Free Motion for Review - 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. ______________________________________________________________________ GEOSYNTEC'S MOTION TO REVIEW TAXATION OF COSTS ______________________________________________________________________ Defendant GeoSyntec Consultants, Inc. f/k/a GeoServices, Inc. ("GeoSyntec"), through its below-signed counsel, respectfully submits this Motion to Review Taxation of Costs under Fed. R. Civ. P. 54(d). LOCAL RULE 7.1A CERTIFICATION Pursuant to D.C.Colo.LCivR 7.1A, below-signed counsel conferred with counsel for Plaintiff, Perry Glantz, regarding this motion on March 17, 2008. Counsel for Plaintiff opposes the relief requested in this motion. INTRODUCTION This CERCLA contribution case involved the long and complex history of the Summitville Mine, including a labyrinth of corporate relations, literally millions of pages of documents, numerous related lawsuits, dozens of fact and expert witnesses, and

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ultimately the potential risk to GeoSyntec of losing millions of dollars in contribution damages. In vigorously defending this action against Robert Friedland, one of the wealthiest individuals in the world, GeoSyntec incurred in excess of $150,000 in costs alone. Recognizing this clerk's draconian guidance on awarding costs, GeoSyntec sought to recover only $7,534.46 in costs ­ all of which related directly to the winning motion on damages. As the prevailing party and by order of this Court, GeoSyntec is entitled to be awarded the costs it incurred in defending this litigation pursuant to 28 U.S.C. § 1920. Yet, on March 11, 2008, the Clerk taxed $0 ­zilch­ in costs against the Plaintiff. (Docket # 318) This "non-award" is a travesty that mocks the underpinnings of the cost statute. Accordingly, GeoSyntec seeks review of the Clerk's taxation of costs and asks the Court to exercise its discretion in awarding the costs as described in this motion. LEGAL STANDARD The award of costs to the prevailing party is presumptive under Rule 54 of the Federal Rules of Civil Procedure: "costs - other than attorney's fees - should be allowed to the prevailing party" as of course unless the court otherwise directs. Fed. R. Civ. P. 54(d)(1). It is incumbent upon the losing party to overcome this presumption since the denial of costs is "in the nature of a penalty." Serna v. Manzano, 616 F.2d 1165, 116768 (10th Cir. 1980). The types of costs the Court shall award are governed by statute. 28 U.S.C. § 1920. The taxing of costs under section 1920 rests within the sound discretion of the District Court. Serna, 616 F.2d at 1168. This Court may award costs falling within

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section 1920 if it finds that the costs were "reasonably necessary for use in the case." U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1246 (10th Cir. 1988). ARGUMENT The Clerk awarded no costs to GeoSyntec on the theory that only costs that could be directly tied to use in the Motion for Summary Judgment on Damages were taxable, and that GeoSyntec's co-defendant, TIC, was awarded those costs consisting of only $27.60. (Docket # 304 and #314) This case, however, involved complicated factual issues requiring the acquisition and review of voluminous discovery transcripts and documents received both from the Plaintiff and from third parties. GeoSyntec had to assume this case would proceed to trial, and had to conduct its defense accordingly. Over $12 million in damages were at issue in this case. Given the specter of this level of damages, GeoSyntec was more than justified in vigorously defending this case. GeoSyntec was justified in incurring $7,534.46 to defeat damages of multiple millions, and such costs should not be sloughed off as costs merely incurred "for the convenience of the party." GeoSyntec should not be penalized for prevailing on summary judgment. Rather, this Court should award those costs incurred preparing the case for trial that appeared necessary at the time the costs were incurred for the proper defense of the action. See Mitchell v. City of Moore, 218 F.3d 1190, 1204-05 (10th Cir. 2000) (finding that it is "inequitable to essentially penalize a party who happens to prevail on a dispositive motion by not awarding costs . . . which appeared otherwise necessary at the time it was taken for proper preparation of the case"). Because GeoSyntec seeks

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only those costs that were reasonably incurred in preparing the winning motion, this Court should award GeoSyntec $7,534.46 in costs. A. GeoSyntec is entitled to recover $5,666.25 in fees of the court reporter for transcripts of depositions necessarily taken central to the issue of damages.

28 U.S.C. § 1920(2) allows recovery of costs for "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." The clerk awarded no costs under this provision because he could not directly tie the costs to depositions cited in the Motion for Summary Judgment on Damages. In so reasoning, the Clerk ignored the Affidavit of below-signed counsel, which pain-stakingly tied certain depositions to the winning motion on damages. (docket #304) The Tenth Circuit, however, has stated that "a district court rule that permits costs only for depositions received into evidence or used by the court in ruling upon a motion for summary judgment is narrower than section 1920." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 434 (10th Circuit 1990). See also, Mitchell, 218 F.3d at 1205; Hernandez v. George, 793 F.2d 264, 268-69 (10th Cir. 1987); see generally Propriety Under 28 USCA § 1920 and Rule 54(d) of F.R.C.P of Allowing Prevailing Party Costs for Copies of Depositions, 155 A.L.R. Fed 445, § 9[a]. Ignoring the complex underpinnings of a CERCLA case such as this, and awarding costs only for depositions actually cited in a single summary judgment brief is inequitable and inconsistent with Tenth Circuit precedent and the controlling statute. GeoSyntec should be entitled to recover all of the deposition costs included in its Bill of Costs, totaling $5,666.25. Each deposition was reasonably necessary to the damages

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issues in light of the facts known to GeoSyntec at the time they were taken. For an itemization and documentation of these costs, see Exhibits D, E, and F to the Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs, dated February 5, 2008 (Docket # 304-2). B. GeoSyntec is entitled to recover $1,868.21 in costs for copying papers necessarily obtained in connection with the winning Motion.

28 U.S.C. § 1920(4) allows recovery of costs for "exemplification and copies of papers necessarily obtained for use in the case." As a general rule, costs are taxable if necessarily incurred to obtain a document for use in the case; copies made merely for the attorney's convenience are not taxable. Jones v. Unysis, 54 F.3d 624, 632 (10th Cir. 1995). GeoSyntec's Bill of Costs requests compensation for the expense of obtaining documents from the Plaintiff and third parties related only to the issue of damages. For an itemization and documentation of these costs, see the Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs and Exhibits A, B, and C attached thereto (attached to Docket # 304). None of the copy costs GeoSyntec requests were incurred for "internal convenience" copies. Each copy was necessarily made to obtain or organize a single copy of a document for use in this case and was directly related to the winning motion for summary judgment and the resulting order on summary judgment. The Clerk taxed $0 for copies that could be directly tied to use in the Motion for Summary Judgment on Damages. In short, the Clerk reasoned that if an item was not actually affixed to the motion, it is not recoverable. This reasoning is purely a legal

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fiction, and it bears no semblance to the realities of complex CERCLA litigation. At a minimum, $1,868.21 was properly taxable under 28 U.S.C. § 1920(4). "The test is not whether the documents copied were discovery documents or other types of documents, but rather, whether the documents were necessarily obtained for use in the case." Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp. 2d

1093 (D. Colo. 1998). This was a complicated and document intensive case.
GeoSyntec could not have adequately prepared the winning motion without obtaining, assembling, and organizing large volumes of documents from the Plaintiff and third parties. Because the winning damages motion could not have been conceived of and composed without obtaining and reviewing documents in advance of trial, the cost to make such copies was essential to the winning motion, and should be awarded. GeoSyntec is accordingly entitled to recover $1,868.21; its costs for obtaining one set of documents necessary to the issue of damages. This amount represents $1,492.93 in costs incurred to obtain documents from the Plaintiff (see Exhibits A, B, and C to the Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs), and $375.28 in costs incurred to obtain documents from or for third parties (see Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs). REQUEST FOR HEARING GeoSyntec requests an evidentiary hearing if it would assist the Court in determining the reasonableness of the costs described in this motion.

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CONCLUSION WHEREFORE, Defendant GeoSyntec respectfully requests that this Court grant its Motion to Review Taxation of Costs by entering an Order awarding it $7,534.46 in costs, and any other relief the Court deems just. DATED this 18th day of March, 2008. Respectfully submitted, s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202-2617 Telephone No.: 303-292-2525 Telecopier No.: 303-294-1879 E-mail: [email protected] Paul J. Sanner Hanson, Bridgett, Marcus, Vlahos & Rudy LLP 425 Market Street, 26th Floor San Francisco, California 94105 Telephone No.: 415-995-5017 Telecopier No.: 415-541-9366 E-mail: [email protected] Attorneys for Defendant GeoSyntec Consultants, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on March 18, 2008, I electronically filed the foregoing GeoSyntec's Motion to Review Taxation of Costs with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
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Jon Bernhardt [email protected] [email protected] [email protected] Colin Christopher Deihl [email protected] [email protected] Leslie Ann Eaton [email protected] [email protected] [email protected]

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Perry L. Glantz [email protected] [email protected] [email protected] Steven Matthew Kelso [email protected] [email protected] Marian Lee [email protected] Terence M. Ridley [email protected] [email protected]

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and I hereby certify that a copy of the document has been served to the following nonCM/ECF participants in the manner indicated by the non-participant's name: Delmar R. Ehrich Faegre & Benson, LLP-Minneapolis 90 South 7th Street Wells Fargo Center, #2200 Minneapolis, MN 55402-3901 ( ) First Class Mail ( ) Hand Delivery ( ) Facsimile ( ) Overnight Delivery ( X ) E-Mail ­ [email protected]

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Paul J. Sanner Hanson, Bridgett, Marcus, Vlahos & Rudy LLP 425 Market Street, 26th Floor San Francisco, California 94105

( ) First Class Mail ( ) Hand Delivery ( ) Facsimile ( ) Overnight Delivery ( X ) E-Mail ­ [email protected] s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202-2617 Telephone No.: 303-292-2525 Telecopier No.: 303-294-1879 E-mail: [email protected] Attorney for Defendant GeoSyntec Consultants, Inc.

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