Johnson v. New Destiny Christian Center Church, Inc. et al

Filing 283

ORDER adopting in part and modifying in part 279 REPORT AND RECOMMENDATIONS re 268 MOTION to Review Bill of Cost (Filed as an Objection) filed by Paula Michelle White, Paula Michelle Ministries, Inc., New Destiny Christian Center Church, Inc. Signed by Judge Roy B. Dalton, Jr. on 12/5/2018. (ctp)(JLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHIRLEY JN JOHNSON,
Plaintiff,
v.

Case No. 6:15-cv-1698-Orl-37TBS

NEW DESTINY CHRISTIAN CENTER
CHURCH, INC.; PAULA MICHELLE
MINISTRIES, INC.; and PAULA
MICHELLE WHITE,
Defendants.
_____________________________________
ORDER
Before the Court is Plaintiff’s Proposed Bill of Costs (Doc. 267) and Defendants’
Response in Opposition to Plaintiff’s Proposed Bill of Costs (Doc. 268). On referral, U.S.
Magistrate Judge Thomas B. Smith issued a Report recommending the Court award
Plaintiff a portion of her costs. (Doc. 279 (“R&R”).) Plaintiff objected to the R&R’s denial
of her full costs. (Doc. 281 (“Objection”).) Defendants then responded, requesting the
Court overrule Plaintiff’s Objection and adopt the R&R as entered. (Doc. 282.) On review,
the Court finds that the Objection is due to be overruled, the R&R adopted, and Plaintiff’s
Proposed Bill of Costs awarded in part.
I.

BACKGROUND

Following a two-day bench trial in this case, the Court issued a Memorandum
Opinion and Order that, inter alia, notified Plaintiff she may seek to recover costs
associated with prosecuting this action as the prevailing party. (Doc. 264, p. 18.) Plaintiff
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then filed a proposed bill of costs seeking to recover $18,334.55:

(Doc. 267.) These “other costs” account for Plaintiff’s travel, postage charges, mediation
fee, and PACER charges:

(Doc. 267-1, p. 2.)
Defendants opposed Plaintiff’s Proposed Bill of Costs, suggesting she be awarded
$983.00 instead:

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(Doc. 268, p. 10.) Defendants sought to exclude Plaintiff’s travel expenses, postage and
PACER fees, mediation fees, and copy-related costs. (Id. at 6–10.) For Plaintiff’s transcript
charge, Defendants suggest Plaintiff receive $323.00, the rate they were charged for their
copy. (Id. at 5–6.) Defendants also request the Court cut Plaintiff’s proposed service fees,
from $490 to $260, a rate of $65 per Defendant. (Id. at 4–5.) Defendants do not object to
Plaintiff’s recovery of the filing fee. (Id. at 4.)
Magistrate Judge Smith then issued his R&R that Plaintiff receive a portion of her
costs. (Doc. 279.) He recommends awarding Plaintiff: (1) the filing fee; (2) a portion of her
service fees; (3) the cost of obtaining a certified copy of the trial transcript; (4) costs for
copies, PACER, and postage based on Plaintiff’s pro se status; and (5) Plaintiff’s share of
the mediator fee. (Id. at 1–6.) Magistrate Judge Smith recommends denying Plaintiff’s
claim for travel and related expenses, as these are not recoverable under 28 U.S.C. § 1920
and Plaintiff chose this forum. (Id. at 7.) In total, Magistrate Judge Smith recommends
awarding Plaintiff $8,761.42. (Id.)
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Plaintiff objected, seeking the full amount she listed on her Proposed Bill of Costs.
(Doc. 281.) She believes her travel and related expenses were “necessary and reasonable,”
maintaining that she “did not choose this forum, but rather was illegally hailed into the
Florida courts on bogus copyright infringement charges leveled by Defendants.” (Id. at
4.) In response, Defendants submit that the Objection should be overruled and the R&R
adopted. (Doc. 282.)
II.

LEGAL STANDARD

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. If the
matter is nondispositive, the district court “must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.
Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); see, e.g., In re Application of Hornbeam Corp., No. 1424887-MC-SEITZ/TURNOFF, 2016 WL 3866561, at *1 (S.D. Fla. July 13, 2016) (“Rule 72(a)
instructs the district court to review nondispositive matters for clear error or contrariness
to the law.”) A finding is clearly erroneous “when although there is evidence [in the
record] to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). A finding is considered contrary to law if it does not apply or
misapplies the relevant statutes, case law, or rules of procedure. Tompkins v. R .J. Reynolds
Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000).
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III.

DISCUSSION

On review, the Court finds that the Objection is due to be overruled and the R&R
adopted. In an action for malicious prosecution, “the plaintiff may recover all damages
that are the natural and probable consequences of the action complained of.” Ware v.
United States, 971 F. Supp. 1442, 1471 (M.D. Fla. 1997). This includes “[r]easonable out-ofpocket expenses” (id.), which comports with 28 U.S.C. § 1920. However, general travel
and related expenses are not recoverable under § 1920. Cf. Evans v. Books-A-Million, 762
F.3d 1288, 1298–99 (11th Cir. 2014) (analyzing recoverability of expenses under ERISA’s
fee-shifting provision, 29 U.S.C. § 1132(g)(1), which is broader than § 1920); see Gary Brown
& Ass., Inc. v. Ashdon, Inc., 268 F. App’x 837, 846 (11th Cir. 2008).
Thus, like Magistrate Judge Smith, the Court finds that Plaintiff is entitled to
recover only a portion of her fees, as outlined by Magistrate Judge Smith, and is not
entitled to recover travel and related expenses. The Court awards Plaintiff the following:
Filing Fee

$400.00

Service of Process

$305.00

Transcripts

$1600.50 1

Copying

$485.45

Postage

$3,393.57

PACER

$1,872.40

The R&R lists the transcript amount as $1605.00. As Plaintiff cited the transcript
cost as $1600.50, the Court will award this instead, under the assumption that the R&R’s
amount was a scrivener’s error. Thus, the total amount awarded will be less than the
R&R’s recommendation.
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Mediation

$700.00

Total

$8,756.92
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Proposed Bill of Costs (Doc. 267) is CONFIRMED IN PART:
a.

2.

The Clerk is DIRECTED to tax Plaintiff’s costs as $8,756.92.

Plaintiff’s Verified Objection to Magistrate Judge Smith’s Report and
Recommendation (Doc. 281) is OVERRULED.

3.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 279) is ADOPTED IN PART, MODIFIED IN PART, and made a part
of this Order:
a.

The Court MODIFIES the R&R to the extent there was a scrivener’s
error in calculating the full amount based on a transcript fee of $1605
instead of $1600.50

b.

In all other respects, the R&R is ADOPTED and CONFIRMED.

DONE AND ORDERED in Chambers in Orlando, Florida, on December 5, 2018.

Copies to:
Counsel of Record
Pro Se Party
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