Free Proposed Bill of Costs - District Court of Colorado - Colorado

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I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO

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

DEFENDANT'S REVISED BILL OF COSTS
Pursuant to 28 U.S.C. §§ 1821 and 1920, and F.R.C.P. 54 (d), Defendant United Parcel Service ("UPS"), by its attorneys Holland and Hart LLP submits the following Revised Bill of Costs.

C ERTIFICATE OF C OMPLIANCE WITH L OCAL R ULE 54.1
The undersigned certifies that she has conferred with Plaintiff, in an effort to resolve disputes regarding this Revised Bill of Costs, but at this time, no amounts have been stipulated.

C OSTS R EQUESTED
Pursuant to the Judgment entered on October 10, 2003, Defendant seeks reimbursement for $25,516.16 in costs it incurred associated with its defense of this

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civil action. Attached hereto, is Defendant's Revised Bill of Costs prepared on the form provided by this Court.

B ACKGROUND
1. This Court entered judgment in favor of Defendant UPS on October 10,

2003 and awarded UPS its costs. 2. On May 12, 2004, this Court entered an Order assessing costs against

Plaintiff in the total amount of $52,461.87, the amount requested in UPS' Motion to Review Clerk's Taxation of Costs. 3. On December 28, 2005, the Tenth Circuit Court of Appeals held that

expert fees and expenses, attorney travel expenses, and computer assisted legal research costs which were outside the scope of 28 U.S.C. § 1920 were improperly taxed against Plaintiff. Sorbo v. United Parcel Service, 2005 WL 3541067 (10th Cir. 2005). 4. On January 24, 2005, this Court entered an Order for UPS to submit a

revised bill of costs excluding fees which the Tenth Circuit had held were outside the scope of 28 U.S.C. § 1920. 5. A Revised Bill of Costs is attached as Exhibit A and is consistent with the

Tenth Circuit's opinion. 1 UPS has omitted from the attached bill, fees and expenses

The Tenth Circuit indicated that the trial court should identify and quantify the components of costs that properly fall within the scope of § 1920. The trial court need not (but may) consider whether the costs are reasonable and necessary. Rather than repeat all the justifications for the Revised Bill of Costs being reasonable and necessary, UPS incorporates by reference its original Bill of Costs and Motion to Review Clerk's Taxation of Costs and Brief in support dated December 23, 2003.

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incurred in connection with expert witnesses in excess of those listed in 28 U.S.C. § 1920. UPS has also omitted attorney travel expenses, and computer assisted legal research costs from its bill. As demonstrated below, the attached bill reflects costs that are within the scope of 28 U.S. C. § 1920 and were reasonably incurred in connection with materials necessarily obtained for use in this case ­ a case that involved voluminous discovery. Such discovery was an enormous and very costly undertaking by both parties. Yet despite this voluminous discovery, Plaintiff was unable to produce any evidence upon which he could support his claims.

A RGUMENT AND A UTHORITIES
A. UPS's Costs Were Reasonable and Necessary and Should be Awarded.

Pursuant to F.R.C.P. 54(d), UPS is entitled to recover its costs. Rule 54(d) provides that costs shall be awarded as a matter of course to the prevailing party unless otherwise ordered by the court. This Court has "a sound discretion over the allowance, disallowance or apportionment of costs" in this action. Lacovara v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 102 F.R.D. 959, 960 (E.D. Pa. 1984); see also Mikel v. Kerr, 499 F.2d 1178, 1183 (10th Cir. 1974). In considering the award of costs, a court should make its determination based on the circumstances and equities of each case. Lacovara, 102 F.R.D. at 961. Further, there is a "heavy presumption in favor of awarding costs to the prevailing party." Majeske v. City of Chicago, 218 F.3d 816, 824 (8th Cir. 2000). The circumstances of this case, the type of discovery pursued by Plaintiff and the assertion of claims not reasonably based upon the evidence all support a full award of costs (as revised) to UPS. Furthermore, the kind of costs incurred are of -3-

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the type incurred in similar litigation. See Affidavit of Judith A. Biggs, attached as Exhibit B. B. Fees of the Court Reporter and Depositions Should be Awarded

28 U.S.C. § 1920(2) provides for the taxation of costs for "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." In addition, 28 U.S.C. § 1920(2) and (4) authorizes the recovery of "all depositions reasonably necessary to the litigation of the case." Mitchell v. City of Moore, 218 F.3d 1190, 1204 (10th Cir. 2000). Necessity should be determined in light of the facts known when the transcript was requested. Majeske, 218 F.3d at 825. Further, the transcript need only be necessary ­ not absolutely indispensable ­ in order to provide the basis for an award of costs. Id. Factors indicating necessity include using the transcript to record the court's oral rulings during trial; prepare pre-trial and post-trial memoranda; prepare direct examination questions for witnesses; anticipate cross examination questions; cross-examine the opposing party's witnesses; draft posttrial briefs; and respond to post trial motions. Id. In this case, Plaintiff insisted on taking the deposition of numerous persons and delving into areas that were wholly irrelevant to the claims asserted. In fact, it was for that reason that UPS filed its Motion for Protective Order and Sanctions for Abusive Deposition Conduct. See Docket #69 (filed under seal). Given the number of depositions insisted on by Plaintiff, the wide-ranging scope of discovery, the necessity of conducting additional discovery given the Plaintiff's pursuit of irrelevant evidence, and considering that most of the transcripts obtained

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were used by UPS in its initial motion for summary judgment or in its motion for partial summary judgment, UPS requests $19,188.48 for deposition costs. See Fees of Court Reporter spreadsheet, attached hereto Exhibit C, Page 1. C. Printing and Copying Expenses Should be Awarded

28 U.S.C. §1920(3) and (4) provide for the taxation of costs for "[f]ees and disbursements for printing" and "fees for exemplification and copies of papers necessarily obtained for use in the case." UPS incurred $5,847.68 in fees for printing and copying papers necessarily obtained for this case. These charges are itemized in the attached Fees and Disbursements for Printing spreadsheet, Exhibit C, page 2, which shows the amount of copies generated and costs for records. Included in these records are the various charges associated with UPS's gathering of medical treatment and other background records which ultimately were used to support its motion for partial summary judgment. 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 Tilton v. Capitol Cities/ABC, Inc., 115 F.3d 1471, 1477 (10 th Cir. 1977). D. Witness Fees Should be Awarded

Pursuant to 28 U.S.C. § 1921, UPS requests reimbursement of $480.00 for witness fees. The Witness Fees spreadsheet attached as Exhibit C, page 3, reveals the itemized expenses for such costs.

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CONCLUSION
For the reasons set forth above, UPS respectfully requests that this Court award UPS a total of $25, 516.16 in costs, as the prevailing party in this matter.

Dated: February 7, 2006. Respectfully submitted,

s/ Judith A. Biggs H OLLAND & H ART LLP 1800 Broadway Street, Suite 300 Boulder, CO 80302 Phone: (303) 473-2707 Fax: (303) 975-5344 [email protected] A TTORNEYS F OR D EFENDANT UPS

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C ERTIFICATE O F S ERVICE

I hereby certify that on February 7, 2006, I electronically filed the foregoing Defendant's Revised Bill of Costswith the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: David A. Sorbo 6700 W. 11th Avenue, #112 Lakewood, CO 80214 [email protected]

s/ Judith A. Biggs H OLLAND & H ART LLP 1800 Broadway Street, Suite 300 Boulder, CO 80302 Phone: (303) 473-2707 Fax: (303) 975-5344 [email protected] A TTORNEYS F OR D EFENDANT UPS

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