UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Transcription

1 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Sheldon Peters Wolfchild, Ernie Peters Longwalker, Scott Adolphson, Morris Pendleton, Barbara Buttes and Thomas Smith, on behalf of themselves and all others similarly situated, Case No. 14-CV-1597 (MJD/FLN) Plaintiffs, v. Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County, Moltke Township, John Goelz III, Gerald H. Hosek, et al., Allen J. and Jacalyn S. Kokesch, Paul W. and Karen J. Schroeder, Chad M. and Amy M. Lund, Rockford L. and Janie K. Crooks, UT School District, Episcopal Diocese of Minnesota, Michael R. Rasmussen, Lee H. Guggisberg Trust UWT, Patrick T. and Nancy S. Hansen, Kelly M. Lipinski, Cynthia Johnson, Mitchell H. Unruh, William and Norman Schmidt, Prouty Properties LLC, Robert D. and Lori A. Rebstock, Allan D. Eller, Elmer C. and Barbara L. Dahms, Marlene A. Platt RT, Eugene A. Engstrom, Enid Guggisberg, et al., Melvin W. and Kerry D. Maddock, Thomas J. Heiling, Keefe Family Farm LLC, Larry Lussenhop, Jon Lussenhop, TJ & CC Properties LLC, Dennis A. and Michelle D. Ausland, Dale R. and Nancy Hanna, Harold Guggisberg, Sandra Clarken, et al., Julie Anna Guggisberg, Steven R. and Dawn R. Helmer, George F. Schottenbauer, John and Alice and Francis MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR REVIEW OF TAXATION OF COSTS BY DEFENDANTS REDWOOD COUNTY, PAXTON TOWNSHIP, SHERMAN TOWNSHIP, HONNER TOWNSHIP, RENVILLE COUNTY, BIRCH COOLEY TOWNSHIP, SIBLEY COUNTY AND MOLTKE TOWNSHIP

2 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 2 of 6 Goeltz, et al., Edward J. Gaasch, Simmons Valley Trust, John C. and Mary J. Simmons, John (L.) Hogan, Timothy H. and Theresa J. Kerkhoff, Sherman Acres LLC, Kenneth Larsen, Henry G. and Judith A. O'Neil, Charles D. Neitzel, Scott A. and Kimberly A. Olafson, Kim M. Cunningham, John H. and Jeanne A. Reynolds, Douglas and Brenda Scherer, Willard and Eugenie Scherer, Bruce Robert Black, Lila L. Black, Neil and Donna Berger Family, Charles Case, Lyle Black Living Trust, Lower Sioux Indian Community, Defendant Doe Nos , Defendants. INTRODUCTION Defendants Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County and Moltke Township ("Municipal Defendants") hereby submit this memorandum in support of their Motion for Review of their Taxation of Costs. The Clerk appropriately awarded statutory costs which is not challenged here. Rather, the Municipal Defendants are seeking an award of exemplification expenses pursuant to 28 U.S.C. 1920(4). For the reasons stated herein, the Municipal Defendants should be awarded the full amount of their submitted Bill of Costs. STATEMENT OF CASE AND FACTS Costs may be awarded to the prevailing party. Fed. R. Civ. P. 54. The Municipal Defendants are the prevailing party, which Plaintiffs do not dispute. (ECF Nos ; 270 at p. 3). To demonstrate that Plaintiffs' claims were baseless the Municipal Defendants incurred costs to obtain copies of public records and to prepare those records to be submitted 2

3 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 3 of 6 to the court for use as evidence. The Court used these records concerning the Municipal Defendants' actions in governing, taxing and improving the land at issue in its Memorandum of Law and Order dismissing Plaintiffs' claims. (ECF No. 196 at 24-25). The Municipal Defendants filed their Bill of Costs on April 6, 2015, seeking $ in printing costs for making courtesy copies of pleadings for the Court, and $37, in exemplification costs, the amount incurred by the Municipal Defendants in procuring and preparing the public record for use by the Court. (ECF No. 245). Plaintiff objected to the Bill of Costs. (ECF No. 270). The Municipal Defendants submitted a memorandum in reply, arguing that all of their asserted costs were taxable. (EF No. 274). On April 29, 2015 the Clerk awarded the Municipal Defendants their printing costs and $ of their exemplification costs, for a total award of $ (ECF No. 281). The Clerk denied the Municipal Defendants' request for $37, in costs associated with actually preparing the public record (Id.). Local Rule 54.3 affords the Municipal Defendants 14 days to move this Court for a review of the taxation of costs. ARGUMENT The costs and fees incurred in procuring and preparing the public record are taxable under 28 U.S.C as "Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." "Exemplification" is defined as the "official transcript of a public record, authenticated as a true copy for use as evidence." Black's Law Dictionary 692 (10th ed. 2014). This was the amount the Municipal Defendants incurred to procure copies of public records from the Minnesota Historical Society. 3

4 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 4 of 6 That is precisely what occurred here. The Municipal Defendants examined the public record of their meeting minutes for roughly the past 150 years, identified the portions relating to the land at issue in this litigation, prepared the same to be presented to the court for use as evidence and authenticated the same as a true copy of the original public record. The costs incurred therein are therefore are taxable under Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 763 (8th Cir. 2006)(affirming award of over $124, in exemplification expenses for obtaining and copying papers that were "necessarily obtained" and "received as evidence, prepared for use in presenting evidence, or obtained for service on the other parties in the litigation and the court."); Appliance Inv. Co. v. Western Electric Co., 61 F.2d 752, (2nd Cir. 1932) (affirming allowance of costs where the information at issue may have otherwise been on the record but was incomprehensible without professional preparation); See also Swan Carburetor Co. v. Chrysler Corp., 149 F.2d 476, 477 (6th Cir. 1945). Such monies are taxable even if incurred by attorneys. Pinkham v. Camex, Inc., 84 F.3d 292, (8th Cir. 1996) (holding that "such costs [are] reasonable out-of-pocket expenses of the normally charged to clients by attorneys"). Although the professional expenses incurred by Municipal Defendants in collecting, organizing and otherwise amassing the public records were borne in the form of fees charged by their attorney of record, Jessica Schwie and her delegates, this was solely because the collection of records in this matter presented the need for a particular form of professional expertise that could be met only through undersigned counsel, and was divergent from any legal services rendered by the undersigned. 4

5 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 5 of 6 A title company was retained to obtain property records. The Clerk deemed costs spent on the title company taxable. (ECF Nos ). But the title company's expertise in collecting property records was limited and did not include the knowledge required here an understanding of the nature, type, manner of location of public records relating to notice, land use proceedings, hearings, recordings of objections (or lack thereof), formation of rights of way, erection of public buildings, regulation of economy, and taxation. Such knowledge and understanding was contained solely within the professional expertise and experience of the undersigned; and, therefore, is properly billed as awardable exemplification costs arising out of professional fees. The question for this Court is simply whether the fees were necessarily incurred as part of the litigation; and whether the law allows for such fees to be taxed. As set forth herein, this Court should answer both questions in the affirmative. 5

6 CASE 0:14-cv MJD-FLN Document 285 Filed 05/13/15 Page 6 of 6 CONCLUSION For the reasons set forth herein, the Municipal Defendants request that their Cost Judgment be amended to include an additional $37, in costs incurred in preparing the public record for use by the court. Date: JARDINE, LOGAN, AND O'BRIEN, PLLP 5. By: JESSICA E. SCHWIE (A.R. #296880) NICHOLAS M. MATCHEN (AR. #396280) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN Phone: Fax: jschwiegjlolaw.com amatchenalolaw.com Attorneys for Defendants Redwood County, Renville County, Sibley County, Paxton Township, Sherman Township, Honner Township, Birch Cooley Township and Moltke Township 6

7 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Sheldon Peters Wolfchild, Ernie Peters Longwalker, Scott Adolphson, Morris Pendleton, Barbara Buttes and Thomas Smith, on behalf of themselves and all others similarly situated, Case No. 14-CV-1597 (MJD/FLN) Plaintiffs, v. Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County, Moltke Township, John Goelz III, Gerald H. Hosek, et al., Allen J. and Jacalyn S. Kokesch, Paul W. and Karen J. Schroeder, Chad M. and Amy M. Lund, Rockford L. and Janie K. Crooks, UT School District, Episcopal Diocese of Minnesota, Michael R. Rasmussen, Lee H. Guggisberg Trust UWT, Patrick T. and Nancy S. Hansen, Kelly M. Lipinski, Cynthia Johnson, Mitchell H. Unruh, William and Norman Schmidt, Prouty Properties LLC, Robert D. and Lori A. Rebstock, Allan D. Eller, Elmer C. and Barbara L. Dahms, Marlene A. Platt RT, Eugene A. Engstrom, Enid Guggisberg, et al., Melvin W. and Kerry D. Maddock, Thomas J. Heiling, Keefe Family Farm LLC, Larry Lussenhop, Jon Lussenhop, TJ & CC Properties LLC, Dennis A. and Michelle D. Auslam, Dale R. and Nancy Hanna, Harold Guggisberg, Sandra Clarken, et al., Julie Anna Guggisberg, Steven R. and Dawn R. Helmer, George F. Schottenbauer, John and Alice and Francis LR 7.1 WORD COUNT COMPLIANCE CERTIFICATE REGARDING DEFENDANTS REDWOOD COUNTY, PAXTON TOWNSHIP, SHERMAN TOWNSHIP, HONNER TOWNSHIP, RENVILLE COUNTY, BIRCH COOLEY TOWNSHIP, SIBLEY COUNTY AND MOLTKE TOWNSHIP'S REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF TAXATION OF COSTS 1

8 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 2 of 3 Goeltz, et al., Edward J. Gaasch, Simmons Valley Trust, John C. and Mary J. Simmons, John (L.) Hogan, Timothy H. and Theresa J. Kerkhoff, Sherman Acres LLC, Kenneth Larsen, Henry G. and Judith A. O'Neil, Charles D. Neitzel, Scott A. and Kimberly A. Olafson, Kim M. Cunningham, John H. and Jeanne A. Reynolds, Douglas and Brenda Scherer, Willard and Eugenie Scherer, Bruce Robert Black, Lila L. Black, Neil and Donna Berger Family, Charles Case, Lyle Black Living Trust, Lower Sioux Indian Community, Defendant Doe Nos , Defendants. I, Nicholas M. Matchen, certify that Defendants' Memorandum of Law complies with Local Rules 7.1(f) and (h). I further certify that, in preparation of this Memorandum, I used Microsoft Word Version 2003, and that this word processing program has been applied specifically to include all text, including headings, footnotes, and quotations in the following word count. I further certify that the above referenced Defendants' Reply Memorandum of Law contains 905 words. 2

9 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 3 of 3 Date: JARDINE LOGAN AND O'BRIEN, PLLP By: J.. v-2 JESSICA F. SCHWIE (A.R. #296880) NICHOLAS M. MATCHEN A.R. #396280) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN Phone: Fax: jschwieriololaw.com nmatchenalolaw.com Attorneys for Defendants Redwood County, Renville County, Sibley County, Paxton Township, Sherman Township, Honner Township, Birch Cooley Township and Moltke Township 3

10 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Sheldon Peters Wolfchild, Ernie Peters Longwalker, Scott Adolphson, Morris Pendleton, Barbara Buttes and Thomas Smith, on behalf of themselves and all others similarly situated, Case No. 14-CV-1597 (MJD/FLN) Plaintiffs, v. Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County, Moltke Township, John Goelz III, Gerald H. Hosek, et al., Allen J. and Jacalyn S. Kokesch, Paul W. and Karen J. Schroeder, Chad M. and Amy M. Lund, Rockford L. and Janie K. Crooks, UT School District, Episcopal Diocese of Minnesota, Michael R. Rasmussen, Lee H. Guggisberg Trust UWT, Patrick T. and Nancy S. Hansen, Kelly M. Lipinski, Cynthia Johnson, Mitchell H. Unruh, William and Norman Schmidt, Prouty Properties LLC, Robert D. and Lori A. Rebstock, Allan D. Eller, Elmer C. and Barbara L. Dahms, Marlene A. Platt RT, Eugene A. Engstrom, Enid Guggisberg, et al., Melvin W. and Kerry D. Maddock, Thomas J. Heiling, Keefe Family Farm LLC, Larry Lussenhop, Jon Lussenhop, TJ & CC Properties LLC, Dennis A. and Michelle D. Auslam, Dale R. and Nancy Hanna, Harold Guggisberg, Sandra Clarken, et al., Julie Anna Guggisberg, Steven R. and Dawn R. Helmer, George F. Schottenbauer, John and Alice and Francis CERTIFICATE OF SERVICE

11 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 2 of 3 Goeltz, et al., Edward J. Gaasch, Simmons Valley Trust, John C. and Mary J. Simmons, John (L.) Hogan, Timothy H. and Theresa J. Kerkhoff, Sherman Acres LLC, Kenneth Larsen, Henry G. and Judith A. O'Neil, Charles D. Neitzel, Scott A. and Kimberly A. Olafson, Kim M. Cunningham, John H. and Jeanne A. Reynolds, Douglas and Brenda Scherer, Willard and Eugenie Scherer, Bruce Robert Black, Lila L. Black, Neil and Donna Berger Family, Charles Case, Lyle Black Living Trust, Lower Sioux Indian Community, Defendant Doe Nos , Defendants. I hereby certify that on May 13, 2015, I caused the following documents: 1. Notice of Hearing for Defendants Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County and Moltke Township; 2. Defendants Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County and Moltke Township's Motion for Review of Taxation of Costs; 3. Memorandum of Law in Support of Defendants' Motion for Review of Taxation of Costs by Defendants Redwood County, Paxton. Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County and Moltke Township; 4. LR 7.1 Word Count Compliance Certificate Regarding Defendants Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County and Moltke Township's Reply Memorandum of Law in Support of Defendants' Motion for Review of Taxation of Costs; and 5. Proposed Order. 2

12 CASE 0:14-cv MJD-FLN Document Filed 05/13/15 Page 3 of 3 to be filed with the Clerk of Court through ECF and that on May 13, 2015, I caused a copy of the foregoing documents and the notices of the electronic filing to be mailed by first class mail, postage paid, to the following non-ecf participant: Alan Dean Eller Noble Avenue Redwood Falls, MN Date: May 13, 2015 JARDINE LOGAN AND O'BRIEN, PLLP By: JESSICA E. SCHWIE (A.R. #296880) NICHOLAS M. MATCHEN (A.R. #399280) 8519 Eagle Point Boulevard, Suite 100 Lake Elmo, MN Phone: Fax: jschwiera),i1olaw.com nmatchenr4j lo law. com Attorneys for Defendants Redwood County, Renville County, Sibley County, Paxton Township, Sherman Township, Honner Township, Birch Cooley Township and Moltke Township 3