Brivik v. Law et al
Filing
181
ORDER: Defendant Steve Murray's Renewed Motion for Award of Costs 175 is GRANTED in the amount of $613.00 but is otherwise DENIED. Defendant Richard Zimmerman's Renewed Motion for Award of Costs 178 is DENIED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/18/2014. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK BRIVIK,
Plaintiff,
v.
Case No. 8:11-cv-2101-T-33TGW
JOSEPH MURRAY, STEVE MURRAY,
JOSEPH RUSSON, RICHARD ZIMMERMAN,
RONALD CARR, ANDRE PANET-RAYMOND,
and ABRAHAM SMAJOVITS,
Defendants.
_________________________________/
ORDER
This matter comes before the Court pursuant to Defendant Steve
Murray’s Renewed Motion for Award of Costs (Doc. # 175) and Bill
of Costs (Doc. # 176), filed on March 14, 2014, and Defendant
Richard Zimmerman’s Renewed Motion for Award of Costs (Doc. # 178)
and Bill of Costs (Doc. # 179), also filed on March 14, 2014.
Plaintiff Mark Brivik filed a Response in Opposition to the Motions
(Doc. # 180) on March 26, 2014.
As explained herein, the Court
grants Murray’s Motion to the extent that $613.00 should be taxed.
The Court denies the remaining costs in Murray’s Motion and Bill
of Costs and denies Zimmerman’s request for costs as set forth in
his Motion and Bill of Costs.
I.
Background
Brivik filed a false arrest and malicious prosecution action
pursuant to 28 U.S.C. § 1983 and state law against Officer Claudia
Law, John Murray, Steve Murray, Joseph Russo, Richard Zimmerman,
Ronald
Carr,
Andre
Panet-Raymond
September 15, 2011. (Doc. # 1).
and
Abraham
Smajovits
on
In the Complaint, Brivik alleged
that he entered into a multi-million dollar real estate transaction
concerning an investment property located in Bradenton, Florida,
with John Murray, Steve Murray, Joseph Russo, Richard Zimmerman,
Ronald
Carr,
Andre
Panet-Raymond
and
Abraham
Smajovits
(collectively referred to as the “Co-Investors”). (Doc. # 76 at
¶¶ 37, 47).
Estate
However, “[y]ears after the parties’ deal in the Real
Development
closed,
the
Co-Investors
concocted
bogus
criminal allegations against Mr. Brivik. . . . The Co-Investors’
intention, inter alia, was to get out of a land deal that preceded
a downturn in the real estate market.” (Id. at ¶ 50).
Brivik
alleged
that
the
Co-Investors
met
with
Florida
Department of Law Enforcement Officer Claudia Law on at least ten
occasions and “developed false facts” leading to his arrest. (Id.
at ¶ 70).
Essentially, Brivik alleged that the Co-Investors
reported to Officer Law that Brivik misrepresented that he held a
certain option to purchase real property imperative to the real
estate transaction when in fact he did not possess such option.
(Id. at ¶ 53).
Brivik described the Co-Investors’ allegations against him as
“baseless,” “false,” “concocted,” and “bogus.” (Id. at ¶¶ 49, 50,
2
and 53).
Nevertheless, Officer Law arrested Brivik, and he spent
24 days in jail based on the following charges and claims:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
An Organized Scheme to Defraud under Section
817.034(4)(a)1, Florida Statutes;
Fraudulent Securities Transactions Omission of Fact
in violation of Section 517.301(1)(a)2, Florida
Statutes;
Sale of Unregistered Shares in violation of Section
517.07(1), Florida Statutes;
Sale of Security by an Unregistered Issuer in
violation of Section 517.12, Florida Statutes;
Obtained $4,475,000.00 in funds from victims
through misrepresentation and fraud;
Misrepresented the existence of an Option in
property in connection with a waterfront parcel,
causing the Co-Investors to be induced to invest
money in the Real Estate Development;
Failed to advise the Co-Investors that he had an
outstanding warrant against him;
Had an outstanding warrant against him in South
Africa;
Received a fee of $300,000.00 at the close of the
deal
in
connection
with
the
Real
Estate
Development; and
Misrepresented the value of the land in the Real
Estate Development.
(Id. at ¶¶ 60, 77).
According
Assistant
to
State
Brivik,
Attorney,
all
charges
after
were
reviewing
dropped
the
when
“an
allegations,
determined that each allegation was absent a proper legal and
factual basis.” (Id. at ¶ 51).
Brivik further alleged, “the
prosecution terminated in a manner that was indicative of Mr.
Brivik’s innocence as to all the charges leveled against him.”
(Id. at ¶ 52).
3
After finding that Officer Law was protected by the federal
doctrine of qualified immunity and the state doctrine of sovereign
immunity, the Court dismissed Brivik’s claims against Officer Law
with prejudice on April 5, 2012. (Doc. # 70).
The Court permitted Brivik to file an Amended Complaint
against the Co-Investors, which he filed on April 18, 2012. (Doc.
## 41, 76).
In counts one and two of the Amended Complaint,
brought pursuant to 42 U.S.C. § 1983, Brivik alleged that, in joint
action with Officer Law, the Co-Investors conspired, acted in
concert, and reached an understanding to violate Brivik’s Fourth
Amendment rights. (Doc. # 76 at ¶¶ 61-68). In counts three and
four, for malicious prosecution and false arrest, Brivik alleged
that the Co-Investors “conspired to falsify information as to Mr.
Brivik” leading to his arrest and incarceration. (Doc. # 76 at
¶ 101).
The Court dismissed John Murray and Abraham Smajovits without
prejudice on October 1, 2012, after finding that Brivik failed to
timely effect service of process upon these Defendants.
137).
(Doc. #
Thereafter, on October 3, 2012, the Court dismissed Joseph
Russo and Andre Panet-Raymond after finding that Brivik failed to
prosecute his claims against these Defendants. (Doc. ## 138, 139).
On October 5, 2012, after considering dispositive motions
filed by Steve Murray, Ronald Carr, and Richard Zimmerman, the
4
Court dismissed the action with prejudice. (Doc. # 141).
Among
other findings, the Court determined:
Even if Plaintiff had sufficiently alleged a conspiracy,
this Court concludes that dismissal of this action is
appropriate because there is no plausible basis for
finding a symbiotic relationship between the CoInvestors and Officer Law. As argued by Defendant Carr,
“the allegations in the instant action do not account
for the fact that the alleged conspiracy was not going
to amount to anything that would in any way benefit
Officer Law. . . . It would be completely illogical for
Officer Law to believe her career would be furthered by
pursuing an arrest without probable cause” based on a
concocted scheme. (Doc. # 105 at 12, 13).
Because there is insufficient evidence to hold the CoInvestors liable as state actors under the joint action
test, the Plaintiff has no viable claim against the
private Defendants under § 1983. Dismissal with
prejudice is appropriate. See Rayburn, 241 F.3d at 1347
(holding that because § 1983 “only provides for claims
to redress state action,” dismissal is appropriate once
the court concludes that there is no state action).
(Doc. # 141 at 13).1
Judgment was entered in favor of Richard Zimmerman, Ronald
Carr, and Steve Murray and against Brivik on October 9, 2012. (Doc.
# 142).
On October 19, 2012, Steve Murray filed a motion for
attorney’s fees and costs (Doc. # 143).
Ronald Carr and Richard
Zimmerman filed similar motions requesting the imposition of fees
and costs on Brivik days later. (Doc. ## 145, 146).
Brivik filed
a notice of appeal (Doc. # 147) on November 2, 2012, and on December
1
After determining that dismissal of the § 1983 claims was
required, the Court declined to exercise jurisdiction over
Brivik’s pendant state law claims. (Doc. # 141 at 13-14).
5
12, 2012, the Court denied the fee motions without prejudice with
leave to re-file after the resolution of the appeal. (Doc. # 153).
The Eleventh Circuit affirmed the dismissal of the action and the
Court’s Judgment.
(Doc. ## 161, 167).
Following the Eleventh Circuit’s ruling, Steve Murray, Ronald
Carr, and Richard Zimmerman renewed their motions for attorney’s
fees and costs.
(Doc. ## 168, 169, 172).
On March 3, 2014, the
Court denied the requests for motions for attorney’s fees and
declined “to find [Brivik’s] claims so utterly frivolous as to
warrant the imposition of attorney’s fees.” (Doc. # 174).2
The
Court directed Brivik and the cost-seeking Defendants to confer
regarding costs; however, if the negotiations proved unsuccessful,
the cost-seeking Defendants were permitted to file a Bill of Costs
accompanied by legal memorandum by March 4, 2014.
(Id.).
At this juncture, Steve Murray and Richard Zimmerman have
renewed their motions for costs.
Steve Murray seeks $2,578.62 in
non-taxable costs pursuant to 42 U.S.C. § 1988 and $613.00 in
taxable costs pursuant to 28 U.S.C. § 1920, for a total of
2
Although the Court may award reasonable attorney’s fees pursuant
to 42 U.S.C. § 1988 to a prevailing party in a 42 U.S.C. § 1983
case, the Supreme Court has held that in civil rights cases, the
“plaintiff should not be assessed his opponent’s attorney’s fees
unless a court finds that his claim was frivolous, unreasonable,
or groundless, or that the plaintiff continued to litigate after
it clearly became so.” Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 422 (1978).
6
$3,191.62.
(Doc. # 175).
Richard Zimmerman seeks $705.03 in non-
taxable costs pursuant to 42 U.S.C. § 1988.
II.
(Doc. # 178).
Standard for Awarding Costs
“Federal Rule of Civil Procedure 54(d)(1) prescribes an award
of costs for a prevailing party unless a federal statute, the
Federal Rules of Civil Procedure, or a court order provides
otherwise.” Tempay Inc. v. Biltres Staffing of Tampa Bay, LLC, No.
8:11-cv-2732-T-27AEP, 2013 WL 6145533, at *2 (M.D. Fla. Nov. 21,
2013); see Durden v. Citicorp Trust Bank, FSB, No. 3:07–cv–974–J–
34JRK, 2010 WL 2105921, at *1 (M.D. Fla. Apr. 26, 2010)(stating
that Fed. R. Civ. P. 54 establishes a strong presumption that costs
should
be
awarded
unless
the
district
court
decides
otherwise)(citing Chapman v. Al Transp., 229 F.3d 1012, 1038 (11th
Cir. 2000)). However, “the district court’s discretion not to award
the full amount of costs incurred by the prevailing party is not
unfettered;” the district court must articulate a sound reason for
not awarding full costs. Chapman, 229 F.3d at 1039 (internal
citations omitted).
Specifically, pursuant to 28 U.S.C. § 1920, the following may
be taxed as costs under Fed. R. Civ. P. 54(d)(1):
(1)
(2)
(3)
Fees of the clerk and marshal;
Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case;
Fees and disbursements for printing and
witnesses;
7
(4)
(5)
(6)
Fees for exemplification and the costs of making
copies of any materials where the copies are
necessarily obtained for use in the case;
Docket fees under section 1923 of this title;
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; see Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 440-41 (1987), superseded on other grounds by 42
U.S.C. § 1988(c)(finding that 28 U.S.C. § 1920 defines the term
“costs” as used in Rule 54(d) and enumerates the expenses that a
federal court may tax as a cost under the discretionary authority
granted in Rule 54(d)). The party seeking an award of costs or
expenses bears the burden of submitting a request that enables a
court to determine what costs or expenses were incurred by the
party and the party's entitlement to an award of those costs or
expenses.
Loranger v. Stierheim, 10 F.3d 776, 784 (11th Cir.
1994).
Judgment was entered in favor of Murray, Zimmerman, and noncost-seeking Defendant Carr on October 9, 2012 (Doc. # 142) and
the Eleventh Circuit affirmed the dismissal of the action and the
Court’s Judgment.
(Doc. ## 161, 167).
Thus, Murray and Zimmerman
are prevailing parties in this action and are entitled to costs
under Fed. R. Civ. P. 54(d).3 See Powell v. Carey Int'l, Inc., 548
3
The Order only addresses the awarding of costs to Murray and
Zimmerman because Carr did not file a renewed motion for costs
8
F. Supp. 2d 1351, 1356 (S.D. Fla. 2008)(stating that a prevailing
party is one who “prevailed on ‘any significant issue in the
litigation which achieved some of the benefit the parties sought
in bringing the suit.’”).
III. Murray’s Motion for Costs
In his Motion and Bill of Costs, Murray requests that the
Clerk tax the $613.00 bill for a transcript.
Murray
provided
no
additional
(Doc. ## 175, 176).
information
regarding
the
transcript, other than Attorney Trazenfeld’s Affidavit in Support
of Bill of Costs, which states, “such items listed on the Bill of
Costs have been necessarily incurred in this case and that the
services for which fees have been charged were actually and
necessarily preformed.”
(Doc. # 177 at 1).
Because this is a 42 U.S.C. § 1983 case, Murray also requests
that the following costs be awarded pursuant to 42 U.S.C. § 1988:
Flat 5% of the monthly hourly attorneys fee for any given
month to be paid to cover long distance telephone,
photocopying, postage, facsimile, West Law and mileage
($1,581.85);
Mediator’s fees ($513.00);
Federal Express charges ($67.61);
Pacer Service fee ($7.56);
Travel expenses (Airfare) ($391.60); and
Travel expenses (Airport parking) ($17.00).
before the March 4, 2014, deadline imposed by the Court, or at
any time since.
9
(Doc. # 176).
In his memorandum in opposition, Brivik contests all costs
requested by Murray.
(Doc. # 180).
Specifically, Brivik asserts
the taxable transcript cost is not proper because no information
has been provided as to what the transcript was and if it was
necessarily obtained for use in this case, as required by 28 U.S.C.
§ 1920.
(Id. at 7).
Brivik also states Murray is not entitled to
costs under 42 U.S.C. § 1988 because this Court previously denied
attorney’s fees.
(Id. at 3).
In addition, Brivik points to the
lack of explanation or specificity of any costs sought by Murray.
(Doc. # 175, 176).
Although Murray failed to provide detailed information about
the transcript, costs for transcripts may be taxed under 28 U.S.C.
§ 1920. Additionally, Murray’s attorney filed an affidavit stating
the items listed on the Bill of Costs were necessarily incurred.
(Doc. # 177 at 1).
Murray could have provided more information
regarding the transcript, however it is reasonable that a copy of
a
transcript
was
necessarily
obtained
for
use
in
the
case;
therefore, the Court grants Murray’s Motion to the extent that the
$613.00 transcript cost should be taxed.
However, the Court denies Murray’s request for 42 U.S.C. §
1988
non-taxable
costs
because
the
Court
previously
denied
Murray’s request for an award under 42 U.S.C. § 1988 on March 3,
10
2014. (Doc. # 174). In its March 3, 2014 Order, the Court analyzed
the awarding of fees in this 42 U.S.C. § 1983 case and ultimately
determined Brivik’s claims were not “so utterly frivolous as to
warrant the imposition of attorney’s fees.”
(Doc. # 174 at 11).
After finding Brivik’s claims were not frivolous as required for
an award under 42 U.S.C. § 1988, this Court cannot grant Murray’s
request for non-taxable costs pursuant to 42 U.S.C. § 1988. Murray
cites Heinkel ex rel. Heinkel v. Sch. Bd. of Lee County, Fla.,
2:04-cv-184-FTM-33-SPC,
2007
WL
2757366
(M.D.
Fla.
Sept.
20,
2007), for support that in addition to the six categories of costs
under 28 U.S.C. § 1920, 42 U.S.C. § 1988 “allows recovery of
additional expenses on the theory they are subsumed within the
concept of a reasonable fee.”
(Doc. # 175 at 3).
Although 42
U.S.C. § 1988 may allow for recovery of additional expenses not
included in 28 U.S.C. § 1920, the Court cannot award Murray’s
request for non-taxable costs because it previously found Brivik’s
claims were not frivolous as required for an award under 42 U.S.C.
§ 1988.
Therefore, Murray’s Motion is granted as to the $613.00
transcript cost, but is denied as to all 42 U.S.C. § 1988 nontaxable costs.
IV.
Zimmerman’s Motion for Costs
In the Bill of Costs, Zimmerman does not seek an award of 28
U.S.C. § 1920 taxable costs.
(Doc. ## 178, 179).
11
Rather,
Zimmerman requests the following non-taxable costs pursuant to 42
U.S.C. § 1988:
Mediator Fee ($513.00);
Gas Fee ($67.70);
Postage ($50.05); and
Lexis/Westlaw ($74.28).
(Doc. # 179 at 3).
As with Murray’s Motion, Brivik opposes all costs sought by
Zimmerman.
(Doc. # 180).
Brivik points out that Zimmerman
concedes that none of the costs sought are recoverable pursuant to
28 U.S.C. § 1920.
(Id. at 7).
In addition, Brivik asserts that
Zimmerman’s Motion and Bill of Costs lack any explanation or
documentation to support the alleged costs.
(Id.).
Zimmerman
also cites Heinkel, 2:04-cv-184-FTM-33-SPC, 2007 WL 2757366, for
the same purpose as explained above.
Applying the analysis of
Murray’s request for 42 U.S.C. § 1988 non-taxable costs, the Court
denies Zimmerman’s request for non-taxable costs.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Steve Murray’s Renewed Motion for Award of Costs
(Doc. # 175) is GRANTED in the amount of $613.00 but is
otherwise DENIED.
(2)
Defendant Richard Zimmerman’s Renewed Motion for Award of
Costs (Doc. # 178) is DENIED.
12
DONE and ORDERED in Chambers, in Tampa, Florida this 18th day
of April, 2014.
Copies: All Counsel and Parties of Record
13
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