Opalinsky et al v. Gee et al
Filing
42
ORDER granting in part and denying in part 37 Motion for Taxation of Costs; granting in part and denying in part 38 Motion for Taxation of Costs. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/4/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LAUREN OPALINSKY and
ROBERTA OPALINSKY,
Plaintiffs,
v.
Case No. 8:14-cv-2280-T-33TGW
DAVID GEE, Hillsborough County
Sheriff, in his official
capacity, KARL SCHOLL, Deputy
Sheriff, Hillsborough County,
in his individual capacity,
and SHAWN NAPOLITANO, Deputy
Sheriff, Hillsborough County,
in his individual capacity,
Defendants.
______________________________/
ORDER
This cause comes before the Court in consideration of
Defendants Sheriff David Gee and Deputy Karl Scholl’s Motion
for an Award of Costs and Attorney’s Fees Against Plaintiff,
Lauren Opalinsky (Doc. # 37), filed on January 27, 2016. Also
before the Court is Defendants Sheriff David Gee and Corporal
Shawn Napolitano’s Motion for an Award of Costs and Attorney’s
Fees Against Plaintiff, Roberta Opalinsky (Doc. # 38), filed
on January 27, 2016. Roberta and Lauren1 filed a consolidated
1
Because Roberta and Lauren have the same last name, the
Court will refer to them by their respective first names.
response in opposition on February 18, 2016. (Doc. # 41). The
Motions are ripe for review and, for the reasons stated
herein, the Court grants in part and denies in part said
Motions.
I.
Background
This action arose from an incident that unfolded on
September 26, 2010, at the Raymond James Stadium involving
Roberta, Lauren, Napolitano, and Scholl. The events of that
day are fully recounted in this Court’s prior Order (Doc. #
35 at 2-8), and it is unnecessary to reiterate them here. It
suffices to say that, as Lauren was being escorted from the
Stadium for trespass, Roberta was arrested. (Id. at 3-4).
Lauren was also arrested later in the encounter, and during
her arrest a take-down was performed by Scholl. (Id. at 46). It was that incident that lead to this lawsuit.
Lauren and Roberta filed their Complaint on September
12, 2014. (Doc. # 1). The Complaint brings four counts:
namely, false arrest under 42 U.S.C. § 1983 by Roberta against
Napolitano (Count I), false arrest under Florida law by
Roberta against Gee (Count II), excessive force under 42
U.S.C. § 1983 by Lauren against Scholl (Count III), and
battery under Florida law by Lauren against Gee (Count IV).
2
Thereafter,
Napolitano
and
Gee
moved
for
summary
judgment as to Counts I and II, respectively. (Doc. # 26). In
addition, Scholl and Gee moved for summary judgment as to
Counts III and IV, respectively. (Doc. # 25). Roberta and
Lauren filed a consolidated response in opposition. (Doc. #
31). Napolitano and Gee filed a reply (Doc. # 32), as did
Scholl and Gee (Doc. # 33).
After reviewing the filings, the Court granted summary
judgment in favor of Napolitano as to Count I and Scholl as
to Count III on the basis of qualified immunity. (Doc. # 35
at 28). With the federal claims disposed of, the Court
exercised its discretion and declined to retain supplemental
jurisdiction over Counts II and IV, which were Roberta and
Lauren’s state-law claims against Gee. (Id.). Napolitano and
Gee, as well as Scholl and Gee, now seek an award of costs
and attorney’s fees. (Doc. ## 37, 38). Roberta and Lauren
filed a consolidated response. (Doc. # 41).
II.
Discussion
A.
Costs under Rules 54 and 68
“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
3
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 Tr. Bank,
FSB, No. 3:07–cv–974–J–34JRK, 2010 WL 2105921, at *1 (M.D.
Fla. Apr. 26, 2010)(stating that Rule 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,
following may be taxed as costs:
(1)
(2)
(3)
(4)
(5)
(6)
Fees of the clerk and marshal;
Fees of the court reporter for all or any part
of the stenographic transcript 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 [28 U.S.C. § 1923]; [and]
Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees,
expenses,
and
costs
of
special
interpretation services under [28 U.S.C. §
1828].
4
the
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).
Upon granting Napolitano and Gee’s motion for summary
judgment as to Count I and Scholl and Gee’s motion for summary
judgment as to Count III, as well as dismissing Counts II and
IV, judgment was entered in favor of Napolitano and Scholl as
to Counts I and III, respectively. (Doc. # 144). Thus, Gee,
Napolitano, and Scholl are the prevailing parties in this
action and are entitled to costs under Rule 54(d). See Powell
v. Carey Int’l, Inc., 548 F. Supp. 2d 1351, 1356 (S.D. Fla.
2008) (stating 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.’”)
(citation omitted).
5
Napolitano and Gee seek to recover $1,473.85 in costs.
(Doc. # 38 at 4). Roberta and Lauren do not object to
Napolitano and Gee’s request of $1,473.85. (Doc. # 41 at 1)
(stating, “plaintiffs have no objection to the figure of
$1,473.85
regarding
the
claims
of
Roberta
Opalinsky”).
Accordingly, the Court awards Napolitano and Gee $1,473.85 in
costs pursuant to Rule 54(d)(1).
Scholl and Gee seek to recover $8,758.02 in costs. (Doc.
# 37 at 3). Roberta and Lauren object to Scholl and Gee’s
request insofar as it seeks to recover costs for independent
medical exams conducted by Curtis W. Cassidy, M.D., P.A. and
costs for videotaping consultations, because such costs are
not enumerated in Section 1920. (Doc. # 41 at 2). In total,
these costs amount to $6,866.25. However, Roberta and Lauren
do not object to the remaining $1,891.77 in costs. (Id.)
(stating, “plaintiffs have no objection to a cost award,
relating to Lauren Opalinsky, of $1,891.77”).
“[T]he Court may not tax as costs any items not included
in 28 U.S.C. § 1920.” Kobie v. Fithian, No. 2:12-cv-98-FtM29DNF, 2014 WL 2215752, at *1 (M.D. Fla. May 28, 2014); see
also Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir.
1996)
(noting
that
expert
witness
fees
are
“clearly
nonrecoverable” under Section 1920). Accordingly, the Court
6
awards Scholl and Gee $1,891.77 in costs pursuant to Rule
54(d)(1).
Scholl
recovering
and
costs.
Gee
assert
an
Specifically,
alternative
Scholl
and
basis
Gee
seek
for
to
recover costs pursuant to Rule 68, which provides that “[i]f
the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made.” Fed. R. Civ. P. 68
(emphasis added).
Scholl and Gee each filed a Rule 68 offer of judgment,
both of which explicitly state they were made pursuant to
Rule 68. (Doc. ## 37-1, 37-2). After reviewing the bill of
costs submitted by Scholl and Gee (Doc. # 37-3), there are
only two expenses that were incurred after August 12, 2015,
and which are not recoverable under Section 1920: namely, a
fee for the videotaping of a consultation by Tampa Bay E.N.T.
and an independent medical exam on September 17, 2015. (Id.
at 1). The videotaping fee invoiced on August 27, 2015, cost
$250 and the independent medical exam on September 17, 2015,
cost $2,216.25. (Id. at 1, 14, 18).
Accordingly, the Court awards Scholl and Gee $2,466.25
pursuant to Rule 68. In total, therefore, Scholl and Gee are
awarded $4,358.02 pursuant to Rules 54 and 68.
7
B.
Attorney’s Fees
Napolitano and Scholl seek an award of attorney’s fees
pursuant to Rules 54 and 68, as well as 42 U.S.C. § 1988.
Rule 54 states, “[a] claim for attorney’s fees and related
nontaxable expenses must be made by motion . . . . [T]he
motion must . . . specify the judgment and the statute, rule,
or other grounds entitling the movant to the award . . . .”
Fed. R. Civ. P. 54(d)(2). For its part, Rule 68 states, “[i]f
the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made.” Fed. R. Civ. P.
68(d).
Furthermore, Section 1988 provides that “[i]n any action
or proceeding to enforce a provision of section[] . . . 1983
. . ., the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s
fee as part of the costs . . . .” 42 U.S.C. § 1988(b). Section
1988 allows the inclusion of expert fees in an award of
attorney’s fees only when the underlying action was brought
under Section 1981 or 1981a of Title 42. 42 U.S.C. § 1988(c);
see also Ruff v. Cty. of Kings, 700 F. Supp. 2d 1225, 1243
(E.D. Cal. 2010) (stating, “[t]he Court’s research indicates
8
that cases are uniform that Section 1988(c) does not apply to
a Section 1983 action . . .”).
“[T]he term ‘costs’ in Rule 68 includes attorney’s fees
awardable under 42 U.S.C. § 1988.” Marek v. Chesny, 473 U.S.
1, 7, 9 (1985). Attorney’s fees are awardable under Section
1988 to a prevailing defendant in a Section 1983 action when
a court “finds that the plaintiff’s claim was frivolous,
unreasonable, or without foundation, even though not brought
in subjective bad faith.” Vavrus v. Russo, 243 Fed. Appx.
561, 563 (11th Cir. 2007) (quoting Head v. Medford, 62 F.3d
351,
355
(11th
Cir.
1995))
(internal
quotation
marks
omitted).
Frivolity determinations are “made on a case-by-case
basis, taking into account various factors, including (1)
whether the plaintiff established a prima facie case, (2)
whether the defendant offered to settle[,] and (3) whether
suit was dismissed before trial.” Id. at 563. The Eleventh
Circuit has also provided a fourth factor: a “claim is not
frivolous when it is meritorious enough to receive careful
attention and review.” Barnes v. Zaccari, 592 Fed. Appx. 859,
872 (11th Cir. 2015) (quoting Cohen v. World Omni Fin. Corp.,
457 Fed. Appx. 822, 828 (11th Cir. 2012)) (internal quotation
marks
omitted).
Ultimately,
these
9
factors
are
“general
guidelines only, not hard and fast rules.” Id. And, “it is
important that a district court resist the understandable
temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action
must
have
been
unreasonable
or
without
foundation.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421–22
(1978).
Reviewing the evidence in a light most favorable to
Roberta and Lauren (the non-prevailing plaintiffs), Cordoba
v. Dillard’s Inc., 419 F.3d 1169, 1179 (11th Cir. 2005), the
Court determines that, albeit ultimately unsuccessful at
summary judgment, the case was not frivolous for purposes of
awarding attorney’s fees under § 1988(b). From the outset,
summary
judgment
in
favor
of
a
defendant
does
not
automatically entitle that defendant to attorney’s fees under
§ 1988(b). Vavrus, 243 Fed. Appx. at 563. After carefully
reviewing the record, the Court cannot reach the conclusion
that Roberta and Lauren’s allegations were so lacking in
foundation
as
to
have
been
frivolous
or
unreasonable.
Therefore, the Court declines to award attorney’s fees.
C.
Section 768.79, Florida Statutes
Gee also seeks an award of attorney’s fees pursuant to
Section 768.79, Florida Statutes. (Doc. ## 37 at 4 n.3, 38 at
10
4
n.2).
“[F]ederal
courts
in
Florida,
when
adjudicating
Florida law claims, must apply [Section] 768.79, rather than
federal law, to determine whether to award attorneys’ fees.”
Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1373
(M.D. Fla. 2010).
Section 768.79 has “strict requirements.” Id. To be
sure, the Supreme Court of Florida has held that “[b]oth
Section 768.79 and rule 1.442[, the rule implementing Section
768.79,] are in derogation of the common law rule that each
party
is
responsible
for
its
own
attorney’s
fees
which
requires that a court strictly construe both the statute and
the rule.” Diamond Aircraft Indus., Inc. v. Horowitch, 107
So. 3d 362, 376 (Fla. 2013) (citation omitted).
Section 768.79 requires the offer “state that it is being
made pursuant to [Section 768.79].” Likewise, Rule 1.442,
Fla. R. Civ. P., requires that a “proposal . . . shall
identify the applicable Florida law . . .” under which the
proposal is made. As noted in Campbell v. Goldman, an offer
“must state the statute on which it is based.” 959 So. 2d
223, 227 (Fla. 2007). Neither of Gee’s offers state that they
were made pursuant to Section 768.79 or Rule 1.442. (Doc. ##
37-2, 38-2).
11
Accordingly, Gee’s offers do not strictly comply with
either Section 768.79 or Rule 1.442. Therefore, Gee is not
entitled to costs or attorney’s fees under Section 768.79.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED
(1)
Defendants Sheriff David Gee and Deputy Karl Scholl’s
Motion for an
Award
of
Costs
and
Attorney’s
Fees
Against Plaintiff, Lauren Opalinsky (Doc. # 37), is
GRANTED to the extent that Defendants Gee and Scholl
are entitled to recover $4,358.02. However, the Motion
is DENIED to the extent it seeks attorney’s fees.
(2)
Defendants
Sheriff
David
Gee
and
Corporal
Shawn
Napolitano’s Motion for an Award of Costs and Attorney’s
Fees Against Plaintiff, Roberta Opalinsky (Doc. # 38),
is
GRANTED
to
the
extent
that
Defendants
Gee
and
Napolitano are entitled to recover $1,473.85. However,
the Motion is DENIED to the extent it seeks attorney’s
fees.
DONE and ORDERED in Chambers in Tampa, Florida, this 4th
day of March, 2016.
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