Summary
In Grabau v. Target Corp., 2009 WL 723340, at *1 (D. Colo. Mar. 18, 2009), which did not involve an offer of judgment or offer of settlement under Colorado law, the plaintiff challenged the clerk's denial of costs for expert witness fees, legal research and deliveries.
Summary of this case from Squires v. Breckenridge Outdoor Educ. Ctr.Opinion
Civil Action No. 06-cv-01308-WDM-KLM.
March 18, 2009
ORDER
Plaintiffs move for review of the Clerk's denial of costs for expert witness fees, legal research and deliveries, and certain subpoenas and services. Following review of the record and the parties' brief, I rule as follows:
Expert Witness Fees
Plaintiffs object to the Clerk's denial of a claim for expert witness fees in excess of $45,000 as not being authorized by federal law. Plaintiffs argue that, as a case of diversity jurisdiction, Colorado law should apply which allows recovery by the prevailing party of expert witness fee costs. See C.R.S. § 13-16-104 and 122; 13-33-102(4); Mackall v. Jalisco Int'l, Inc., 28 P.3d 975 (Colo.App. 2001).
As Defendant points out, however, the law of this circuit is that federal law controls the assessment of costs in a diversity case. Gobbo Farms Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996). And the Supreme Court has specifically held that, without express statutory or contractual authorization, federal courts are limited to awarding witness fees as costs as provided in 28 U.S.C. §§ 1821 and 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Since those sections do not allow recovery of expert witness fees, the court denied their recovery. In Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1293 (10th Cir. 1988) the Tenth Circuit specifically held that the Colorado statute providing for discretionary award of expert witness fees was not the type of express statutory mandate required as a precondition to recovery under the Crawford case.
Plaintiffs seek to avoid this well-established law by arguing that the later case of Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170 (10th Cir. 2000) may be read to distinguish a diversity case from Crawford which was not a diversity case. I disagree. Garcia dealt with an entirely different statute, namely the offer of settlement statute, C.R.S. § 13-17-202, which the court in Garcia found to be mandatory rather than discretionary. 2009 F.3d at 1178. Indeed, in a footnote the Garcia court makes clear that expert witness fees are still preempted by federal statute pursuant to Crawford Fitting Co., as noted in Chaparral. 209 F.3d at 1177, n. 5. Accordingly, Garcia does not change the basic law of Crawford Fitting Co. that Congress preempted state statutes by limiting expert witness fees to the amounts recoverable under 28 U.S.C. §§ 1821 1920.
Other Costs
The same principles apply with regard to the other claimed costs as confirmed by Sorbo v. United States Parcel, 432 F.3d 1196, 1180 (10th Cir. 2005). Legal research and so forth are not within the scope of the statutory sections. With regard to the unawarded witness fee and service costs for non-testifying witnesses, again the established law of this circuit is that only costs for witnesses who testify are recoverable. Jones v. Unisys Corp, 54 F.3d 624, 633 (10th Cir. 1995).
Accordingly, it is ordered that Plaintiffs' motion for review (doc. no. 187) is denied and the Clerk's award of costs is affirmed.