Humphrey v. Department of Homeland Security et al

Filing 58

ORDER granting 51 Motion to Tax Costs. Costs taxed in the amount of $ $780.37 against plaintiff.. Signed by Magistrate Judge John J. O'Sullivan on 4/24/2012. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20651-CIV-O’SULLIVAN
[CONSENT]
KENNETH D. HUMPHREY,
Plaintiff,
v.
JANET NAPOLITANO, Secretary,
United States Department of Homeland
Security,
Defendant.
_________________________________/
ORDER
This matter is before the Court on the Defendant’s Application for Taxation of
Costs and Notice of Filing Bill of Costs (DE # 51, 3/6/12). This matter was referred to
the undersigned for trial. Rule 7.1(c) of the Local Rules for the United States District
Court for the Southern District of Florida provides, in pertinent part:
Each party opposing a motion shall serve an opposing memorandum of
law no later than fourteen (14) days after service of the motion. Failure to
do so may be deemed sufficient cause for granting the motion by
default.
S.D. Fla. L.R. 7.1(c) (emphasis added). On March 6, 2012, the defendant filed the
instant motion. As of the date of this Order, no response has been filed with the Court.
Accordingly, having carefully reviewed the filings and applicable law the undersigned
enters the following Order.
BACKGROUND
On February 25, 2011, the plaintiff filed the present action against Janet

Napolitano, Secretary, U.S. Customs and Border Protection (“CBP”), Department of
Homeland Security, and Jaqueline A. Berrien, Chair, U.S. Equal Employment
Opportunity Commission (“EEOC”). (DE# 1, 2/25/11). On September 28, 2011, the
Court granted in part the defendant’s motion to dismiss. All claims against the EEOC
were dismissed. (DE# 29). On October 13, 2011, the plaintiff filed his Amended Civil
Complaint and Demand for Jury Trial. (DE# 32). On March 5, 2012, the undersigned
issued an Order granting summary judgment in favor of the remaining defendant. (DE
# 49). On March 7, 2012, the undersigned entered a judgment in favor of the remaining
defendant in this matter. (DE # 52).
The defendant filed the instant motion on March 6, 2012. (DE # 51). As of the
date of this Order there is no response from the plaintiff on the docket.
ANALYSIS
Pursuant to Federal Rule of Civil Procedure 54(d)(1), costs other than attorneys’
fees “should be allowed to the prevailing party” unless a federal statute, the Federal
Rules, or a court order provide otherwise. See Fed. R. Civ. P. 54(d)(1).
To be a prevailing party [a] party need not prevail on all
issues to justify a full award of costs, however. Usually the
litigant in whose favor judgement is rendered is the
prevailing party for purposes of rule 54(d) . . . A party who
has obtained some relief usually will be regarded as the
prevailing party even though he has not sustained all his
claims.

Lipscher v. LRP Publications, Inc., 266 F.3d 1305, 1321 (11th Cir. 2001) (citing Head v.
Medford, 62 F.3d 351, 354 (11th Cir. 1995)). A presumption exists that the prevailing
party is entitled to receive costs but allows the court to decide otherwise in its
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discretion. Chapman v. AI Transport, 229 F.3d 1012, 1038 (11th Cir. 2000). A district
court may deny full costs if there is a sound basis for such a decision and the reason is
stated by the court. Id. at 1039; See also Head v. Medford, 62 F.3d 351, 354 (11th Cir.
1995) (citing Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir. 1984)); Cherry v.
Champion Int’l Corp., 186 F.3d 442,446 (4th Cir. 1999). Also, “[w]hen challenging
whether costs are taxable, the losing party bears the burden to demonstrate that a cost
in not taxable, unless the knowledge regarding the proposed cost lies within the
exclusive knowledge of the prevailing party.” Licausi v. Symantec Corp., No. 08-60544,
2009 WL 3177566 (S.D. Fla. Sept. 29, 2009) (citing Ass’n for Disabled Americans, Inc.
v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1288 (M.D. Fla. 2005) and Desisto
College, Inc. v. Town of Howey-in-the Hills, 718 F. Supp. 906, 910 n.1 (M.D. Fla. 1989),
aff’d, 914 F.2d 267 (11th Cir. 1990).
Specifically, 28 U.S.C. § 1920 enumerates the costs that may be taxed at the
discretion of the courts. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441
(1987). Under 28 U.S.C. § 1920, a judge or clerk of any court of the United States may
tax as costs the following:
(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 disbursements for printing and 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 section 1923 of this title; and
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(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. In the exercise of sound discretion, trial courts are accorded great
latitude ascertaining taxable costs. However, in exercising its discretion to tax costs,
absent explicit statutory authorization, federal courts are limited to those costs
specifically enumerated in 28 U.S.C. § 1920. See EEOC v. W&O, Inc., 213 F.3d 600,
620 (11th Cir. 2000). The defendant is the prevailing party in the case at bar based on
the court’s entry of the Final Judgment. The defendant is therefore entitled to an award
of all costs recoverable under 28 U.S.C. § 1920.
The defendant requests reimbursement for costs in the amount of $780.37.
Costs shall be awarded as outlined below.
A. Fees for Service of Summons and Subpoena
The defendant requests $45.00 for fees associated with the service of summons
and subpoena. Specifically, the defendant requests a subpoena service fee of $45.00
for SLM Process Service for the cost of serving a third-party subpoena on the plaintiff’s
prior employer, American Airlines, Inc. The $45.00 subpoena service fee is permitted
under 28 U.S.C. § 1920 and is reasonable. Because the plaintiff has failed to file a
response to the Motion for Costs, the plaintiff has not objected to the award of this cost.
Accordingly, the defendant is awarded $45.00 for fees associated with the service of
summons and subpoena.

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B. Fees for Printed or Electronically Recorded Transcripts Necessarily Obtained
for Use in the Case
The defendant requests reimbursement in the amount of $735.37 for fees for
printed or electronically recorded transcripts necessarily obtained for use in the case.
Specifically, the defendant requests $735.37 for the cost of the plaintiff’s deposition.
Reimbursement for the fees for printed or electronically recorded transcripts necessarily
obtained for use in the case is permitted under 28 U.S.C. § 1920. The undersigned
finds that the deposition cost for which the defendant seeks reimbursement was
necessary and is reasonable. Because the plaintiff has failed to file a response to the
Motion for Costs, the plaintiff has not objected to the award of this cost. Accordingly,
the defendant is awarded $735.37 for fees for printed or electronically recorded
transcripts necessarily obtained for use in the case.
In accordance with the above and foregoing, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Application for Taxation of
Costs and Notice of Filing Bill of Costs (DE # 51, 3/6/12) is GRANTED and the
defendant is awarded a total of $780.37 in costs.
DONE AND ORDERED in Miami, Florida, this 24th day of April, 2012.

________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE

Copies provided to:
All counsel of record
Kenneth D. Humphrey, pro se
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