Paola Canas et al v. Flash Dancers, Inc. et al

Filing 141

ORDER granting in part 138 Defendants' Motion to Dismiss or, Alternatively, for Judgment as a Matter of Law; dismissing with prejudice Plaintiff Jaime Edmondson's claims; denying 126 Defendants' Amended Renewed Motion for Judgm ent as a Matter of Law; granting in part, denying in part, and deferring in part 119 Plaintiffs' Motion for Fees and Costs; granting in part and denying in part 128 Defendants' Motion to Stay Consideration of Plaintiffs' Motion for Fees and Costs and Request to Make Adversary Submission on Amount of Plaintiffs' Fees and Costs after Entitlement is Determined. Plaintiffs to file renewed motion for costs by 2/28/2020. Defendants to respond by 3/16/2020. See Order for details. Signed by Judge Timothy J. Corrigan on 2/6/2020. (JJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PAOLA CANAS, LINA POSADA,
JESSICA BURCIAGA, JAIME
EDMONDSON, and ROSIE JONES
Plaintiffs,
v.

Case No. 3:16-cv-393-J-32JRK

FLASH DANCERS, INC.,
Defendant.
BROOKE TAYLOR aka Brooke
Johnson, LAURIE ANN YOUNG,
MALU LUND, SARA
UNDERWOOD, and JAMIE
EASON aka Jamie Middleton,
Plaintiffs,
v.

Case No. 3:16-cv-394-J-32JRK

M.T. PRODUCTIONS IN
JACKSONVILLE, INC.,
Defendant.

ORDER
Plaintiffs are professional models. These consolidated cases concern two
adult entertainment clubs’ use of Plaintiffs’ images in advertisements without

their consent. The jury returned verdicts in favor of nine Plaintiffs. The cases
are now before the Court on several post-trial motions. (Docs. 119, 125, 126,
128, 138).
The Second Amended and Consolidated Complaint alleges: violations of
the Lanham Act, 15 U.S.C. § 1125, for false advertising and false endorsement
(Counts I and II), statutory and common law misappropriation of name and
likeness (Counts III and IV), violations of Florida’s Deceptive and Unfair Trade
Practices Act (Count V), civil theft under Florida law (Count VI), and unjust
enrichment (Count VII). (Doc. 30). Counts V and VI were dismissed before trial.
(Doc. 50).
The cases proceeded to trial the week of July 22, 2019, with the jury
returning verdicts in favor of nine Plaintiffs on Counts I–IV, and for Defendants
on Count VII. (Docs. 30, 99–107). During trial, at Plaintiffs’ request and with
Defendants’ consent, the Court dismissed with prejudice the claims against
Michael Tomkovich, the owner of the clubs, in his individual capacity. (Doc.
108). Additionally, the Court granted Plaintiffs’ Rule 50 motion for judgment as
a matter of law on Counts III and IV—the Florida law misappropriation
claims—against Defendants Flash Dancers, Inc. and M.T. Productions in
Jacksonville, Inc. Id. The jury determined the amount of damages on those
counts. (Docs. 99–107). The Court denied Defendants’ Rule 50 motion and their
renewed motion to exclude Plaintiffs’ expert Martin Buncher, who testified
2

concerning a survey he conducted regarding consumer confusion and
deception—an element of the Lanham Act claims. (Doc. 108).
After trial, Plaintiff Jaime Edmondson Longoria, 1 whose claims were not
sent to the jury because she was unwilling to attend trial, filed a notice
requesting that the Court set her claims for a three-day jury trial. (Doc. 125).
Additionally, Defendants filed an Amended Renewed Motion for Judgment as a
Matter of Law, (Doc. 126), to which Plaintiffs responded, (Doc. 132). Plaintiffs
filed a motion for fees and costs under the Lanham Act, (Doc. 119), which
Defendants oppose, (Doc. 127). Defendants also filed a Motion to Stay
Consideration of Plaintiffs’ Motion for Fees and Costs. (Doc. 128).
I. PLAINTIFF EDMONDSON’S CLAIMS
During the final pretrial conference, Plaintiffs Edmondson, Posada, and
Jones requested to testify via live video feed, claiming they could not attend
trial for various reasons. The Court permitted the parties to take pretrial video
depositions and stated that it would rule on their admissibility at trial. The
Court granted the use of Young and Posada’s depositions in lieu of live
testimony without objection. However, Defendants objected to the use of
Edmondson’s deposition in lieu of live testimony. After hearing argument, the
Longoria is her married name. At different times, the parties have
referred to her as Longoria and as Edmondson. For this Order, the Court will
refer to her as Edmondson, as the parties did in their pending motions and
responses. (Docs. 125, 138).
1

3

Court found that Edmondson’s deposition was inadmissible under Rule 32,
Federal Rules of Civil Procedure and Rule 802, Federal Rules of Evidence. (Doc.
136 at 20–28). At Plaintiffs’ request, and with Defendants’ consent, the Court
severed Edmondson’s claims and required the parties to “file a notice informing
the Court how they intend to proceed with Edmondson’s claims.” (Doc. 108).
After trial, Edmondson filed a notice requesting to proceed to a separate threeday trial. (Doc. 125). Defendants oppose the request and seek dismissal of
Edmondson’s claims. (Doc. 138). Edmondson responded in opposition. (Doc.
140).
Dismissing a claim with prejudice under Rule 41(b) for failure to
prosecute is only appropriate if: “(1) a party engages in a clear pattern of delay
or willful contempt (contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd.
v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005) (quoting World Thrust
Films, Inc. v. Int’l Family Entm’t, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995)); see
Fed. R. Civ. P. 41(b). This sanction is more appropriate “where a party, as
distinct from counsel, is culpable.” Id.
On December 6, 2018, the parties filed a notice stating that they agreed
to start trial “at any time convenient to this Court after April 1, 2019.” (Doc. 59)
(emphasis added). The Court then set the trial to begin on July 15, 2019. (Doc.
60). That Order states: “The parties are directed to notify the Court promptly
4

of any development subsequent to the entry of this Order which would in any
way affect the trial of their case. . . .” Id. On April 30, 2019, the Court held a
telephone conference to inform the parties of a potential scheduling conflict
because of the Court’s criminal trial docket. (Doc. 65). During the call, the
parties informed the Court that the trial would likely take eight days, and the
Court informed the parties that it had reserved two weeks just in case.
On May 17, 2019, the Court rescheduled the trial to begin with jury
selection on July 22, 2019 and trial to begin the following day. (Doc. 68). On
June 21, 2019, the parties filed their pre-trial statement and respective witness
lists. (Doc. 70). Edmondson was listed on Plaintiffs’ witness list. (Doc. 70-3). On
July 1, 2019, the Court conducted the final pretrial conference. At this hearing,
Plaintiffs’ counsel first raised the issue that three plaintiffs would be unable to
attend trial, and they requested to appear via live video feed. Plaintiffs’ counsel
explained that two of the models—Posada and Jones—were either pregnant or
nursing and lived abroad. As for Edmondson, Plaintiffs’ counsel stated:
“because this trial was postponed a week later, she already had travel plans
that she can’t reschedule.” 2

In several places, the Court quotes statements made at hearings or trial
without citing them. In those instances, the Court is relying on the unpublished
transcript which does not appear on the docket because neither party has
ordered it.
2

5

The Court immediately informed Plaintiffs of its skepticism regarding
Edmondson’s alleged unavailability, stating:
[Edmondson, who] has vacation I’m not so excited about. I mean
. . . one could argue that if it’s important enough to have a case in
federal court, that you might show up
....
I can understand if you can’t show up, and then it really is . . . a
problem. And it sounds like maybe the first two of your cases
[Posada and Jones] would qualify. [Edmondson] I’m a little less
clear on. . . .
The Court expressed its displeasure in not learning about a plaintiff’s trial
conflict until the final pretrial conference. Plaintiffs’ counsel responded:
MS. KHOMIAK: Well, we tried to get her to move things around
and she wasn’t able to.
THE COURT: She wasn’t able to or she won’t?
MS. KHOMIAK: She wasn’t able to. She also has two kids. And
she has to be in three states that same week. So, in all honesty,
Your Honor, I tried really hard with her to see if anything can be
done, if we can just fly her in, and she can’t move it.
THE COURT: Right. And what I’m saying to you is that . . .
everybody has priorities. And sometimes it indicates that she’s not
necessarily all that concerned or interested in this case in federal
court, not enough to change her plans. And that’s what I’m trying
to figure out.
....
THE COURT: She could be here the week of the 15th, but she
can’t be here the week of the 22nd?
MS. KHOMIAK: Yes.
THE COURT: And what’s the reason for that?
MS. KHOMIAK: So she resides in Arizona.
THE COURT: Yes.

6

MS. KHOMIAK: And she has two young children. Her husband
plays professional [baseball], so he’s away from home a lot of the
times.
....
MS. KHOMIAK: . . . . And so he’s . . . at practice a lot of times so
she’s taking care of the kids by herself. And so she’s bringing them
to see him for the first time in a long time in the beginning of the
week, and then she’s traveling to Georgia with the kids in the
middle of the week, on Wednesday, and then she’s traveling to
England on that Friday.
The Court allowed the parties to take video depositions of all three witnesses
and explained that Edmondson would have to more fully explain the reasoning
for her absence for the Court to find her unavailable.
After jury selection, the parties provided the transcript of Edmondson’s
deposition so the Court could make a ruling on its admissibility. After reviewing
the transcript, the Court expressed concern that Edmondson’s testimony did
not demonstrate that she was able to attend trial the week before, despite her
counsel’s claim that delaying trial by a week caused Edmondson’s
unavailability. In fact, Edmondson made clear in her deposition that her travel
plans were set in November 2018, and she would not have come to trial the
week of July 15, 2019, in any event.
The following day, the Court stated that it had a difficult decision related
to Edmondson because her professed reasons for unavailability did not add up.
The Court told the parties that if it did not find unavailability, then Plaintiffs

7

would have to decide to try the case without her or dismiss her without
prejudice. The Court took the matter under advisement.
On the third day of trial, the Court heard additional argument on the
issue. It then made its ruling:
So the plaintiffs seek to introduce three plaintiffs’
depositions in this case, claiming that each of the three plaintiffs
are unavailable for trial.
Two of those plaintiffs, Ms. Jones and Ms. Posada, live and
work internationally and cannot travel because they’re either
pregnant or have infant children and are the sole caregiver at this
time.
The Court has granted the use of their depositions in lieu of
live testimony without objection and under Rule 32.
However, the defendants do object to the use of Ms.
Longoria’s [Edmondson’s] deposition. She lives in Scottsdale,
Arizona, with her two children. Her husband plays professional
baseball. I presume for the San Francisco Giants, because that’s
where he’s residing during the season.
. . . Ms. Longoria testified in her deposition as to what her
basis for unavailability was . . . she was going to San Francisco to
see her husband with the children, and then she was flying, this
week, to Georgia – not explained why . . . then on to London,
England, and had preexisting travel plans that could not be
changed.
. . . I have the transcript of the final pretrial conference in
which counsel for the plaintiff indicated that . . . Ms. Longoria
couldn’t appear because, when the Court postponed the trial to a
week later, she already had travel plans that she could not
reschedule.
Originally I did have the trial set for July 15th. I did have to
move it a week because of criminal matters. And so that was . . .
one of the bases for unavailability. Actually, it was the only basis
that counsel argued at the final pretrial conference. Today I’ve
gotten a little additional argument.
The point of the matter is, when you read Ms. Longoria’s
deposition, there does not appear to be any support for the idea
that she actually was planning to come on July 15th, and it was
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. . . only the Court’s change of the trial date that . . . interfered with
her ability to come.
In fact, I think a fair reading of her deposition testimony is
that, as far back as November of 2018, she sets her travel schedule
and was unable, and I would say unwilling, to change her schedule
to come to the trial.
Indeed, it was not apparent from the testimony from Ms.
Longoria that she ever really intended to come to the trial or that
there . . . was any time that would have been available to her, no
matter when the Court had set the case for trial.
And I will note that even though the change was made to the
week of July 22nd, it was done quite a while ago, and obviously
plans could have been changed if . . . Ms. Longoria had wanted to
do so.
[A]lso, the facts of the deposition disclose that Ms. Longoria
does not have any financial handicap in order to be able to travel
to Jacksonville, nor did child care appear to be an issue, although
she cited child care -- I think she has a four- and a six-year-old -and the inability to leave them or to travel with them -- it appeared
for all the world that, in fact, her children were traveling with her
this week to Georgia and then on to England. And so that does not
appear . . . to really bear up under analysis either.
. . . . [Court reviews rules and caselaw]
However, of the cases the Court reviewed on this issue, it
found none that allowed a plaintiff to use a deposition in lieu of
live testimony based solely on inconvenience of having to travel to
testify. There doesn’t appear to be any Eleventh Circuit cases on
the point.
Other cases -- other plaintiffs in this case -- and I think this
was telling.
Other plaintiffs in this case, at obvious sacrifice to
themselves, their schedule -- one of them missed an anniversary,
one of them had a disabled child, another mother was nursing and
brought her child with her.
They understood the importance of being here; that is, if
you’re a plaintiff in a federal lawsuit and the case goes to trial,
that, really barring . . . any extreme situation, you know, you have
to be here, even though it’s not the most convenient thing in the
world.
I suppose all of these plaintiffs must have known when they
filed a case in Jacksonville, Florida that some day they might have
9

to come to Jacksonville in order to testify or to participate in their
own case.
And it just appears that Ms. Longoria doesn’t really think
that that’s necessary. . . . I couldn’t really discern anything that
would indicate that she was willing to . . . make that decision to
come here and . . . testify . . . .
....
And so I am really reluctant to disallow a plaintiff who has
filed a case in this court, who has a legal position that deserves to
be heard -- I am very reluctant. And, you know, I understand the
family issue. And I would be sympathetic to that if it was different.
I understand the inconvenience of it, which these other
plaintiffs managed to overcome.
I’ve also demonstrated, I think, that in an appropriate
circumstance, that is, the deposition we just saw, or the deposition
of Ms. Jones, that . . . I would make the unavailability finding.
But . . . I think it would be honoring the [unavailability] rule
in the breach if I were to extend that to Ms. Longoria in these
circumstances.
And so even though I am reluctant to disallow her deposition
testimony in lieu of . . . trial testimony -- and I leave open the door
that if she wants to fly here tomorrow and testify, I’d be happy to
hear from her. But . . . I’m going to sustain the objection to the trial
use of her deposition testimony.
(Doc. 136 at 20–26).
Following the ruling, Plaintiffs originally asked that Edmondson’s claims
be dismissed, but then asked that they be severed instead. The Court
responded: “Let’s just say that Ms. Longoria’s case will not be presented to the
jury for [its] consideration. Her case is not dismissed. It’s just not going to be
presented, and that post trial we’ll determine the appropriate legal vehicle to
determine how to proceed in her case.” Id. at 28. The trial concluded four days
later and Edmondson did not testify.

10

Now, Edmondson asks the Court to schedule her a separate three-day
jury trial. (Doc. 125). This request surprised the Court—I assumed that having
decided not to go forward with her case at trial, either with or without her
testimony, that she would dismiss her case. After being unwilling to attend her
original trial because it did not fit her travel schedule, Edmondson wants the
Court, members of a new jury, Defendants, as well as the trial witnesses, to
spend substantial time and resources to reconvene for her trial, at her
convenience. This, the Court will not do.
Edmondson’s conduct demonstrates a clear pattern of delay and disregard
for the Court and other parties involved in her case, equivalent to contempt.
Betty K, 432 F.3d at 1338. She was never willing to attend trial, and although
her counsel’s inaccurate statements about why she would not come did not help
the situation, it was Edmondson’s personal conduct that created the pattern of
delay. See id. (stating that dismissal with prejudice is more appropriate where
it is the party, and not her counsel, that is culpable).
Additionally, no lesser sanction is appropriate. The only way to adjudicate
Edmondson’s claims is via trial, but Edmondson was given a trial—she chose
not to come. She could also have asked to submit her claims to the jury without
her testimony, as has been done in similar cases, but she elected not to do so.
See Doc. 140 at 3 (explaining that in Edmondson v. Velvet Lifestyles, LLC, No.
1:15-cv-24442-Martinez/Louis (S.D. Fla. Aug. 27, 2019), the court permitted
11

non-testifying plaintiffs’ cases to proceed to the jury). 3 Thus, Edmondson’s
claims are due to be dismissed.
II.

DEFENDANTS’

AMENDED

RENEWED

MOTION

FOR

JUDGMENT AS A MATTER OF LAW
Defendants’ renewed motion for judgment as a matter of law makes two
primary arguments: (1) that Plaintiffs’ expert Martin Buncher’s testimony and
survey is so flawed that it, standing alone, is insufficient evidence of consumer
confusion; and (2) Shawn Hopper, a graphic designer who created the
advertisements containing Plaintiffs Posada and Young’s images, was an
independent contractor and, therefore, Defendants cannot be liable for his
offending work.
A Court should grant a Rule 50 motion if it finds that “a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that
issue . . . .” Fed. R. Civ. P. 50(a)(1). “Judgment as a matter of law is appropriate
only if the facts and inferences point overwhelmingly in favor of one party, such
that reasonable people could not arrive at a contrary verdict.” Luxottica Grp.,
S.p.A. v. Airport Mini Mall, LLC, 932 F.3d 1303, 1310–11 (11th Cir. 2019)
(quotation marks omitted) (quoting Equal Emp’t Opportunity Comm’n v. Exel,
Inc., 884 F.3d 1326, 1329 (11th Cir. 2018)). “[The Court] consider[s] all the

3

Edmondson was also a plaintiff in that case and did not appear at trial.
12

evidence, and the inferences drawn therefrom, in the light most favorable to the
nonmoving party.” Id. (quotation marks omitted). “[The Court] will not secondguess the jury or substitute [its] judgment for [the jury’s] judgment if its verdict
is supported by sufficient evidence.” Id. (quotation marks omitted).
A. Buncher’s Testimony Regarding Consumer Confusion
This is the third time the Court has been asked to review Buncher’s
survey. (See Docs. 50, 108). In its prior rulings, the Court found that
Defendants’ arguments went to the weight of Buncher’s testimony, not its
admissibility—i.e. it is a jury question. The Court submitted the case to the jury
with proper instructions (Doc. 98 at 9–13), and Defendants adequately exposed
the significant weaknesses in Buncher’s testimony on cross-examination.
Nonetheless, the jury chose to credit him. Viewing the evidence in the light most
favorable to Plaintiffs, the Lanham Act claims were properly submitted to the
jury. Luxottica Grp., 932 F.3d at 1310–11.
B. Posada and Young’s Claims
Defendants argue that Posada and Young’s claims should be dismissed
because the evidence demonstrates that Hopper created the offending
advertisements with their images, and he was an independent contractor who
was not under Defendants’ control. (Doc. 126 at 20–25). This argument fails.
“Section 43(a) [of the Lanham Act, 15 U.S.C. § 1125,] provides a strict liability
tort cause of action.” Vector Prods., Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316,
13

1319 (11th Cir. 2005). This is true even where the criminal conduct of third
parties results in a defendant’s false advertising. Phoenix of Broward, Inc. v.
McDonald’s Corp., 489 F.3d 1156, 1168 (11th Cir. 2007), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118
(2014).
The evidence showed that Hopper was acting on Defendants’ behalf when
he posted the advertisements on Defendants’ social media pages and websites.
In any event, regardless of who posted the advertisements, Defendants are
strictly liable for the content if it violates § 1125(a). See Vector Prods., 397 F.3d
at 1319.
III. PLAINTIFFS’ MOTION FOR FEES AND COSTS
A. Attorneys’ Fees
Plaintiffs who succeed under § 43(a) of the Lanham Act (15 U.S.C.
§ 1125(a)) are entitled to recover their costs, and “[t]he court in exceptional
cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C.
§ 1117(a). “[A]n ‘exceptional’ case is simply one that stands out from others with
respect to the substantive strength of a party’s litigating position (considering
both the governing law and the facts of the case) or the unreasonable manner
in which the case was litigated.” Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 572 U.S. 545, 554 (2014) (explaining the criteria for awarding
attorneys’ fees under an identical provision in the Patent Act); see also Tobinick
14

v. Novella, 884 F.3d 1110, 1118 (11th Cir. 2018) (extending the Octane
framework to Lanham Act cases). “District courts may determine whether a
case is ‘exceptional’ in the case-by-case exercise of their discretion, considering
the totality of the circumstances.” Octane, 572 U.S. at 554. However, “[a] case
will not qualify as exceptional under the Lanham Act merely because one side
has zealously pursued or defended its claim, especially on an issue with no
directly controlling precedent.” Tobinick, 884 F.3d at 1119.
Plaintiffs argue this case is “exceptional” because of both the substantive
strength of their litigating position and Defendants’ manner of litigating the
case. (Doc. 119 at 9, 11). Plaintiffs are incorrect regarding the substantive
strength

of

their

litigating

position.

Although

Plaintiffs’

Florida

misappropriation claims were very strong (the Court granted Plaintiffs’ Rule 50
motion at the close of the evidence), those claims do not qualify for attorneys’
fees. Plaintiffs’ Lanham Act claims were not “exceptional.” Defendants raised
valid arguments attacking a necessary element of a Lanham Act claim—
consumer confusion. Although Defendants did not hire their own consumer
confusion expert, they relied on Plaintiffs’ inability to produce anyone who was
actually confused by the advertisements and weaknesses in Buncher’s survey,
report, and testimony. While the Court has determined that the Lanham Act
claims were sufficient to support the jury’s verdict in Plaintiffs’ favor, this does
not equate to the case being “exceptional.” Simply put, the substantive strength
15

or weakness of each party’s litigation position on the Lanham Act claims was
not “exceptional.”
Next, Plaintiffs contend that Defendants’ litigation conduct renders this
case exceptional. Plaintiffs assert that Defendants engaged in “gamesmanship.”
(Doc. 119 at 14). Plaintiffs argue that Defendants’ insurance adjuster, John
Curtis, “refused to participate in any meaningful discussions” during the initial
mediation where a third case, which was originally part of this consolidated
action, was settled with a different insurance company. Id. at 13. Additionally,
Plaintiffs assert that Curtis’s sole intention in calling off the original settlement
was to “harm Plaintiffs financially.” Id. at 14. Lastly, Plaintiffs contend that
Defendants’ attorney stipulated to the authentication of the allegedly offending
advertisements, but then reneged and stated he had no authority to sign the
stipulation. Id. at 14–15.
None of these actions, individually or collectively, render this case
“exceptional.” Although the Court found Mr. Curtis to be off-putting, (see Docs.
53, 55-1–55-6, 57-1–57-4), that is of no moment. The Court determined that the
parties did not have a meeting of the minds in reaching their original settlement
because each party had a different but “reasonable interpretation[] of the
negotiations.” (Order Denying Motion to Enforce Settlement Agreement, Doc.
58 at 2). Refusing to settle and putting a plaintiff to its burden is not an
exceptionally unreasonable manner of litigating this Lanham Act case. See
16

Tobinick, 884 F.3d at 1119 (finding that a case is not exceptional “merely
because one side has zealously pursued or defended its claim.”). Thus, Plaintiffs’
motion for attorneys’ fees is due to be denied.
B. Costs
A portion of Plaintiffs’ costs are due to be granted. “When . . . a violation
under section 1125(a) . . . shall have been established in any civil action arising
under this chapter, the plaintiff shall be entitled, . . . subject to the principles
of equity, to recover . . . the costs of the action.” 15 U.S.C. § 1117(a). Further,
Rule 54, Federal Rule of Civil Procedure, allows costs to the prevailing party.
“A statute awarding ‘costs’ will not be construed as authorizing an award of
litigation expenses beyond the six categories listed in §§ 1821 and 1920, absent
an explicit statutory instruction to that effect.” Rimini St., Inc. v. Oracle USA,
Inc., 139 S. Ct. 873, 878 (2019). The district court has the discretion to tax as
costs those items listed in § 1920, but it cannot tax as costs items not
enumerated. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441–42
(1987).
Plaintiffs seek $47,324.05 in costs: $800 in fees of the Clerk, $766.92 in
fees for service of summons and subpoena, $7,349.70 in fees for transcripts
necessarily obtained for use in the case, $1,874.93 in fees and disbursements
for printing, $22,921.50 in witness fees, and $13,611 in other costs. (Doc. 119-5

17

at 2). Defendants argue that the Court should award only $8,566.67 in costs.
(Doc. 127 at 19).
The Court finds Plaintiffs’ current filings inadequate to determine costs.
Thus, Plaintiffs shall file a renewed motion for costs that identifies the legal
basis for each request and the amount sought for each category of reimbursable
costs with clear and legible documentation to support those costs. 4
Accordingly, it is hereby
ORDERED:
1.

Defendants’ Motion to Dismiss or, Alternatively, for Judgment as a

Matter of Law (Doc. 138) is GRANTED as stated herein and is otherwise moot.
Plaintiff Jaime Edmondson’s claims are dismissed with prejudice under
Rule 41(b).
2.

Defendants’ Amended Renewed Motion for Judgment as a Matter

of Law (Doc. 126) is DENIED.
3.

Plaintiffs’ Motion for Fees and Costs (Doc. 119) is GRANTED in

part, DENIED in part, and DEFERRED in part:
a. Plaintiffs’ motion for attorneys’ fees is DENIED.
b. Plaintiffs’ motion for costs is GRANTED in that Plaintiffs are
entitled to an award of costs. However, Plaintiffs are required to
For example, Plaintiffs filed a receipt, Doc. 119-5 at 14, where more
than half is face down and, thus, unreadable.
4

18

supplement their motion so the Court can determine the proper
amount.
4.

Defendants’ Motion to Stay Consideration of Plaintiffs’ Motion for

Fees and Costs and Request to Make Adversary Submission on Amount of
Plaintiffs’ Fees and Costs after Entitlement is Determined, (Doc. 128), is
GRANTED in part as explained herein. The Motion is otherwise denied.
5.

Not later than February 28, 2020, Plaintiffs shall file a renewed

motion for costs with a memorandum of law that includes citations to
authorities to support its proposed costs as well as legible supporting
documentation for those costs. In so doing, Plaintiffs should carefully review
Defendants’ arguments in opposition. See Doc. 127 at 14–19.
6.

Not later than March 16, 2020, Defendants shall file a response to

Plaintiffs’ renewed motion for costs.
DONE AND ORDERED in Jacksonville, Florida this 6th day of
February, 2020.

TIMOTHY J. CORRIGAN
United States District Judge

jb
Copies to:
Counsel of record

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