United States District Court, D. Colorado
ORDER IMPOSING COSTS AND FEES
Marcia S. Krieger, Chief United States District Judge
THIS MATTER comes before the Court pursuant to the Defendant’s (“Owners”) Motion for Ruling on its Request for Attorneys’ Fees and Costs (# 80), Ms. Williams’ response (# 81), and Owners’ reply (# 83). In this action, Ms. Williams alleged that Owners, her auto insurer, failed to pay her uninsured/underinsured motorist benefits according to the terms of her policy. The instant matter arose out of motions by both parties (# 34, 38) requesting a hearing to determine the admissibility of opinion testimony proffered by their opponent pursuant to Fed.R.Evid. 702.
The Court scheduled an evidentiary hearing on that motion, but the hearing was quickly aborted after it became clear that Ms. Williams had not accurately ascertained the opinions that her witness would be offering. The Court then entertained an oral motion from Owners for the costs and fees it incurred in producing its own witnesses at the hearing and, after hearing from both parties, granted that motion. The Court granted Owners leave to file an affidavit establishing the costs and fees, and Owners did so (# 47), requesting reimbursement for the following items:
• $9, 321.68 in costs for preparation and attendance of Dr. Bain;
• $5, 300.00 in costs for preparation and attendance of Dr. Wortzel;
• $3, 815.00 in costs for preparation and attendance of Mr. Sands;
• $7, 184.59 in attorney fees incurred in preparing for and attending the hearing;
For a grand total of $ 25, 621.27.
Ms. Williams filed a response (# 50) to the affidavit, arguing that she had not challenged the proffered testimony of Drs. Bain and Wortzel or of Mr. Sands, such that their appearance at the Rule 702 hearing was not necessary. She also objected to the invoices that Owners had presented as being “hearsay, ” without further explanation. She also offered a single-sentence objection to that portion of Owners’ affidavit that asserted that the amounts billed by each of the experts was reasonable, arguing that this conclusion was “lacking the proper foundation.” Owners filed a reply.
Due to an administrative oversight, the Court did not immediately take up the issue.Meanwhile, the Court granted summary judgment to Owners on Ms. Williams’ claims, and that ruling was affirmed on appeal by the 10th Circuit. Owners then filed the instant motion (# 80), seeking a ruling on its costs and fee request. Ms. Williams opposed that motion, arguing that Clerk of the Court had subsequently taxed costs against Ms. Williams incident to the entry of judgment against her, and that this taxation of costs incorporated any claims that Owners might have had relating to the Rule 702 hearing. Ms. Williams also argued that Owners’ motion was now so delayed from the original hearing as to be untimely. In the alternative, Ms. Williams requested leave to file a sur-reply, arguing that Owners’ original reply in support of its request raised new issues that Ms. Williams had not had an opportunity to address. (She did not tender a proposed sur-reply brief, along with her response, however.)
The Court quickly disposes of many of Ms. Williams’ arguments. Although Owners’ Bill of Costs sought reimbursement for “Defendant’s Expert Costs, ” including some $11, 000 for Dr. Wortzel and $8, 000 for Mr. Sands, the Clerk of the Court refused to tax those items, finding that “Expert witness fees are not recoverable under [28 U.S.C.] § 1920.” (The Clerk did award the $40 witness fees for each of the witnesses at the Rule 702 hearing, but the Court does not understand Owners’ current motion to include those sums.) The types of costs available under § 1920 as a matter of course to prevailing parties are much narrower than the types of costs that the Court can allocate as part of a sanction against counsel for unpreparedness. Thus, the Clerk’s (correct) decision that Owners could not recover the experts’ costs pursuant to 28 U.S.C. § 1920 is irrelevant to the question of whether Owners is properly awarded those costs by the Court as a sanction for Ms. Williams’ unpreparedness at the Rule 702 hearing.
The Court also rejects Ms. Williams’ argument that Owners’ motion is untimely. Although one might criticize Owners for not alerting the Court to the pendency of the request for costs and fees earlier – e.g. during the life of the litigation or shortly after entry of judgment, rather than awaiting the outcome of an appeal that would not have affected the question of fees and costs in any event – the primary fault for the delay must rest with the Court. In addition, Ms. Williams has not identified any particular prejudice that inured to her because of the delay. The Court notes that Owners has not requested an additional award of interest on the sums it seeks nor otherwise sought recompense for the lost time value of money.
The Court also rejects Ms. Williams’ request for leave to file a sur-reply. The pertinent portion of Owners’ reply responded directly to Ms. Williams’ argument that the named experts were “unnecessary” to have present at the hearing, with Owners explaining the reasons why it felt the need to have the witnesses present. This is directly responsive to the issues raised by Ms. Williams and does not introduce new or collateral topics for which a sur-reply would be appropriate.
That leaves the Court to evaluate Owners’ request as initially-presented. Ms. Williams raised three substantive objections: (i) that the named experts were not necessary for the scheduled Rule 702 hearing; (ii) that the experts’ invoices constitute hearsay; and (iii) that Owners’ affidavit attesting to the ...