Duran v. Denver, City and County of et al

Filing 149

ORDER That the City and County of Denvers Unopposed Motion for Review of Costs Pursuant to Fed. R. Civ. P. 54(d)(1) and for Entry of Judgment Pursuant to Fed. R. Civ. P. 58(d) 123 , filed October 4, 2013, is GRANTED; That plaintiffs Motion for Relief From Final Judgment To Include Prejudgment Interest Pursuant to Rule 60(b) 125 , filed October 16, 2013, is GRANTED; and That the Final Judgment 108 filed July 31, 2013, is AMENDED; by Judge Robert E. Blackburn on 8/13/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 10-cv-01569-REB-KMT
ROBERT DURAN,
Plaintiff,
v.
STEVEN KOEHLER, in his individual capacity,
Defendant.

ORDER
Blackburn, J.
The matters before me are (1) former defendant the City and County of Denver’s
Unopposed Motion for Review of Costs Pursuant to Fed. R. Civ. P. 54(d)(1) and
for Entry of Judgment Pursuant to Fed. R. Civ. P. 58(d) [#123],1 filed October 4,
2013; and (2) plaintiff’s Motion for Relief From Final Judgment To Include
Prejudgment Interest Pursuant to Rule 60(b) [#125], filed October 16, 2013. I grant
the motions.
On September 28, 2012, I granted the City and County of Denver’s Motion for
Summary Judgment [#51], filed July 16, 2012, and dismissed all claims against the
City with prejudice. (See Order Granting City and County of Denver’s Motion for
Summary Judgment [#70], filed September 28, 2012.) Therein, I ordered “[t]hat at the
time judgment enters, judgment SHALL ENTER on behalf of defendant, the City and
County of Denver, a municipality, and against plaintiff, Robert Duran, as to all claims
1

“[#123]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

and causes of action asserted against it; provided, that the judgment as to the claims
against this defendant shall be with prejudice” (id. ¶ 3 at 7), and directed that the City
be “DROPPED as a named party to this action, and the case caption AMENDED
accordingly” (id. ¶ 4 at 7).2 Following a jury trial and verdict in favor of plaintiff against
the remaining defendant, Steven Koehler, in July 2013, the clerk of the court entered
judgment in favor of plaintiff against Mr. Koehler. (See Final Judgment [#108], filed
July 31, 2013.) However, judgment was not entered in favor of the City as
contemplated by the order granting the City’s motion for summary judgment. The
judgment therefore fails to dispose of all parties and claims in this lawsuit, and must be
amended accordingly.
Concomitantly, the award of costs to plaintiff following the successful prosecution
of his claim against Mr. Koehler applies exclusively to Mr. Koehler. Thus, the taxation of
costs against both Mr. Koehler and the City is clearly erroneous and must be rectified.
(See Bill of Costs [#122], filed October 2, 2103.)3 For these reasons, the City’s motion
will be granted.
With regard to plaintiff’s motion to amend the judgment to include an award of
prejudgment interest, I find that motion to be well-taken. Prejudgment interest is
intended “to compensate the wronged party for being deprived of the monetary value of

2

I further provided for an award of costs to the City as a prevailing party under Fed. R. Civ. P.
54(d)(1) and D.C.COLO.LCivR 54.1. (Order Granting City and County of Denver's Motion for
Summary Judgment ¶ 5 at 7 [#70], filed September 28, 2012.)
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Still pending before the court is plaintiff’s demand that the City indemnify Mr. Koehler for
plaintiff’s judgment. (See Writ of Garnishment [#133], filed January 14, 2014.) My determination that
costs may not be taxed against the City pursuant to Rule 54(d) does not resolve the issues raised by and
inherent to the indemnification motion, which will be addressed by separate order at the appropriate time.

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his loss from the time of the loss to the payment of the judgment.” Zuchel v. City &
County of Denver, 997 F.2d 730, 746 (10th Cir. 1993). “[A]lthough prejudgment interest
is ordinarily awarded in a federal case, it is not recoverable as a matter of right.” Malloy
v. Monahan, 73 F.3d 1012, 1019 (10th Cir. 1996) (citation and internal quotation marks
omitted). Nevertheless, and despite the fact that the court retains discretion to award
prejudgment interest, see Kleier Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d
1036, 1040 (10th Cir. 1990), there is a clear preference favoring an award of
prejudgment interest in this circuit. See United Phosphorus, Ltd. v. Midland
Fumigant, Inc., 205 F.3d 1219, 1236-37 (10th Cir. 2000). In determining whether to
award prejudgment interest,
[t]he district court must first determine whether the award of
prejudgment interest will serve to compensate the injured
party. Second, even if the award of prejudgment interest is
compensatory in nature, the district court must still determine
whether the equities would preclude the award of
prejudgment interest.
Caldwell v. Life Insurance Co. of North America, 287 F.3d 1276, 1286 (10th Cir.
2002) (citation and internal quotation marks omitted).
The first element is easily satisfied here. “[P]rejudgment interest is not awarded
as a penalty; it is merely an element of just compensation.” City of Milwaukee v.
Cement Division, National Gypsum Co., 515 U.S. 189, 197, 115 S.Ct. 2091, 2096,
132 L.Ed.2d 148 (1995). Clearly, an award of prejudgment interest in this case will
serve that purpose, especially in light of the protracted proceedings that preceded
plaintiff’s ultimate success on his constitutional excessive force claim.

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As for the second inquiry, prejudgment interest is “ordinarily awarded, absent
some justification for withholding it.” Suiter v. Mitchell Motor Coach Sales, Inc., 151
F.3d 1275, 1288 (10th Cir. 1998) (internal quotations and citations omitted). Defendant
has not argued,4 and I perceive nothing to suggest, that equity would preclude an award
of prejudgment interest in this case. Indeed, quite the opposite is true. Without such an
award, plaintiff will not be made whole for the loss he suffered. See Osterneck v.
Ernst & Whinney, 489 U.S. 169, 175, 109 S.Ct. 987, 991, 103 L.Ed.2d 146 (1989).
“Calculation of the rate for prejudgment interest also rests firmly within the sound
discretion of the trial court.” Weber v. GE Group Life Assurance Co., 541 F.3d 1002,
1016 (10th Cir. 2008) (citation and internal quotation marks omitted). Where the
prejudgment rate is governed by federal law, a court is free to choose any rate which
would fairly compensate the plaintiff for the delay. See Towerridge, Inc. v. T.A.O.,
Inc., 111 F.3d 758, 764 (10th Cir. 1997). “Courts commonly look to state statutory
prejudgment interest provisions as guidelines for a reasonable rate.” Weber, 541 F.3d
at 1016. Under Colorado law, § 13-21-101(1), C.R.S., which governs the recovery of
damages in personal injury actions,
requires payment of prejudgment interest at a rate of nine
percent per annum from the date of the accident. Section
13-21-101 requires that simple interest be calculated on the
amount of the judgment from the date the action accrued
until the day before the action is filed. The simple interest
should then be added to the judgment and that sum used as
the initial base amount for calculating compound interest
annually from the date the action was filed until the date
judgment entered.

4

Defendant filed no response to the motion seeking an award of prejudgment interest.

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Wiener v. Sunlight, Inc., 2011 WL 4501963 at *6 (D. Colo. Sept. 29, 2011) (internal
citations and quotation marks omitted). Plaintiff has requested recovery pursuant to this
provision. Defendant has not objected. I find plaintiff’s request reasonable and justified
and will direct the clerk of the court to enter judgment pursuant to the Colorado statute.
THEREFORE, IT IS ORDERED as follows:
1.

That the City and County of Denver’s Unopposed Motion for Review of

Costs Pursuant to Fed. R. Civ. P. 54(d)(1) and for Entry of Judgment Pursuant to
Fed. R. Civ. P. 58(d) [#123], filed October 4, 2013, is GRANTED;
2. That plaintiff’s Motion for Relief From Final Judgment To Include
Prejudgment Interest Pursuant to Rule 60(b) [#125], filed October 16, 2013, is
GRANTED; and
3. That the Final Judgment [#108] filed July 31, 2013, is AMENDED;
as follows:
a. That judgment SHALL ENTER on behalf of plaintiff, Robert Duran,
against defendant, Steven Koehler, in the amount of $40,000.00 dollars;
plus prejudgment interest of $18,286.78, and postjudgment interest at the
rate provided by law from the date of the judgment, i.e., July 31, 2013, to
the date the judgment is paid in full;
b. That plaintiff, Robert Duran, is AWARDED his costs, to be taxed
against the defendant, Steven Koehler, by the clerk of the court pursuant
to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1;
c. That judgment with prejudice SHALL ENTER on behalf of defendant,

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the City and County of Denver, a municipality, against plaintiff, Robert
Duran, in accordance with my Order Granting City and County of
Denver’s Motion for Summary Judgment [#70] at 7, ¶ 3, filed
September 28, 2012; and
d. That defendant, the City and County of Denver, a municipality, is
AWARDED its costs, to be taxed by the clerk of the court pursuant to Fed.
R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and
4. That the balance of the Final Judgment [#108] filed July 31, 2013, is
RATIFIED and CONTINUED in full force and effect.
Dated August 13, 2014, nunc pro tunc to July 31, 2013, at Denver, Colorado.
BY THE COURT:

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