Aragon et al v. Greco International Corporation et al

Filing 168

ORDER granting in part and denying in part 152 Motion for Bill of Costs. Signed by Judge Cecilia M. Altonaga on 10/22/2012. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-22224-CIV-ALTONAGA/Simonton
JIMMY MEJIA PERALTA, et al.,
Plaintiffs,
vs.
GRECO INTERNATIONAL
CORPORATION, et al.,
Defendants.
_____________________________/
ORDER
THIS CAUSE came before the Court upon Defendants’ Motion for Costs (“Motion”)
[ECF No. 152], filed June 4, 2012. On May 22, 2012, the Court issued a Final Judgment [ECF
No. 149] in favor of Defendants and against Plaintiffs. The Final Judgment was premised on
five individual Jury Verdicts [ECF Nos. 142, 143, 144, 145, 146] in favor of Defendants on
Plaintiffs’ claims arising under the Fair Labor Standards Act (“FLSA”).1 Defendants now move
for taxation of their bill of costs pursuant to Local Rule 7.3 of the Southern District of Florida
and Federal Rule of Civil Procedure 54(d)(1). Plaintiffs filed a Response in Opposition to
Defendants’ Motion for Costs (“Response”) [ECF No. 166] on September 27, 2012, and
Defendants filed their Reply . . . (“Reply”) [ECF No. 167] on October 4, 2012. The Court has
carefully reviewed the parties’ written submissions and applicable law.
I.

LEGAL STANDARD

Rule 54 of the Federal Rules of Civil Procedure (“Rule 54”) provides, “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs — other than attorney’s fees —
One Plaintiff, Jimmy Mejia Peralta (“Peralta”), prevailed on Defendants’ counterclaim. (See Jury
Verdict as to Jimmy Mejia Peralta).
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should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). Rule 54 “creates a
presumption in favor of awarding costs to the prevailing party . . . .” Manor Healthcare Corp. v.
Lomelo, 929 F.2d 633, 639 (11th Cir. 1991). An item is taxable as a cost under Rule 54(d) if it is
enumerated in 28 U.S.C. section 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 437–38 (1987). Under section 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;
(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.
A bill of costs shall be filed in the case and, upon allowance, included in
the judgment or decree.
Id.§ 1920. Local Rule 7.3(c) sets forth procedural requirements a party must follow in moving
for costs under section 1920.
“When challenging whether costs are taxable, the losing party bears the burden of
demonstrating that a cost is not taxable, unless the knowledge regarding the proposed cost is
within the exclusive knowledge of the prevailing party.” Monelus v. Tocodrian, Inc., 609 F.
Supp. 2d 1328, 1333 (S.D. Fla. 2009) (citations omitted).

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II.

ANALYSIS

Defendants seek costs for (1) court reporters; (2) translators; and (3) document
reproduction. (See generally Mot.). Defendants furnish supporting documentation with the
Motion. (See Slip List By Expense (“Slip List”) [ECF No. 152-2]; Bill of Costs Summary
(“Bill”) [ECF No. 152-3]; and Correoso Aff. [ECF No. 152-4]). Each category of costs sought is
addressed by a provision of section 1920, and Defendants asserts each item was necessarily
obtained for use in the case. Defendants therefore have established a prima facie case creating a
presumption in their favor as the prevailing parties. See Manor Healthcare, 929 F.2d at 639.
Plaintiffs assert various reasons why specific costs are not taxable in this case. The Court
addresses each category of costs in turn.
A.

Court Reporter Costs
Plaintiffs first take issue with Defendants’ asserted court reporter costs. Plaintiffs note

that they “ha[ve] not seen any of the receipts for said court reporter costs and [are] therefore
unaware how said costs are calculated.” (Resp. 2). Plaintiffs speculate that “if Defendants
expedited the transcript costs, Plaintiffs should not be responsible for any fees associated with
said expedited order.” (Id.). Plaintiffs further contend that “copies or mini transcripts or ASCII
disks . . . [or various] additional fees [] are not recoverable under 28 U.S.C. [sic] 192 [sic].” (Id.).
Plaintiffs also specifically contest the $156.00 court reporter fee for the transcript from the
deposition of Fernando Navia (“Navia”) (see Bill 2) as this deposition was ordered “as a sanction
against Defendants . . . .” (Id. 3).
Defendants respond thusly. Defendants first contend they made “several attempts” to
“provid[e] opposing counsel with all the receipts for the costs asserted.” (Repl. 2). Defendants
also point out that “[t]he parties have agreed to adjust the costs for the court reporter on October

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5, 2011 and October 6, 2011 to remove charges for condensed transcripts, processing and
handling fee and shipping, in the amount of $85.29 for October 5, 2011 and $95.70 for October 6,
2011.” (Repl. 2 (footnote call number omitted)). Defendants advise that
“[u]pon review of the Summary of the Bill of Costs and corresponding receipts, it
came to [] counsel’s attention that there was a scriveners [sic] error in the court
reporter charges incurred on October 6, 2011. Instead of $1405.85, the costs were
listed at $405.85. The Revised Bill of Costs Summary has been adjusted to reflect
the correct charges.
(Id. 2 n.1; see Revised Bill of Costs Summary (“Revised Bill”) [ECF No. 167-1]). Finally, with
respect to the Navia deposition costs, Defendants assert that although the “Court ordered []
Defendants [to] pay the appearance fee of the court reporter . . . the cost for the transcript . . .
should be recoverable.” (Repl. 2). Notably, however, Defendants provide no further explanation
for thislast proposition.
Defendants are entitled to be compensated for all of the court reporter costs contained in
their Revised Bill with the exception of the cost for the Navia deposition. Defendants’ Motion is
supported by a Slip List, which itemizes Defendants’ court reporter costs, in addition to a Bill of
Costs Summary and a sworn affidavit from Defendants’ counsel. These documents provide
sufficient detail demonstrating the court reporter costs were necessarily obtained, and are
therefore taxable. Additionally, the Revised Bill, which appropriately subtracts various costs
from the original Bill in accordance with Plaintiffs’ objections, further demonstrates the same.2
Defendants are accordingly entitled to be compensated on the court reporter costs outlined in the
Revised Bill.
The Court will not, however, tax Plaintiffs for the Navia deposition transcript fee. “In the
exercise of sound discretion, the Court has great latitude to ascertain which costs are taxable.”
Jackson v. Grupo Indus. Hotelero, S.A., No. 07-22046-CIV, 2010 WL 750301, at *5 (S.D. Fla.
2

The Revised Bill is also supported by a sworn affidavit [ECF No. 167-2] from Defendants’ counsel.

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Mar. 3, 2010) (citing EEOC v. W & O, Inc., 213 F.3d 600, 619–20 (11th Cir. 2000)). Defendants
willingly admit that the Navia deposition was imposed as a court-ordered sanction, and do not
dispute that they were required by the Court to pay the appearance fee for the court reporter.
And yet, Defendants suggest, without a scintilla of argumentation, that the transcript fee for the
very same event should be recoverable.

Just as Defendants lack an explanation for this

distinction, so, too, does the Court. The Court thus approves all of the court reporter costs in
Defendants’ Revised Bill, with the exception of the $156.00 fee for the transcript of the Navia
deposition.
B.

Translator Costs
Plaintiffs next take issue with Defendants’ asserted translation costs. There are two sub-

categories of translation costs: those for exhibits and those for trial. Plaintiffs first argue the
exhibit translation costs should not be taxed because “Defendants have not identified what
exhibits required translation or how said exhibits were necessary for trial.” (Resp. 3). Plaintiffs
further note that “the Court had struck several of Defendants [sic] exhibits on hearsay grounds as
[a particular] witness was available to testify at trial.” (Id.). Plaintiffs object to Defendants’ trial
translation costs to the extent Defendants seek recovery from Peralta, “as he prevailed in
defending the counterclaim against him.” (Id.).
Defendants respond that the exhibit translation costs are taxable because they derive from
the translation of various handwritten time sheets which were introduced and used at trial.
Defendants also highlight that “the costs of translating a two-page statement by Leo Caraballat,
which the Court ruled at the calendar call, [sic] was hearsay and was not introduced at trial,”
(Repl. 2) are no longer being sought — and Defendants’ Revised Bill indeed reflects this change.
With respect to trial translation costs, Defendants agree that Peralta prevailed on his

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counterclaim, but dispute that this is sufficient to preclude Defendants’ recovery of costs given
that “[the] counterclaim was a very minor portion of the five day trial that did not exceed more
than five minutes of testimony, and would not be considered ‘a significant claim’ to entitle Mr.
Peralta to be considered as a prevailing party.” (Repl. 3 (citing Texas State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782 (1989)).
Defendants are entitled to be compensated for all translation costs listed in the Revised
Bill. Defendants’ explanation of the exhibit translation costs, in addition to the cost modification
made in light of Plaintiffs’ objections, establish that the exhibit translation costs were necessarily
obtained. As it relates to Defendants’ request to tax trial translation costs against Peralta, the
Court finds that Peralta’s successful defense on a minor counterclaim does not preclude
Defendants’ recovery. District courts possess ample discretion in awarding costs in the pursuit
of equity, see Royal Surplus Lines Ins. Co. v. Coachmen Indus., Inc., 229 F.R.D. 695, 697 (M.D.
Fla. 2005), and this discretion includes the ability to make a determination as to whether one
party’s failure to succeed on a counterclaim should bar that party’s ability to recover costs as a
prevailing party, see Lacovara v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 102 F.R.D. 959,
961 (E.D. Pa. 1984). Where, as here, “only a very small fraction of the five day trial was spent
on the proof and defense of [a] counterclaim,” while Defendants “successfully defended against
[Plaintiffs’] much larger claim for damages,” Defendants’ failure to “succeed on [their]
counterclaim” should not bar Defendants’ entitlement to fees as the prevailing party. Lacovara,
102 F.R.D. at 961; see, e.g., Scientific Holding Co., Ltd. v. Plessey Inc., 510 F.2d 15, 28 (2d Cir.
1974) (“District courts have held that a defendant who successfully fends off a large claim may
be awarded costs despite failure to prevail on a counterclaim.”) (citations omitted). For the
foregoing reasons, the translation costs contained in Defendants’ Revised Bill are taxable.

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C.

Copy Costs
Plaintiffs object to Defendants’ asserted copy costs because “Defendants have not

identified the purpose behind any of the[] copies,” while “[a] majority of the documents
copied . . . were for documents that provided absolutely no information and were never used in
th[e] case.” (Resp. 4). Plaintiffs highlight, as an example, the “thousands of pages of GPS
records that stated absolutely nothing and had no use during the case or at trial.” (Id.). Plaintiffs
furthermore object to the charge of 25 cents per page, which they argue is excessive, and
therefore beyond the bounds of 28 U.S.C. section 1920.
In response, Defendants first assert that the copy costs Plaintiffs object to were
necessarily obtained because they are for printing initial disclosures and copying the various
exhibits for trial. “These copies include the GPS records of the [sic] each of the five Plaintiffs
showing the times they were on the truck each day and the hours they actually worked, and
copies of the time sheets and paychecks for each of the five Plaintiffs,” all of which “were
relevant and used at trial.” (Repl. 3). Defendants further highlight that “Plaintiffs requested []
Defendants make a copy of the trial exhibits for them for trial, which Defendants did as a
courtesy, and at no time prior did Plaintiffs object to the costs of same.” (Id.). With respect to
Plaintiffs’ excessive cost objection, “Defendants have agreed to reduce the cost of the first set of
copies listed on December 5, 2011 to .10 per copy [sic] reflected on the Revised Bill of Costs.”
(Id.). And “[a]ll of the remaining copies were charged at a rate” between .10 to .12 cents per
copy, which Defendants assert to be a reasonable cost. (Id.).
Defendants are entitled to be compensated for their copy costs.

Defendants have

sufficiently explained the purpose of the copies made in order to demonstrate that they were
necessarily obtained, while the price of 12 cents or less per copy contained in the Revised Bill is

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well within what other courts in this Circuit have found to be reasonable. See, e.g., Jackson,
2010 WL 750301, at *8 (“The requested 20 cents per page is excessive and should be reduced to
15 cents per page . . . .”). As such, “[t]he undersigned disagrees with [Plaintiffs’ arguments] and
finds that the fees associated with the reduced requested fees for exemplification and the costs of
making copies of any materials were necessarily obtained for use in the case and [that
Defendants are] entitled to recover these costs.” Id. The copy costs contained in Defendants’
Revised Bill are approved.
III.

CONCLUSION

For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendants’ Motion [ECF No. 152] is GRANTED
in part and DENIED in part. All of the costs set forth in Defendants’ Revised Bill of Costs
[ECF No. 167-1], except for the $156.00 court reporter fee for the transcript from the Fernando
Navia deposition, are approved. The award shall issue by separate order.
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of October,
2012.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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