Rodriguez v. Miami Dade County Public Housing and Community Development

Filing 174

ORDER granting-in-part and denying-in-part 170 motion for taxable costs. Costs taxed in the amount of $1,263.70 against Nadia Rodriguez. Signed by Magistrate Judge Amanda Arnold Sansone on 4/29/2019. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NADIA RODRIGUEZ,
Plaintiff,
v.

Case No. 8:15-cv-1621-T-AAS

MIAMI-DADE COUNTY,
Defendant.
______________________________________/
ORDER
Prevailing party Miami-Dade County requests non-prevailing party Nadia
Rodriguez reimburse its taxable costs. (Docs. 168, 170). Ms. Rodriguez opposes
Miami-Dade County’s request.

(Doc. 171).

Miami-Dade County’s motion is

GRANTED-IN-PART and DENIED-IN-PART. Miami-Dade County is awarded
$1,263.70 in taxable costs.
I.

BACKGROUND
Ms. Rodriguez sued Miami-Dade County for allegedly violating Title VII on the

basis of national origin discrimination, retaliation for reporting the alleged national
origin discrimination, hostile work environment, and for allegedly violating the False
Claims Act by retaliating against Ms. Rodriguez after she reported fraudulent
activity. (Doc. 42). After pretrial rulings in Miami-Dade County’s favor on some of
Ms. Rodriguez’s claims, the remaining claims were tried in a four day jury trial.
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(Docs. 80, 131–34). The jury returned a verdict in Miami-Dade County’s favor on the
national origin discrimination and the retaliation claims. (Docs. 136, 137). The Clerk
entered judgment in favor of Miami-Dade County on both claims tried before the jury.
(Docs. 166, 167).
Miami-Dade County now requests $5,529.12 from Ms. Rodriguez for its taxable
costs. (Docs. 168, 170). Miami-Dade County’s costs include: $50.00 in fees for service
of summons and subpoena; $764.00 in fees for transcripts necessarily obtained for
use in the case; $4,690.12 in fees for witnesses; and $25.00 in fees for exemplification
and costs of making copies of materials used in the case. (Doc. 168). Ms. Rodriguez
argues Miami-Dade County’s requests are beyond what was reasonably necessary
and her financial status demonstrates an inability to pay Miami-Dade County’s
taxable costs. (Doc. 171).
II.

ANALYSIS
Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute,

these rules, or a court order provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). A prevailing
party is “one who has been awarded some relief by the court.” Morillo-Cedron v. Dist.
Dir. for the U.S. Citizenship & Immigration Servs., 452 F.3d 1254, 1257 (11th Cir.
2006) (citation omitted). In awarding costs, courts are limited to those listed in 28
U.S.C. Section 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987). It is within the court’s discretion to deny a full award of costs if the court has,
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and states, a sound reason for doing so. Chapman v. AI Transp., 229 F.3d 1012, 1039
(11th Cir. 2000).
A.

Fees for Service of Summons and Subpoena

Under Section 1920(1), a prevailing party may recover service of process costs
for the complaint, as well as deposition and trial subpoenas. Powell v. Carey Int’l,
Inc., 548 F. Supp. 2d 1351, 1356 (S.D. Fla. 2008). Courts may tax costs for private
process servers’ fees, but those fees should not exceed the statutory maximum
authorized for service by the U.S. Marshals Service. EEOC v. W & O, Inc., 213 F.3d
600, 623–24 (11th Cir. 2000). According to regulations proscribed by the Attorney
General, the U.S. Marshals Service may charge $65.00 per hour for each item served,
plus travel costs and other out-of-pocket expenses. 28 U.S.C. § 1921(b); 28 C.F.R. §
0.114(a)(3).
Here, Miami-Dade County requests $50.00 in taxable costs for service of two
subpoenas. (Doc. 168, pp. 1, 3). Miami-Dade County used a private process server to
serve trial subpoenas on Leshia Elie, a former Miami-Dade County employee and
decision maker in Ms. Rodriguez’s case.1 Because these service costs are properly
taxable and less than what the U.S. Marshals Service’s would charge for service,
Miami-Dade County’s request for reimbursement for service of these subpoenas is
granted.
Leshia Elie was served two subpoenas because the first subpoena resulted in nonservice. (Doc. 168, p. 3).
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B.

Fees for Printed or Electronically Recorded Transcripts

Under Section 1920(2), transcripts necessarily obtained for use in the case and
the court reporter’s per diem are taxable costs. Ferguson v. Bombardier Serv. Corp.,
No. 8:03-CV-539-T-31DAB, 2007 WL 601921, at *3–4 (M.D. Fla. Feb. 21, 2007).
Depositions are “necessarily obtained” if the deposition relates to a contested issue
when the deposition occurred. Bostick v. State Farm Mut. Auto. Ins. Comp., No: 816-cv-1400-T-33AAS, 2018 WL 1474712, at *2 (M.D. Fla. Mar. 8, 2018). To qualify
for reimbursement, “the prevailing party must prove it is entitled to transcript costs
when those costs are ‘matters within the exclusive knowledge of the prevailing
party.’” Id. (citation omitted).
Here, Miami-Dade County requests $764.00 in transcript costs. (Doc. 168, p.
1). Miami-Dade County paid $3.50 per page to U.S. Legal Support for a non-expedited
transcript of Ms. Rodriguez’s deposition. (Id. at 7). Miami-Dade County also incurred
$50.00 as per diem for the court reporter at Ms. Rodriguez’s deposition. (Id. at 3).
Miami-Dade County states Ms. Rodriguez’s deposition was necessarily obtained
because she was the named party and primary witness. (Doc. 170, p. 4); see also
Gilson v. Indalgo, Inc., No. 6:12-cv-1423-Orl-18GJK, 2015 WL 1384099, at *3 (M.D.
Fla. Mar. 25, 2015) (awarding costs because depositions of named parties and primary
witnesses were necessarily obtained). Ms. Rodriguez does not dispute these costs.
(Doc. 171). Thus, Miami-Dade County’s request for reimbursement of costs incurred
for transcription of Ms. Rodriguez’s deposition is granted.
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C.

Fees for Witnesses

Section 1920(3) allows for reimbursement of witness fees under 28 U.S.C.
Section 1821(b), which states that witnesses are to be paid $40.00 per day for each
day’s attendance. 28 U.S.C. § 1821(b); Morrison v. Reichhold Chems., Inc., 97 F.3d
460, 463 (11th Cir. 1996). Witnesses are also entitled to travel expenses by common
carrier at the most economical rate reasonably available and a subsistence allowance
if required to stay overnight, not to exceed the per diem allowance for federal
employees. 28 U.S.C § 1821(c)(1) & (d)(1)–(2).
Internal Revenue Service determines the mileage reimbursement rate, which
was 54.5 cents in July 2018. Internal Revenue Service, Standard Mileage Rates for
2018

Up

from

Rates

for

2017,

IRS.gov

(Apr.

29,

2019),

https://www.irs.gov/newsroom/standard-mileage-rates-for-2018-up-from-rates-for2017.
General Services Administration determines the subsistence rates by location.
General Services Administration, FY 2018 Per Diem Rates for Florida, GSA.gov, (Apr.
29,

2019)

(https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-rates-

lookup/?action=perdiems_report&state=FL&fiscal_year=2018&zip=&city=). In July
2018, lodging was capped at $120 per night and meals and incidentals were capped
at $54 per day. Id. The Meals & Incidentals per diem was capped at $40.50 for the
first and last day of travel. Id. If a witness travels for only one day, the reimbursable
costs are $40.50. 41 C.F.R. § 301-11.102.
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Here, Miami-Dade County requests reimbursement of $4,690.12 in fees for six
out-of-town witnesses.2 (Doc. 168, pp. 3–4). The reimbursement requests will be
addressed separately with respect to each witness.
1.

Leshia Elie

Miami-Dade County requests $792.76 in costs for the trial testimony of former
employee Leshia Elie: $120.00 in attendance fees; $241.96 for a roundtrip flight from
Miami to Tampa; $268.80 in hotel accommodations; and $162.00 for meals and
incidentals. (Doc. 168, p. 3).
Ms. Elie testified on the third day of trial for just over two hours (from 11:50
a.m. to 12:28 p.m. and 1:52 p.m. to 3:21 p.m.). (Doc. 133). Because Ms. Elie testified
on the third day of trial only, her attendance fee is reduced to $40.00. See Peeler v.
KVH Indus., Inc., No. 8:12-cv-1585-T-33TGW, 2014 WL 12617558, at*6–7 (M.D. Fla.
June 16, 2014) (permitting attendance fees for witnesses only for the day they
testified at trial).
The distance from Miami to Tampa is about 282 miles each way; so, driving
roundtrip at 54.5 cents per mile would cost about $307. Ms. Elie’s roundtrip flight is
reimbursed at $241.96 because it was the most economical rate reasonably available
given the approximate $307 expense for driving roundtrip.
Ms. Elie’s hotel reimbursement is limited to $120.00 for a one-night stay

Miami-Dade County’s requested reimbursement for witness fees actually totals
$4,690.45.
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2

because of the per diem cap and because it is unreasonable to for Miami-Dade County
to seek taxation of two nights of accommodations for such a limited amount of
testimony.

Likewise, Ms. Elie’s meals and incidentals are capped at $81.00.

Therefore, the total reimbursement for costs associated with Ms. Elie’s testimony is
$482.96.
2.

Simona Marlow

Miami-Dade County requests $1,048.38 in costs for the trial testimony of
Simona Marlow: $120.00 in attendance fees; $304.11 in roundtrip mileage from
Miami to Tampa; $462.27 in hotel accommodations; and $162.00 for meals and
incidentals. (Doc. 168, p. 3–4).
Simona Marlow testified on the second day of trial. (Doc. 132). Ms. Marlow is
the Senior Human Resources Manager for Miami-Dade County. (Doc. 132). Ms.
Rodriguez contests Ms. Marlow’s costs because Ms. Marlow was “working and sitting
in court along with the counsel for the defendant.” (Doc. 171, p. 3).
Courts generally differentiate between the time corporate representatives are
witnesses and the time they are advising counsel. See W&O, Inc., 213 F.3d at 620
(citations omitted) (stating the Eleventh Circuit has not yet ruled on whether nonnominal party witnesses may recover witness fees); see also Philadelphia Am. Life
Ins. Co. v. Buckles, No. 6:07-cv-1743-Orl-22DAB, 2009 WL 10671238, at *1–2 (M.D.
Fla. June 26, 2009) (excluding a corporate representative’s witness fees because the
representative was viewed as a party). Ms. Marlow appeared daily at trial as the
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client representative for Miami-Dade County. (Docs. 131–33). Miami-Dade County
will not be awarded witness costs for Ms. Marlow because, for the great majority of
trial, she attended trial as a non-nominal party witness—not as a regular witness.
3.

Daniel Joseph

Miami-Dade County requests $877.73 in costs for the trial testimony of Daniel
Joseph: $120.00 in attendance fees; $340.40 for a roundtrip flight from Miami to
Tampa; $255.33 in hotel accommodations; and $162.00 for meals and incidentals.
(Doc. 168, p. 4).
Mr. Joseph testified on the third day of trial for less than one hour (9:35 a.m.
to 10:31 a.m.). (Doc. 133). Mr. Joseph’s attendance fee is therefore reduced to $40.00.
Mr. Joseph’s flight was more expensive than driving roundtrip between Miami and
Tampa; therefore, Miami-Dade County will be reimbursed $307 (the reimbursement
rate for driving). Mr. Joseph’s hotel accommodations exceed the per diem cap of
$120.00 per night. Further, it is unreasonable for Miami-Dade to seek reimbursement
for two nights of hotel accommodations when Mr. Joseph testified for less than an
hour in the morning.

Accordingly, only costs for one night of accommodations

($120.00) will be taxed. Similarly, Mr. Joseph’s taxable meals and incidentals are
capped at $81.00. Therefore, $548.00 in costs is granted for the testimony of Mr.
Joseph.
4.

Paola Cuff

Miami-Dade County requests $311.97 in costs for the trial testimony of Paola
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Cuff: $40.00 in attendance fees; $217.97 for a roundtrip flight from Miami to Tampa;
and $54.00 for meals and incidentals. (Doc. 168, p. 4).
Ms. Cuff testified on the second day of trial for twenty minutes (from 4:25 p.m.
to 4:45 p.m.). (Doc. 132). Ms. Cuff’s attendance fee is therefore $40.00. Miami-Dade
County is reimbursed $217.97 for Ms. Cuff’s flight because it was the most economical
rate reasonably available. In addition, Miami-Dade County is reimbursed $40.50 for
Ms. Cuff’s meals and incidentals. Therefore, Miami-Dade County may recover
$298.47 for costs associated with Ms. Cuff’s trial testimony.
5.

Juanita Bennett

Miami-Dade County requests $1,024.02 in taxable costs for the trial testimony
of Juanita Bennett: $120.00 in attendance fees; $278.46 in car rental fees to drive
from Miami to Tampa; $463.56 in hotel accommodations; and $162.00 for meals and
incidentals. (Doc. 168, p. 4).
Ms. Bennett testified on the third day of trial for one hour and sixteen minutes
(from 10:32 a.m. to 11:48 a.m.). (Doc. 133). Ms. Bennett’s taxable attendance fee is
therefore reduced to $40.00. Ms. Bennett’s travel from Miami to Tampa is the most
economical rate reasonably available; so, travel costs of $278.46 are allowed.
Ms. Bennett’s hotel accommodations, however, are denied.

Miami-Dade

County failed to provide a receipt for Ms. Bennett’s hotel required by statute. 28
U.S.C. § 1821(c)(1)–(3) & (d); Ferguson, 2007 WL 601921 at *5 (denying costs for
failure to submit hotel receipt required by Section 1821). The Proposed Bill of Costs
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has a cancelled flight itinerary, but the flight and hotel were booked together on
Expedia. (Doc. 168, pp. 31–39). A receipt for $463.56 for the hotel is not included,
and Miami-Dade County provides no other proof Ms. Bennett did in fact stay
overnight or what was her hotel rate. Even if the receipt had been included, only the
costs of one night’s stay would be taxed. Absent more documentation, only one day
of Ms. Bennett’s meals and incidentals ($40.50) are taxable.

Ms. Bennett’s

reimbursable costs are therefore limited to $358.96.
6.

Lon Walcott

Section 1920(3) permits taxation of costs for “[f]ees and disbursements for . . .
witnesses.” Witness fees for non-testifying witnesses may be appropriate if the
witness’s appearance at trial was reasonably necessary. See, e.g., George v. GTA Dirs.
Corp., 114 F. Supp. 2d 1281, 1299–1300 (M.D. Fla. 2000) (awarding costs for
witnesses reasonably necessary to the trial but not called to testify); Maris Distrib.
Co. v. Anheuser-Busch, Inc., No. 5:97-cv15-Oc-10C, 2001 WL 862642, at *1 (M.D. Fla.
May 4, 2001) (same); Cadle v. Geico Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2015
WL 4352048 (M.D. Fla. July 14, 2015) (allowing recovery of witness fees for witnesses
ready to testify at trial, even if they were not called).
Miami-Dade County requests $635.59 for its costs for the testimony of Lon
Walcott: $80.00 in attendance fees; $301.71 for mileage; $145.88 for hotel
accommodations; and $108.00 for meals and incidentals.

(Doc. 168, p. 4).

Ms.

Rodriguez contests Mr. Walcott’s witness fees because Mr. Walcott never testified at
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trial and “never worked or was related to the plaintiff.” (Doc. 171, p. 2). Miami-Dade
County requests fees for Mr. Walcott because Mr. Walcott is a Miami-Dade County
employee who traveled to Tampa for trial in response to a subpoena from Ms.
Rodriguez’s counsel. (Doc. 170, p. 4).
Mr. Walcott was not listed as a witness for either Ms. Rodriguez or MiamiDade County.

(Doc. 101).

Thus, Mr. Walcott’s appearance at trial was not

“reasonably necessary,” and Mr. Walcott would not have been permitted to testify
because neither party listed him as a witness. Young v. Eslinger, No. 6:04-cv-1830Orl-31KRS, 2008 WL 824219, at *5 (M.D. Fla. Mar. 25, 2008) (denying taxation of
cost for transcript of individual’s sworn statement because he was not listed as a
possible witness by either party in the final pretrial statement and only used for
investigative purposes).

Miami-Dade County’s decision to pay for Mr. Walcott’s

attendance fees, travel, meals, and hotel was gratuitous because he was not listed as
a witness for trial. Miami-Dade County’s request for reimbursement of Mr. Walcott’s
costs of $635.59 is therefore denied.
*

*

*

Miami-Dade County’s request for reimbursement of witness fees of $4,690.12
is reduced to $1,688.39.
D.

Fees for Exemplification and Costs of Making Copies

Under Section 1920(4), a court may award the costs of making copies of
materials necessarily obtained for use in the case. Copies of exhibits are taxable
11

costs. Gonzalez v. Geico Gen. Ins. Co., No. 8:15-cv-240-T-30TBM, 2017 WL 1519755,
at *4 (M.D. Fla. Apr. 27, 2017). Here, Miami-Dade County requests reimbursement
for $25.00 from copying Ms. Rodriguez’s deposition exhibits. (Doc. 168, p. 4). MiamiDade County paid $0.50 per page to copy Ms. Rodriguez’s exhibit. (Doc. 168, p. 7).
In the Middle District, and in other courts in the Eleventh Circuit, the
reasonable market rate for copies is $0.10 to $0.15 cents per page. Perkins v. Tolen,
No. 3:10-CV-851-J-37TEM, 2012 WL 3244512, at *3 (M.D. Fla. July 13, 2012)
(citations omitted). Miami-Dade County failed to explain why copies at the higher
rate of $0.50 should be taxed against Ms. Rodriguez. Thus, Miami-Dade County will
be awarded costs for these copies at $0.15 per page for a total of $7.50.
E.

Request for Reduction of Costs Based on Financial Status

When determining whether a prevailing party may recover its costs under
Federal Rule of Civil Procedure 54(d), the court may, but need not, consider the losing
party’s financial status. Chapman, 229 F.3d at 1039 (citations omitted). The court,
however, requires “substantial documentation” of the losing party’s inability to pay
costs. Id. (citations omitted). Courts “considering cost awards against non-prevailing
parties . . . have frequently taken into account the parties’ reliance on Social Security
disability payments, lack of employment, and indigent status in determining
the cost award and ordered a significant reduction.” K.B. v. Walt Disney Parks and
Resorts US, Inc., No. 6:14-cv-1900-Orl-22GJK, 2017 WL 3065119, at *7 (M.D. Fla.
July 19, 2017) (citations omitted).
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Here, Ms. Rodriguez states she lost her job, her savings, her son’s college fund,
and incurred costs from medical treatment for psychiatric problems because of
Miami-Dade County’s alleged actions. (Doc. 171, p. 1–2). Ms. Rodriguez’s provided a
financial affidavit detailing her monthly expenses and income. (Doc. 173). Ms.
Rodriguez’s sole income is child support and food stamps. (Doc. 173, pp. 1–2).
The court concludes Ms. Rodriguez is unable to pay the full amount of costs.
See Brown v. U.S. Dep’t of Agric., No. 6:06-cv-1329-Orl-18UAM, 2008 WL 203382, at
*1 (M.D. Fla. Jan. 23, 2008) (granting plaintiff’s request reduce costs taxed by fifty
percent based on their financial status); Jessup v. Miami-Dade Cty., No. 08-21571CIV, 2011 WL 294417, at *2 (S.D. Fla. Jan. 27, 2011) (reducing costs by forty-five
percent because of the non-prevailing party’s indigency and inability to pay). The
Court therefore reduces Ms. Rodriguez’s taxation of costs by fifty percent of the total
granted costs.
III.

CONCLUSION
Miami-Dade County’s Motion for Taxation of Costs (Doc. 170) is GRANTED-

IN-PART and DENIED-IN-PART.

Miami-Dade County’s taxable costs are

$2,527.39, consisting of Fees for Service of Summons and Subpoena ($50.00), Fees for
Printed or Electronically Recorded Transcripts ($764.00), Fees for Witnesses
($1,688.39), and Fees for Exemplification and Costs of Making Copies ($25.00). These
taxable costs, however, are reduced by fifty percent because of Ms. Rodriguez’s
financial status. Thus, Ms. Rodriguez owes $1,263.70 to Miami-Dade County for
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taxable costs.
ORDERED in Tampa, Florida, on April 29, 2019.

cc:

Nadia Rodriguez
8941 Cairo Lane
Port Richey, FL 34668

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