Summary
holding that $625.00 fee for court reporter's attendance at one deposition was a taxable cost
Summary of this case from Spatz v. Microtel Inns & Suites Franchising, Inc.Opinion
Case No. 2:09-cv-747-FtM-36SPC
12-30-2011
MANUEL HERNANDEZ, Plaintiff, v. WILSONART INTERNATIONAL, INC., a foreign corporation, Defendant.
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT
This matter comes before the Court on Defendant's Notice of Filing Bill of Costs (Doc. #106) filed on July 25, 2011. Plaintiff filed a Response (Doc. #114) on September 2, 2011. Defendant filed a Reply to Plaintiff's Response (Doc. #117) on September 16, 2011. Finally, Plaintiff filed a Sur-Reply to Defendant's Reply (Doc. #118) on September 21, 2011. This matter was referred to this Court on November 16, 2011, and is now ripe for the Court's review.
28 U.S.C. § 1920 reads in pertinent part:
[a] judge or clerk of any court of the Untied States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment decree.
The standards for determining whether a party is entitled to an award of costs under Rule 54(d) are the same for determining whether a prevailing party is receiving fees under 42 U.S.C. § 2000e-5(k). Stewart v. Town of Zolfo Springs, 1998 WL 776848 *2 (M.D. Fla. Sept. 16, 1998) (citing Henley v. Eckert, 461 U.S. 424, 433 n. 7, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). The recovery under Rule 54(d) is however, limited to the specific costs allowed under 28 U.S.C. § 1920. Id. These are known as recoverable statutory costs. Id. Any expenses beyond recoverable statutory costs or the fees awarded to compensate for an attorney's time should be pursued under 42 U.S.C. § 2000e-5(k). Id. Such expenses are known as non-statutory and are subsumed within the concept of a reasonable attorney's fees. Id. (citing Allen v. Freeman, 122 F.R.D. 589, 591 (S.D. Fla. 1988)).
Under Rule 54(d)(1), costs "shall be allowed as of course to the prevailing party. . . ." Thus, there is a presumption in favor of awarding costs to the prevailing party. Arcadian Fertilizer, L.P. v. MPW Indus. Services, Inc., 249 F.3d 1293, 1296 (11th Cir.2001); Chapman v. AI Transport, 229 F.3d 1012, 1038 (11th Cir. 2000). Indeed, the Eleventh Circuit has held that costs under this rule should be denied only as a penalty to the prevailing party for some defection on its part during the litigation. Id. at 1039. On the other hand, the Supreme Court has emphasized that Rule 54(d) does not permit "unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case." Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964). Rather, costs awarded under this rule are limited to the list of items set forth in 28 U.S.C. 1920. Crawford Fitting Co. V. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). When challenging whether costs are properly taxable, the burden lies with the losing party, unless the knowledge regarding the proposed cost is a matter within the exclusive knowledge of the prevailing party. See Desisto College, Inc. v. Howey-in-the-Hills, 718 F. Supp. 906, 910 n. 1 (M.D. Fla. 1989), declined to follow on other grounds by EEOC v. W & O, Inc., 213 F. 3d 600 (11th Cir. 2000).
In its Notice of Filing Bill of Costs, Defendant asserts $7,694.68 in costs, broken down into the following manner:
| Fees for Service of Summons and Subpoena | $1,175.00 |
| Fees for Printed or Electronically Recorded Transcripts Necessarily Obtainedfor Use in the Case | $4,483.59 |
| Fee for Witnesses | $46.00 |
| Fees for Exemplification and the Costs of Making Copies of any MaterialsWhere the Copies are Necessarily Obtained for Use in the Case | $1,015.09 |
| Compensation of Interpreters and Costs of Special Interpretation Services under28 U.S.C. 1828 | $975.00 |
| $7,694.68 |
Fees for Service of Summons and Subpoena
Defendant requests $1,175.00 in costs for fees for service of summons and subpoena, which are broken down as follows:
Defendant did not break down its costs in this manner. However, they did not object to Plaintiff's classification of costs as such in any subsequent pleadings, thus the Court will consider the break down provided by Plaintiff as an accurate allocation of costs. --------
| Invoice Date | Name of Witness/Entity | Amount Billed | PlaintiffObjects? | |
|---|---|---|---|---|
| 1) | 03/22/10 | Dynamex Operations East, Inc. | $40.00 | Yes |
| 2) | 04/28/10 | Interop Technologies, LLC | $35.00 | Yes |
| 3) | 04/28/10 | Hailfax, Inc. | $35.00 | Yes |
| 4) | 04/28/10 | Ed Gomez, MD, Inst for OrthopedicSurgery & Sports Medicine | $35.00 | Yes |
| 5) | 04/28/10 | HF Scientific, Inc. | $35.00 | Yes |
| 6) | 04/28/10 | Aaron's, Inc. | $35.00 | Yes |
| 7) | 04/28/10 | John C. Kagan, MD | $35.00 | Yes |
| 8) | 04/28/10 | Lee County Public Schools | $35.00 | Yes |
| 9) | 04/28/10 | David B. Sudderth, MD, Fla. Brain &Spine | $35.00 | Yes |
| 10) | 04/28/10 | Cemex Construction Materials of Fla,LLC c/o Corp. Creations Network,Inc. | $40.00 | Yes |
| 11) | 04/30/10 | Linehaul Solutions, Inc. c/o Noel E.Escobar Sr. | $40.00 | No |
| 12) | 04/30/10 | Precision Transmission, Inc. | $35.00 | Yes |
| 13) | 04/30/10 | Aldo R. Beretta, MD, OrthopedicSpecialty Care Ctr. | $35.00 | Yes |
| 14) | 04/30/10 | Protective Mgmt of America, Inc. | $40.00 | Yes |
| 15) | 05/03/10 | Cape Cement & Supply, Inc. | $35.00 | Yes |
| 16) | 05/06/10 | American Security & Investigations,Inc. | $40.00 | Yes |
| 17) | 05/07/10 | DS&S Construction Materials, Inc. | $60.00 | Yes |
| 18) | 05/10/10 | Charlotte Regional Medical Ctr. | $45.00 | Yes |
| 19) | 06/14/10 | MRC/Fawcett Memorial Hospital | $75.00 | Yes |
| 20) | 07/30/10 | Bruce L. Scheiner Personal InjuryLawyers, P.A. and Assoc. | $75.00 | Yes |
| 21) | 07/27/10 | Ines Lozano, U.S. Equal EmploymentOpportunity Comm. | $40.00 | Yes |
| 22) | 08/05/10 | Ines Lozano, U.S. Equal EmploymentOpportunity Comm. | $45.00 | Yes |
| 23) | 01/21/10 | Ghislaine Hernandez | $250.00 | Yes |
| $1,175.00 |
28 U.S.C. 1920(1) provides for the taxation of the "Fees of the clerk and marshal" as costs. To this end, the Eleventh Circuit has upheld costs for private process servers as long as the fee charged is authorized by Section 1921. See EEOC, 213 F.3d at 624. However, private investigative costs are not taxable. United Sstates v. Adkinson, 256 F. Supp. 2d 1297, 1322 (11th Cir. 2000).
Plaintiff objects to much of the above-noted costs, on the ground that Defendant failed to meet its burden of proof. The Plaintiff's objection is not well taken. The fees for service submitted by the Defendant are reasonable and taxable under 28 U.S.C. § 1920. Ivory v. Holme, 2009 WL 1185309 * 2 n. 6 (M.D. Fla. Apr. 30, 2009) (stating that fees of private process server are taxable, including subpoena fees). Therefore, the service and subpoena fees are legitimate taxable costs.
Fees for Printed or Electronically Recorded Transcripts Necessarily Obtained for Use in the
Case
Defendant requests $4,483.59 in fees associated with transcripts necessarily obtained for use in the case. They are broken down in the following way:
| Date | Court ReporterInvoice/Witness | InvoiceAmount | ASCII/CondensedAmount | Plaintiff'sAllegedTaxableAmount | |
|---|---|---|---|---|---|
| 1) | 06/23/10 | Invoice - ManuelHernandez (held06/18/10) | $625.00 | $0.00 | $0.00 |
| 2) | 09/08/10 | Invoice - ManuelHernandez (transcript) | $826.70 | $35.00 | $717.20 |
| 3) | 08/30/10 | Invoice - GhislaineHernandez (held08/30/10) | $126.50 | $0.00 | $0.00 |
| 4) | 08/31/10 | Invoice (Video) -Ghislaine Hernandez | $160.00 | $0.00 | $0.00 |
| 5) | 09/22/10 | Invoice - AnthonyPalmer | $368.04 | $30.00 | $249.20 |
| 6) | 09/23/10 | Invoice - ThomasGrear (held 08/31/10) | $484.50 | $0.00 | $440.45 |
| 7) | 09/23/10 | Invoice - CarlRenninger (held05/06/10) | $273.70 | $0.00 | $236.50 |
| 8) | 09/23/10 | Invoice - ThomasWilliams (held 9/1/10) | $958.20 | $121.65 | $480.15 |
| 9) | 12/17/10 | Invoice - MonicaQuintanilla | $931.15 | $29.50 | $815.12 |
| $4,753.79 | $216.15 | $2,938.62 | |||
| - $216.15 | |||||
| $4,537.64 |
Section 1920(2) authorizes the taxation of costs for the "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." Even though Section 1920(2) does not specifically use the word "deposition," deposition transcript costs (like costs for other transcripts) are taxable only if the deposition was "necessarily obtained" for use in the case. EEOC, 213 F.3d at 621. District courts have great latitude in determining whether a deposition was "necessarily obtained" for use in the case. Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir.1981). Deposition costs of witnesses on a losing party's witness list are generally considered taxable. Perez v. Sanford-Orlando Kennel Club, Inc., 2007 WL 842771, at *6 (M.D. Fla. Mar. 20, 2007); Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11 th Cir. 2002).
"In addition, deposition costs are taxable even if a prevailing party's use of a deposition is minimal or not critical to that party's ultimate success, unless the losing party demonstrates that the deposition was not related to an issue present in the case at the time of the deposition." Perez, 2007 WL 842771 at *6; EEOC, 213 F.3d at 621. The parties do not have to use the deposition at trial. Id. "Videotaped depositions are taxable as any other deposition cost . . . . When a party notices a deposition to be recorded by non-stenographic means," and the other party does not object, the cost should be awarded as a deposition cost. Perez, 2007 WL 842771 at *7.
The Plaintiff objects to the court reporter attendance fee of $625.00 for the attendance of a court reporter at the deposition of Manuel Hernandez. However under § 1920, court reporter fees are taxable costs. 28 U.S.C. § 1920(2). Thus, the Court reporter fee is a taxable cost.
The Plaintiff also objects to costs for producing condensed versions of depositions. The Plaintiff's objection is well taken. The cost for producing a condensed transcript is not recoverable under 28 U.S.C. § 1920. Smith v. CA, Inc., 2009 WL 536552 * 1 (M.D. Fla. Mar. 3, 2009) (stating that incidental costs such as ASC II disks are not recoverable). The Defendant submitted $216.15 for ASC II condensed versions of deposition transcripts. That amount will be disallowed; however, the remaining costs for deposition transcripts in the amount of $4,537.64 should be reimbursed under § 1920.
Fees for Witnesses
Defendant seeks $46.00 for witness fees. Plaintiff does not contest the taxability of this cost. Despite that the case did not proceed to trial, Defendant is entitled to its witness fees. Defendant subpoenaed Ghislaine Hernandez prior to trial in the good faith belief that her testimony would be necessary to the disposition of the case. See Spanish Action Comm. of Chicago v. City of Chicago, 811 F.2d 1129, 1128 (7th Cir. 1987) (holding that fees paid to a witness who was subpoenaed but did not actually attend trial may be allowed as costs when the subpoena was reasonably necessary). The Court granted Defendant's summary judgment motion on July 12, 2011. The Parties were required to prepare as if trial would proceed. Accordingly, Defendant is entitled to its witness fees of $46.00 under 28 U.S.C. § 1920(3).
Fees for Exemplification and the Costs of Making Copies of any Materials Where the Copies are
Necessarily Obtained for Use in the Case
Defendant seeks $1,015.09 in costs for copies of necessary materials. The costs are broken down as follows:
| Invoice Date | Vendor Name | Invoice Total | Plaintiff'sAllegedTaxableAmount | |
|---|---|---|---|---|
| 1) | 04/14/10 | Speed Print | $177.19 | $41.90 |
| 2) | 04/30/10 | Fla. Spine & Brain | $27.00 | $0.00 |
| 3) | 04/30/10 | Athletic Orthopedics | $62.00 | $0.00 |
| 4) | 05/04/10 | Healthport Invoice | $3.81 | $0.00 |
| 5) | 05/05/10 | Bactes | $72.27 | $0.00 |
| 6) | 05/08/10 | Healthport Invoice | $13.80 | $0.00 |
| 7) | 05/10/10 | EEOC | $32.00 | $0.00 |
| 8) | 05/18/10 | Speed Print | $78.32 | $29.52 |
| 9) | 05/21/10 | Mancuso & Dias, P.A. | $29.80 | $0.00 |
| 10) | 05/28/10 | Speed Print | $21.72 | $21.72 |
| 11) | 05/31/10 | Speed Print | $8.35 | $0.00 |
| 12) | 06/10/10 | Healthport Invoice | $28.96 | $0.00 |
| 13) | 06/17/10 | Mancuso & Dias, P.A. | $6.50 | $0.00 |
| 14) | 08/18/10 | Speed Print | $84.32 | $0.00 |
| 15) | 08/31/10 | Lee County Clerk | $224.00 | $0.00 |
| 16) | 08/31/10 | Charlotte County Clerk | $14.00 | $0.00 |
| 17) | 09/02/10 | Speed Print | $25.46 | $0.00 |
| 18) | 09/02/10 | Speed Print | $61.72 | $0.00 |
| 19) | 09/09/10 | Speed Print | $43.87 | $0.00 |
| $1,015.09 | $93.14 |
Section 1920(4) authorizes the taxation of costs for "making copies of any materials . . . necessarily obtained for use in the case." In evaluating whether copying costs are taxable, "the court should consider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue." EEOC, 213 F.3d at 623. The party seeking recovery of photocopying costs "must come forward with evidence showing the nature of the documents copied, including how they were used or intended to be used in the case . . . . A prevailing party may not simply make unsubstantiated claims that such documents were necessary, since the prevailing party alone knows for what purpose the copies were made." Helms v. Wal-Mart Stores, Inc., 808 F. Supp. 1568, 1570 (N.D. Ga. 1992), (internal citations omitted); see also Desisto Coll., Inc., 718 F. Supp. at 914 (declining to award photocopy costs where party did not itemize the photocopies that are the subject of the motion). Costs for the convenience of counsel, however, are not allowed. Helms, 808 F.Supp. at 1570. See also Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir.1996) (general copying costs are not recoverable). Costs for "general copying, computerized legal research . . . [and] expert witness fees" are also not recoverable. Id.
Plaintiff alleges that for several of the invoices, Defendant provided no explanation as to what records were being obtained or why they were necessary, in violation of the § 1920 requirements. Additionally, several of the invoices also include charges for convenience copies, postage, bates labeling, and other non-taxable services under § 1920. Plaintiff further objects to having to bear Defendant's investigatory costs for medical providers, lawsuits, and other records which he alleges were unrelated to the claims raised in this case, and which he had already provided to the Defendant.
The Plaintiff objects to the $177.19 cost for printing from Speed Print One. The Defendant's invoice from Speed Print One is for Bates labels and two copies (one for 419 pages doubled and one for 133 pages also copied twice). The Bates stamp labels are not covered costs under § 1920. Durden v. Citicorp Trust Bank, FSB, 2010 WL 2105921 * 4 (M.D. Fla. Apr. 26, 2010). Therefore, the Bates labels will be disallowed. Furthermore, only one copy of each report is taxable under § 1920. As such the cost submitted from Speed Print One will be reduced to $55.20.
The Plaintiff also objects to paying the Defendant's copying costs of the Plaintiff's medical exams on the grounds that such copies were not "necessarily obtained.." This case was brought as a discrimination case pursuant to Title VII; however, Plaintiff did claim emotional distress as a result of Defendant's conduct. Thus, it was entirely appropriate for Defendant to obtain Plaintiff's medical records to ascertain whether any health-related factors caused or contributed to the emotional distress that Plaintiff allegedly suffered. Here, the Court readily concludes that such materials were necessary to defend against Plaintiff's claim for emotional distress. The objection is overruled. However, overhead costs such as postage and handling are not included. Thus, the taxable amount of the Healthport Invoice #1 is reduced from $3.81 to $2.25, the Bactes Invoice is reduced from $72.27 to $66.00, the Healthport Invoice #2 is reduced from $13.80 to $11.90, and the Healthport Invoice #3 is reduced from $28.96 to $26.89.
The Plaintiff objects to paying the costs for a duplicate copy of the FOIA request to the EEOC. For the reasons cited above, costs of duplicate copies will be disallowed. Similarly, the $78.32 cost for printing from Speed Print One will be reduced to $29.52. The other costs for copies from Speed Print One will be disallowed where the Court is unable to determine what was copied.
Furthermore, the Court finds that the copying costs for research into other cases in state court are also disallowed. Thus, based upon the records submitted the Court finds that the Plaintiff's objections to the Defendant's copying cost are well taken and the copying costs will be disallowed accordingly and the Defendant will be awarded $302.48.
Compensation of Interpreters and Costs of Special Interpretation Services under 28 U .S.C. 1828
Defendant requests $975.00 for compensation for interpreters. The Plaintiff does not object. The Defendant should be awarded the costs and expenses associated with compensation of interpreters and costs of special interpretation services under 28 U.S.C. 1828. 28 U.S.C. § 1920(6) allows for recovery of "compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 1828 of this title." The undersigned finds that the requested interpreter costs were necessarily incurred during the course of the litigation. The Defendant is awarded costs associated with compensation of court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828 in the amount of $975.00.
Accordingly, it is now RESPECTFULLY RECOMMENDED:
The Defendant's Notice of Filing Bill of Costs (Doc. #106) should be GRANTED in part and DENIED in part.
Defendant should be entitled to costs in the following amounts:
| Fees for Service of Summons and Subpoena | $1,175.00 |
| Fees for Printed or Electronically Recorded Transcripts Necessarily Obtainedfor Use in the Case | $4,537.64 |
| Fee for Witnesses | $46.00 |
| Fees for Exemplification and the Costs of Making Copies of any MaterialsWhere the Copies are Necessarily Obtained for Use in the Case | $302.48 |
| Compensation of Interpreters and Costs of Special Interpretation Services under28 U.S.C. 1828 | $975.00 |
| Total Costs | $7,036.1 |
|---|
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Respectfully recommended at Fort Myers, Florida, this 30th day of December, 2011
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES MAGISTRATE JUDGE Copies: All Parties of Record