SCO Grp v. Novell Inc

Filing 576

MEMORANDUM in Opposition re 575 MOTION to Stay Taxation of Costs filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Sneddon, Heather)

SCO Grp v. Novell Inc

Doc. 576 Att. 1

Dockets.Justia.com

Page 1

3 of 32 DOCUMENTS CHARLES HOW, Plaintiff, v. CITY OF BAXTER SPRINGS, KANSAS, et al., Defendants. RONALD O. THOMAS, Plaintiff, v. CITY OF BAXTER SPRINGS, KANSAS, et al., Defendants. Case No. 04-2256 JWL, Case No. 04-2257 JWL UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS 2006 U.S. Dist. LEXIS 23951 April 26, 2006, Decided PRIOR HISTORY: Thomas v. City of Baxter Springs, 2006 U.S. Dist. LEXIS 11304 (D. Kan., Mar. 10, 2006) COUNSEL: For Charles How, (Plaintiff in # 04-2256), Plaintiff: Kate Bohon McKinney Holman Hansen & Colville, PC-Kansas City, MO; Sam L. Colville, Thomas S. Busch, Holman Hansen & Colville PC-Overland Park, Overland Park, KS. For Ronald O. Thomas, (Plaintiff in # 04-2257), Consol Plaintiff: Brennan P. Fagan, William J. Skepnek, Skepnek Law Firm, PA, Lawrence, KS; Sam L. Colville, Thomas S. Busch, Holman Hansen & Colville PCOverland Park, Overland Park, KS. For Baxter Springs, Kansas, City of, (Defendant in # 042256 and # 04-2257), Robert E. Myers, City Attorney, Baxter Springs, Kansas, (Defendant in # 04-2256 and # 04-2257), Defendants: Teresa L. Sittenauer, David R. Cooper, Terelle A. Mock (fna Carlgren), Fisher, Patterson, Sayler & Smith-Topeka, Topeka, KS. For Donna Wixon, City Clerk, Baxter Springs, Kansas, (Defendant in # 04-2256 and # 04-2257), Defendant: Richard W. James, McDonald, Tinker, Skaer, Quinn & Herrington, PA -- Wichita, Wichita, KS; Edward L. Keeley, McDonald Tinker, Wichita, KS. JUDGES: [*1] John W. Lungstrum, United States District Judge. OPINION BY: John W. Lungstrum OPINION MEMORANDUM AND ORDER This court entered summary judgment for defendants in these two consolidated cases on December 15, 2005. Although it did not change its ultimate decision granting summary judgment, this court amended that judgment on March 14, 2006. The amended judgment entered March 14, 2006, also ordered the plaintiffs to pay the costs of the action to the defendants. This matter comes before the court on the uncontested motions of Mr. How (doc. 169) and Mr. Thomas (doc. 74) to stay taxation of costs pending the outcome of the appeal of these consolidated cases to the Tenth Circuit. For the reasons explained below, the motions are granted. Analysis It is common for a losing party to request a district court to stay taxation of costs pending appeal, and it is clearly established that "the taxing of costs, except as otherwise provided by statute, rests largely in the sound discretion of the trial court." Green Const. Co. v. Kansas Power & Light Co., 153 F.R.D. 670, 674-75 (D. Kan. 1994) (citing Euler v. Waller, 295 F.2d 765, 766 (10th Cir.1961)). [*2] See also Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997). "In its discretion, however, the Court may postpone the awarding of costs until the resolution of the post-trial motions or even the resolution of any appeal." Estate of Pidcock v. Sunnyland Am., Inc., 726 F. Supp. 1322, 1341 (S.D. Ga. 1989) (citing Farmer v. Arabian Oil Co., 379 U.S. 227, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964)). Exercising its discretion on this matter, the court will grant the motions to stay taxation of costs, particularly because the plaintiffs' motions were uncontested by either defendant. Under the provisions of D. Kan. Rule 6.1(d), the time for filing a response to each plaintiff's motion has expired, and the court therefore has treated and decided the pending motions as unopposed pursuant to D. Kan. Rule 7.4. And in the absence of any argument to the contrary, the court will grant the plaintiffs' motions to stay taxation of costs.

Page 2 2006 U.S. Dist. LEXIS 23951, *

IT IS THEREFORE ORDERED BY THE COURT that Mr. How's motion to stay taxation of costs (doc. 169) is granted, and Mr. Thomas's motion to stay taxation of costs (doc. 74) is granted.

IT IS SO ORDERED [*3] this 26th day of April, 2006. s/ John W. Lungstrum United States District Judge