Davis v. Tampa Bay Arena, Ltd
Filing
129
ORDER: The Clerk of Court is directed to enter a judgment in the amount of $16,975.53 in Defendant's favor and against Plaintiff for costs. This case shall remain closed. Signed by Judge James S. Moody, Jr on 10/28/2013. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
G. MITCHELL DAVIS,
Plaintiff,
v.
Case No. 8:12-cv-60-T-30MAP
TAMPA BAY ARENA, LTD.,
d/b/a St. Pete Times Forum,
Defendant.
_____________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendant’s Notice of Costs (Dkt. 116),
Plaintiff’s Objection (Dkt. 119), and Defendant’s Memorandum in Support of Notice of
Costs (Dkt. 125). The Court, having reviewed the filings, and being otherwise advised in the
premises, concludes that Defendant is entitled to costs in the amount of $16,975.53.
BACKGROUND
On June 27, 2013, the Court granted Defendant Tampa Bay Arena, LTD.’s (the
“Forum”) motion for partial summary judgment to the extent that the Court concluded that
Plaintiff G. Mitchell Davis’ copyright claim failed as a matter of law because Davis provided
the Forum with an implied license to post his photographs on the Forum’s Facebook page
(Dkt. 101). On August 16, 2013, the Court denied the Forum’s motion for attorney’s fees
(Dkt. 115). With respect to the Forum’s request for costs, the Court concluded that the
Forum should be awarded the costs it reasonably incurred in the process of litigating Davis’
copyright claim. Because, at that time, the record was insufficient to determine these costs,
the Court allowed the Forum seven days to file a notice of its costs related to the copyright
claim.
On August 23, 2013, the Forum filed its notice of costs (Dkt. 116). Although the
Forum originally requested costs in the amount of $13,359.00, the Forum now, inexplicably,
requests costs in the amount of $64,490.26. The majority of these costs, however, are not
recoverable under 28 U.S.C. § 1920. And the Court, in its discretion, declines to award any
additional costs under 17 U.S.C. § 505 for the same reasons that the Court declined to award
the Forum its attorney’s fees under section 505. Accordingly, the Court will discuss the
Forum’s request for costs in the context of section 1920.
STANDARD FOR AWARDING COSTS
Under Federal Rule of Civil Procedure 54(d)(1), costs “should be allowed to the
prevailing party” unless “a federal statute, [the rules of Federal Civil Procedure], or a court
order provides otherwise.” The Forum prevailed in this case to the extent that the Court
granted the Forum’s motion for partial summary judgment with respect to Davis’ copyright
claim (Dkt. 101).
On June 28, 2013, the Clerk of Court entered final judgment in the
Forum’s favor solely on Davis’ copyright infringement claim (Count I of Davis’ amended
complaint) (Dkt. 102). Accordingly, the Forum is entitled to recover the costs enumerated
under 28 U.S.C. § 1920 to the extent that they relate to Davis’ copyright claim.
Under section 1920, a judge or clerk of any court of the United States may tax as costs
the following: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded
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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 title 28; and (6) compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation services under
section 1828 of title 28. See generally, Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (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)).
DISCUSSION
The Forum requests costs in the amount of $350.00 for fees of the Clerk. The Court
agrees that the Forum is entitled to reimbursement for this cost under section 1920.
The Forum requests costs in the amount of $10,995.66 for deposition transcripts.
Because the Forum relied upon the depositions in its motion for summary judgment, which
the Court granted with respect to Davis’ copyright claim, the Court concludes they were
necessarily obtained for use in the case and are recoverable under section 1920. See Watson
v. Lake Cnty., 492 Fed. App’x 991, 996-97 (11th Cir. 2012) (“[E]ven where a deposition is
not ultimately used [at trial or in a summary judgment motion] as part of the prevailing
party’s case, we have held that the costs of the deposition are taxable under § 1920 where no
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evidence shows that the deposition was unrelated to an issue in the case at the time it was
taken.”).
The Forum requests costs in the amount of $1,595.00 for witness fees as follows:
witness fee for Nashira Babooram in the amount of $15.00; service of process on Ms.
Babooram in the amount of $80.00; and witness fee for Plaintiff’s expert witness, Baron
Wolman, in the amount of $1,500.00. Plaintiff argues that the Court should grant only a
portion of these amounts because these witnesses testified about all of the claims, not just the
copyright claim. The Court will not reduce the costs in this fashion because the copyright
claim, on which the Forum was successful, is inextricably intertwined with the other
remaining claims. Thus, the Court awards the full amount of these costs.
The Forum requests costs of making copies necessarily obtained for use in the case
in the amount of $2,772.67. The Court concludes that these amounts are reasonable and are
recoverable under section 1920.
The Forum requests consulting and expert service costs in the amount of $42,566.75.
These purported costs were not included in the Forum’s original request for costs and are
otherwise unrecoverable under section 1920. See Duckworth v. Whisenant, 97 F.3d 1393,
1399 (11th Cir.1996) (noting that expert witness fees for non-courtappointed expert
witnesses are not recoverable under section 1920).
unrecoverable under section 505.
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Notably, these costs are also
The Forum requests courier costs in the amount of $324.85 and legal research costs
in the amount of $4,623.13. The Court will not award these costs because they are
predominantly incurred for the convenience of counsel.
The Forum requests travel costs in the amount of $1,262.20. These costs relate to the
deposition of Plaintiff’s expert. Plaintiff argues that this amount should be apportioned
because Plaintiff’s expert was utilized with respect to all of the claims and continues as
Plaintiff’s expert in the state court case. As set forth above, the Court will not apportion the
costs in this fashion because Plaintiff’s claims are inextricably related and it is clear that
Plaintiff’s expert focused a large part of his time on Plaintiff’s copyright claim. Thus, the
Court awards travel costs in the amount of $1,262.20.
In sum, the Court awards the Forum total costs in the amount of $16,975.53
It is therefore ORDERED AND ADJUDGED that:
1.
The Clerk of Court is directed to enter a judgment in the amount of $16,975.53
in Defendant’s favor and against Plaintiff for costs.
2.
This case shall remain closed.
DONE and ORDERED in Tampa, Florida on October 28, 2013.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2012\12-cv-60.costaward.wpd
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