HomeMy Public PortalAboutOrder granting in part and denying in part def motion to tax costs (11/4/15)Case 9:14-cv-80317-DMM Document 104 Entered on FLSD Docket 11/04/2015 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-80317-CIV-MIDDLEBROOKS
MARTIN E. O'BOYLE,
Plaintiff,
V.
TOWN OF GULF STREAM, et al,
Defendants.
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT'S MOTION TO TAX COSTS
THIS CAUSE is before the Court on Defendant Town of Gulf Stream's ("Defendant")
Motion to Tax Costs ("Motion") (DE 96), filed April 30, 2015. Plaintiff filed a Response in
Opposition on May 18, 2015 ("Response") (DE 98), to which Defendant replied on May 29,
2015 ("Reply") (DE 100). For reasons stated below, Defendant's Motion to Tax Costs is granted
in part and denied in part.
BACKGROUND
Plaintiffs filed the instant action seeking damages under 42 U.S.C. § 1983 for violating
Plaintiff's right to free speech under the First Amendment. (DE 1). The action arose from
Defendant's purported content -based policy of removing Plaintiff's political campaign signs.
(Id. at ¶ 66). On March 30, 2015, the Court granted Defendant's motion for summary judgment.
(DE 93). As the prevailing party on all of Plaintiff's claims, Defendant seeks costs in the amount
of $7,429.00, pursuant to Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920, and Local
Rule 7.3. (DE 96).
1 Although Defendant requests $7,509.00, Plaintiff correctly points out that the total in
Defendant's Motion is actually $7,429.00. (DE 98 at 100). In Reply, Defendant does not contest
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LEGALSTANDARD
Federal Rule of Civil Procedure 54(d)(1) provides that "[u]nless a federal statute, these
rules or a court order provides otherwise, costs — other than attorney's fees — should be allowed
to the prevailing party." Fed. R. Civ. P. 54(d)(1). "Under Rule 54(d), there is a strong
presumption that the prevailing party will be awarded costs." Matthews v. Crosby, 480 F.3d
1265, 1276 (11th Cir. 2007) (citations omitted). "Usually the litigant whose favor judgment is
rendered is the prevailing party for purposes of Rule 54(d)." Fireman's Fund Ins. Co. v.
Tropical Shipping & Const. Co., Ltd., 254 F.3d 987, 1012 (11th Cir. 2001) (citations omitted).
Congress has delineated which costs are recoverable from a losing party in 28 U.S.C. §
1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Section
1920 provides that a judge or clerk of any court of the United States may tax as costs the
following: (1) "fees of the clerk and marshal"; (2) "fees for printed or electronically recorded
transcripts necessarily obtained for use in the case"; (3) fees related to "printing and witnesses';
(4) fees for "exemplification and the costs of making copies of any materials where the copies
are necessarily obtained for use in the case"; (5) "docket fees"; and (6) compensation of court
appointed experts and fees related to interpretation services. 28 U.S.C. § 1920(1)-(6). A court
has the discretion to award those costs specifically enumerated in 28 U.S.C. § 1920. See
Crawford Fitting Co., 482 U.S. at 44044.
DISCUSSION
Plaintiff argues Defendant is not entitled to any costs because "(1) the case was a difficult
and close one; (2) in its Bill of Costs [Defendant] overreaches in virtually every category for
this calculation. (DE 100). Accordingly, the Court will construe the Motion as requesting
$7,429.00.
OA
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which costs may be properly taxed; and (3) [Defendant] provides the Court with no rational
underlying basis for its recovery of any costs." (DE 98 at 4). Defendant correctly notes,
however, that Plaintiff fails to support this contention with any authority indicating this Court
should deny statutorily imposed costs in their entirety. (DE 100 at 2). Because Plaintiff has
failed to provide "a sound basis" "[t]o defeat the presumption" of awarding costs, Chapman v.
AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000), the Court rejects Plaintiff's argument that
Defendant is not entitled to an award of any costs.
In the alternative, Plaintiff disputes the amount of costs. Generally, Plaintiff objects to
the following costs:
Cost Category
Costs Allegedly Incurred
by Defendant
Plaintiffs' Proposed
Taxation
Amount in
Dispute
Cost of deposition and
transcripts
$4,670.40
$3,451.40
$1,219.00
Witness fee
$55.00
$0.00
$55.00
Copy fees
$2,378.60
$0.00
$2,378.60
Service of process fees
$325.00
$0.00
$325.00
Total
$7,429.00
$3,451.40
$3,977.60
The Court addresses the Parties' disputes in turn.
I. Cost of Depositions and Transcripts
Defendant seeks to tax $4,670.40 in court reporter and transcript fees for four depositions
taken in this action. (DE 96 at 2). Section 1920(2) permits taxation of fees "for printed or
electronically recorded transcripts necessarily obtained for use in the case." 28 U.S.C. §
1920(2). Defendant argues that the transcripts for those depositions were reasonably necessary
to Defendant's defense of this action.
In Response, Plaintiff first argues the depositions were not reasonably necessary. (DE 98
at 6). Plaintiff cites cases to support the general proposition that this Court has "great latitude" in
3
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its determination, (DE 98 at 6) (citing Newman v. A. E. Staley Mfg. Co., 648 F.2d 330 (5th Cir.
1981)), and that costs "merely incurred for convenience, to aid in preparation, or for purposes of
investigation only ... are not recoverable." (DE 98 at 6) (citing Goodwall Const. Co. v. Beers
Const. Co., 824 F. Supp. 1044 (N.D. Ga. 1992). Plaintiff fails to explain, however, why these
depositions were merely incurred for convenience, preparation, or investigation purposes only.
Plaintiff next argues Defendant is not entitled to both the digital and written copies of the
transcripts. (DE 98 at 6). Plaintiff also argues Defendant is not entitled to recover the costs for
"obtaining compressed transcripts." (Id.). In Reply, Defendant concedes "it is not entitled to
recover the costs [of] both the regular transcripts and the condensed and digital versions" and,
therefore, "withdraws its request for those costs." (DE 100 at 3 n.2). The Court, therefore, finds
Defendant is not entitled to the costs, totaling $184.00,2 of the condensed and digital versions of
the deposition transcripts.
Finally, Plaintiff argues that the fees associated with the videography of Martin
O'Boyle's deposition should be excluded, as other courts have declined to award both video and
stenographic costs to prevailing parties who have not demonstrated the necessity for both types.
(Id. at 6-7) (citing Perfect Web Tech. v. Info USA, No. 07-cv80286, 2009 WL 2407689, at *9
(S.D. Fla. 2009)).
In Reply, Defendant contends that because Plaintiff failed to object at the time the
deposition was noticed, assessment of costs in the manner in which the deposition was noticed is
therefore appropriate. (Id. at 3). Defendant cites to Morrison v. Reichhold Chemicals, Inc.,
which held that "when a party notices a deposition to be recorded by nonstenographic means, or
2 Although the Parties did not explicitly state the amount was $184.00, the invoice of the
depositions provides that the digital and condensed transcripts cost $46.00 each for four
depositions. (DE 96-1 at 1-4).
4
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by both stenographic and nonstenographic means, and no objection is raised at that time by the
other party to the method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is
appropriate under § 1920 to award the cost of conducting the deposition in the manner noticed."
97 F.3d 460, 465 (11th Cir. 1996) (finding cost of both stenographic and video depositions
allowable as long as both were necessarily obtained).
Here, the record indicates Plaintiff did not object to the dual use of stenographic and
video recording at the time the deposition was noticed. Further, the Court finds that dual
recording was necessary: (1) the video recording was necessary as Defendant "intended to show
the video to the jury to demonstrate Plaintiffs demeanor when interacting with [Defendant] and
its representatives" and (2) the transcript was necessary for use in summary judgment. (DE 100
at 3). The Court therefore, finds Defendant is entitled to $4,486.403 in court reporter and
transcript fees.
Il. Witness Fee
Section 1920(3) authorizes recovery of "[flees and disbursements for printing and
witnesses" Defendant seeks $55.00 in witness fees for mileage for the Deposition of Denise
DeMartini. (DE 96 at 2; DE DE 96-2 at 31). Plaintiff contends DeMartini was never deposed
and "[u]pon information and belief ... Denise DeMartini was never even served in this case to
appear for a deposition." (DE 98 at 7). Although it appears DeMartini was served (DE 96-2 at
25), it is undisputed that the deposition never occurred. (DE 100 at 5). Accordingly, Defendant
is not entitled to witness fees.
3 This number reflects the original $4670.40 requested minus the $184.00 in digital and
condensed transcript fees.
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III. Copy Fees
Defendant seeks to tax $2,378.60 in copying costs that "were necessary to review and
analyze the Plaintiffs responses to discovery which were in electronic format, to print out
electronic filings in this case which Defendant maintains in paper form, to prepare copies of
documents for production to Plaintiff, and to prepare copies of the trial exhibits of use at trial ...
." (DE 96 at 8). Section 1920(3) and (4) authorizes recovery of "[flees and disbursements for
printing" and of "the costs of making copies of any materials where the copies are necessarily
obtained for use in this case." 28 U.S.C. § 1920(3), (4).
Plaintiff argues that Defendant has failed to satisfy its burden of offering some proof the
copying costs were necessary. (DE 98 at 8-9). Plaintiff contends that Defendant only submitted
invoices listing the amount of copying costs but "provided absolutely no documentation to
support the necessity of the copying costs sought." (1d. at 8). Rather, Defendant simply made a
"blanket assertion that the costs listed ... are `necessary."' (Id. at 9). In Reply, Defendant notes
that "invoices attached to the Motion provide the amount of copies made by [Defendant] in this
case, that those copies were necessary for its successful defense of the Plaintiff s claims, and that
those copy costs are therefore recoverable" (DE 100 at 4).
Defendant provided a line -item breakdown of each copying charge and the name of the
document being printed. See, e.g., (DE 96-1 at 6). Defendant is "not required to submit a bill of
costs containing a description so detailed as to make it impossible economically to recover
photocopying costs." Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d
633, 643 (7th Cir. 1991). The Court is satisfied that the invoice indicates copying was
"necessarily obtained for use in this case." Id. Accordingly, Defendant is entitled to tax
$2,378.60 in copying costs.
0
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IV. Service of Process
"[P]rivate process server fees may be taxed pursuant to §§ 1920(1)[.]" U.S. E.E.O.C. v.
W&O, Inc., 213 Fad 600, 624 (l 1th Cir. 2000). Defendant seeks to recover $325.00 in process
server fees to serve four subpoenas. (DE 96 at 2-3). Plaintiff challenges these costs because the
depositions were never taken. (DE 98 at 9). In Reply, Defendant states the depositions were
cancelled when the Court granted Defendant's Motion to Stay the case, (DE 100 at 5). The
Court subsequently granted Defendant's Motion to Dismiss in part, thus greatly reducing the
number of claims at issue. (Id.). The depositions were, therefore, not rescheduled. (Id.). The
Court finds that the service of process fees of $325.00 were reasonable and necessary.
V. Conclusion
In conclusion, costs are awarded as follows:
Cost Category
Costs Awarded
Cost of deposition and transcripts
$4,486.40
Witness fee
$0
Copy fees
$2,378.60
Service of process fees
$325.00
Total
$7,190.00
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion to Tax Costs is GRANTED
IN PART and DENIED IN PART. Defendant is awarded $7,190.00 in costs.
DONE AND ORDERED in Chambers at West
November, 2015.
Copies to: Counsel of Record
7
this 3 day of
) M. MIDDLEBROOKS
STATES DISTRICT COURT