Taylor-Williams v. Rembert
Filing
60
ORDER: Defendant Raymond Rembert's Motion for an Award of Costs and Attorney's Fees against Plaintiff, Joyce Taylor-Williams (Doc. # 57 ) is GRANTED IN PART AND DENIED IN PART. Rembert is awarded $2,105.85 in costs. Signed by Judge Virginia M. Hernandez Covington on 2/16/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOYCE TAYLOR-WILLIAMS,
Plaintiff,
v.
Case No. 8:16-cv-87-T-33MAP
RAYMOND REMBERT,
Defendant.
_____________________________/
ORDER
This cause comes before the Court on Defendant Raymond
Rembert’s Motion for an Award of Costs and Attorney’s Fees
against Plaintiff, Joyce Taylor-Williams (Doc. # 57), filed
on January 27, 2017. Taylor-Williams failed to file a response
in opposition to the Motion. Nevertheless, upon review, the
Court finds that the Motion should only be granted in part.
I.
Background
This
42
U.S.C.
§
1983
action
arose
from
Taylor-
Williams’s arrest for trespass after warning on March 25,
2012. (Doc. # 31). Taylor-Williams filed her first Complaint
pro se on January 13, 2016. (Doc. # 1). After obtaining
counsel, Taylor-Williams filed her Second Amended Complaint
on May 6, 2016. (Doc. # 31). The Second Amended Complaint
asserted a state-law claim for malicious prosecution against
Rembert in his individual capacity and a § 1983 claim for
false arrest against Rembert in his individual capacity.
(Id.).
Rembert timely filed a motion for summary judgment,
arguing in relevant part that he was entitled to qualified
immunity. (Doc. # 48). Taylor-Williams responded and Rembert
replied. (Doc. ## 49, 50). On January 20, 2017, this Court
granted Rembert’s motion for summary judgment as to the §
1983
claim
after
finding
Rembert
entitled
to
qualified
immunity. (Doc. # 53). Furthermore, this Court declined to
exercise supplemental jurisdiction over the remaining statelaw claim and, therefore, dismissed the state-law claim for
malicious prosecution without prejudice. (Id.). The Clerk
subsequently entered judgment in favor of Rembert as to the
§ 1983 claim on January 23, 2017. (Doc. # 54).
Two
days
later,
Taylor-Williams
filed
a
motion
for
reconsideration of the Court’s January 20, 2017, Order. (Doc.
# 55). Rembert responded in opposition and filed the pending
Motion seeking an award of costs and attorney’s fees. (Doc.
## 56, 57). The Court denied the motion for reconsideration
on January 30, 2017. (Doc. # 59). At this juncture, the time
for filing a response to the pending Motion for costs and
2
fees has expired and Taylor-Williams failed to respond. The
Court now turns to Rembert’s Motion.
II.
Standard
A.
28 U.S.C. § 1920
“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 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).
Pursuant to 28 U.S.C. § 1920, the following may be taxed
as costs:
(1)
Fees of the clerk and marshal;
3
(2)
Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
(3)
Fees and disbursements
witnesses;
(4)
Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
case;
(5)
Docket fees under [28 U.S.C. § 1923]; [and]
(6)
Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees,
expenses,
and
costs
of
special
interpretation services under [28 U.S.C. §
1828].
for
printing
and
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).
4
B.
Section 768.79, Florida Statutes
Section 768.79 provides that, in a civil action for
damages, “if a defendant files an offer of judgment which is
not accepted by the plaintiff within 30 days, the defendant
shall be entitled to recover reasonable costs and attorney’s
fees incurred . . . from the date of filing of the offer if
the judgment is one of no liability . . . .” Fla. Stat. §
768.79(1). The offer-of-judgment statute “acts as a sanction
against
a
party
settlement
offer”
who
rejects
and
a
thereby
purportedly
“is
intended
reasonable
to
reduce
litigation costs by encouraging settlement.” Kahama VI, LLC
v. HJH, LLC, No. 8:11-cv-2029-T-30TBM, 2017 WL 565008, at *2
(M.D. Fla. Feb. 13, 2017) (citations omitted). “[A] court may
deny . . . costs and fees if it finds that the defendant did
not make its offer of judgment in good faith. . . . The
offeree has the burden of proving the absence of good faith.”
Id. at *3 (citations omitted).
In addition, “‘[t]he offer-of-judgment statute leaves
unchanged the “traditional rule” that the recovery of costs
presents a procedural matter for federal law.’” Johnson v.
Thor
Motor
Coach,
Inc.,
No.
5:15-cv-85-Oc-PRL,
2017
WL
552737, at *3 (M.D. Fla. Feb. 10, 2017) (quoting Jalosinski
v.
Dorel
Juvenile
Grp.,
Inc.,
5
No.
2:13-cv-371,
2015
WL
4395406, at *5 (M.D. Fla. July 16, 2015)). Thus, “courts in
this District have held that a party cannot recover any costs
under [Section] 768.79 beyond those authorized by federal
law.” Id.
“768.79
And, with respect to attorney’s fees, Section
cannot
attorney’s
fees
be
the
basis
to
another
on
for
a
shifting
federal
one
party’s
claim.”
Design
Pallets, Inc. v. Gray Robinson, P.A., 583 F. Supp. 2d 1282,
1287 (M.D. Fla. 2008) (declining to award attorney’s fees
based on Section 768.79 where court declined to exercise
supplemental
jurisdiction
over
state-law
claim
and
only
entered judgment on the federal claim); see also Santiago v.
Jamison, No. 2:13-cv-781-FtM-29CM, 2017 WL 563185, at *3
(M.D. Fla. Feb. 13, 2017) (denying motion seeking award of
attorney’s fees based on Section 768.79 where the only causes
of action adjudicated were federal claims).
III. Discussion
A.
Prevailing Party
Upon granting Rembert’s motion for summary judgment as
to the § 1983 claim, and dismissing the state-law claim,
judgment was entered in favor of Rembert as to the § 1983
claim. (Doc. # 54). Thus, Rembert is the prevailing party and
is entitled to costs under Rule 54(d). See Powell v. Carey
Int’l, Inc., 548 F. Supp. 2d 1351, 1356 (S.D. Fla. 2008)
6
(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.’”).
B.
Award of Costs and Reasonable Fees
1.
Mediation Costs Unrecoverable
Rembert seeks to recover $360 paid in fees for mediation.
(Doc. # 57-2 at 1). It is well-settled within the Middle
District that costs associated with mediation, even courtordered mediation, are not recoverable under § 1920. Tempay
Inc., 2013 WL 6145533, at *6; see Lane v. G.A.F. Material
Corp., No. 8:11–cv–2851–T–30TBM, 2013 WL 1881298, at *2 (M.D.
Fla. May 3, 2013) (finding “the law is clear that costs
associated with mediation are not recoverable under § 1920”);
see also Nicholas v. Allianceone Receivables Mgmt., Inc., 450
Fed. Appx. 887, 888 (11th Cir. 2012) (stating “[t]his appeal
concentrates on the district court’s ruling that Nicholas was
not entitled to mediation fees because those costs are not
taxable under 28 U.S.C. § 1920. We agree with the district
court’s ruling . . .”). Therefore, Rembert is not entitled to
costs for mediation.
2.
Transcript Fees
Rembert also seeks to recover $1,985.85 in fees paid for
the deposition transcripts of Laura Umfer, Psy.D., Kenneth P.
7
Pages, M.D., Cliff Williams, and Cliffany Williams. (Doc. #
57-2 at 1). All four depositions were conducted, and the
transcripts thereof purchased, after Rembert served TaylorWilliams with the offer of judgment. (Doc. # 57-1 at 2)
(showing offer of judgment served in September of 2016); (Doc.
#
57-2
at
1)
(showing
depositions
held
and
transcripts
purchased in November and December of 2016). By her failure
to
file
a
response,
Taylor-Williams
does
not
contest
Rembert’s entitlement to costs in the form of transcript fees.
Thus, the Court awards Rembert $1,985.85 for fees paid to
obtain deposition transcripts.
3.
Expert Fees
“When seeking reimbursement for fees paid to a party’s
own expert witness, as opposed to a witness appointed by the
court, a federal court is bound by the limitations of 28
U.S.C.
§
1821,
absent
contract
or
explicit
statutory
authority to the contrary.” Johnson, 2017 WL 552737, at *4.
So, fees incurred by a party for its own expert “cannot be
taxed in excess of the $40-per-day limit set out in § 1821(b),
in addition to travel expenses.” Id. (quoting North v. Mayo
Grp. Dev., LLC, No. 3:11-cv-444-J-32JBT, 2013 WL 3461932, at
*3 (M.D. Fla. July 9, 2013)).
8
None of the experts for whom Rembert incurred charges
were appointed by the Court. Therefore, Rembert is only
entitled
to
documentation
$40
per
day
submitted
per
by
expert.
Rembert,
From
the
the
meager
Court
cannot
determine whether any of the experts spent more than one day
working on matters related to this case. Likewise, the Court
has no documentation before it showing a request, let alone
substantiating any such request, for reimbursement of travel
expenses. As such, the Court grants Rembert’s Motion in part
and denies the Motion in part as to expert fees. See Loranger,
10 F.3d at 784 (the party seeking an award of costs bears the
burden of submitting a request that enables the Court to
determine whether those costs are recoverable). Rembert is
awarded $120 for expert fees.
4.
Costs for Making or Obtaining Copies
Rembert seeks to recover $20 expended to purchase copies
of medical records from Laura Umfer, Psy.D., LLC. (Doc. # 572
at
1).
However,
Rembert
provides
no
documentation
or
description of the medical records obtained that would allow
the Court to determine whether the copies were necessarily
obtained for use in this § 1983 false-arrest case. Rembert’s
vague explanation of costs incurred to obtain these medical
records is insufficient to warrant an award. See E.E.O.C. v.
9
W & O, Inc., 213 F.3d 600, 623 (11th Cir. 2000) (stating “in
evaluating copying costs, the court should consider whether
the prevailing party could have reasonably believed it was
necessary to copy the papers at issue”); Loranger, 10 F.3d at
784 (the party seeking an award of costs bears the burden of
submitting a request that enables the Court to determine
whether those costs are recoverable). Accordingly, the Motion
is denied to the extent it seeks recovery of costs incurred
for obtaining medical records.
5.
Medical Exam Fee
Rembert seeks to recover $3,150 for fees paid for a
medical exam presumably of Taylor-Williams. (Doc. # 57-2 at
1). However, fees incurred for obtaining a medical exam are
not encompassed by the plain language of § 1920 and are not
recoverable. 28 U.S.C. § 1920; Opalinsky v. Gee, No. 8:14cv-2280-T-33TGW, 2016 WL 853137, at *3 (M.D. Fla. Mar. 4,
2016). Thus, Rembert’s Motion is denied to the extent it seeks
to recover fees paid for a medical exam.
C.
Attorney’s Fees
While Taylor-Williams brought a § 1983 claim and a statelaw claim, the Court declined to retain jurisdiction over the
state-law claim after it granted summary judgment in favor of
Rembert as to the § 1983 claim. Because the Court declined to
10
retain jurisdiction over the state-law claim, judgment was
entered only with respect to the § 1983 claim. As such,
Section
768.79
attorney’s
fees
cannot
form
the
from
Rembert
to
foundation
for
shifting
Taylor-Williams.
Design
Pallets, 583 F. Supp. 2d at 1287; Santiago, 2017 WL 563185,
at *3. The Court now turns to the issue of whether Rembert is
entitled to an award of reasonable fees under § 1988.
Section 1988(b) states a “court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs . . . .” “[A]
prevailing defendant may recover attorney’s fees only when
the 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,
562–63
(11th
Cir.
2007)
(internal
quotation
marks
omitted) (quoting Head v. Medford, 62 F.3d 351, 355 (11th
Cir. 1995) (characterizing a prevailing defendant’s burden as
“more stringent” than a prevailing plaintiff’s burden)).
“[I]t
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
11
foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421–22 (1978).
The
Eleventh
Circuit
instructs
that
frivolity
determinations be “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 the suit was dismissed
before trial.” Vavrus, 243 Fed. Appx. at 563. The Eleventh
Circuit 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) (citations omitted). Ultimately,
these factors are “general guidelines only, not hard and fast
rules.” Id.
After reviewing the evidence in a light most favorable
to the non-prevailing plaintiff, 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.
12
While Rembert made a settlement offer and the case was
disposed of prior to trial, Rembert has failed to demonstrate
that Taylor-Williams did not establish a prima facie case.
Rembert moved to dismiss the Amended Complaint, but he did
not seek to dismiss the Second Amended Complaint. Moreover,
judgment was entered in favor of Rembert with respect to the
§ 1983 claim because the Court found that he was entitled to
qualified immunity, not because Taylor-Williams failed to
establish a prima facie case. Furthermore, the case also
received careful attention and review by Court. In sum,
Rembert has not shown this case was frivolous. Accordingly,
the Court denies Rembert’s Motion to the extent it seeks to
recover attorney’s fees.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Raymond Rembert’s Motion for an Award of Costs
and Attorney’s Fees against Plaintiff, Joyce Taylor-Williams
(Doc. # 57) is GRANTED IN PART AND DENIED IN PART. Rembert is
awarded $2,105.85 in costs.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of February, 2017.
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