Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
ORDER granting in part and denying in part 575 Motion for Taxation of Costs. The Clerk shall tax costs in favor of defendant in the amount of $20,657.59. Signed by Judge John E. Steele on 9/15/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, aka
Stacey Berlinger O’Connor,
BRIAN BRUCE BERLINGER, and
HEATHER ANNE BERLINGER, as
Beneficiaries to the Rosa B.
Schweiker Trust and all of
its related trusts,
Case No: 2:11-cv-459-FtM-29CM
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee
to the Rosa B. Schweiker
BRUCE D. BERLINGER and SUE
Third Party Defendants.
This matter comes before the Court upon review of defendant’s
Plaintiffs filed a response objecting to defendant’s motion (Doc.
#577) on March 29, 2016.
amount of $21,858.09.
Defendant seeks to tax costs in the
Plaintiffs do not dispute
that defendant is entitled to an award of costs but object to
certain items listed in defendant’s Bill of Costs.
On October 16, 2015, the Court issued an Opinion and Order
(Doc. #492) granting defendant’s summary judgment motion in part
and denying in part.
Then, on February 2 through 5, 2016, this
matter came before the Court for a bench trial of the remaining
portions of plaintiffs’ Second Amended Complaint.
defendant breached any of its fiduciary duties to plaintiffs and
found in favor of defendant.
defendant was entered on March 3, 2016.
Judgment in favor of
Defendant now seeks to recover costs as the prevailing party.
Defendant submits a Bill of Costs and an Itemization and Supporting
Documentation for the Bill of Costs in support of its motion.
(Docs. ## 575-1, 575-2.)
Under Fed. R. Civ. P. 54(d), costs “should be allowed to the
prevailing party” unless the court provides otherwise.
prevailing party, and that it is entitled to taxable costs in this
“[Title 28 U.S.C.] Section 1920 enumerates expenses that a
federal court may tax as a cost under the discretionary authority
found in Rule 54(d).”
Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U.S. 437, 441-42 (1987).
The following costs may be taxed:
(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
(4) Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
(5) Docket fees under section 1923 of this
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
interpretation services under section 1828 of
28 U.S.C. § 1920.
A presumption exists in favor of awarding costs.
Healthcare Corp. v. Lomello, 929 F.2d 633, 639 (11th Cir. 1991).
Thus, “[w]hen 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.”
Ass’n for Disabled Ams., Inc. v. Integra
Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1288 (M.D. Fla. 2005).
For this reason, the Court will specifically address only the
particular costs that the plaintiffs dispute. 1
The Court has nonetheless reviewed the proposed costs to which plaintiffs
have not objected and finds those costs are properly taxable under § 1920.
Plaintiffs argue that defendant: (1) may not recover the costs
associated with subpoenaing plaintiffs’ witnesses; (2) may not
recover the cost of copies made for the convenience of counsel;
and (3) defendant’s costs should be reduced to two-fifths of the
amount alleged after the above reductions due to defendant’s crossclaims against third party defendants.
Defendant has not sought
leave to reply to those objections or sought to amend its Motion
or Bill of Costs.
Trial Subpoenas Costs
The defendant seeks $1,385.00 in fees for service of summons
Plaintiffs do not object to the $170.00 fee for
Service of the Third Party Compliant on Bruce Berlinger.
Specifically, plaintiffs argue that defendant did not call (1)
Sally Berlinger; (2) Bruce Berlinger; (3) the Records Custodian
for Kelly, Passidomo, and Alba, LLP; (4) Plaintiff Stacey Sue
Berlinger a/k/a Stacey O’Conner; (5) Charles M. Kelly Jr.; (6)
Kathleen Passidomo; and (7) Reuben Doupe to testify.
assert that although private process server costs are normally
recoverable under Rule 54, defendant is not entitled to server
costs of these witnesses because it failed to show that these
subpoenas were reasonable and necessary.
Plaintiffs argue the
defendant had no intention of calling these witnesses to testify
and the only reason defendant subpoenaed them was because they
were on plaintiffs witness list.
A party may recover the costs for service of a trial subpoena
even when that party does not call the witness at trial.
Maris Distrib. Co. v. Anheuser–Busch, Inc., Case No. 5:97–cv15–
Oc–10C, 2001 WL 862642, at *1 (M.D. Fla. May 4, 2001) (awarding
costs for service of subpoenas on two trial witnesses who never
testified); Barrera v. Weiss & Woolrich S., 900 F. Supp. 2d 1328,
1333 (S.D. Fla. 2012)(same).
Here, plaintiffs and defendant
identified each of the individuals above as witnesses they will or
may call at trial.
(See Docs. ##548, 552-1.)
ultimately did not call these witnesses at trial, the Court finds
witnesses to appear at trial.
The Court also rejects plaintiffs’
argument that the defendant should not recover for the costs of
the subpoenas to Charles M. Kelly, Jr., Kathleen Passidomo, and
Clyde C. Quinby, III because plaintiffs had already subpoenaed
necessary for defendant to subpoena them.
Plaintiffs also claim the Court should bar recovery of the
costs of the second attempt to service Mr. Quinby.
assert the second attempt was unnecessary because plaintiffs had
already subpoenaed Mr. Quinby.
Although defendant did call him as
a witness at trial, defendant fails to explain why it was necessary
to serve Mr. Quinby for a second time.
Therefore, the Court finds
the defendant can recover only for the first attempt at service on
Finally, plaintiffs argue that even if these witnesses were
necessary and reasonable the defendant is limited to $55 per item
and cannot include rush costs.
“[A] district court does not abuse
its discretion in taxing private process server fees that do not
exceed the statutory fees authorized in [28 U.S.C.] § 1921.”
EEOC v. W & O, Inc., 213 F.3d 600, 624 (11th Cir. 2000).
1921 provides that the Court may tax as costs fees charged by the
United States Marshals Service to serve a subpoena on a witness,
regulation, 28 C.F.R. § 0.114(a)(3), provides for service of
process executed by the Marshals Service to be charged at $65.00
per hour (or portion thereof) and any other out-of-pocket expenses.
Defendant’s invoices reflect that service of the subpoenas in
the instant case were made at a rate of $90.00 per subpoena.
information as to the time expended to effectuate service by the
private process server or as to travel costs or other out-ofpocket expenses incurred.
Accordingly, the Court will limit the
cost for service of each subpoena to $65.00.
The invoice also shows a rush service of $45.00 was added per
Defendant asserts rush service was necessary due to the
trial date being adjusted to a late date.
Even assuming rush
proposition that it may recover more than $65.00 per subpoena as
provided by statute in the absence of any information regarding
time, travel, or out-of-pocket expenses.
Therefore, the Court finds the defendant can recover only
$65.00 for eight of the trial subpoenas served, resulting in a
reduction of $695.00 of defendant’s total costs.
Court finds that defendant is entitled to a total of $690.00 in
fees for service of summons and subpoenas.
retrieval, and copying costs.
Plaintiffs object to $505.50 and
plaintiffs, the Court should reduce defendant’s costs because
these copies were made for the convenience of counsel and thus,
the costs should not be recoverable.
Costs for “making copies of any materials . . . necessarily
obtained for use in the case” are taxable.
28 U.S.C. § 1920(4).
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.
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.
After reviewing defendant’s Bill of Costs, the Court finds
the $57.66 charge for “trial exhibits necessary for trial” is a
recoverable expense under 28 U.S.C. § 1920(4). Despite plaintiff’s
argument, nothing in the record suggests that the copies of trial
exhibits was a duplicate expense.
However, the Court concludes
that the $505.50 for “[c]opies of documents produced in preparation
Defendant fails to describe the charges sufficiently or provide
determine whether the copies were necessarily obtained for use in
the case pursuant to 28 U.S.C. § 1920(4).
See W & O, Inc., 213
F.3d at 623 (“[I]n evaluating copying costs, the court should
believed that it was necessary to copy the papers at issue”).
($4,867.31 – $505.50) in copying costs.
Plaintiffs Request for Reduction
Plaintiffs argue that some of the costs associated with the
instant litigation are due to the claims defendant commenced
against third party defendants Bruce Berlinger and Sue Berlinger.
Plaintiffs assert the time and length of the depositions and
transcripts were extended due to the three additional claims
Plaintiffs allege that it is impossible to separate such costs and
attribute them to a particular claim.
request the total costs be divided by the number of claims and
plaintiffs’ responsibility be reduced to two-fifths of the total
The plaintiffs acknowledge it is impossible to separate the
costs attributable to a particular claim because defendant used
the same records and evidence to contest the claims brought by the
Plaintiffs cite no authority for reducing costs
equally per claim and the Court finds no support for plaintiffs’
Because it is undisputed that defendant’s costs were
defendant is entitled to recover the costs incurred.
In summary, defendant’s proposed Bill of Costs will be reduced
by $695.00 in trial subpoena costs and $505.50 in copying costs.
Accordingly, defendant is awarded costs totaling $20,657.59.
ACCORDINGLY, it is hereby
Defendant’s Motion to Tax Costs (Doc. #575) is GRANTED IN
PART AND DENIED IN PART.
The Clerk shall tax costs in favor of
defendant in the amount of $20,657.59.
DONE and ORDERED in Fort Myers, Florida on this
of September, 2016.
All Parties of Record
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