Free Order on Motion for Review - District Court of Colorado - Colorado

Case 1:03-cv-02442-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 03­ 02442­ cv­ EWN­ BNB

FREDERICK P. HARRISON (Pro Se), C.L.H. and J.Y.H. (Children), appearing by and through their father Frederick P. Harrison, CHRISTINA A. HARRISON (Pro Se), and I.A.H. (A Child), appearing by and through his mother Christina A. Harrison, Plaintiffs, v. JUDGE DAVID A. GILBERT, Fourth Judicial District Court, El Paso County, Colorado, THE PEOPLE OF THE STATE OF COLORADO, JOHNNY BOHNEN, El Paso County Attorney Office for the Department of Human Services, DIANE C. BOLDT, Guardian ad Litem, ANN ROTOLO, Guardian ad Litem, PHILLIP BRADLEY SHARP, ESQ., BRYAN HUNT, ESQ., DETECTIVE KEN LARSON, El Paso County Sheriff Office, and TINA-M ARIE T. HARRISON, Defendants.

ORDER AND MEMORANDUM OF DECIS ION

This matter is before the court on Plaintiffs'M otion for Review of Taxation. On September 10, 2004, I issued an order of dismissal, thereby dismissing all of Plaintiffs'claims in this case. (Order of Dismissal [filed Sept. 10, 2004].) The order concluded that " [a]ll -1-

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[D]efendants may have their costs by filing a proper bill of costs with the clerk within eleven days of the date of this order." (Id. at 8.) I issued a final judgment on September 15, 2004. (Final J. [filed Sept. 15, 2004].) The final judgement reiterated Defendants'right to collect costs upon filing a proper bill of costs. (Id. ¶ 2.) On September 20, 2004, Defendant Phillip Bradley Sharp submitted a bill of costs, including an invoice itemizing the respective costs. (Bill of Costs [filed Sept. 20, 2004].) On October 14, 2004, the clerk of the court entered an award of costs in the amount of $107.15. (Award of Costs [filed Oct. 14, 2004] [hereinafter " Award" The ].) clerk' award attached an itemization of Defendant Sharp' costs. (Id. [Copy of Costs].) s s On October 18, 2004, Plaintiffs filed a motion for review of taxation of costs. (M ot. for Review of Taxation [filed Oct. 18, 2004] [hereinafter " Pls.'Br." Plaintiffs object to the clerk' ].) s taxation of costs. (Id. at 1­ Specifically, Plaintiffs argue that the clerk' award of costs was in 4.) s fact an award of attorneys'fees. (Id. at 2.) On October 28, 2004, Defendant Sharp filed a response to Plaintiffs'motion for review of taxation. (Resp. to Pls.'M ot. for Review of Taxation [filed Oct. 28, 2004].) On November 2, 2004, Plaintiffs filed a reply in support of their motion for review of taxation. (Pls.'Reply to Def. Sharp' Resp. to Pls.'M ot. for Review of s Taxation [filed Nov. 2, 2004] [hereinafter " Pls.'Reply" ].) Rule 54(d)(1) provides that: costs other than attorneys'fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . . Such costs may be taxed by the clerk on one day' notice. On motion served s within 5 days thereafter, the action of the clerk may be reviewed by the court. Fed. R. Civ. P. 54(d)(1) (2004). The party seeking costs bears the burden of establishing " the amount of compensable costs and expenses to which it is entitled and assumes the risk of failing

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to meet that burden." Allison v. Bank One-Denver, 289 F.3d 1223, 1248­ (10th Cir. 2002). 49 Once the clerk has made his decision regarding the taxation of costs, " party objecting to the the clerk' taxation has the burden of persuading the court that it was improper." 10 Charles Alan s Wright, Arthur R. M iller & M ary Kay Kane, Federal Practice and Procedure § 2679 (3d ed. 1998); BDT Prods., Inc. v. Lexmark Int' Inc., 405 F.3d 415, 420 (6th Cir. 2005). 28 U.S.C. § l, 1920 sets forth the particular costs that the clerk may tax. 28 U.S.C. § 1920 (2004). These costs include " [f]ees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920(4). Here, the clerk entered an award of costs in the amount of $107.15. (Award.) This amount only included Defendant Sharp' copy expenses. (Id.) In fact, Defendant Sharp s requested the clerk to tax costs associated with courier fees, however, the clerk declined to do so. (Award [Bill of Costs].) The court properly awarded Defendant Sharp costs in the amount of $107.15. This award was reasonable and proper in accordance with 28 U.S.C. § 1920(4). Plaintiffs contend that the " court' awarding of attorney [sic] fees was in error and s inappropriate." (Pls.'Br. at 2.) In support, Plaintiff recites a plethora of law relating to awards of attorneys'fees assessed against pro se plaintiffs. (Id. at 2­ This legal recitation is not 4.) necessary and inappropriate. Plaintiff mischaracterizes the award of costs as an award of attorneys'fees. As described above, copy costs are not considered attorneys'fees. Therefore the law regarding attorneys'fees assessed against a pro se plaintiff is not germane to this case. Alternatively, Plaintiff requests, " that the court, as a result of the [P]laintiffs'suspicion, order that the [D]efendant' counsel provide the [P]laintiffs a detailed explanation of counsel s [sic] asserted cost of $107.15, item by item . . ." (Pls.'Reply at 3.) Defendant Sharp provided a

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detailed itemization attached to his bill of costs. (Award [Copy of Costs].) Accordingly, it is not necessary to order Defendant Sharp to produce a second itemization. Based on the foregoing it is therefore ORDERED that the motion for review of taxation is DENIED. Dated this 28th day of September, 2005.

BY THE COURT:

s/Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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