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declining to tax costs of deposition when it did not "appear that [the witness's] deposition transcript was utilized in [d]efendants' successful motion for summary judgment"
Summary of this case from Tsavaris v. Savannah Law Sch., LLCOpinion
Case No: 6:15-cv-936-Orl-40DCI
04-24-2017
JACQUELYN JOHNSTON, Plaintiff, v. GARY S. BORDERS and JENNIFER FERGUSON, Defendants.
REPORT AND RECOMMENDATION
This cause comes before the Court for consideration without oral argument on the following motion:
MOTION: DEFENDANT'S MOTION TO TAX COSTS (Doc. 100)I. BACKGROUND.
FILED: January 25, 2017
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
On September 11, 2015, Plaintiff filed an amended complaint (the Amended Complaint) alleging a § 1983 violation against Defendant Gary S. Borders, both individually and in his official capacity as Lake County Sheriff (Count I), as well as various state law claims against both Defendant Borders and Defendant Jennifer Ferguson (Counts II through VI). Doc. 1. On October 3, 2016, Defendants moved for summary judgment (Doc. 60) and Plaintiff filed a motion for partial summary judgment (Doc. 63). On January 11, 2017, the Court entered an Order (Doc. 98) granting Defendant's motion for summary judgment and dismissing Count I of the Amended Complaint with prejudice. Doc. 98 at 11. The Court further declined to exercise supplemental jurisdiction over the remaining state law counts and, thus, dismissed Counts II though VI of the Amended Complaint without prejudice. Id. The Court also denied Plaintiff's motion for partial summary judgment. Id. On January 25, 2017, Defendant timely filed the Motion to Tax Costs (the Motion) that is before the undersigned. Doc. 100. On February 8, 2017, Plaintiff filed a response in opposition to the Motion, conceding that Defendant was the prevailing party for purposes of recovering costs pursuant to Federal Rule of Civil Procedure 54(d), but taking issue with certain of the requested costs. Doc. 101. II. LAW.
On February 9, 2017, Plaintiff filed a Notice of Appeal, seeking to appeal the Order granting Defendant's motion for summary judgment and denying Plaintiff's motion for partial summary judgment. Doc. 102. That appeal remains pending.
Federal Rule of Civil Procedure 54(d)(1) allows for an award of costs for a prevailing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise. See Durden v. Citicorp Trust Bank, FSB, No. 3:07-cv-974-J-34JRK, 2010 WL 2105921, at *1 (M.D. Fla. Apr. 26, 2010) (stating that Rule 54 establishes a presumption that costs should be awarded unless the district court decides otherwise (citing Chapman v. Al Transp., 229 F.3d 1012, 1038 (11th Cir. 2000))).
Here, the Court entered an Order granting Defendants' motion for summary judgment, dismissing the each Count of the Amended Complaint, and directing the Clerk of Court to close the file. Doc. 98 at 11-12. Thus, Defendants are the prevailing parties in this case and are entitled to costs under Rule 54(d). See Powell v. Carey Int'l, Inc., 548 F. Supp. 2d 1351, 1356 (S.D. Fla. 2008) (stating that a prevailing party is one who "prevailed on 'any significant issue in the litigation which achieved some of the benefit the parties sought in bringing suit'" (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989))).
"[A] court may only tax costs as authorized by statute." EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). Thus, a district court may not award costs under Rule 54 "in excess of those permitted by Congress under 28 U.S.C. § 1920." Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir. 2002) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)). Section 1920 specifies which costs are recoverable, and provides as follows:
A judge or clerk of any court of the United States may tax as costs the following:28 U.S.C. § 1920. When challenging whether costs are properly taxable, the burden lies with the challenging party. Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1288 (M.D. Fla. 2005). And "the district court's discretion not to award the full amount of costs incurred by the prevailing party is not unfettered, 'since denial of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of the litigation.'" Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000) (quoting Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977)) (internal citation omitted) (alteration in original). To defeat the presumption and deny some or all costs, a district court must have and state a sound basis for doing so. Id.
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for 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 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.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Yet the party seeking costs must provide sufficient detail and documentation regarding the requested costs so the opposing party may challenge the costs and the court may conduct a meaningful review of the costs. Lee v. Am. Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1335-36 (S.D. Fla. 2000). The party seeking an award of costs or expenses bears the burden of submitting a request that enables a court to determine what costs or expenses were incurred by the party and the party's entitlement to an award of those costs or expenses. Loranger v. Stierheim, 10 F.3d 776, 784 (11th Cir. 1994). Failure to provide sufficient detail or "supporting documentation verifying the costs incurred and the services rendered can be grounds for denial of costs." Pelc v. Nowak, No. 8:11-CV-79-T-17TGW, 2013 WL 3771233, at *5 (M.D. Fla. July 17, 2013) (citing Johnson v. Mortham, 173 F.R.D. 313, 318 (N.D. Fla. 1997)). III. ANALYSIS.
There is no dispute that Defendants are entitled to recover costs pursuant § 1920. See Doc. No. 101 at 1. Defendants request an award of $6,213.86 in costs, which is composed of (a) $4,988.66 in costs related to deposition transcription and (b) $1,225.20 in copying costs. Docs. 100; 100-1. Plaintiff contests the entirety of the requested deposition transcription costs as unnecessary and, alternatively, attacks certain, specific costs related to the deposition transcription, and also opposes two categories of the copying costs. Doc. 101.
A. Fees for Printed or Electronically Recorded Transcripts.
Defendants seek costs for deposition transcripts, a video-recording, and (implicitly) certain fees related to transcription. Docs. 100 at 4-5; 100-1. As discussed below, the undersigned finds that Defendants are entitled only to recover a portion of the deposition transcription costs requested.
Defendants attach invoices for the deposition transcription to the Motion, which invoices reflect not only the cost of the transcription itself, but also additional fees, such as those for a "Litigation Package" and for shipping and handling. Doc. 101. Although Defendants do not make a specific argument for the recovery of these separate fees in the Motion, they request the total invoiced amount as a part of the costs sought in the Motion, thus implicitly requesting these additional fees as well. Docs. 100 at 4-5; 101.
Defendants seek costs related to nine depositions (some of which were combined in Defendant's chart itemizing costs), and one of which involved both stenographic and video recording (each method of recordation being billed separately). Docs. 100; 101-1. The chart below sets forth Defendants' description of the depositions at issue and the total costs associated with each deposition or method of transcription:
| Deponent | Cost |
|---|---|
| Longo | $447.00 |
| Defendant Borders | $206.45 |
| Sheahan and Luckhart | $525.79 |
| Williams and Hagan | $559.70 |
| Plaintiff Johnston (stenographic) | $1,542.55 |
| Plaintiff Johnston (video) | $953.00 |
| Defendant Ferguson | $754.17 |
| Luce | $266.00 |
Initially, Plaintiff asserts that none of the costs related to deposition transcripts should be awarded because none of the transcripts were necessary for Defendants to prevail at summary judgment. Doc. 101 at 3. Plaintiff argues, without citation to authority, that since Defendant prevailed as "a matter of law" and "could have moved for dismissal of Count I" at an earlier stage of these proceedings (i.e., prior to conducting discovery), Defendant is not entitled to costs related to any deposition in this case. Id.
In the alternative, Plaintiff objects specifically to certain costs associated with the depositions. Doc. 101 at 4-5. Plaintiff objects to the costs for the video recording of her own deposition and asserts that Defendants have not met their burden to establish their entitlement to the costs associated with video deposition services. Id. Plaintiff also objects to the costs for "Litigation Package" fees totaling $296.00 that were charged in some of the transcript invoices. Id. Further, Plaintiff objects to the costs for Defendant Ferguson's deposition transcript on the basis that Defendant Ferguson was not a prevailing party in this action and, thus, her deposition was not necessary for the count on which Defendant Borders prevailed. Id. Finally, Plaintiff objects to the costs for the transcript of Luce's deposition, and asserts that Luce's deposition was not cited in her motion for partial summary judgment, only exhibits from that deposition were cited. Id.
Defendants contend that the deposition transcripts at issue were "necessarily obtained for use in the case," Doc. 100 at 4 (quoting 18 U.S.C. §1920(2)), and that seven of the deposition transcripts were actually cited in the motion for summary judgment granted by the Court. Doc. 100 at 5. As to the "eighth" deposition, that of Luce, Defendants assert that Plaintiff noticed the deposition and cited to it in her motion for partial summary and, thus, it was necessary for Defendants to obtain a copy of that transcript in preparing a response to Plaintiff's motion. Id. However, Defendants make no specific assertions as to why they should recover costs for Defendant Ferguson's deposition transcript. Id. Further, Defendants provided no explanation in the Motion as to why Plaintiff should bear the cost of the video recording of Plaintiff's deposition—and the fact that Defendants seek costs for both stenographic and video recordation of that deposition is not even mentioned in the Motion. Id. Nor do Defendants explain or otherwise justify the "Litigation Package" costs associated with several of the deposition transcripts. Id.
There appears to be a discrepancy as to the number of depositions—eight or nine. Defendants' chart lists and seeks costs related to nine persons deposed, but the Motion states that there were eight depositions. See Docs. 100 at 5; 100-1. The ninth deposition is likely that of Defendant Ferguson, which was not cited to in the Motion (Doc. 100 at 5) as a deposition transcript attached to the motion for summary judgment.
The undersigned is persuaded that Defendants should recover some costs associated with the deposition transcripts in this case. "Taxation of deposition costs is authorized by § 1920(2)." W & O, Inc., 213 F.3d at 620 (citing U.S. v. Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963)). In particular, costs for transcripts of depositions conducted in support of a motion for summary judgment or depositions conducted of witnesses listed on a party's witness list are examples of the types of costs recoverable under § 1920(2). See, e.g., Family Oriented Cmty. United Strong, Inc. v. Lockheed Martin Corp., No. 8:11-cv-217-T-30AEP, 2012 WL 6575348, at *1 (M.D. Fla. Dec. 17, 2012). However, "where the deposition costs were merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only, the costs are not recoverable." W & O, Inc., 213 F.3d at 620 (quoting Goodwall Const. Co. v. Beers Const. Co., 824 F. Supp. 1044, 1066 (N.D. Ga. 1992), aff'd, 991 F.2d 751 (Fed. Cir. 1993)). Ultimately, the question of whether costs for a deposition are recoverable depends on the factual question of whether the deposition was wholly or partially necessarily obtained for use in the case. Id. at 620-21.
Here, Defendants attached and cited to the transcripts of the following witnesses in Defendants' successful motion for summary judgment:
1. Plaintiff (Doc. 60-1);
2. Hagan (Doc. 60-3);
3. Sheahan (Doc. 60-4);
4. Longo (Doc. 60-6);
5. Luckhart (Doc. 60-9);
6. Defendant Borders (Doc. 60-10); and
7. Williams (Doc. 60-11). Further, Plaintiff filed portions of Luce's deposition in support of Plaintiff's unsuccessful motion for partial summary judgment. See Doc. 65-2. Accordingly, the undersigned is persuaded that these particular transcripts were "necessarily obtained for use in the case." See 28 U.S.C. § 1920(2). Further, Plaintiff cited to no legal authority supporting her proposition that, if a party prevails as a matter of law, then that party should be categorically denied any costs associated with deposition transcripts.
But some of Plaintiff's more specific, alternative arguments are well-taken. Defendants seek costs for obtaining the stenographic transcript and the video recording of Plaintiff's deposition. The prevailing party may recover the costs of transcribing and videotaping a deposition under § 1920 if the notice of deposition indicated that the deposition would be recorded by stenographic and nonstenographic means, the opposing party did not object to the method of recordation prior to the deposition, and the prevailing party explains why it was necessary to obtain both a transcript and video recording of the deposition. Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 465 (11th Cir. 1996). Defendants provide no explanation in the Motion as to why they are entitled to costs for the recording of the video deposition, nor do they provide any information as to how the deposition was noticed. On this record, the undersigned finds that Defendants have not sufficiently demonstrated that the video deposition was necessarily obtained for use in this case. See Castillo v. Roche Labs., Inc., No. 10-20876-CV, 2012 WL 381200, at *4 (S.D. Fla. Feb. 6, 2012) (awarding costs for videotaping the deposition of a witness who was outside the court's subpoena power, no longer employed by the defendant, and was critical to plaintiff's case); Scottsdale Ins. Co. v. Wave Techs. Commc'ns, Inc., No. 8:07-cv-1329-T-30MAP, 2012 WL 750317, at *2 (M.D. Fla. Mar. 7, 2012) (awarding costs for videotaping the deposition of a witness who was outside the court's subpoena power, would not appear at trial, and whose video deposition was shown at trial); U.S. ex rel. Gillespie v. Kaplan Univ., No. 09-CV-20756-SEITZ, 2015 WL 11181725, at *3-4 (S.D. Fla. Dec. 1, 2015) (awarding costs for videotaping the depositions of witnesses who were outside the court's subpoena power). Accordingly, the undersigned finds that Defendants are not entitled to recover the costs for obtaining the video recording of Plaintiff's deposition; a reduction of the requested costs in an amount totaling $953.00.
In addition, Plaintiff objects to the cost of the deposition transcript of Defendant Ferguson. Defendants make no argument in the Motion related specifically to the recovery of the cost of the transcript of Defendant Ferguson's deposition. Nor does it appear that Defendant Ferguson's deposition transcript was utilized in Defendants' successful motion for summary judgment. Accordingly, on this record, the undersigned finds that Defendants are not entitled to recover the costs for the transcript of the deposition of Defendant Ferguson; a reduction of the requested costs in an amount totaling $754.17.
Plaintiff also objects to the costs for the "Litigation Package" fees reflected on the invoices for the deposition transcripts of Plaintiff ($35), Sheahan ($43.50), Luckhart ($43.50), Longo ($43.50), Defendant Borders ($43.50), and Defendant Ferguson ($43.50). Doc. 100-1. Defendants provide no explanation whatsoever for these "Litigation Package" costs. The party seeking costs must provide sufficient detail and documentation regarding the requested costs so the opposing party may challenge the costs and the court may conduct a meaningful review of the costs. Lee v. Am. Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1335-36 (S.D. Fla. 2000). Failure to provide sufficient detail or supporting documentation verifying the costs incurred and the services rendered can be grounds for denial of costs. Pelc v. Nowak, No. 8:11-cv-79-T-17TGW, 2013 WL 3771233, at *5 (M.D. Fla. July 17, 2013) (citing Johnson v. Mortham, 173 F.R.D. 313, 318 (N.D. Fla. 1997)). As previously observed, "where the deposition costs were merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only, the costs are not recoverable." W & O, Inc., 213 F.3d at 620. On this record, Defendants have not met their burden to provide sufficient detail to justify the costs related to the "Litigation Package" fees and, in particular, the undersigned cannot determine whether or not the charges at issue were simply for the convenience of counsel. Accordingly, the undersigned finds that Defendants are not entitled to recover the costs for the Litigation Package fees; a reduction of the requested costs in an amount totaling $209.00.
The "Litigation Package" fee for Defendant Ferguson's deposition transcript is not included in this amount because the entirety of the costs related to Defendant Ferguson's deposition transcript have already been excluded.
Finally, Defendants implicitly seek costs for shipping and handling of the deposition transcripts. Doc. 101-1. Although neither party addresses these costs, costs for the shipping and handling of deposition transcripts are outside the scope of § 1920. See Watson v. Lake Cnty., 492 F. App'x 991, 997 (11th Cir. 2012) (finding the district court abused its discretion by awarding shipping costs for depositions); Awwad v. Largo Med. Ctr., Inc., No. 8:11-cv-1638-T-24TBM, 2013 WL 6198856, at *4 (M.D. Fla. Nov. 27, 2013) (denying recovery of costs for synchronizing video depositions and shipping depositions). Accordingly, the undersigned finds that Defendants are not entitled to recover the costs associated with shipping and handling the depositions; a reduction of the requested costs in an amount totaling $174.84.
The shipping and handling fees for Defendant Ferguson's deposition transcript and the video portion of Plaintiff's deposition are not included in this amount because the entirety of the costs related those items have already been excluded.
B. Copying Costs.
Defendants seek a total of $1,225.20 in costs for copies. Docs. 100 at 5-6; 100-1. Defendants divide the copies at issue into three categories, providing a short description of each category. Doc. 100-1. The chart below states the Defendants' description of each category and the costs associated thereto:
| Copies | Cost |
|---|---|
| Photocopies for Plaintiff's Deposition | $110.80 |
| Photocopies for Motion for Summary Judgment | $196.10 |
| Photocopies for Pretrial Conference | $918.30 |
Costs for "making copies of any materials . . . necessarily obtained for use in the case" are taxable. 28 U.S.C. § 1920(4). Specifically, "[c]opies attributable to discovery, copies of pleadings, correspondence, documents tendered to the opposing party, copies of exhibits, and documents prepared for the Court's consideration are recoverable[,]" whereas "[c]opies obtained only for the convenience of counsel," such as "[e]xtra copies of filed papers, correspondence, and copies of cases" are not. Desisto Coll., Inc. v. Town of Howey-In-The-Hills, 718 F. Supp. 906, 913 (M.D. Fla. 1989), aff'd sub nom. Desisto Coll., Inc. v. Line, 914 F.2d 267 (11th Cir. 1990), not followed on other grounds by W & O, Inc., 213 F.3d 600.
Plaintiff objects to the costs of copies for the motion for summary judgment and for the pretrial conference. Doc. 101 at 2. Plaintiff asserts that Defendants made these copies for the convenience of counsel, and that Defendants have not sufficiently explained why these copies should be taxed as costs, especially where, as here, there was no hearing on the motion for summary judgment and all of the documents at issue were allegedly provided by Plaintiff to Defendants (without objection) in electronic format. Id. Defendants, in the Motion, state in a conclusory manner that the copies were not produced for the convenience of counsel, and that some of the copying costs (presumably those identified as "for" the motion for summary judgment) were attributable to "copies submitted in support of the Defendant's Motion for Summary Judgment."
The undersigned is unclear as to the meaning of this statement in the Motion, as the motion for summary judgment, like most filings in this matter, was filed electronically via the CM/ECF system.
A party seeking reimbursement for copying costs must present evidence "regarding the documents copied including their use or intended use." Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). Defendants do not address in the Motion why the electronic copies of documents received during this case were insufficient, and why hard copies were made for any reason other than for the convenience of counsel. As such, the Court cannot determine whether it was necessary to make hard copies of electronic documents or otherwise make photocopies in relation to the motion for summary judgment and the pretrial. See Gary Brown & Assocs., Inc. v. Ashdon, Inc., 268 F. App'x 837, 846 (11th Cir. 2008) (finding costs for "unspecified copying" that did "not allow the court to determine whether the documents were necessarily obtained for use in the case" were not recoverable under § 1920). Accordingly, the undersigned finds that Defendants are not entitled to recover the costs associated with making copies for the motion for summary judgment and the pretrial conference; a reduction of the requested costs in an amount totaling $1,114.40. IV. CONCLUSION.
This figure represents the following: $196.10 for the costs of photocopies for the motion for summary judgment; and $918.30 for the costs for photocopies for the pretrial conference.
Accordingly, it is RECOMMENDED that the Motion (Doc. 100) be GRANTED in part and DENIED in part as follows:
1. Plaintiff be awarded $3,008.45 in costs; and
This represents a total reduction in the requested costs of $3,205.41. --------
2. Otherwise, the Motion (Doc.100) be DENIED.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
Recommended in Orlando, Florida on April 24, 2017.
/s/_________
DANIEL C. IRICK
UNITES STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy