Pods Enterprises, Inc. v. U-Haul International, Inc.

Filing 423

ORDER taxing costs against Defendant in the amount of $82,727.12. Signed by Judge James D. Whittemore on 8/21/2015. (KE)

.,

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PODS ENTERPRISES, LLC,
Plaintiff,
Case No. 8:12-cv-01479-T-27MAP

vs.

U-HAUL INTERNATIONAL, INC.,
Defendant.

ORDER
BEFORE THE COURT is PODS' bill of costs (Dkt. 388). U-Haul filed a memorandum
in opposition to most of the costs (Dkt. 407). In response, PODS filed an amended bill of costs and
a memorandum in support thereof (Dkt. 415). Upon consideration, costs are taxed in PODS' favor
of $82,727.12.
Federal Rule of Civil Procedure 54(d)(l) establishes a presumption that costs are awardable
to the prevailing party. Chapman v. Al Transport, 229 F.3d 1012, 1038 (11th Cir. 2000). 1 However,
a court may only tax costs that are authorized by statute. EEOC v. W & 0, Inc., 213 F.3d 600, 620
(11th Cir. 2000). Additionally, the costs must have been incurred for services that were necessarily
obtained for use in the case. Id. at 621. Although it is within the district court's discretion to deny
a full award of costs to the prevailing party, the court "must have and state a sound reason for doing
so." Chapman, 229 F.3d at 1039.

1 PODS argues in its memorandum in support of its amended bill of costs it is entitled to costs based on the
Lanham Act, in addition to Fed. R. Civ. P. 54. This argument will not be considered in the context ofa bill of costs, and
is more properly raised in conjunction with PODS' motion for attorneys' fees and expenses based on the Lanham Act
and other statutes. (See Dkt. 389).

1

Many of the costs PODS seeks are not disputed by U-Haul and will be awarded. These are
the filing fees for this case ($3 50, Dkt. 415 Ex. 1), fees for the service of summons and subpoena
($260, Id. at Ex. 2), 2 fees for the trial transcript ($10,305.87, Id. at Ex. 3A), fees for the audio
transcription of the Stuart Sing call ($282, Id. at 3D), and fees for copies of admitted exhibits at trial
($264.75, Id. at Ex. 4).
The parties dispute four categories of costs: fees for deposition transcripts (Id. at Ex. 3B and
3C), witness fees for trial (Id. at Ex. SA), witness fees for depositions (Id. at Ex. SB), and fees for
exemplification (Id. at Ex. 6).
The fees for deposition transcripts are properly taxable, as PODS as made an adequate
showing that they were "necessarily obtained" for use in the case. 28 U.S.C. § 1920. (See Dkt. 416
~

1). Further, costs of videotaping depositions are also recoverable, as U-Haul did not object to

videotaping depositions at the appropriate time. Cardinale v. S. Homes of Polk Cnty., Inc., No.
8:06-cv-1295, 2008 WL2199273, at *1 (M.D. Fla. May27, 2008) (Whittemore, J.) (citing Morrison

v. Reichold Chemicals, Inc., 97 F.3d 460, 465 (11th Cir. 1996)). The videographer's fees are also
taxable as a part of the cost of a videotaped deposition. Fantroy v. Publix Super Markets, Inc., No.
8:12-cv-1940-T-33EAJ, 2014 WL408426, at *2-3 (M.D. Fla. Feb. 3, 2014). However, fees for video
synchronization are not taxable. See Awwadv. Largo Med. Ctr., Inc., No. 8:11-cv-1638-T-24, 2013
WL 6198856, at *3 (M.D. Fla. Nov. 27, 2013) (collecting cases). Therefore, PODS' request for
transcript fees will be awarded, with the exception of the video synchronization fees, for a total of
$63,951.23 ($70,506.23 in Ex. 3B and 3C less the costs sought for video synchronization).

2

PODS' amended bill of costs reduces these costs to $260, as U-Haul argued was appropriate. (See Dkt. 415-1

at 9).

2

Witness fees for trial are generally taxable based on § 1920(3). These fees are limited to
witness payments of $40 per day, travel expenses, and a per diem for subsistence. The per diem is
based on the amounts allowed by the General Services Administration ("GSA.") Witte Wolk BV v.
Lead by Sales, LLC, No. 8:12-CV-2868-T-30AEP, 2015 WL 275812, at *2 (M.D. Fla. Jan. 22,

2015). Here, the witness fees for trial, as well as the travel expenses and per diem allowances, of
$4890 set out in Dkt. 415, Exhibit 5, are properly taxable and consistent with the statutory witness
fee and the GSA limitations. 3 Notwithstanding U-Haul's objections, it was reasonable for PODS to
have certain expert witnesses present for days of trial during which they did not testify, and their
witness fees and subsistence expenses are recoverable costs. Tampa Bay Water v. HDR Eng 'g, Inc.,
No. 8:08-CV-2446-T-27TBM, 2012 WL 5387830, at *20 (M.D. Fla. Nov. 2, 2012) (Whittemore,
J.). PODS also seeks fees for its expert witnesses who attended depositions in Exhibit SB. However,
PODS has not provided any authority that these fees are taxable under § 1920, and therefore, they
will not be awarded. See Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (expert
witness fees generally not taxable as costs).
Finally, PODS seeks $93,246.47 in fees for copying and exemplification. However, PODS
has not carried its burden to demonstrate that most of these fees were "necessarily obtained" for use
in this case. PODS seeks $50,346 in processing charges for electronically stored information, but
there is no indication whether these costs are properly taxable. See generally Race Tires Am., Inc.
v. Hoosier Racing Tire Corp., 674 F.3d 158, 169-171 (3d Cir. 2012) (explaining Rule 54 limits

taxing ESI charges as costs). PODS also seeks to recover the fees charged by its video and technical
consultants, seemingly as costs of exemplification. This is at odds with binding precedent in the

3

Exhibit SA appears to be redundant with Exhibit S and the costs listed in Exhibit SA will not be awarded.

3

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Eleventh Circuit, which states that exemplification "imports the legal meaning of an official
transcript of a public record, authenticated as a true copy for use as evidence, and not the broader and
common connotation that includes a showing or illustrating by example." Arcadian Fertilizer, L.P.

v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1297 (I Ith Cir. 2001) (internal citation and quotation
omitted) (reversing award of costs for videotape exhibits and computer animation used at trial).
Therefore, only the amounts in Dkt. 415, Exhibit 6 which are clearly related to copies used at trial
will be awarded as costs. (See Dkt. 415-2 at 61 (invoice of $2,423.27 based on printing and copying
at trial)).
Accordingly, the Clerk is DIRECTED to tax costs against Defendant in the amount of
$82,727.12.

DONE AND ORDERED this

~} 51:y of August, 2015.

Copies to:
Counsel of Record

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