United States District Court, D. Colorado
OPINION AND ORDER GRANTING PREJUDGMENT INTEREST AND
DENYING CHALLENGE TO TAXATION OF COSTS
S. Krieger Chief United States District Judge.
MATTER comes before the Court pursuant to the
Plaintiffs' Motion to Alter Judgment (#
141), the Defendants' response (#
143), and the Plaintiffs' reply (#
147); and the Plaintiffs' Motion to Review
(# 148) the Clerk's taxation of costs,
the Defendants' response (#49), and the
Plaintiffs' reply (# 150).
Court assumes the reader's familiarity with the
proceedings to date and offers only a cursory summary. Mr.
Williams is a commodities analyst and trader and has created
a variety of mathematical algorithms to identify trends in
commodities prices. LNL Publishing (hereafter,
“LNL”) is a corporate entity through which Mr.
Williams does some business. The Defendants publish software
that allows uses to analyze commodities prices. For several
years, the Defendants and Mr. Williams were parties to an
oral agreement by which the Defendants would incorporate Mr.
Williams' algorithms into its software and both sides
would promote the software to commodities investors; in
exchange, the Defendants would pay Mr. Williams a share of
certain revenues arising from software sales. After several
years of harmony, that business arrangement soured. In or
about July 2012, Mr. Williams demanded payment of sums due to
him under the agreement, and in September 2012, Mr. Williams
informed the Defendants that he was terminating the
agreement. Nevertheless, the Defendants continued to sell the
software containing Mr. Williams' algorithms and promoted
the software using Mr. Williams' name, leading Mr.
Williams to file the instant suit.
a trial in August 2017, a jury returned a verdict partially
in favor of the Plaintiffs, finding that: (i) Mr. Larson
breached an oral contract he had reached with LNL regarding
the sale of the software, and that LNL was entitled to $358,
277.50 in damages on that claim; and (ii) Genesis Financial
Technologies (“Genesis”) was unjustly enriched at
Mr. Williams' expense. The Court eventually awarded Mr.
Williams $57, 052 in damages on the unjust enrichment claim.
The jury found in favor of Mr. Kilman on all claims that the
Plaintiffs had asserted against him. On March 30, 2018, the
Court entered judgment as set forth above, directing
post-judgment interest to accrue pursuant to 28 U.S.C. §
moves (# 141) to amend the judgment to add
prejudgment interest pursuant to C.R.S. § 5-12-102(1),
at a rate of 8% per year from July 2012 to the entry of
judgment in March 2018, for a total amount of $197, 341.72.
Mr. Larson opposes that request, arguing that: (i) the jury
was not asked to consider, and therefore rendered no opinion
on, the question of prejudgment interest, and (ii) the
evidence at trial does not sufficiently establish a
conclusive accrual date from which to measure the running of
the Clerk of the Court taxed costs in favor of the
Plaintiffs, awarding $11, 933.55 in costs to the Plaintiffs
and against Mr. Larson and Genesis, but awarding costs to Mr.
Kilman and against the Plaintiffs in the amount of $19,
257.90. The Plaintiffs now move (#148) to
either set aside or “apportion” the costs taxed
in favor of Mr. Kilman because: (i) Mr. Kilman admitted that
all of the claimed costs were actually incurred by Genesis,
not himself; and (ii) to the extent the costs were incurred
jointly by all three Defendants, Mr. Kilman's entitlement
to the costs should be prorated and reduced by two-thirds to
reflect that only Mr. Kilman was successful in his defense.
The Court now takes up each motion in turn.
§ 5-12-102(1)(b) provides that when a debt becomes due
and the parties have no other agreement regarding interest,
interest accrues on that debt at a fixed rate of 8% per year,
compounded annually, from that date the debt becomes due
until judgment enters. The statute is mandatory in operation,
leaving no discretion to the Court. Personnel Dept., Inc.
v. Professional Staff Leasing Corp., 297 Fed.Appx. 773,
789-90 (10th Cir. 2008). A “wrongful
withholding” occurs when a party “was deprived of
something to which she was otherwise entitled.”
Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d
821, 825 (Colo. 2008). A mere breach of contract is
sufficient to demonstrate a wrongful withholding.
points to trial exhibit 1, a July 20, 2012 letter in which
Mr. Larson wrote to Mr. Williams, acknowledging that
“$499, 327.50 is due to you, ” and that Genesis
had already made a cash payment of $141, 050. The difference,
$352, 877.50, is exactly the amount the jury awarded LNL,
suggesting that the jury measured the breach of contract
damages directly from the admissions in exhibit 1. That
exhibit also makes clear that, prior to the July 20 date, Mr.
Williams had already made a demand for “the amount of
money you say [is] due to you.” Thus, the Court agrees
with LNL that the proper application of C.R.S. §
5-12-102(1)(b) entails finding that Mr. Larson wrongfully
withheld $352, 877.50 from LNL, beginning on or about July
response to LNL's motion, Mr. Larson points to various
items of evidence to suggest that, contrary to the admissions
in his July 20 letter, the amounts owed to LNL were
unquantifiable, that the amounts owed or previously paid were
different than those shown in exhibit 1, that Mr. Williams
had not asked for payment of the monies owed, and that Mr.
Williams prevented Genesis from selling products to generate
the funds to make a payment. All of these items of evidence
were presented to and considered by the jury, but the
jury's verdict and the amount awarded make it clear that
the jury rejected them. Rather, apparently the jury resolved
the breach of contract claim against Mr. Larson simply from
the admissions made by Mr. Larson in exhibit 1. Accordingly,
Mr. Larson has not rebutted LNL's prima facie
showing that he wrongfully withheld $352, 877.50 from LNL
since July 20, 2012.
Larson has not challenged the computation of prejudgment
interest in LNL's motion, and thus, the Court adopts that
calculation. Accordingly, LNL's motion is granted. The
Court deems the Judgment amended to reflect that, in addition
to the $352, 877.50 in damages, LNL is also entitled to an
additional $197, 341.72 in prejudgment interest pursuant to
C.R.S. § 5-12-101(1)(b).
Taxation of costs
Civ. P. 54(d)(1) provides that a prevailing party may obtain
the costs of litigation against the non-prevailing party. It
is undisputed that the jury found in favor of Mr. Kilman on
the Plaintiffs' claims against him, rendering him
entitled to have his costs paid by the Plaintiffs. On May 24,
2018, the Clerk of the Court taxed $19, 257, 70 in costs in
favor of Mr. Kilman and against the Plaintiffs. Those costs
consisted of $11, 330.05 in transcripts obtained for use in
the case; $632.23 in witness fees; $2, 983.99 in costs of
exemplification and copies; and $4, 291.63 in costs relating
to the taking of depositions.
Plaintiffs do not challenge the reasonableness or propriety
of the particular amounts taxed by the Clerk. Rather, they
challenge Mr. Kilman's eligibility to receive the full
amount of costs taxed. First, they contend that Mr. Kilman
should not be entitled to any costs because he
“admitted [that his] employer, [Genesis], paid for all
costs incurred throughout the proceedings.” The Court
will assume the accuracy of this statement, notwithstanding
the fact that the ...