s/ Jan Sullivan

fb.us.2758993.03

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