Free Order - District Court of Colorado - Colorado

Case 1:01-cv-02175-JLK-PAC

Document 108

Filed 08/26/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02175-JLK-PAC KWAL HOWELLS , INC., Plaintiff, v. ABC DIS PENS ING TECHNOLOGIES , INC., Defendant.

ORDER ON REQUES T FOR COS TS INCLUDING EXPERT FEES KANE, J. This matter is before me on Plaintiff' M otion in Support of Application for Bill s of Costs and Expert Fees, filed April 1, 2005. On M ay 26, 2005, the Deputy Clerk of the Court entered a Bill of Costs taxing a total of $3,333.64 in costs in favor of Plaintiff, and indicating that additional amounts for expert witness fees and costs accruing after a Fed. R. Civ. P. 68 offer of settlement were the subject of a M otion before me. After considering the M otion, Plaintiff' request for the additional amounts is DENIED. s In a diversity case, federal law controls with respect to the assessment of costs. Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1291-92 (10th Cir. 1988); see also Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1177 (10th Cir. 2000)). Where a plaintiff' state law claims are tried in federal court, the parties are bound by federal s rules and procedure, specifically including Fed. R. Civ. P. Rule 68 regarding offers of

Case 1:01-cv-02175-JLK-PAC

Document 108

Filed 08/26/2005

Page 2 of 2

settlement, and Rule 54(d) on costs. Federal courts, in turn, are bound by the limitations set out in 28 U.S.C. § 1920 and § 1821 in their ability to shift the costs of a prevailing party' expert witness fees. Accordingly, Plaintiff' request for expert s s witness fees under Colo. Rev. Stat. § 13-17-202 is misplaced, and because § 1821 precludes the recovery of the fees sought in federal proceedings, Plaintiff' M otion in s Support of its Application for Bill of Costs and Expert Fees is DENIED. Dated: August 26, 2005 BY THE COURT: s/John L. Kane SENIOR JUDGE UNITED STATES DISTRICT COURT

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