The City of Fort Lauderdale v. Hezzekiah Scott, et al
Filing
290
ORDER granting in part and denying in part 280 Counter-Defendants' Motion to Tax Costs; denying 285 Counter-Plaintiffs' Motion to Stay Decision on Costs. Please see Order for details. Signed by Judge James I. Cohn on 2/27/2013. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-61122-CIV-COHN/SELTZER
THE CITY OF FORT LAUDERDALE,
Plaintiff,
v.
HEZZEKIAH SCOTT,
Defendant/Counter-Plaintiff,
VIRGIL BOLDEN, GLORIA BURNELL,
KAREN MCNAIR, and THE ESTATE
OF WALTER TIRSCHMAN,
Counter-Plaintiffs/Third-Party Plaintiffs,
v.
THE CITY OF FORT LAUDERDALE,
Counter-Defendant,
ALFRED G. BATTLE, JR., Director of
Community Redevelopment Agency,
in his official and individual capacities,
SHAUN DONOVAN, in his official capacity as
Secretary of the United States Department of
Housing and Urban Development, and
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
Counter-Defendants/Third-Party Defendants.
__________________________________________/
ORDER GRANTING IN PART COUNTER-DEFENDANTS’ MOTION TO TAX COSTS
AND DENYING COUNTER-PLAINTIFFS’ MOTION TO STAY DECISION ON COSTS
THIS CAUSE is before the Court upon Counter-Defendants City of Fort
Lauderdale and Alfred G. Battle, Jr.’s Verified Motion to Tax Costs [DE 280] (“Costs
Motion”) and Counter-Plaintiffs’ Motion for Court to Stay the Resolution of Counter-
Defendants’ Motion to Tax Costs Pending Appeal [DE 285] (“Stay Motion”). The Court
has carefully reviewed these Motions, all related filings, and the record in this case, and
the Court is otherwise fully advised in the premises.
I.
Background
Counter-Defendants City of Fort Lauderdale and Alfred G. Battle, Jr., move to
tax costs against Counter-Plaintiffs Hezzekiah Scott, Virgil Bolden, Gloria Burnell,
Karen McNair, and Estate of Walter Tirschman, following this Court’s entry of summary
judgment in favor of Counter-Defendants. See 28 U.S.C. § 1920; Fed. R. Civ. P.
54(d)(1); S.D. Fla. L.R. 7.3(c). Counter-Defendants’ requested costs, totaling
$12,826.85, include photocopying charges, filing and service fees, and deposition
costs.1 Although Counter-Plaintiffs state that they “dispute the Counter-Defendants’
Motion as a whole,” they specifically object to only a few of the costs sought by
Counter-Defendants. DE 285 at 4; see id. at 4-6. Further, Counter-Plaintiffs request
that this Court “stay the resolution of” the Costs Motion until the United States Court of
Appeals for the Eleventh Circuit decides Counter-Plaintiffs’ pending appeal. Id. at 1.
II.
Discussion
A.
Stay Motion
The Court will first address Counter-Plaintiffs’ Stay Motion, which essentially
asks the Court to defer ruling on Counter-Defendants’ Costs Motion pending the
outcome of Counter-Plaintiffs’ appeal. After closely reviewing the Stay Motion and
Counter-Defendants’ Response, the Court finds that Counter-Plaintiffs have offered no
1
As discussed herein, Counter-Defendants have since withdrawn or reduced
certain requests for costs in response to Counter-Plaintiffs’ objections, thereby reducing
the proposed taxable costs to $11,601.58. See DE 288.
2
valid reason for postponing a decision on taxable costs. Indeed, in recently denying a
similar request, another Florida federal court rejected arguments much like those raised
by Counter-Plaintiffs here. See Breedlove v. Hartford Life & Accident Ins. Co., 2013
WL 361825, at *1-*2 (M.D. Fla. Jan. 30, 2013) (denying motion to stay ruling on costs
pending appeal, where non-prevailing parties (1) “summarily argue[d] that the Court
erred in its analysis [of the merits], but offer[ed] no evidence or case law to support their
argument”; (2) failed to show that they would be irreparably harmed simply because the
costs would have to be transferred back to them if they prevailed on appeal; and
(3) claimed that awarding costs pending appeal would waste judicial resources, even
though “most of the work ha[d] already been done”).2 And Counter-Defendants, having
prevailed before this Court, are entitled to recover taxable costs at this time, despite
Counter-Plaintiffs’ pending appeal. See Fed. R. Civ. P. 54(d)(1); Rothenberg v. Sec.
Mgmt. Co., 677 F.2d 64, 64 (11th Cir. 1982) (“It is well settled in this circuit that costs
may be taxed after a notice of appeal has been filed.”). The Court therefore denies
Counter-Plaintiffs’ motion to stay the determination of taxable costs.3
2
The Court has considered Counter-Plaintiffs’ other arguments and finds them
to be without merit. In particular, though Counter-Plaintiffs claim that they will suffer
financial hardship from any award of costs, see DE 285 at 2-3, they have produced no
specific evidence of their alleged inability to pay costs. Cf. Chapman v. AI Transp.,
229 F.3d 1012, 1039 (11th Cir. 2000) (en banc) (holding that a court may reduce an
award of costs based on the non-prevailing party’s financial condition only if that party
presents “substantial documentation of a true inability to pay”). In this regard, the Court
notes that four of the five Counter-Plaintiffs are current or former landlords, and the
remaining Counter-Plaintiff is a homeowner. See DE 278 at 3-12.
3
This ruling does not prevent Counter-Defendants, if they so choose, from
deferring execution of the judgment awarding costs. See DE 289 at 1-2 (stating that
Counter-Defendants “do not oppose a stay of the ‘execution’ of any cost judgment
issued by the Court”).
3
B.
Costs Motion
Federal Rule of Civil Procedure 54(d)(1) 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.” A prevailing party’s recoverable costs are
listed in 28 U.S.C. § 1920.4 Here, because the Court granted summary judgment to
Counter-Defendants, they are the prevailing parties and are entitled to recover taxable
costs as allowed by § 1920.
A presumption exists in favor of awarding costs. See Manor Healthcare Corp. v.
Lomello, 929 F.2d 633, 639 (11th Cir. 1991). Thus, “[w]hen 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.” Ass’n for Disabled Ams., Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d
1272, 1288 (M.D. Fla. 2005). For this reason, the Court will specifically address only
the particular costs that Counter-Plaintiffs have disputed. See Ferguson v. N. Broward
Hosp. Dist., No. 10-61606, 2011 WL 3583754, at *1-*3 (S.D. Fla. Aug. 15, 2011).5
1.
Photocopying Charges
Counter-Plaintiffs dispute two charges—one for $520.57, the other for
$551.80—for photocopies that an outside copying service produced for Counter4
Section 1920 provides that the following costs are taxable: (1) fees of the clerk
and marshal; (2) fees for printed or electronically recorded transcripts necessarily
obtained for use in the case; (3) fees and distributions for printing and witnesses;
(4) fees for exemplification and copies of materials 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. See 28 U.S.C. § 1920.
5
The Court has nonetheless reviewed the proposed costs to which CounterPlaintiffs have not objected. All of those costs appear to be taxable under § 1920.
4
Defendants. A prevailing party may recover “[f]ees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the
case.” 28 U.S.C. § 1920(4). Here, Counter-Plaintiffs do not contest that the copies
obtained by Counter-Defendants were necessary for use in this case. Rather, CounterPlaintiffs claim that the copying charges were excessive because Counter-Defendants
could have produced the copies in-house at a lower cost, as they did with other copies.
In response to Counter-Plaintiffs’ objections, Counter-Defendants have
withdrawn their request for the $551.80 copying charge, noting that it is duplicative of
the $520.57 charge. Further, Counter-Defendants have agreed to reduce the $520.57
cost to $162.10, as requested by Counter-Plaintiffs. Based on this resolution, the Court
will reduce the award of copying costs to Counter-Defendants by a total of $910.27,
thereby reducing the overall taxable costs to $11,916.58.
2.
Costs of Foreclosure Action
Counter-Plaintiffs also dispute Counter-Defendants’ recovery of costs incurred in
the City of Fort Lauderdale’s original foreclosure action against Counter-Plaintiff Scott.
Counter-Plaintiffs argue that recovery of these costs is improper because the City was
not a prevailing party in the foreclosure action, which this Court dismissed as moot.
See DE 278 at 29-30.
Counter-Defendants concede that they are not prevailing parties in the
foreclosure action. They have therefore withdrawn their request for the two proposed
costs specifically incurred in that action—a $295.00 filing fee and a $20.00 service fee.6
6
Counter-Plaintiffs contend that “Scott lost title to [his] property on July 27, 2011
and, therefore, any costs incurred subsequent to that date are inappropriate.” DE 285
at 5. They further assert that “it is impossible to determine if the costs itemized are
5
Accordingly, the Court further reduces the recoverable costs by $315.00, awarding
Counter-Defendants total costs of $11,601.58.
III.
Conclusion
For the reasons discussed, it is hereby ORDERED AND ADJUDGED as follows:
1.
Counter-Plaintiffs’ Motion for Court to Stay the Resolution of CounterDefendants’ Motion to Tax Costs Pending Appeal [DE 285] is DENIED;
2.
Counter-Defendants City of Fort Lauderdale and Alfred G. Battle, Jr.’s Verified
Motion to Tax Costs [DE 280] is GRANTED IN PART and DENIED IN PART;
3.
Counter-Defendants City of Fort Lauderdale and Alfred G. Battle, Jr., shall
recover total costs of $11,601.58 from Counter-Plaintiffs Hezzekiah Scott, Virgil
Bolden, Gloria Burnell, Karen McNair, and Estate of Walter Tirschman; and
4.
The Court will enter a separate Final Judgment regarding these costs.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 27th day of February, 2013.
Copies to:
Counsel of record via CM/ECF
related solely to the foreclosure action and not the counter-claims.” Id. The Court
rejects these arguments. The Costs Motion and supporting documents show that the
remaining proposed costs involve Counter-Defendants’ defense of the counterclaims
and third-party claims brought by Counter-Plaintiffs—not the City’s prosecution of the
original foreclosure action against Scott.
6
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