Kobie v. Fifthian et al

Filing 150

AMENDED ORDER re 149 Order on Motion for Taxation of Costs. Signed by Judge Sheri Polster Chappell on 5/28/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

FRED HERMAN KOBIE, III,
Plaintiff,
v.

Case No: 2:12-cv-98-FtM-29DNF

JASON FITHIAN, Detective of Lee County
Sheriff Department and MIKE SCOTT,
Sheriff of Lee County Sheriff Department,
Defendants.
___________________________________/
AMENDED1 ORDER2
This matter comes before the Court on the Defendants’ Motion for Taxation of
Costs (Doc. #146) filed on May 12, 2014. The Defendants move pursuant to Fed. R.
Civ. P. 54(d) for recovery of costs incurred in defending the instant case.
The District Court has broad discretion to award or deny costs pursuant to Fed.
R. Civ. P. 54(d). See Ass'n for Disabled Am., Inc. v. Integra Resort Mgmt., Inc., 385 F.
Supp. 2d 1272, 1288 (M.D. Fla. 2005). However, the “Court may not tax as costs any
items not included in 28 U.S.C § 1920.” Id. In pertinent part, 28 U.S.C. § 1920 reads:
A judge or clerk of any court of the United States may tax as
costs the following:
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This Amended Order amends the Court’s previous Order dated May 27, 2014 (Doc. #149) only to
correct the amount of witness fees and, in turn, the total amount of costs for the Clerk of Court to tax.
Otherwise, the Amended Order remains unchanged from the Order dated May 27, 2014 (Doc. #149).
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(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.
To be awarded these costs, the moving party must be considered a “prevailing
party” under Fed. R. Civ. P. 54(d). The proper test for determining whether a party has
prevailed in an action is that there must be either “(1) a situation where a party has been
awarded by the court ‘at least some relief on the merits of his claim’ or (2) a ‘judicial
imprimatur on the change’ in the legal relationship between the parties.” Smalbein ex
rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003)
(citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532
U.S. 598, 605 (2001)). On May 7, 2014 a judgment (Doc. # 145) was entered in favor of
the Defendant Jason Fithian on all claims, and thus he is a prevailing party for taxation
of costs purposes.3
The Defendants seek costs of $769.29 for copies of trial exhibits and other
related documents necessary for the case. Under § 1920 these copying costs incurred
are recoverable, and therefore the Defendants’ request to tax those costs is granted.
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Defendants argue that Mike Scott is a "prevailing party" for purposes of Rule 54(d)(1) despite him
having been voluntarily dismissed without prejudice. (Doc. #146 at 3 (citations omitted)). The Court,
however, does not need to decide the merits of this argument because any costs recoverable under Fed.
R. Civ. P. 54(d)(1) are inextricably intertwined between Mike Scott and Jason Fithian. Thus, the Court will
use the term Defendants in uniformity with the request in the Motion and not as a determinative that Mike
Scott is a prevailing party.

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The Defendants next list various costs for taking depositions of witnesses and
obtaining copies of other witness depositions. Costs for depositions are recoverable
under § 1920(2) if the “deposition was wholly or partially ‘necessarily obtained for use in
the case.’” E.E.O.C. v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. 2000) (quoting Newman
v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. 1981)). “[W]here the deposition
costs were merely incurred for convenience, to aid in thorough preparation, or for
purposes of investigation only, the costs are not recoverable.” Id. 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)).

Courts have generally held that depositions of

persons named on the witness list at trial or relied upon in a motion of summary
judgment are recoverable as costs necessary for the case. See Maris Distrib. Co. v.
Anheuser-Busch, Inc., 302 F.3d 1207 (11th Cir. 2002). Accordingly, the costs for the
depositions or deposition copies listed on the Defendants’ Bill of Costs (Doc. #148) are
recoverable if they were used in support of the Defendants’ motion for summary
judgment or were of witnesses at trial. The Court is unable to determine the purpose or
relation of the deposition testimony of James Kerr, listed along with Michael Jackson
and John Dyhkuis as deposition copy cost in the amount of $247.50. Therefore the
taxation of that item is denied. All other listed items relating to deposition testimony are
sufficient to be recoverable under § 1920 and are granted.
The Defendants next list $9.00 as a cost for “delivery service/Messenger
delivery.” It is well settled that costs for “shipping and handling” or postage costs are not
recoverable expenses under §1920. Robinson v. Alutiq-Mele, LLC, 643 F. Supp. 2d

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1342, 1354 (S.D. Fla. 2009); see Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th
Cir. 1996). Therefore, the request for this cost is denied.
The Defendants’ Bill of Costs (Doc. #148) lists a $600.00 expense entitled
“mediator’s fee” as an item for which taxation of cost is requested. Rule 54(d) and
§ 1920 do not provide any means to recover mediation fees. See Bates v. Islamorada,
Vill. of Islands, No. 04-10114-CIV, 2007 WL 2113586 (S.D. Fla. July 23, 2007) (citing
Corwin v. Walt Disney Co., 468 F.3d 1329, 1346 (11th Cir. 2006), vacated and
superseded on reconsideration on other grounds, 475 F.3d 1239 (11th Cir. 2007)).
Accordingly the Defendants’ request for Mediation fees is denied.
Finally, the Defendants request that $230.00 for service of process and $222.95
for witness expenses be taxed as costs under § 1920. Service of process fees “may be
taxed pursuant to §§ 1920(1) and 1921.” W&O, Inc., 213 F.3d at 624. These fees may
not exceed the statutory requirements of § 1921, however this Court finds that they do
not, and are accordingly recoverable under § 1920. The witness fees requested are
generally recoverable under § 1920(3), and are granted to the extent that the witnesses
were actually used at trial. Thus, the mileage and witness fees for Brandon Jones,
Robert Wood, and Tyler Holcombe are granted.
Defendants have requested that certain costs be taxed to the Plaintiff; the Court
finds that certain requested expenses, totaling $856.50, do not fall within the confines of
Rule 54(d) and § 1920, and accordingly reduces the Defendant’s original request by
that amount to $4,652.34.
Accordingly, it is now
ORDERED:

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The Defendants’ Motion for Clerk’s Taxation of Costs (Doc. #146) is GRANTED
in part, and DENIED in part. The Clerk shall tax the cost in the Defendant’s Bill of Costs
against the Plaintiff and that the Defendants be reimbursed for copying charges of
$769.29, deposition costs of $3430.10, service of process costs of $230.00, and witness
and mileage fees of $222.95 for a total of $4,652.34.
DONE and ORDERED in Fort Myers, Florida this 28th day of May, 2014.

Copies: All Parties of Record

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