Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01708-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-1708-LTB-MJW DAVID A. SORBO, Plaintiff, vs. UNITED PARCEL SERVICE, Defendant.

DEFENDANT'S REPLY IN SUPPORT OF MOTION TO REVIEW CLERK'S TAXATION OF COSTS
Defendant United Parcel Service ("UPS"), by its attorneys Holland & Hart LLP, submits the following Reply in Support of Motion to Review Clerk's Taxation of Costs: 1. Plaintiff David A. Sorbo's ("Sorbo") Response to UPS's Motion to Review

Clerk's Taxation of Costs miscites the record, repeats the same arguments made in Sorbo's January 12, 2004 Motion to Review Clerk's Taxation of Costs, and is contrary to the Tenth Circuit's holding in Sorbo v. United Parcel Service, 432 F.3d 1169 (10th Cir. 2005). 2. UPS's February 7, 2006, Revised Bill of Costs ("Revised Bill of Costs") included

nine witnesses whose fees were properly included under 28 U.S.C. § 1920. Despite Plaintiff's contention, Sorbo is not listed among the witnesses. See Exhibit A, hereto. Similarly, contrary to Plaintiff's claims, all witness fees, including the expert witness fees, incorporated in UPS's Revised Bill of Costs are within the scope of 28 U.S.C. § 1920. All fees and expenses incurred in connection with expert witnesses in excess of the standard witness fees listed in 28 U.S.C. §

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1920(3) and fixed by 28 U.S.C. § 1821 were excluded from UPS's Revised Bill of Costs. Sorbo v. United Parcel Service, 432 F.3d 1169, 1179 (10th Cir. 2005) (stating that expert fees in excess of the standard witness fees are not within the scope of 28 U.S.C. § 1920). Furthermore, despite Plaintiff's contention, witness fees do not have to be associated with a dispositive motion in order to be awarded to the prevailing party. See Mitchell v. Moore, 218 F.3d 1190, 1204 (10th Cir. 2000). 3. Sorbo asserts that UPS's copying costs are contrary to the Tenth Circuit's ruling

on costs in this case. Specifically, Sorbo claims that redaction work was improperly included and that the copying costs were too high. First, as UPS has previously asserted, it is entirely appropriate to allow UPS to recover, in addition to all copies generated, those costs associated with copy costs from third party treatment providers. See Tileton v. Capitol Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1977). Second, as with the other expenses incurred in this litigation, UPS's printing and copying expenses were particularly high because of the tedious gathering of medical treatment and other background records UPS was required to undertake. 4. Similarly, contrary to Sorbo's assertion, the court reporter fees included in UPS's

Revised Bill of Costs were within the scope of 28 U.S.C. § 1920. As the prevailing party, UPS is entitled under 28 U.S.C. § 1920 to "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." All of UPS's court reporter fees included in its Revised Bill of Costs, including those incurred for expert depositions, were necessarily obtained for use in this case and are within the scope of 28 U.S.C. § 1920. The Tenth Circuit already considered Plaintiff's broad argument that costs sought by UPS were not reasonably incurred in connection with material necessarily obtained for use in this case. Sorbo,

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432 F.3d at 1181. The Tenth Circuit stated that this Court "addressed the matter at length and with a first-hand sensitivity to the proceedings that we cannot match." Id. Ultimately the Tenth Circuit held that Sorbo's objections did not persuade the court of any clear error in the district court's determination. Id. 5. Plaintiff repeatedly argues that costs associated with UPS's Motion for Partial

Summary Judgment are improper because this Court did not ultimately rule on it. However, as UPS has previously asserted, it is inequitable to penalize a party who prevails on a dispositive motion "by not awarding costs associated with that portion of discovery which had no bearing on the dispositive motion." Mitchell, 218 F.3d at 1204. The costs associated with both of UPS's motions for summary judgment as well as costs not associated with either motion, were reasonably necessary at the time they were incurred and are properly included in UPS's costs. 6. Plaintiff's affidavit, attached as Exhibit B to his Response, should be stricken, as

untimely, irrelevant hearsay and because it contains, once again, unfounded accusations of fraud. The only issue before the Court here is the award of costs. Given Plaintiff's own disclosure abuses and pattern of misstatements in this case, UPS asks that the Court award the full amount requested. WHEREFORE, UPS requests that the Court grant UPS's Motion for Review of March 28, 2006 Taxation of Costs, award UPS $25,526.26 in costs, and grant such further relief as this Court deems necessary and just.

Dated May 5, 2006.

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Respectfully submitted,

s/ Judith A. Biggs _________ HOLLAND & HART LLP One Boulder Plaza 1800 Broadway, Suite 300 Boulder, CO 80302 Phone: (303) 473-2707 Fax: (303) 975-5344 [email protected] ATTORNEYS FOR DEFENDANT UPS

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CERTIFICATE OF SERVICE

I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-participants name: David A. Sorbo (US Mail, postage prepaid, Return Receipt Requested and by First Class Mail) 6700 W. 11th Avenue, #112 Lakewood, CO 80214

s/ Judith A. Biggs _________ HOLLAND & HART LLP One Boulder Plaza 1800 Broadway, Suite 300 Boulder, CO 80302 Phone: (303) 473-2707 Fax: (303) 975-5344 [email protected] ATTORNEYS FOR DEFENDANT
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