Peeler v. KVH Industries, Inc.

Filing 143

ORDER: Plaintiff David Peeler's Motion for Taxation of Costs 141 is GRANTED in the amount of $6,768.49 but is otherwise denied. Signed by Judge Virginia M. Hernandez Covington on 6/16/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID PEELER,
Plaintiff,
v.

Case No. 8:12-cv-1584-T-33TGW

KVH INDUSTRIES, INC.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court in consideration of
Plaintiff David Peeler’s Motion for Taxation of Costs (Doc.
# 141), filed on April 16, 2014.

Defendant KVH Industries,

Inc., filed a response in opposition to the Motion (Doc. #
142) on May 1, 2014.

For the reasons that follow, the Court

grants the Motion in part.
I.

Background
Peeler initiated the instant breach of contract action

in April of 2012 in Hernando County Circuit Court after
Peeler’s

former

employer,

unpaid back commissions.

KVH,

declined

(Doc. # 2).

to

pay

Peeler’s

On July 17, 2012, KVH

removed the action to this Court on the basis of diversity
jurisdiction.

(Doc. # 1).

On July 25, 2013, the Court

entered an Order denying both parties’ motions for summary

judgment (Doc. # 48), and this matter proceeded to a jury
trial beginning on January 21, 2014 (Doc. # 102).

On January

23, 2014, the jury returned a verdict for Peeler, specifically
concluding that KVH had breached its contractual obligations
to Peeler and that Peeler had not waived his right to receive
the unpaid commissions claimed by him under the relevant
agreement.

(Doc. # 108).

The jury additionally determined

that, as a result of the breach by KVH, Peeler sustained a
total of $11,664.64 in damages.

(Id.).

On February 20, 2014, Peeler filed a motion for judgment
as a matter of law (Doc. # 123) and a motion for new trial on
damages, or in the alternative, motion for additur (Doc. #
124).

Despite receiving a judgment in his favor, Peeler

explained that he sought “relief from the judgment due to
substantive legal issues not addressed in the jury’s verdict
. . . [as well as] various evidentiary issues.”
at 4).

(Doc. # 133

On April 7, 2014, the Court entered an Order denying

Peeler’s motion for judgment as a matter of law and motion
for

new

trial

on

damages,

granting

Peeler’s

motion

for

application of prejudgment interest, and directing Peeler to
file a motion for taxation of costs in this matter.
138).

2

(Doc. #

Peeler filed the present Motion for Taxation of Costs
(Doc. # 141) on April 16, 2014.

KVH filed a response in

opposition to the Motion on May 1, 2014.

(Doc. # 142).

The

Court has reviewed the Motion as well as the response and is
otherwise fully advised in the premises.
II.

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 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).

3

Specifically,
following

may

be

pursuant
taxed

as

to

28

costs

U.S.C.

under

§

Fed.

1920,
R.

Civ.

the
P.

54(d)(1):
(1)
(2)

(3)
(4)

(5)
(6)

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;
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.

4

1994).

“When challenging whether costs are properly taxable,

the burden lies with the losing party, unless the knowledge
regarding the proposed cost is a matter within the exclusive
knowledge of the prevailing party.”

Assoc. for Disabled

Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp.
2d 1272, 1288 (M.D. Fla. 2005).
III. Peeler’s Motion for Costs
In conjunction with his Motion, Peeler submits a bill of
costs

amounting

to

$10,778.49.

(Doc.

#

141-1).

Peeler

categorizes his costs as follows: (1) fees of the clerk, (2)
fees for service of summons and subpoenas, (3) fees for
printed or electronically recorded transcripts, (4) fees for
exemplification
disbursements.

and

copy

costs,

(Doc. # 141).

and

(5)

witness

Peeler additionally seeks

interest pursuant to 28 U.S.C. § 1961. (Id. at 6).
KVH does not dispute that Peeler is the prevailing party
in this matter and concedes that an award of some costs is
appropriate.

However,

KVH

maintains

that

“Peeler

seeks

reimbursements for costs that are not otherwise provided for
under the federal rules or which are simply not allowed under
the

law

of

this

district

court.”

(Doc.

#

142

at

1).

Additionally, KVH argues that “many of the costs claimed are
ones for which KVH is not responsible.”

5

(Id.).

In light of

KVH’s response in which KVH “asks the Court to scrutinize
Peeler’s Bill of Costs closely and . . . to reduce or strike
those costs improperly claimed by Peeler,” (Id.), the Court
will address each of Peeler’s requests in turn.
A.

Fees of the Clerk

Pursuant to § 1920(1), Peeler seeks to recover fees paid
to the clerk in the amount of $410.00.

(Doc. # 141 at 3).

KVH “does not contest Peeler’s claim for $410 as the cost
associated with the filing of the complaint and summons of
this action.”
Peeler’s

(Doc. # 142 at 3).

request

appropriate.

to

recover

The Court determines that

fees

paid

to

the

clerk

is

Peeler’s Motion is thus granted as to the

$410.00 cost of the filing fee in this action.
B.

Fees for Service of the Summons and Subpoenas

Also pursuant to § 1920(1), Peeler seeks to recover “fees
paid for service of [the] summons and subpoenas in the amount
of $453.35.” 1

(Doc. # 141 at 3).

KVH claims that, “by

reviewing [Peeler’s] back-up invoices, KVH has identified
several costs that are not properly claimed.”
3).

(Doc. # 142 at

For instance, KVH complains that, although Peeler claims

1

Peeler does not provide an itemized calculation of his total
requested costs associated with service of the summons and
subpoenas.

6

$55.00 for “Chris Masse and Associates,” a process server in
Massachusetts, “Peeler fails to provide any indication as to
how this April 15, 2012, charge was necessary or successful
in transmitting the complaint, interrogatories and request
for production to KVH.”

(Id.).

Indeed, KVH claims that it

was not served until June 28, 2012, and that “there is no
reference to ‘Chris Masse and Associates’ on that document.”
(Id. at 4).
KVH additionally contests: (1) an alleged overcharge in
the amount of $13.35 paid to a Delaware process server in
June of 2012; (2) a $10.00 charge for “check issued to clerk
of the circuit court for issuance of the summons,” which is
not supported by “back up detail”; (3) a $150 charge paid to
a process server for - according to KVH - service of process
on Mr. James Labelle, whose deposition never occurred and who
did not appear at trial; and (4) a $175 charge paid to a
process server for a “rush” service charge as to Ian Palmer,
as Peeler allegedly knew “that KVH was representing Mr. Palmer
and that it would accept service on his behalf.”

(Id.).

As for the perceived $13.35 price discrepancy in the
amount paid to a Delaware process server and the $10.00 charge
for issuance of the summons, the Court finds that these
charges are properly taxed in accordance with § 1920(1) and

7

that Peeler has submitted a request for these costs that is
“sufficiently detailed to permit the court to determine what
costs were actually incurred and whether the prevailing party
is entitled to them.”

J.G. v. Carnival Corp., No. 12-21089-

CIV, 2013 WL 5446412, at *1 (S.D. Fla. Sept. 28, 2013).
Furthermore, with regard to the service of process on
Labelle,

which

KVH

contends

is

erroneously

labeled

as

“service of legal process on Ian Palmer,” (Doc. # 141-2 at
8), the Court finds that – even if KVH is correct in assuming
that this charge was incurred in the service of process upon
Labelle rather than Palmer – KVH has not demonstrated that
Peeler

incurred

this

cost

in

bad

faith

or

offered

any

authority suggesting that the Court should deviate from the
presumption that costs properly permitted under § 1920 should
be awarded to the prevailing party.

Similarly, the Court

finds that Peeler is entitled to recover a reasonable cost
for the service of Ian Palmer.
However, “[t]he fees for service of process by private
process servers are recoverable under § 1920, as long as the
fees do not exceed the amount charged by the United States
Marshal for service of process.”
5446412, at *4.

Carnival Corp., 2013 WL

The Marshal charges $65.00 per hour plus

travel costs and other out-of-pocket expenses for serving

8

process.

See 28 C.F.R. § 0.114(a)(3).

In the absence of

documented travel expenses or other out-of-pocket costs, the
Court determines that $65.00 each is an appropriate recovery
for the service of Palmer and Labelle.

See Carnival Corp.,

2013 WL 5446412, at *4.
Furthermore,

given

the

reasonableness

of

the

amount

requested for Peeler’s attempted service of the complaint,
interrogatories, and requests for production upon KVH, and in
light

of

Peeler’s

specific

documentation

supporting

this

request, the Court finds an award of $55.00 to be appropriate.
(See Doc. # 141-2 at 18).

The Court thus grants Peeler’s

Motion to the extent the Court awards Peeler $258.35 for fees
paid for service of the summons and subpoenas. 2
C.

Fees for Transcripts

Peeler next requests an award of costs in the amount of
$4,459.13 “for printed or electronically recorded transcripts
necessarily obtained for use in the case.”

2

(Doc. # 141 at

The Court arrived at this figure by subtracting the excess
cost of serving Palmer ($175.00 – $65.00 = $110.00), and
excess cost of effecting service upon Labelle ($150.00 –
$65.00 = $85.00) from Peeler’s requested award of $453.35.
($453.35 – $110.00 – $85.00 = $258.35).
To the extent
Peeler’s requested total includes amounts not specifically
contested by KVH, the Court has awarded those amounts to
Peeler consistent with the presumption that reasonable
taxable costs should be awarded to the prevailing party.

9

5).

In particular, Peeler seeks an award of costs for the

deposition of Plaintiff David Peeler himself as well as that
of KVH’s corporate representative, Ian Palmer.

(Id. at 4).

Peeler additionally seeks costs for trial transcripts that
were used in his motions for post-trial relief.

(Id. at 5).

Fees to the Court Reporter for transcripts necessarily
obtained for use in the case are indeed taxable costs under
§ 1920.

This includes deposition costs.

See United States

v. Kolesar, 313 F.2d 835, 837–38 (5th Cir. 1963) (“Though [28
U.S.C. §] 1920(2) does not specifically mention a deposition,
. . . depositions are included by implication in the phrase
‘stenographic transcript.’”).
KVH takes issue with Peeler’s claim for $1,542.30 in
transcript fees for trial transcripts used in Peeler’s post
judgment motions and argues that these transcripts were not
“necessary for use in the case.”

(Doc. # 142 at 4-5)

(emphasis in original). However, the Court disagrees. Peeler
avers that the transcripts were necessary in Peeler’s attempt
to obtain post judgment relief, and the Court referred to the
trial transcript in resolving Peeler’s post-trial motions.
“Courts have found it appropriate in some cases to even award
the costs of obtaining a daily transcript for use during the
trial.”

Weller v. Finger, No. 08-0240-CG-C, 2010 WL 2465522,

10

at *5 (S.D. Ala. June 15, 2010) (citing Syracuse Broadcasting
Corp. v. Newhouse, 319 F.2d 683, 690 (2d Cir. 1963)); see
also Crouch v. Teledyne Continental Motors, Inc., No. 1000072-KD-N, 2013 WL 203408, at *5 (S.D. Ala. Jan. 17, 2013)
(awarding

costs

for

trial

transcript

where

party

argued

transcript was necessary to prepare a motion for judgment as
a matter of law).

The Court therefore finds that Peeler may

recover the costs for the trial transcript.
Next, KVH correctly notes that shipping costs related to
the depositions are not taxable. See Awwad v. Largo Med. Ctr.,
Inc., No. 8:11-cv-1638-T-24TBM, 2013 WL 6198856, at *4 (M.D.
Fla. Nov. 27, 2013).

“Likewise, [KVH] correctly argues that

the costs of ASCII copies are not taxable.”

Id.

KVH further

contends that “although exhibits to depositions can be taxed,
the copy of a transcript as well as the scanning and the
linking of the exhibits to the transcript, which were done
for the convenience of counsel, should not be taxed.”
# 142 at 5).

(Doc.

The Court agrees with each of KVH’s proposed

reductions to Peeler’s deposition costs.

Thus, the following

costs are denied:
Peeler’s Deposition
ASC II Condensed

$35.00

Exhibit Link to Transcript

$49.35

11

Exhibit Scan

$49.35

Delivery, Shipping and Handling

$25.00

Total Reduction for Peeler Transcript:

$158.70

Palmer’s Deposition
Condensed

$73.00

E-Transcript

$35.00

P&H

$40.00

Total Reduction for Palmer Transcript:

$148.00

Accordingly, the Court awards Peeler $4,152.43 for the
costs associated with transcripts, which represents Peeler’s
requested amount of $4,459.13 minus KVH’s proposed reductions
with regard to the depositions of Peeler ($158.70) and Palmer
($148.00).
D.

Fees for Exemplification and Copy Costs

“Like deposition costs, the costs of photocopies are
recoverable if the copies were necessarily obtained for use
in the case.

Unlike deposition costs, the party moving for

taxation

costs

documents

of

copied

must

present

including

their

evidence
use

or

regarding
intended

the
use.”

Perkins v. Tolen, No. 3:10-cv-851-J-37TEM, 2012 WL 3244512,
at *2 (M.D. Fla. July 31, 2012) (internal citations omitted).
Because “the prevailing party alone knows the purpose of the
copies . . . the prevailing party must provide information

12

regarding the purpose of the copies charged so that the Court
may address the relevant factual issues.”

Id. (internal

quotations omitted) (emphasis in original).
other

non-recoverable

nondescript

general

unrecoverable.”

costs,
copying

it

“Thus, among

has

been

costs

held

are

that

typically

Id.

Peeler seeks to recover $914.46 in copy costs.

(Doc. #

141 at 5). Peeler itemizes these costs as follows: (1) $51.25
in photocopy charges associated with exhibits filed with the
Court and provided to opposing counsel at pretrial; (2)
$400.25

in

photocopy

charges

associated

with

exhibit

notebooks provided to the Clerk, Judge, opposing counsel, and
Plaintiff’s counsel for use at trial; (3) $112.00 in photocopy
charges associated with exhibits filed with the Court and
used at trial; and (4) $350.96 to Harvey Moore and Associates
for “trial graphics/demonstrative aid.”

(Id.).

KVH argues that Peeler fails to sufficiently identify
the documents for which he requests reimbursement.
142 at 6).

(Doc. #

Alternatively, KVH “takes issue with Peeler’s

request for duplicating costs in the amount of $0.25 per
page,” and suggests that a rate of $0.10 to $0.14 per page
would be more reasonable.

(Id. at 6-7).

In so suggesting,

KVH relies on Monelus v. Tocodrian, Inc., 609 F. Supp. 2d

13

1328, 1336 (S.D. Fla. 2009), which provides that, “[i]n view
of advances in technology . . . a review of more recent cases
in the Eleventh Circuit indicate that a rate of $.10 to $.14
per copy is more reasonable [than a rate of $.19 per page].”
Peeler provides no authority on this point, but merely states
in his Motion that “the copies were created at a reasonable
cost of $0.25 per page.”

(Doc. # 141 at 6).

In accordance with other cases within this District and
the Eleventh Circuit generally, see Monelus, 609 F. Supp 2d
at 1336; Perkins, 2012 WL 3244512, at *2, this Court finds
that “there is broad consensus that the reasonable market
rate for copies is $.10 to $.15 cents.”
3244512, at *3.

Perkins, 2012 WL

The Court accordingly reduces Peeler’s

requested costs for photocopies by 50%, amounting to $.125
cents per copy, and awards Peeler a total of $281.75 in
photocopying costs. 3
As

for

Peeler’s

claim

for

$350.96

for

“trial

graphics/demonstrative aid,” the Court concludes that the
cost of Peeler’s demonstrative aid may be taxed against KVH
as an “exemplification” under section 1920(4).

3

In Arcadian

$51.25 (copy charges for exhibits during pretrial) + $400.25
(copy charges for exhibit notebooks) + $112.00 (copy charges
for exhibits used at trial) = $563.50. $563.50/2 = $281.75.

14

Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293,
1296 (11th Cir. 2001), the Eleventh Circuit explained:
For costs to be taxed under § 1920(4), an item must
fit within either the category “copies of paper” or
the category “exemplification.” We read “copies of
paper” to mean reproductions involving paper in its
various forms, and conclude that because oversize
documents and color photographs are capable of this
characterization, taxation of these costs was not
error. However, neither [ ] videotape exhibits nor
[ ] computer animation are susceptible to this
characterization . . . .
The Court finds Peeler’s demonstrative aid to constitute a
“reproduction

involving

paper

in

described in Arcadian Fertilizer.

its

various

forms”

as

The Court accordingly

awards Peeler the cost of preparing this demonstrative aid
used at trial.

Peeler’s Motion is thus granted to the extent

that the Court awards a total of $632.71 for exemplification
and copying costs. 4
E.

Witness Disbursements

“Congress has . . . established the fees payable to a
witness, and the extent to which those fees are included in
awardable costs.”

Integra Resort, 385 F. Supp. 2d at 1288.

Witness fees are set by 28 U.S.C. § 1821(b), which provides
that “[a] witness shall be paid an attendance fee of $40 per

4

$281.75 reduced copying costs + $350.96 cost for trial
graphics/demonstrative aid = $632.71.

15

day for each day’s attendance.”

28 U.S.C. § 1821(b); see

also Carnival Corp., 2013 WL 5446412, at *5 (“Generally, an
attendance fee of $40.00 is recoverable under § 1920 for
witnesses who attend trial or a deposition.”).

“This $40.00

is a maximum amount per witness, including expert witnesses.”
Tiara Condo. Ass’n, Inc. v. Marsh USA, Inc., 697 F. Supp. 2d
1349, 1371 (S.D. Fla. 2010).

“A witness’s travel costs may

also be recoverable, but the party requesting travel costs
needs

to

provide

incurred.”

detailed

documentation

of

the

expenses

Carnival Corp., 2013 WL 5446412, at *5.

Peeler “seeks costs for the reasonable travel costs of
. . . three trial witnesses, including airfare to Tampa,
Florida, hotel accommodations in Tampa, Florida, witness fee
and

mileage

reimbursement

to

Ian

Palmer,

mileage

reimbursement to Dan Adams, and reimbursement for missed work
for Scott Czewski,” for a total of $4,459.13.

(Doc. # 141 at

6).
KVH opposes Peeler’s requested witness disbursements.
First, KVH directs the Court’s attention to Peeler’s attached
Transactions

Listing

Report,

which

claims

$424.50

“for

airfare to and from Tampa for appearance at trial (Thomas
High).”

(Doc. # 141-2 at 1; Doc. # 142 at 7).

This request

is inappropriate, KVH reasons, because High did not in fact

16

appear at trial.

As for the cost of airfare in the amount of

$360.00 requested for Czewski’s flight to Tampa, KVH cites to
Hawkins v. Condo. Owners Ass’n of Sand Cay, Inc., No. 8:10cv-650-T-30TBM, 2012 WL 4761357, at *4 (M.D. Fla. Oct. 5,
2012),

for

the

principle

that

“[m]eals,

courier/postage,

Lexis-Nexis research, air fare, and lodging are not included
under § 1920.”
KVH similarly argues that Peeler is not entitled to
recover

$1,000.00

to

reimburse

Czewski

for

missed

work,

$1,400.00 for Dan Adams’ mileage “and expenses associated
with trial appearance,” or $1,230.00 for Adams and Czewski’s
combined six-night hotel stay in Tampa.

(Doc. # 142 at 8).

KVH also asks the Court to deny Peeler’s request for witness
fee and mileage reimbursement for Ian Palmer because, “[a]s
Palmer testified during his deposition, KVH – not Peeler –
paid his expenses to Tampa.”

(Id. at 8-9).

The Court will

address each of KVH’s concerns in turn.
While KVH is correct that § 1920 does not explicitly
contemplate

airfare

as

a

taxable

cost,

the

fees

and

disbursements for witnesses that may be taxed under 28 U.S.C.
§ 1920(3) are further regulated by 28 U.S.C. § 1821.

The

statutory permission of witness fees and expenses is aptly
summarized as follows:

17

Taxation of witness fees is proper pursuant to §
1920(3). The amount, however, is limited by Title
28 U.S.C. § 1821(b), which provides that a witness
shall be paid an attendance fee of $40 per day for
each day’s attendance. A witness is also entitled
to the actual expenses of travel by common carrier
at the most economical rate reasonably available.
42 U.S.C. § 1821(c)(1). In addition, a witness is
entitled to a subsistence allowance in an amount
not to exceed the per diem allowance for federal
employees when the witness is required to stay
overnight . . . .
With respect to taxation of
costs, “expert” witnesses are treated virtually the
same as non-expert witness[es].
Ferguson v. Bombardier Servs. Corp., No. 8:03-cv-539-T-31DAB,
et al., 2007 WL 601921, at *5 (M.D. Fla. Feb. 21, 2007).
Under § 1821, “[a] witness is allowed actual travel
expenses as limited by the 100-mile rule which states that
travel expenses are limited to a distance of 100 miles absent
‘special circumstances.’”

Specialized Transp. of Tampa Bay,

Inc. v. Nestle Waters N. Am., Inc., No. 8:06-cv-421-T-33EAJ,
2010 WL 3419816, at *6 (M.D. Fla. July 29, 2010).

“In

determining whether special circumstances exist, the Court
considers

the

relevance

and

necessity

of

the

witness’s

testimony, the existence of court approval before incurrence
of the travel expenses, and whether the movant seeking costs
could have obtained similar testimony from witnesses residing
closer.”

(Id.).

18

Peeler

has

failed

to

show

special

circumstances

warrant recovery of the airfare paid to Tom High.

to

Indeed,

the Court finds that no costs for the travel of Tom High are
recoverable.

Tom High was not deposed in this matter and did

not attend the trial.

The Court notes that, days before this

trial was scheduled to begin in January of 2014, Peeler
accused KVH of some unspecific involvement in High’s decision
not to testify and requested that the Court re-open the
discovery period so that Peeler could take the deposition of
High and one other potential witness.

(Doc. # 97).

The Court

denied that request, reasoning that “delaying the trial at
this late juncture so that Peeler may conduct additional
discovery would be exceedingly burdensome to the Court as
well as Peeler’s opposing party and counsel.”

(Doc. # 98).

Notwithstanding High’s absence at trial, Peeler obtained a
verdict in his favor.
Peeler

himself

notes

that

expenses

such

as

“transportation, parking and overnight accommodations” may be
awarded “when necessary.”

(Doc. # 141 at 6) (quoting Dillon

v. Axxys Intern., Inc., No. 8:98-cv-2237-T-23TGW, 2006 WL
3841809, at *8 (M.D. Fla. Dec. 19, 2006)) (emphasis added).
Peeler has failed to show that the costs associated with
High’s

airfare

were

necessarily

19

incurred,

and

the

Court

accordingly declines to award Peeler’s documented cost in the
amount

of

$424.50

designated

“Check

issued

to

American

Express for airfare to and from Tampa, Florida for appearance
at trial (Thomas High).”
Additionally,

the

(Doc. # 141-2).
Court

declines

to

award

Peeler’s

request for $1,000 to reimburse Scott Czewski for missed work.
(See Doc. # 141 at 6; Doc. # 141-2 at 9).

Section 1920 does

not provide that a witness’s cost of missing work may be
awarded as costs to the prevailing party, and Peeler provides
no authority supporting his request.
As for the travel expenses of Czewski and Adams, the
Court permits Peeler’s recovery of a subsistence allowance in
accordance

with

§

1821(d)(1).

As

explained

above,

the

subsistence allowance shall “not exceed the maximum per diem
allowance prescribed by the Administrator of General Services
. . . for official travel in the area of attendance by
employees of the federal government.” 28 U.S.C. § 1821(d)(1).
The per diem rate for Tampa in January of 2014 provides $116
for lodging and $51 for meals and incidental expenses, for a
total

of

$167

per

witness,

per

day.

Additionally,

in

accordance with § 1821(c)(1), “[a] witness who travels by
common carrier shall be paid for the actual expenses of travel
on

the

basis

of

the

means

of

20

transportation

reasonable

utilized . . . . A receipt or other evidence of actual cost
shall be furnished.”
The Court accordingly permits the recovery of Peeler’s
requested witness disbursements as follows: (1) $734.00 for
Czewski, representing a $40.00 attendance fee for Czewski’s
one day of trial testimony, plus $334.00 for two days of
lodging and subsistence at the per diem rate described above,
plus $360.00 in air fare as specified on the receipt supplied
by Peeler (Doc. # 141-2 at 31); and (2) $581.00 for Adams,
representing $80.00 in attendance fees for Adams’s two days
of trial testimony, plus $501.00 for three days of lodging
and

subsistence

at

the

per

diem

rate.

Because

Peeler

neglected to provide any information as to the details for
calculating Adams’s mileage, the Court declines to award
those costs. 5

The Court also declines to award the cost of

the witness fee and mileage for Palmer’s deposition, as
Palmer’s testimony reveals that KVH, not Peeler, covered
Palmer’s expenses incurred in connection with the deposition.
(Doc. # 142-4 at 4).

Peeler’s Motion is thus granted to the

5

Aside from providing Adams’s hotel bill in an amount
exceeding the maximum per diem allowance, Peeler does not
itemize or demonstrate the reasonableness of the $1,400.00
allegedly paid to Adams “for mileage and expenses associated
with trial appearance.” (See Doc. # 141-2 at 8, 42).

21

extent that the Court awards a total of $1,315.00 for witness
disbursements.
IV.

Conclusion
A prevailing party is not entitled to recover every

expense actually incurred in the course of litigation.

In 28

U.S.C. § 1920, Congress has expounded on the costs recoverable
under Rule 54(d), and “the Court has no discretion to award
those costs not enumerated” in the statute.
3244512, at *1.

Perkins, 2012 WL

In accordance with this principle, and for

the reasons stated above, the Court determines that Peeler is
entitled

to

an

award

of

costs

in

the

total

amount

of

$6,768.49.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff David Peeler’s Motion for Taxation of Costs
(Doc. # 141) is GRANTED to the extent that the Court concludes
$6,768.49 should be taxed.
DONE and ORDERED in Chambers, in Tampa, Florida, this
16th day of June, 2014.

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Copies to: All Counsel of Record

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