Salvador v. Brico, LLC et al

Filing 133

ORDER granting in part and denying in part 124 Motion for Reconsideration. Signed by Judge Robin L. Rosenberg on 11/6/2018. See attached document for full details. (bkd)

Case 0:17-cv-61508-RLR Document 133 Entered on FLSD Docket 11/06/2018 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 0:17-CV-61508-ROSENBERG/SELTZER
JUAN CARLOS SALVADOR,
Plaintiff,
v.
BRICO, LLC, ANTHONY G.
MAIDA & MARK A. MAIDA,
Defendants.
_______________________________/
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff’s Motion for Reconsideration [DE 124]. The
Motion has been fully briefed. For the reasons set forth below, the Motion is granted in part and
denied in part.
Plaintiff’s Motion stems from the Court’s earlier Order granting in part and denying in part
Plaintiff’s Motion for Costs [DE 123]. That Order read as follows:
PAPERLESS ORDER GRANTING IN PART AND DENYING IN PART
Plaintiff's Motion for Costs 116. With respect to Plaintiff's request to be
reimbursed for the cost of 9 deposition [transcript]s, the Court concludes that
Plaintiff has not shown that the deposition transcripts were necessary obtained for
use in this case. See 28 U.S.C. section 1920. The facts in this case were, for the
most part, undisputed. The parameters of Plaintiff's job were known to all parties.
The parties’ disagreement in this case was focused on a legal question-whether
Plaintiff was exempt from the Fair Labor Standards Act. The Court does award,
however, the costs of the transcript for the settlement conference before Judge
Dave Lee Brannon. The Court grants Plaintiff all other requested costs without
comment, and Plaintiff is therefore awarded $1,148.37 in costs.
Plaintiff has filed the Motion for Reconsideration before the Court on the premise that this
case was very much a case with disputed facts and, as a result, Plaintiff needed to take the

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depositions (and order the deposition transcripts) of potential witnesses at trial. It is of course true
that the deposition costs of potential trial witnesses can be taxed,1 but it is also true that the Court
may exercise its discretion not to award costs when the costs were not necessarily incurred for use
in the case.2
Here, Plaintiff deposed and ordered transcripts for nine witnesses in a case about six
thousand dollars. DE 9-1. In order to consider Plaintiff’s request for costs for all nine deposition
transcripts, the Court finds it helpful to review the history of this case. At docket entry 28, the
Court strongly cautioned counsel from engaging in further unprofessional filings as follows:
PAPERLESS ORDER. After this Court ruled on [20] Plaintiff’s Motion for
Extension of Time, see DE 21, Defendants’ counsel filed a [22] Response in
opposition to the Motion and Plaintiff’s counsel filed a [24] Reply in support of the
Motion. Both filings were unnecessary and constituted little more than a recitation
of complaints against opposing counsel. The Court notes that the same counsel on
both sides have previously failed to communicate effectively with each other and
submitted similar filings in at least two other cases: Herrera v. Model Row Inc. et
al., case no. 9:17-cv-80241 and Inman v. Lori Jill Designs LLC et al., case no.
9:17-cv-80426-RLR. Such conduct is unacceptable and will not be tolerated by the
Court. The Court expects counsel to communicate directly with each other in a
courteous and professional manner. Counsel may not use any filing as an
opportunity to air their grievances before the Court. The Court cautions counsel on
both sides that any further instances of the unacceptable conduct identified in this
Order may result in the imposition of sanctions against them.
Notwithstanding the Court’s warning, Plaintiff’s counsel continued to engage in improper filings
as part of a historical, on-going dispute with Defendants’ counsel. By way of example, Plaintiff’s
counsel complained at docket entry 50 that Defendants’ counsel kept using “bold, italics, and
underlines,” when he described Plaintiff’s counsel but, in the very same filing, Plaintiff utilized
bold, italics, and underlines to describe Defendants’ counsel approximately nineteen times. Later,
at a hearing before Magistrate Judge Brannon, Judge Brannon warned Plaintiff’s counsel that his
1 E.g., U.S. EEOC v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. 2000).
2 Id. at 620.

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conduct was becoming sanctionably vexatious. See DE 106. The undersigned has also been privy
to many historical disputes between Plaintiff’s counsel and Defendants’ counsel including, for
example, case 15-CV-80812, wherein both counsel were required to perform community service
as a court-ordered sanction because of their litigation conduct.
With this background, the Court notes Rule 1 of the Federal Rules of Civil Procedure. Rule
1 states that the parties must work to secure the just, speedy, and inexpensive determination of
every action and proceeding. With that duty in mind, the Court considers the proportionality of the
nine deposition transcripts in this case with the Plaintiff’s Complaint for six thousand dollars. This
case ultimately settled, as most cases brought under the Fair Labor Standards Act do. Indeed, once
this Court resolved the legal question of whether Plaintiff was exempt from the FLSA,
Defendants’ offer of settlement soon followed. Defendants’ settlement necessarily avoided the
large cost and expense of trial, as juxtaposed to the comparatively low amount that Plaintiff sought
in this case. When the Court compares the amount at issue in this case with the amount of
litigation costs generated by Plaintiff, and when the Court considers the history of counsel’s
litigation conduct, together with the reality that this case was, ultimately, decided through the
Court’s legal ruling on FLSA exemptions, the Court concludes that Plaintiff’s transcript costs were
not incurred for the purpose of summary judgment or trial—with one exception.
One of the transcripts at issue stems from the deposition of a Defendant in this case, Mr.
Mark Maida. Plaintiff seeks reimbursement for the cost of Mr. Maida’s transcript ($582.55) and
for the cost of the court reporter attendance ($215.00). The Court agrees with Plaintiff that Mr.
Maida’s deposition was taken for the purpose of summary judgment. Defendants also appear to
concede that Mr. Maida’s deposition was taken for the purpose of Plaintiff’s Motion for Summary

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Judgment. DE 130 at 3-4. The Court reconsiders its prior Order at docket entry 123 insofar as
Plaintiff should be awarded costs for Mr. Maida’s deposition.
For the foregoing reasons, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration [DE 124] is GRANTED IN PART AND DENIED IN PART. The Court’s
Order at docket entry 123 is amended insofar as the Court’s prior award of $1,148.37 is amended
to award Plaintiff $1,945.92 ($1,148.37 + $582.55 + $215.00) in costs.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 6th day of
November, 2018.

________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record

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