Free Motion for Review - District Court of Colorado - Colorado

Case 1:04-cv-00683-EWN-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00683-EWN -MJW

BEVERLY COLEMAN, Plaintiff, v. AMERICAN FURNITURE WAREHOUSE CO., a Colorado corporation registered to do business in the State of Colorado; and JACOB JABS, Defendants.

DEFENDANT JAKE JABS' MOTION TO REVIEW TAXATION OF COSTS

COMES NOW, Defendant Jacob Jabs ("Jabs"), through his undersigned counsel, pursuant to Fed.R.Civ.P. ("Rule") 54(d)(1), D.C.Colo.LCivR ("Local Rules") 7.1A,1 and 54.1, and hereby respectfully moves for a review of the taxation of costs by the clerk, and for an additional award of costs in the amount of $527.54, for a total judgment for costs2 in favor of Jabs and against Plaintiff in the amount of $1,450.34. As grounds therefore, Jabs states as follows: 1. On July 18, 2005, Jabs timely filed his Bill of Costs. Jabs sought, inter alia,

$1,445.34 for "Fees for exemplification and copies of papers necessarily obtained for use in the

Jabs' counsel has repeatedly conferred in good faith with Plaintiff's counsel to resolve this matter, but has been unable to do so; Plaintiff's counsel recently suggested that Jabs file this request because an agreement could not be reached.
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Jabs has filed a motion for attorneys fees as well.

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case" (hereafter "copy costs"), pursuant to 28 U.S.C. § 1920(4). The charges for each individual copying job were set forth on the materials submitted with the Bill of Costs, and supported by an affidavit. Plaintiff did not object to the nature or sufficiency of the evidence, or introduce any contrary evidence, either before or at the conference with the clerk. This type of evidentiary presentation was sufficient to establish Jabs' entitlement to the amounts sought, to the extent those amounts are properly taxable. "We do not require that a civil rights attorney justify each copy he or she makes, and we do not think that the burden to justify copies is a high one." Case v. Unified School Dist. No. 233, Johnson County, Kan. , 157 F.3d 1243, 1259 (10th Cir. 1998). 2. On July 28, 2005, the parties appeared before the clerk for a taxation of costs

(before the conference, counsel for the parties had conferred repeatedly in an effort to reach a stipulation but were unable to do so). The clerk declined to award the full amount of copy costs Jabs sought, on several grounds, and awarded $917.80. Accordingly, Jabs requests an additional award of $527.54. 3. The $527.54 deficit is the result of several decisions by the clerk that Jabs

respectfully requests the Court review. First, with respect to copy costs associated with the briefing of the summary judgment motion, reply, and appendices and related materials, the clerk refused to award the copy costs associated with serving all the parties ­ the clerk awarded the copy costs for serving the Plaintiff, but not for the copies required to serve the other party to the case. This amount reduced the award by $164.45.

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4.

Second, with respect to the copy costs associated with obtaining and using

documents in discovery, the clerk refused to award those costs unless the copies obtained were then used as deposition exhibits in depositions attached to the summary judgment motion, or exhibits attached to the motion. This decision reduced the award by $130.00. 5. Third, the clerk refused to award any of the other copy costs actually and

necessarily incurred in this case. Thus, other than the limited costs awarded in association with the motion for summary judgment, copy costs were not awarded for (a) the costs of copies for all the other documents filed with the Court and served on all the other parties. Nor were copy costs awarded for (b) the costs of copies of other documents necessarily used in the case, such as other documents produced in the case but not identified above, or copies of other documents such as correspondence to the parties, or non party witnesses, or custodians of records. This decision reduced the award by $232.89 (half of this amount could be fairly attributed to each of the two sub-categories set forth above). 6. These three decisions should be reviewed by the Court, as they are contrary to

how section 1920(4) should be interpreted. 7. At the outset, it should be noted that the Tenth Circuit has endorsed a broad

reading of section 1920, and rejected unfairly narrow interpretations of this provision. With respect to the issue of whether the documents were "necessarily obtained for use in the case", the Tenth Circuit has adopted an expansive view: We have recognized that it is ordinarily best to judge reasonable necessity under § 1920 in light of the facts known to the parties at the time the expenses were incurred, Merrick v. Northern Natural Gas Co., 911 F.2d 426, 434 (10th Cir.1990) (citing Copper 3

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Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir.1982)), and we feel that the same test as to timing for deciding necessity applies under § 1919. Cf. Signorile, 499 F.2d at 145. (FN8) We are aware that the realities of litigation occasionally dispense with the need of much of the discovery already taken by the parties when, for instance, a dispositive motion is granted by the trial court on purely jurisdictional grounds or on grounds other than the merits. At the time that the parties engage in discovery, however, they may not know whether such a motion will be granted or whether they will be forced to proceed to trial. Hence, caution and proper advocacy may make it incumbent on counsel to prepare for all contingencies which may arise during the course of litigation which include the possibility of trial. It would therefore be inequitable to essentially penalize a party who happens to prevail on a dispositive motion by not awarding costs associated with that portion of discovery which had no bearing on the dispositive motion, but which appeared otherwise necessary at the time it was taken for proper preparation of the case. We will not, therefore, attempt to employ the benefit of hindsight in determining whether an otherwise taxable item was necessarily obtained for use in the case. Rather, we hold that such a determination must be made based on the particular facts and circumstances at the time the expense was incurred. (FN9) Callicrate v. Farmland Industries, Inc., 139 F.3d 1336,1340 (10th Cir. 1998). A broad reading is consistent with the statutory purpose of fully compensating the winning party for the discrete types of expenses listed in the statute and associated with the case. Pursuant to this policy, the clerk's narrower reading must be rejected, and full copy costs for all documents obtained and copied should be awarded. 8. Reported decisions by this Court concerning copy costs are consistent with this

conclusion, as they follow the Tenth Circuit's approach and reject the very narrow approach taken by the clerk in this case: "The test is not whether the documents copied were discovery documents or other types of documents, but rather, whether the documents were necessarily 4

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obtained for use in the case. See 28 U.S.C. § 1920(4); Tilton, 115 F.3d at 1476 (upholding district court's determination that costs incurred in photocopying third party documents were reasonably necessary to the litigation)." Karsian v. Inter-Regional Financial Group, Inc., 13 F.Supp.2d 1085,1093 (D. Colo. 1998). 9. The Tenth Circuit has also rejected as too narrow a view that copy costs should be

limited to the materials used on the summary judgment motion: Section 1920 provides: "A judge or clerk of any court of the United States may tax as costs the following: ... (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; ... (4) Fees for exemplification and copies of papers necessarily obtained for use in the case." We review a district court's assessment of costs for abuse of discretion. Augustine v. United States, 810 F.2d 991, 996 (10th Cir.1987). We have previously noted that a district court rule that permits costs only for depositions received in evidence or used by the court in ruling upon a motion for summary judgment is narrower than section 1920. Hernandez v. George, 793 F.2d 264, 268-69 (10th Cir.1986). See also Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir.1982) (stating that the best practice is to determine which depositions were reasonably necessary in the light of facts known to counsel at the time they were taken, rather than at trial), modified on other grounds, 701 F.2d 542 (5th Cir.1983) (en banc). Merrick v. Northern Natural Gas Co., Div. of Enron Corp., 911 F.2d 426, 434 (10th Cir. 1990) (emphasis added). Merrick further suggests that the clerk's decision restricting copy costs to documents submitted as part of the summary judgment materials is too narrow, and that an additional award of $232.89 should be made. 10. Several other Tenth Circuit decisions support an award of the copy costs sought

by Jabs. For example, in Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476 (C.A.10 (Okla.)

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1997), the Tenth Circuit upheld an award for copy costs for documents imaged and copied, including from third parties, but not used as exhibits and submitted to the court. This is contrary to the clerk's decision refusing to award $130.00. 11. In Jones v. Unisys Corp., 54 F.3d 624, 633 (C.A.10 (Utah) 1995), the Tenth

Circuit upheld an award for copy costs for all documents submitted to the court and served on the other party. This is contrary to the clerk's decision refusing to award $164.45. WHEREFORE, for the reasons set forth above, Jabs respectfully requests that the Court review the taxation of costs, and award him an additional amount of $527.54, for a total judgment for costs in favor of Jabs and against Plaintiff in the amount of $1,450.34. Respectfully submitted this 4th day of August, 2005.

s/ Andrew W. Volin Andrew W. Volin, Esq. SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Telephone: 303-297-2900 Facsimile: 303-298-0940 E-Mail: [email protected]
ATTORNEYS FOR DEFENDANT JACOB JABS

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of August, 2005, I electronically filed the foregoing DEFENDANT JAKE JABS' 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 e-mail addresses: Lonn M. Heymann, Esq. (via e-mail: [email protected]) WALTER L. GERASH LAW FIRM, P.C. 1439 Court Place Denver, CO 80202 Gary J. Benson, Esq. (via e-mail): [email protected] Sharlene Aitken, Esq. DWORKIN, CHAMBERS & WILLIAMS, P.C. 3900 East Mexico Avenue, Suite 1300 Denver, CO 80210

s/Marilyn Badolato, Legal Assistant to Andrew W. Volin SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Ofc: 303-297-2900 Fax: 303-298-0940 E-Mail:[email protected]

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