Ute Indian Tribe of the Uintah and Ouray Reservation et al v. Lawrence et al

Filing 239

MEMORANDUM DECISION AND ORDER granting in part and denying in part 237 Motion for Attorney Fees: The court does not award the Tribe its attorneys' fees, but it awards a witness subsistence allowance totaling $2,028.00 against defendant Lynn D. Becker. Signed by Judge Tena Campbell on 2/28/22 (alt)

Case 2:16-cv-00579-TC Document 239 Filed 02/28/22 PageID.7804 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UTE INDIAN TRIBE OF THE UINTAH
& OURAY RESERVATION, a federally
recognized Indian Tribe and a federally
chartered corporation, the UINTAH AND
OURAY TRIBAL BUSINESS
COMMITTEE, and UTE ENERGY
HOLDINGS LLC, a Delaware LLC,

MEMORANDUM DECISION
AND ORDER
Case No. 2:16-cv-00579-TC
District Judge Tena Campbell

Plaintiffs,
v.
HONORABLE BARRY G. LAWRENCE,
District Judge, Utah Third Judicial District
Court, in his Individual and Official
Capacities, and LYNN D. BECKER,
Defendants.
After the Tenth Circuit’s mandate issued in Ute Indian Tribe of the Uintah & Ouray
Reservation v. Lawrence, 22 F.4th 892 (10th Cir. 2022), the Tribe moved for its costs and
attorneys’ fees under 42 U.S.C. § 1988. (ECF No. 237.) In an appeal taken from this case, the
Tenth Circuit previously noted that
[i]t appears that the district court construed the Tribe’s amended complaint as
advancing a claim under the federal civil-rights act, 42 U.S.C. § 1983. The district
court dismissed that claim without prejudice, and the Tribe has not challenged this
ruling on appeal. The Tribe made clear in district court, however, that it was not
relying exclusively on § 1983.
Ute Indian Tribe v. Lawrence, 875 F.3d 539, 541 n.2 (10th Cir. 2017). And the Tenth Circuit also
affirmed the district court’s dismissal without prejudice of the Tribe’s § 1983 claims in the
companion case, No. 2:16-cv-00958. Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv.,
868 F.3d 1199, 1206 (10th Cir. 2017).

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The § 1983 claims dismissed in No. 2:16-cv-00958 are functionally indistinguishable
from those presented here. (Compare Second Am. Third-Party Compl. ¶¶ 57–73, ECF No. 34 in
No. 2:16-cv-00958, with Am. Compl. ¶¶ 56–61, ECF No. 4 in No. 2:16-cv-00579.) Both request
identical relief: an injunction against Lynn Becker’s state-court action. The court finds that the
Tribe cannot “prevail[]” on its § 1983 claim because it “[proceeded] in its sovereign capacity, not
as a ‘person’ within the meaning of § 1983.” Becker, 868 F.3d at 1206. Alternatively, the court
finds that the Tribe has waived its § 1983 argument by “not challeng[ing] this ruling on appeal.”
Lawrence, 875 F.3d at 541 n.2. The court therefore DENIES the Tribe’s request for attorneys’
fees.
In its motion and accompanying declaration, the Tribe also asks for $2,472.00 in costs.1
The Tribe incurred this sum for the “overnight lodging and meals for some of its fact witnesses”
for a two-day evidentiary hearing in January 2020. (Mot. Ex. A (Decl. of Bassett) at 3, ECF No.
237‑1.) Federal Rule of Civil Procedure 54(d)(1) creates a presumption that “costs—other than
attorney’s fees—should be allowed to the prevailing party.” Although “the Supreme Court has
placed strict limits on what can be awarded” under Rule 54, Stender v. Archstone-Smith
Operating Trust, 958 F.3d 938, 941 (10th Cir. 2020), courts may award a “subsistence allowance”
to a witness 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.”
28 U.S.C. § 1821(d)(1). But the subsistence allowance cannot exceed “the maximum per diem
allowance prescribed by the Administrator of General Services . . . for official travel in the area
of attendance by employees of the Federal Government.” § 1821(d)(2). The January 2020 per

1

This is in addition to $11,774.66 in more traditional costs itemized on the Tribe’s Bill of Costs. (ECF No. 235.)

2

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diem allowance was $127.00 for lodging and $42.00 for meals and incidentals on the first and
last day of travel.2
Six of the Tribe’s witnesses who lived outside of the metropolitan area needed to stay
overnight in Salt Lake City because of bad weather. (Decl. of Bassett at 3.) Each of the six
witnesses received $300.00 for lodging and $112.00 for meals, totaling $2,472.00. (Mot. Ex. B
at 3, ECF No. 237-2.) Because the hearing only lasted two days, the court will only award the
maximum per diem allowance for those two days: $2,028.00.3 The court therefore GRANTS IN
PART the Tribe’s request for this cost, and only against Defendant Lynn D. Becker.4
CONCLUSION
The court GRANTS IN PART and DENIES IN PART the Tribe’s motion for attorneys’
fees and costs. (ECF No. 237.) The court does not award the Tribe its attorneys’ fees, but it
awards a witness subsistence allowance totaling $2,028.00 for the January 2020 evidentiary
hearing.
DATED this 28th day of February, 2022.
BY THE COURT:

TENA CAMPBELL
United States District Judge

2

U.S. Gen. Servs. Admin., FY 2020 Per Diem Rates for Salt Lake City, Utah, https://www.gsa.gov/travel/planbook/per-diem-rates/per-diem-rateslookup/?action=perdiems_report&state=UT&fiscal_year=2020&zip=&city=Salt%20Lake%20City (last visited Feb.
28, 2022).
3

Each witness can receive $127.00 for lodging and $42.00 for meals and incidentals per diem. For two days and six
witnesses, this totals $2,028.00.
4

Judge Barry G. Lawrence is not liable for costs because of judicial immunity. See Pierson v. Ray, 386 U.S. 547,
554 (1967); Stump v. Sparkman, 435 U.S. 349, 356–57 (1978).

3