Dawson v. Audet et al

Filing 160

ORDER GRANTING MOTION CHALLENGING TAXATION OF COSTS: The Court GRANTS Mr. Dawson's motion 157 and vacates that portion of the Clerk's taxation of costs relating to Ms. Butler. Costs are taxed in favor of Defendants in the amount of $509.41, and the Judgment is deemed amended to reflect that award. by Chief Judge Marcia S. Krieger on 1/8/16.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-00901-MSK-BNB
JAMES RALPH DAWSON, JR.,
Plaintiff,
v.
PAUL AUDET,
DONALD BRIGHTWELL, and
ANGEL MEDINA,
Defendant.
______________________________________________________________________________
ORDER GRANTING MOTION CHALLENGING TAXATION OF COSTS
______________________________________________________________________________
THIS MATTER comes before the Court on the Plaintiff, James Ralph Dawson, Jr.’s
Motion (#157) seeking review of the costs taxed by the Clerk. Though Mr. Dawson’s motion
indicates the Motion was opposed, the Defendants have not filed a response.
On March 10, 2015, following a jury verdict in favor of the Defendants, the Court entered
judgment against Mr. Dawson. On March 24, 2015, the Defendants filed a Bill of Costs (# 151),
seeking, among other things, the costs of witness fees, mileage, and subsistence for three trial
witnesses. On April 15, 2015 (#155) the Clerk of the Court taxed costs against Mr. Dawson,
including the costs relating to the three witnesses. Mr. Dawson moves the Court to review that
taxation as to costs assessed for one witness, Susan Butler.
At trial, Mr. Dawson attempted to call Ms. Butler as a witness in his own case-in-chief.
Although Ms. Butler was apparently available at the courthouse, the Defendants objected to her
testifying due to her lack of personal knowledge of the pertinent facts. After hearing argument,

the Court sustained the objection and refused to let Ms. Butler testify. The Defendants did not
call Ms. Butler in their case; she did not testify at all.
28 U.S.C. § 1920 entitles a prevailing party to recoup certain costs, including “fees and
disbursements for . . . witnesses.” The record is unclear as to why the Defendants are now
seeking costs for a witness that Mr. Dawson unsuccessfully sought to call at trial. The Court
assumes – and can do no more given the lack of response to Mr. Dawson’s motion by the
Defendants – that counsel for the Defendants agreed to voluntarily produce Ms. Butler, an
employee of the Colorado Department of Corrections, rather than requiring Mr. Dawson to
subpoena her.1 Assuming such an agreement existed, the Defendants have not identified for the
Court whether the parties had any discussions about who would bear the costs of Ms. Butler’s
attendance (much less whether they discussed the nature of their objection to Ms. Butler’s
testimony). Moreover, it is not even clear to the Court whether the Defendants subpoenaed Ms.
Butler (such that they were thus required to pay her witness fees and mileage costs as required by
Fed. R. Civ. P. 45(b)(1)), or whether the costs being claimed are those that Ms. Butler incurred
appearing voluntarily at trial.
Notations made to the proposed bill of costs by the Clerk (#155) verify that Ms. Butler
was Mr. Dawson’s witness who was “made available” the first day of trial. Although the notes
indicate that the Clerk determined that costs for Ms. Butler were reasonable, no elaboration as to
the reasoning behind this determination is provided. This omission is significant, given that the
Defendants claim $ 66.00 in “subsistence” costs for Ms. Butler.2 28 U.S.C. § 1821(d)(1) allows

1

Mr. Dawson was represented by counsel, and thus, there was no impediment to him
issuing a subpoena to Ms. Butler, rather than relying upon the Defendants to do so.
2

The Court notes that the Clerk similarly taxed subsistence costs in the same amount for
two other witnesses called by the Defendants. The Bill of Costs indicates that these witnesses

for payment of subsistence costs “when an overnight stay is required at the place of attendance
because such place is so far removed from the residence of such witness as to prohibit return
thereto from day to day.” The Bill of Costs identifies Ms. Butler’s residence as being in
Colorado Springs, Colorado, approximately 70 miles from the courthouse in Denver. It seems
extremely unlikely that, even if witness costs for Ms. Butler were properly taxed, that they would
include subsistence calculations.
As the party seeking taxation of costs, the Defendants bear the burden of establishing its
entitlement to costs and the reasonable amount of costs incurred. Cohlmia v. St. John Medical
Center, 693 F.3d 1269, 1288 (10th Cir. 2012). The Defendants failed to respond to Mr.
Dawson’s motion challenging the taxability of witness costs relating to Ms. Butler and thus have
failed to carry their burden with regard to costs relating to Ms. Butler. Accordingly, the Court
GRANTS Mr. Dawson’s motion (# 157) and vacates that portion of the Clerk’s taxation of costs
relating to Ms. Butler. Costs are taxed in favor of the Defendants in the amount of $509.41, and
the Judgment is deemed amended to reflect that award.
Dated this 7th day of January, 2016.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

reside in Colorado Springs and Canon City, Colorado (which is approximately 120 miles from
Denver). Mr. Dawson has expressly stated that he does not challenge the Clerk’s decision to tax
the full amount of costs sought by the Defendants as to these two witnesses.