United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on Mr. Carbajal's
Contemporaneous Objection to the Court's Order [# 902]
Denying Advancement of Witness Fees Without the Proper
Consideration for its Inherent Authority and Rule 614(a) and
706(b) Fed.R.Evid. [Docket No. 920]. Because plaintiff is
proceeding pro se, the Court construes his filings
liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
previously filed subpoenas with the Court and requested that
the Court direct the Clerk of Court to stamp the subpoenas
and order the U.S. Marshals Service to effectuate service.
Docket No. 869. The Court denied plaintiff's motion
without prejudice, pointing out that plaintiff has not been
granted leave to proceed in forma pauperis and that
the Court does not have the authority to waive payment of
witness fees and mileage. Docket No. 894. In response,
plaintiff filed a motion for reconsideration and a motion for
leave to proceed in forma pauperis. Docket Nos. 899,
900. On January 4, 2017, the Court granted plaintiff leave to
proceed in forma pauperis and ordered the U.S.
Marshals Service to effectuate service of plaintiff's
subpoenas. Docket No. 902 at 3. However, the Court noted that
28 U.S.C. § 1915 does not authorize the Court to waive
or order payment of witness fees and mileage. Id.
Accordingly, the Court ordered plaintiff to ensure that the
subpoenaed witnesses receive the appropriate witness fees and
mileage. Id. at 4. On February 13, 2017, plaintiff
filed his objection to the portion of the Court's order
requiring him to pay witness fees. Docket No. 920. Because
plaintiff's objection attacks the legal basis for the
Court's prior ruling, the Court will construe his
objection as a motion for reconsideration.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See Hatfield v. Bd. of
County Comm'rs for Converse County, 52 F.3d 858, 861
(10th Cir. 1995). Instead, motions for reconsideration fall
within a court's plenary power to revisit and amend
interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d
1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b));
see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would
attend the repeated re-adjudication of interlocutory orders,
judges in this district have imposed limits on their broad
discretion to revisit interlocutory orders. See, e.g.,
Montano v. Chao, No. 07-cv-00735-EWN-KMT, 2008 WL
4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying Rule
60(b) analysis to the reconsideration of interlocutory
order); United Fire & Cas. Co. v. McCrerey &
Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL
1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e)
standard to the reconsideration of the duty-to-defend order).
Regardless of the analysis applied, the basic assessment
tends to be the same: courts consider whether new evidence or
legal authority has emerged or whether the prior ruling was
clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or
supporting facts which were available at the time of the
original motion.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
objection, construed as a motion for reconsideration,
plaintiff presents two arguments: first, that the Court
“narrowly construed the language in Title 28 U.S.C.
§ 1915 as a basis to prohibit IFP civil rights
litigants from subpoenaing material witnesses”; and,
second, that the Court overlooked its “inherent
authority to compel witnesses to appear.” Docket No.
920 at 2. As to the first argument, plaintiff does not offer
new legal authority to show that the Court's reading of
§ 1915 was incorrect. Compare Docket No. 920 at
2 (citing Guy v. Maio, 227 F.R.D. 498, 501 (E.D.
Wis. 2005); Coleman v. St. Vincent De Paul Soc., 144
F.R.D. 92, 95-96 (E.D. Wis. 1992); U.S. Marshals Serv. v.
Means, 741 F.2d 1053, 1057-58 (8th Cir. 1984))
with Docket No. 899 at 2, 4 (same). Moreover, each
of the authorities offered by plaintiff acknowledges that the
weight of authority does not allow a court to advance or pay
witness fees on behalf of indigent plaintiffs. See
Guy, 227 F.R.D. at 501-02 (citing cases from the
Seventh, Second, Third and First Circuits); Coleman,
144 F.R.D. at 94; Means, 741 F.2d at 1056. Nothing
in plaintiff's objection undermines the Court's
interpretation of § 1915 or suggests that the Tenth
Circuit would go against the weight of legal authority.
See also Hooper v. Tulsa County Sheriff Department,
1997 WL 295424 at *2 (10th Cir. Jun. 4, 1997) (“Every
circuit considering this issue has held that §
1915(a)'s waiver of prepayment of ‘fees or
costs' does not authorize the federal courts to waive or
order payment of witness fees for a civil litigant proceeding
in forma pauperis.”).
plaintiff's second argument, that the Court has inherent
authority to compel the appearance of witnesses, plaintiff
offers no legal authority to support his contention,
see Docket No. 920 at 2-3, nor does he present any
new arguments in support of his claim. See Docket
No. 899 at 4 (arguing that the Court has the inherent power
to compel witnesses to appear). “The established rule
is that the expenditure of public funds is proper only when
authorized by Congress.” United States v.
MacCollom, 426 U.S. 317, 321 (1976). The Court does not
have the authority to use public funds to pay for
plaintiff's witnesses in the absence of statutory
authorization. While plaintiff briefly points to Fed.R.Evid.
614 and 706, Docket No. 920 at 2, neither rule discusses the
payment of witness fees on behalf of an indigent plaintiff in
a civil matter. See Fed. R. Evid. 614 (discussing
the court's authority to call witnesses); Fed.R.Evid. 706
(discussing the appointment of expert witnesses).
objection presents no valid grounds for reconsidering the
Court's prior decision. Accordingly, it is
that Mr. Carbajal's Contemporaneous Objection to the
Court's Order [# 902] Denying Advancement of Witness Fees
Without the Proper Consideration for its Inherent Authority
and Rule 614(a) and 706(b) Fed.R.Evid. ...