Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
585
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,
Plaintiffs,
v.
Case No: 2:11-cv-459-FtM-29CM
WELLS
FARGO,
N.A.
AS
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee
to the Rosa B. Schweiker
Trust,
and
all
of
its
related trusts,
Defendant/Third
Party Plaintiff
BRUCE D. BERLINGER and SUE
CASSELBERRY,
Third Party Defendants.
ORDER
This matter comes before the Court upon review of defendant’s
Motion
to
Tax
Costs
(Doc.
#575)
filed
on
March
17,
2016.
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
(Doc. #575-2.)
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.
559.)
The
Court
found
plaintiffs
failed
to
(Docs. ##558,
establish
that
defendant breached any of its fiduciary duties to plaintiffs and
found in favor of defendant.
(Doc #571.)
defendant was entered on March 3, 2016.
Judgment in favor of
(Doc #574.)
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.)
I.
Under Fed. R. Civ. P. 54(d), costs “should be allowed to the
prevailing party” unless the court provides otherwise.
Fed. R.
Civ.
is
P.
54(d)(1).
It
is
undisputed
that
defendant
the
prevailing party, and that it is entitled to taxable costs in this
case.
“[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
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.
28 U.S.C. § 1920.
A presumption exists in favor of awarding costs.
See Manor
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
1
The Court has nonetheless reviewed the proposed costs to which plaintiffs
have not objected and finds those costs are properly taxable under § 1920.
II.
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.
A.
Trial Subpoenas Costs
The defendant seeks $1,385.00 in fees for service of summons
and subpoenas.
Plaintiffs do not object to the $170.00 fee for
Service of the Third Party Compliant on Bruce Berlinger.
plaintiffs
object
to
the
costs
of
the
trial
However,
subpoenas.
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.
Plaintiffs
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.
See e.g.,
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.)
Though defendant
ultimately did not call these witnesses at trial, the Court finds
it
was
nevertheless
reasonably
witnesses to appear at trial.
necessary
to
subpoena
those
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
them.
As
defendant’s
discussed
witness
above,
list
and
these
witnesses
therefore,
it
were
was
listed
on
reasonably
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.
Plaintiffs
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
Mr. Quinby.
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).
U.S.
Section
1921 provides that the Court may tax as costs fees charged by the
United States Marshals Service to serve a subpoena on a witness,
which
fees
are
1921(a)(1)(B),
prescribed
(b).
As
of
by
regulation.
October
30,
28
2013,
U.S.C.
§
the
pertinent
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.
The
documentation
any
submitted
by
defendant
does
not
provide
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
subpoena.
Defendant asserts rush service was necessary due to the
trial date being adjusted to a late date.
Even assuming rush
service
authority
was
necessary,
defendant
cites
no
for
the
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.
Accordingly, the
Court finds that defendant is entitled to a total of $690.00 in
fees for service of summons and subpoenas.
B.
Copying Costs
The
defendant
seeks
$4,867.31
retrieval, and copying costs.
$57.66
in
obtained
costs
only
associated
for
the
in
exemplification,
record
Plaintiffs object to $505.50 and
with
copies
convenience
of
which
were
counsel.
allegedly
According
to
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.
Specifically,
pleadings,
“[c]opies
attributable
correspondence,
documents
to
28 U.S.C. § 1920(4).
discovery,
tendered
to
copies
the
of
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.
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
for
trial”
should
be
deducted
from
the
total
copying
costs.
Defendant fails to describe the charges sufficiently or provide
any
documentation
regarding
this
cost
to
allow
the
Court
to
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
consider
whether
the
prevailing
party
could
have
reasonably
believed that it was necessary to copy the papers at issue”).
Therefore,
the
Court
will
reimburse
($4,867.31 – $505.50) in copying costs.
defendant
for
$4,361.81
C.
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
asserted
by
defendant
against
the
third
party
defendants.
Plaintiffs allege that it is impossible to separate such costs and
attribute them to a particular claim.
Therefore, plaintiffs
request the total costs be divided by the number of claims and
plaintiffs’ responsibility be reduced to two-fifths of the total
costs.
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
and
defendants.
support
its
claims
against
the
third
party
Plaintiffs cite no authority for reducing costs
equally per claim and the Court finds no support for plaintiffs’
argument.
necessary
Because it is undisputed that defendant’s costs were
to
defend
the
instant
action,
the
Court
finds
the
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
ORDERED:
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.
Copies:
All Parties of Record
15th
day
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