Free 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-01263-REB-KLM ROBERT M. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS INC., f/k/a GEOSERVICES, INC. Defendants.

RESPONSE IN OPPOSITION TO TIC--THE INDUSTRIAL COMPANY'S MOTION TO REVIEW TAXATION OF COSTS UNDER FED. R. CIV. P. 54(d) Plaintiff, Robert M. Friedland, through his undersigned attorneys, respectfully submits this Response in Opposition to TIC--The Industrial Company's ("TIC") Motion to Review Taxation of Costs under Fed. R. Civ. P. 54(d). ARGUMENT TIC's motion is premised on an erroneous view of the law governing the availability of costs under Rule 54(d)(1). "Absent some other statutory authorization, costs available to a prevailing party under Rule 54(d)(1) are limited to those specified in 28 U.S.C. § 1920." Sorbo v. United Parcel Service, 432 F.3d 1169, 1179 (10th Cir. 2005). [T]he Supreme Court has examined the interrelation between Rule 54(d) and section 1920 and has determined that Rule 54(d) is not a separate source of power to tax as costs expenses not enumerated in § 1920. Instead, the Court determined that § 1920 defines the term "costs" as used in Rule 54(d), and that although a court in its discretion need not award section 1920 costs under Rule 54(d), it has no discretion to award items as costs that are not set out in section 1920.

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Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990) (summarizing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)); see also, Kaulia v. County of Maui, 2007 WL 2746843 (D. Hawaii, 2007) (district court may not tax costs beyond those enumerated in 28 U.S.C. § 1920). Section 1920 of Title 28 of the United States Code states as follows: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. TIC's present motion seeks the award of costs that go far beyond the scope of section 1920. Moreover, the motion is completely devoid of any justification for the award of the requested costs other than the conclusory statements of counsel that the costs incurred were reasonably necessary at the time they were incurred. A party seeking the taxation of costs pursuant to section 1920 must demonstrate "with sufficient specificity" why the costs requested fall within the purview of that statute. Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp. 2d 1085, 1093 (D. Colo. 1998). TIC has failed to satisfy that burden in the present motion and, as a result, the decision of the clerk should not be disturbed.

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(1) Fees of the clerk and marshal; TIC originally requested $160.00 under this portion of section 1920. However, there was no support for this request and it was effectively withdrawn. (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; "The phrase `for use in the case' refers to materials actually prepared for use in presenting evidence to the court." United International Holdings, Inc. v. the Wharf (Holdings) Limited, 174 F.R.D. 479, 484 (D. Colo. 1997). Materials collected in discovery or pursuant to Rule 26(a)(1) are considered "investigative materials" and are not eligible to be taxed as costs. James v. Coors Brewing Co., 73 F. Supp. 2d 1250, 1260 (D. Colo. 1999). Similarly, "[d]epositions taken solely for discovery purposes are not taxable." Id. at 1261; see also, Karsian, 13 F. Supp. 2d at 1088 ("if the deposition was taken simply for discovery purposes, then costs are not recoverable."). "The Tenth Circuit has held that costs are recoverable where the district court relied on deposition excerpts in deciding a summary judgment motion." Karsian, 13 F. Supp. 2d at 1088 (citing Tilton v. Capital Cities/ABC, Inc.115 F.3d 1471 (10th Cir. 1997)). Indeed, in the very decision relied upon by TIC in its argument to recover the cost of every deposition conducted in this litigation, Merrick v. Northern Natural Gas Co., 911 F.2d 426 (10th Cir. 1990), the district court only assessed costs for depositions actually utilized by the court in considering the motion for summary judgment at issue in that case. Id. at 435. That decision was affirmed by the Tenth Circuit. Id. "[I]t is reasonable to tax only those depositions submitted in connection with the dispositive motion that terminated the litigation." Wyne v. Medo Industries, Inc., 329 F. Supp. 2d 584, 589 (D. Md. N.D. 2004). TIC's claim for costs of depositions utilized in summary

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judgment motions that were denied as moot is inconsistent with this authority and should be rejected. TIC's argument in support of its claim for $23,736.88 in deposition costs is contained in the single declarative statement, "[e]ach deposition was reasonably necessary in light of the facts known to TIC at the time it was taken." TIC--The Industrial Company's Motion to Review Taxation of Costs, Doc. 315, 3/05/2008, at p.4. This is in spite of the undisputed fact that none of the depositions for which defendant seeks to recover costs was presented to the court in the context of the motion for summary judgment that terminated the litigation. Accordingly, none of these depositions were "necessarily obtained for use in the case" pursuant to section 1920 and the clerk's decision to award no costs should be affirmed. TIC improperly attempts to bootstrap the consideration of costs following a full jury trial into the present analysis. TIC argues that the listing of witnesses on the final pretrial order is sufficient grounds to justify the requested award of costs. However, the United States District Court in Colorado has recognized a clear distinction in this regard. "Thus, while the cost of copying exhibits or other evidence attached to a dispositive motion or related brief may be taxable when the party seeking those costs prevailed on that motion, such costs are not taxable when the party prevailed after trial." United International Holdings, 174 F.R.D. at 484. Accordingly, costs of depositions of witnesses simply listed on a pretrial order in a case in which there was not a trial can not be considered costs for transcripts, "necessarily obtained for use in the case." The same analysis applies to depositions taken by counsel for Robert Friedland. TIC listed scores of potential witnesses in its Rule 26 disclosures and counsel for Robert Friedland

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conducted the discovery it deemed reasonable as the litigation progressed. However, the costs of depositions taken for discovery purposes are not taxable as costs. See, Karsian, 13 F. Supp. 2d at 1088. The depositions taken by counsel for Robert Friedland in discovery can not be morphed into materials actually prepared for use in presenting evidence to the court by TIC simply through the argument of counsel. None of the depositions were used in the summary judgment motion that was granted, accordingly, none of the costs for taking those depositions can be taxed as costs under section 1920. (3) Fees and disbursements for printing and witnesses; TIC did not request costs under this section. (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; As stated above, "[t]he phrase `for use in the case' refers to materials actually prepared for use in presenting evidence to the court." United International Holdings, Inc. v. the Wharf (Holdings) Limited, 174 F.R.D. 479, 484 (D. Colo. 1997). Materials collected in discovery or pursuant to Rule 26(a)(1) are considered "investigative materials" and are not eligible to be taxed as costs. James v. Coors Brewing Co., 73 F. Supp. 2d 1250, 1260 (D. Colo. 1999). There is nothing in the present motion that demonstrates how any of the $56,117.52 was spent to prepare materials for use in presenting evidence to the court. Indeed, at least $15,370.81 was admittedly spent on a document management system utilized for the convenience of TIC's counsel. See, TIC--The Industrial Company's Motion to Review Taxation of Costs, Doc. 315, 3/05/2008, at p.7. There is not even a suggestion any of these costs were incurred for purposes of presenting evidence to the court.

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None of the documents for which defendant TIC seeks to recover the costs of copying or exemplification were presented to the court in the context of the motion for summary judgment that terminated the litigation. Accordingly, none of these documents were "necessarily obtained for use in the case" pursuant to Section 1920 as that phrase has been defined by the judges of the United States District Court for the District of Colorado. Again, the clerk's decision in this regard should be affirmed. (5) Docket fees under section 1923 of this title; TIC did not request costs under this section. (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. TIC did not request costs under this section. CONCLUSION For each of the foregoing reasons TIC is not entitled to any additional recovery of costs under 28 U.S.C. § 1920 in this action. Therefore, Robert Friedland respectfully requests this Court deny the Motion to Review Taxation of Costs. DATED this 25th day of March, 2008. s/ Perry L. Glantz John D. Fognani, Esq. Perry L. Glantz, Esq. Fritz W. Ganz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, CO 80203 Telephone: 303-382-6200 Fax: 303-382-6210 Email: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of March, 2008, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO TIC--THE INDUSTRIAL COMPANY'S MOTION TO REVIEW TAXATION OF COSTS UNDER FED. R. CIV. P. 54(d) was electronically filed via ECF with the U.S. District Court for the District of Colorado and served electronically or via first-class U.S. mail on the following: Terrence M. Ridley, Esq. [email protected] [email protected] Marian Lee Carlson, Esq. [email protected] [email protected] Colin C. Deihl, Esq. [email protected] [email protected] Paul J. Sanner, Esq. [email protected] Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-2122

/s Janyce L. Lee