Ferguson v. North Broward Hospital District
Filing
89
ORDER granting in part and denying in part 82 Motion for Bill of Costs. Please see Order for details. Signed by Judge James I. Cohn on 8/15/2011. (awe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-61606-CIV-COHN/SELTZER
ROY FERGUSON,
Plaintiff,
vs.
NORTH BROWARD HOSPITAL
DISTRICT n/k/a BROWARD HEALTH,
Defendant.
________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S BILL OF COSTS
THIS CAUSE is before the Court on Defendant North Broward Hospital
District n/k/a Broward Health’s Bill of Costs [DE 82]. The Court has considered the
Bill of Costs, Plaintiff Roy Ferguson’s Objections [DE 84], Defendant’s Reply [DE 85],
and the record in this case, and is otherwise advised in the premises.
I. BACKGROUND
On August 31, 2010, Plaintiff filed this action for violation of the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. [DE 1]. On May 27, 2011, the
Court entered Final Judgment [DE 81] in favor of Defendant and against Plaintiff. On
June 10, 2011, Defendant filed its Bill of Costs, requesting that the Clerk tax certain
costs against Plaintiff.
II. DISCUSSION
A court may only tax costs as authorized by statute. See Mathews v. Crosby,
480 F.3d 1265, 1276 (11th Cir. 2007). Defendant seeks costs pursuant to Federal
Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920. Rule 54 states that costs
“shall be allowed as of course to the prevailing party unless the court otherwise
directs . . . .” Fed. R. Civ. P. 54(d)(1). Section 1920 provides that a court may tax as
costs the following specified items:
(1)
Fees of the clerk and marshal;
(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 for printing and witnesses;
(4)
Fees for exemplification and copies of papers necessarily obtained
for use in the case;
(5)
Docket fees under section 1923 of this title;
(6)
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. The presumption is in favor of awarding costs. Manor Healthcare
Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991). As such, “[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 Americans, Inc. v. Integra Resort Mgmt.,
Inc., 385 F. Supp. 2d 1272, 1288 (M.D. Fla. 2005).
Defendant’s Bill of Costs requests that the Clerk tax the following costs
against Plaintiff:
Fees for printed or electronically recorded
transcripts necessarily obtained for use in the case ................ $ 2,718.75
Fees and disbursements for printing ........................................ $ 309.45
TOTAL:
$ 3,028.20
In support of its request, Defendant submits itemized bills for each charge [DE 82-1].
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Plaintiff filed his Objections on June 27, 2011, objecting to taxation of the
following costs:
Copies of condensed or extra transcripts .................................. $ 140.00
Expedited transcripts ................................................................. $ 347.70
Public records request ...............................................................
$ 65.70
Copy charges ............................................................................. $ 243.751
In its Reply, Defendant “withdraws its request for the $140.00 in condensed
transcripts.” Reply at 2. Accordingly, the Court will exclude the $140.00 in
condensed transcripts from Defendant’s award.2 As for Plaintiff’s remaining
objections, the Court addresses each objection in turn.
A. Expedited Transcripts
Plaintiff objects to Defendant’s request for $347.00 in expedited transcript
costs. Costs for deposition transcripts are taxable as long as the transcripts were
“necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). In evaluating
whether such costs are recoverable, “the court should consider whether the
prevailing party could have reasonably believed that [they were] necessary.” U.S.
E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000). Such costs are not
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Plaintiff objects to copy charges in the amount of $273.75, but Defendant’s Bill
of Costs and attached bills show the amount of copy charges to be $243.75.
Therefore, the Court construes Plaintiff’s objection as an objection to $243.75 in
copying charges.
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In the future, the parties shall comply with the conferral requirements of Local
Rule 7.1. Though the Bill of Costs certifies that the parties conferred and were unable
to resolve the issues raised in the Bill of Costs, had the parties actually engaged in a
proper good faith conference, they should have been able to resolve the issue
regarding condensed transcripts on their own.
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recoverable if they were “merely incurred for convenience, to aid in thorough
preparation, or for purposes of investigation only.” Id. at 620-21.
Defendant contends that the expedited transcript was “necessarily obtained in
conjunction with [Defendant’s] Second Motion for Protective Order and was used in
preparation of [Defendant’s] Reply in Support of its Second Motion for Protective
Order.” Reply at 2. Plaintiff argues that the cost “arises out of discovery misconduct
by the Defendant and was used in an unsuccessful motion for sanctions against the
Plaintiff.” Obj. at 1. Nothing in this objection refutes the fact that Defendant obtained
the expedited transcript because it reasonably believed that the expedited transcript
was necessary. Plaintiff, therefore, has not met its burden to show that the
expedited transcript was not a taxable cost. See 28 U.S.C. § 1920(2); see also
Integra Resort Mgmt., 385 F. Supp. 2d at 1288. Thus, the Court finds that the
expedited transcript was reasonably necessary for use in this case, and the cost of
the expedited transcript will not be excluded from the award.
B. Public Records Request and Copies
Plaintiff also objects to Defendant’s request for $65.70 in public records
requests and $243.75 in copy charges. Costs for copies are taxable as long as the
copies were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). As with
the transcript costs, “the court should consider whether the prevailing party could
have reasonably believed that [the copy costs were] necessary.” W&O, Inc., 213
F.3d at 623.
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1. Public Records Request
Defendant represents that it “reasonably believed that a copy of Plaintiff’s
EEOC file was necessary and relevant to the instant lawsuit.” See Reply at 3.
Plaintiff does not argue otherwise. Rather, he contends that the public record copy
“is not a taxable cost. It is an expense imposed by state law on governmental
bodies.” Obj. at 1. Plaintiff does not cite any authority for such a proposition.
Indeed, other district courts have awarded costs for public records requests. See,
e.g., Sharp v. City of Palatka, Case No. 3:06-cv-200-J-TEM, 2008 WL 4525092, at *4
(M.D. Fla. Oct. 6, 2008 ) (denying objection to costs for public records request);
Abusaid, Jr. v. Hillsborough Cnty. Bd. of Cnty. Com’rs, Case No. 8:03-cv-904-T-TBM,
2008 WL 2329409, at *3 (M.D. Fla. June 4, 2008) (awarding costs for public records
request). Therefore, the Court finds that the cost for the public records request was
reasonably necessary for use in this case, and this cost will not be excluded from the
award.
2. Other Copies
With respect to the remaining copy charges, Plaintiff argues that “[t]he copying
is not specific and it is impossible to ascertain whether it was for proper purpose.”
Obj. at 2. Although the burden is on the losing party to show that a cost is not
taxable, the prevailing party “still bears the burden of submitting a request for [costs]
that would enable the Court to determine what [costs] were incurred and whether
[the prevailing party] is entitled to them.” Lee v. Am. Eagle Airlines, Inc., 93 F. Supp.
2d 1322, 1335 (S.D. Fla. 2000). This is because the knowledge regarding the
proposed copy charge “is a matter within the exclusive knowledge of the prevailing
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party.” Integra Resort Mgmt., 385 F. Supp. 2d at 1288.
In support of its request for copy costs, Defendant submits a list of copies
including the date, price, and number of pages for each set of copies [DE 82-1 at 7].
Curiously, the list of copies dates back to July 6, 2009, over a year before the instant
lawsuit was filed. See id. The list contains no description as to which documents
were copied or the purpose for the copies, but in its Reply, Defendant adds that the
copying charges “consist[] of copies of pleadings, discovery, documents provided to
Plaintiff, documents utilized at Plaintiff’s deposition and documents prepared for the
Court’s consideration.” Reply at 3. Though Defendant could have been more
specific in describing its copy costs, the costs it describes are all recoverable. See,
e.g., Buckley Towers Condo., Inc. v. QBE Ins. Corp., Case No. 07-22988-Civ, 2011
WL 710699, a *3 (S.D. Fla. March 1, 2011) (Report and Recommendation adopted
by district court in Case No. 07-22988-Civ, DE 503). Further, Plaintiff has not
pointed to any copies that were made merely for counsel’s convenience or for any
other improper purpose.
However, the Court is not convinced that the charges incurred before the case
was filed were for pleadings, discovery, documents for Plaintiff or for Plaintiff’s
deposition, or documents prepared for the Court. Defendant provides no other
justification for taxing the costs incurred before this action was filed. Therefore, the
Court will exclude the $12.60 in copying charges incurred before Plaintiff filed this
case. See, e.g., Lee, 93 F. Supp. 2d at 1336 (civil rights case finding “that the costs
incurred prior to commencement of the action are not taxable”). Otherwise, the
Court finds that all remaining copy costs were reasonably necessary for use in this
case, and these costs will not be excluded from the award.
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III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED as follows:
1.
Defendant North Broward Hospital District n/k/a Broward Health’s Bill of
Costs [DE 82] is GRANTED in part and DENIED in part as follows:
a.
The Bill of Costs is DENIED as to certain costs in the amount of
$152.60;
b.
The Bill of Costs is GRANTED as to the remaining costs in the
amount of $2875.60;
2.
The Court shall enter a Final Judgment Taxing Costs by separate Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 15th day of August, 2011.
Copies provided to:
Counsel of record via CM/ECF
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