Powercore, Inc. v. Western Surety Company

Filing 17

ORDER: Plaintiff Powercore, Inc.'s Motion to Tax Costs 15 is GRANTED IN PART, and as a result, $465.00 should be taxed. Signed by Judge Virginia M. Hernandez Covington on 6/9/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
POWERCORE, INC.,
Plaintiff,
v.

Case No. 8:15-cv-766-T-33TBM

WESTERN SURETY COMPANY,
Defendant.
_____________________________/
ORDER
This cause comes before the Court in consideration of
Plaintiff Powercore, Inc.’s Motion to Tax Costs (Doc. # 15),
filed on May 20, 2015. For the reasons that follow, the Court
grants the Motion in part.
I.

Background
On

March

31,

2015,

Plaintiff

initiated

this

action

against Defendant Western Surety Company. (Doc. # 1). The
Complaint alleges that Defendant is liable to Plaintiff as
the surety on a bond posted pursuant to the Miller Act, 40
U.S.C. § 3131 et seq., for the unpaid balance of $20,000.00
that is due and owing for work performed pursuant to the
construction contract between Plaintiff and bond principal.
(Doc. # 1-2).

Plaintiff effected service on Defendant on April 6,
2015. (Doc. ## 5-6). Defendant failed to file a responsive
pleading or any other document. Therefore, on April 30, 2015,
Plaintiff filed an application for Clerk’s default against
Defendant (Doc. # 8), and on May 1, 2015, the Clerk issued
its entry of default against Defendant, pursuant to Fed. R.
Civ. P. 55(a) (Doc. # 9).
Plaintiff

subsequently

filed

a

Motion

for

Entry

of

Default Final Judgment (Doc. # 12), which this Court granted
(Doc. # 13). Accordingly, on May 18, 2015, the Clerk entered
a judgment in favor of Plaintiff and against Defendant in the
amount of $20,000.00. (Doc. # 14). Thus, Plaintiff is the
prevailing party in this matter. Thereafter, on May 20, 2015,
Plaintiff filed the present Motion. (See Doc. # 15).
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

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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).
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

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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). “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. Plaintiff’s Motion to Tax Costs
In conjunction with its Motion, Plaintiff submitted a
proposed bill of costs amounting to $487.00. (See Doc. # 16).
Plaintiff categorizes its costs as follows (1) fees of the
Clerk and (2) fees for service of summons and subpoena. (Id.).
The Court will address each category in turn.
A.

Fees of the Clerk

Plaintiff seeks to recover fees paid to the Clerk in the
amount of $400.00. A review of the record reveals that $400.00

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was the cost associated with Plaintiff initiating this action
against

Defendant.

Thus,

the

Court

determines

that

Plaintiff’s request to recover fees paid to the Clerk is
appropriate. Accordingly, Plaintiff’s Motion is granted as to
the $400.00 cost for the filing fee in this action.
B.

Fees for Service of Summons and Subpoena

Plaintiff also seeks to recover “[f]ees for service of
summons and subpoena” in the amount of $87.00. (Doc. # 15 at
2; Doc. # 16). “The 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.” J.G. v. Carnival Corp., No.
12-21089-CIV, 2013 WL 5446412, at *4 (S.D. Fla. Sept. 28,
2013). The Marshal charges $65.00 per hour plus travel costs
and other out-of-pocket expenses for serving process. See 28
C.F.R. § 0.114(a)(3).
Here, Plaintiff seeks to recover $87.00 in “fees for
service of summons and subpoena.” (Doc. # 15 at 2; Doc. #
16). In support of its request, Plaintiff submits that the
amount was “necessarily incurred . . . and the services for
which the costs were incurred were actually and necessarily
performed.” (Doc. # 15). This contention is supported by the

5

Declaration of Neil A. Saydah, Plaintiff’s counsel. (See Doc.
# 15-1).
However, the Court notes that Plaintiff has failed to
provide documented travel expenses or other out-of-pocket
costs incurred by the private process server to justify the
$87.00 request. In the absence of such justification, the
Court determines that $65.00 is an appropriate recovery for
the service of Defendant. See Carnival Corp., 2013 WL 5446412,
at *4. Therefore, the Court grants Plaintiff’s Motion to the
extent that the Court awards Plaintiff $65.00 for “fees for
service of summons and subpoena.”
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Powercore, Inc.’s Motion to Tax Costs (Doc. #
15) is GRANTED IN PART, and as a result, $465.00 should be
taxed.
DONE and ORDERED in Chambers, in Tampa, Florida, this
9th day of June, 2015.

Copies to: All Counsel and Parties of Record

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