Sorrels et al v. NCL
Filing
110
ORDER granting in part and denying in part 96 Defendant's Motion for Bill of Costs; denying 100 Plaintiffs' Motion to Defer or Stay Costs Award; denying as moot 108 Defendant's Motion to Strike Plaintiffs' Reply. See Order for details. Signed by Judge James I. Cohn on 9/3/2014. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-21413-CIV-COHN/SELTZER
TERESITA SORRELS and
JOSEPH SORRELS,
Plaintiffs,
v.
NCL (BAHAMAS) LTD., d/b/a
NORWEGIAN CRUISE LINE,
Defendant.
___________________________/
ORDER GRANTING IN PART DEFENDANTS’ MOTION TO TAX COSTS AND
DENYING PLAINTIFFS’ MOTION TO STAY COSTS AWARD
THIS CAUSE is before the Court on Defendant’s Motion for Bill of Costs [DE 96]
(“Costs Motion”) and Plaintiffs’ Motion to Defer Ruling on the Defendant’s Motion to Tax
Costs and/or Alternative Motion to Stay Execution as to Any Costs Judgment Rendered
[DE 100] (“Stay Motion”). The Court has carefully reviewed these Motions and all
related filings and is otherwise fully advised in the premises.1
I.
Background
Defendant NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line, moves to tax
costs against Plaintiffs Teresita and Joseph Sorrels, following the Court’s entry of
summary judgment in favor of Defendant. The proposed costs total $14,128.35 and
1
Defendant also moves to strike Plaintiffs’ Reply in support of their Stay Motion,
because that Reply focuses on new arguments not raised in the Motion. See DE 108.
While Defendant’s point is valid, the Court finds that Plaintiffs are not entitled to a stay
of the costs award, even considering the arguments in their Reply. See infra Part II.A.
Accordingly, Defendant’s motion to strike will be denied as moot.
include deposition-transcript charges, service and witness fees, and copying costs.2
Plaintiffs oppose the Costs Motion, arguing that most of the requested costs are not
taxable. Further, in their Stay Motion, Plaintiffs ask the Court to defer ruling on the
Costs Motion, or to stay any costs award, until the United States Court of Appeals for
the Eleventh Circuit decides Plaintiffs’ pending appeal of this Court’s final judgment.
Defendant responds that no valid reason exists to delay its recovery of taxable costs.
II.
Discussion
Rule 54(d)(1) of the Federal Rules of Civil Procedure 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.” Fed. R. Civ. P. 54(d)(1).
Section 1920 of Title 28 lists the costs that a prevailing party may recover: (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 costs of making copies necessarily obtained
for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of
court-appointed experts and of interpreters, and salaries, fees, expenses, and costs of
special interpretation services. See 28 U.S.C. § 1920. Because Defendant is the
prevailing party here, it is entitled to an award of taxable costs as permitted by § 1920.
A.
Stay Motion
Plaintiffs’ Stay Motion requests deferring any costs ruling or judgment pending
the outcome of Plaintiffs’ appeal. In deciding whether to stay an order pending appeal,
2
Defendant originally sought costs totaling $14,298.30. See DE 96 at 1. But in
its Reply supporting the Costs Motion, Defendant notes that the actual cost of a certain
deposition transcript was $169.95 less than previously estimated. See DE 99 at 4.
2
courts examine four factors: “(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.” Hilton v.
Braunskill, 481 U.S. 770, 776 (1987). The party seeking a stay “bears the burden of
showing that the circumstances justify an exercise of [the court’s] discretion” to grant
the stay. Nken v. Holder, 556 U.S. 418, 433-34 (2009).
Plaintiffs contend that they are likely to prevail on appeal, referencing the
arguments in their main appellate brief. It is not this Court’s place to speculate about
how the Eleventh Circuit might decide Plaintiffs’ appeal. The issues presented on
appeal, like those decided by this Court, are substantial. Nevertheless, the Court
remains of the opinion that its prior rulings were correct. And though Plaintiffs’
appellate brief reiterates many points raised before this Court, Plaintiffs have not made
a strong showing that those contentions are likely to succeed on appeal.
Too, Plaintiffs assert that it would be inefficient for the Court to rule upon the
Costs Motion because that ruling would be vacated if Plaintiffs’ appeal were successful.
The Court finds this argument unavailing. Defendant has prevailed before this Court
and thus is entitled to recover taxable costs now, despite 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.”); see also Breedlove v. Hartford Life & Accident Ins. Co., 2013 WL
361825, at *2 (M.D. Fla. Jan. 30, 2013) (rejecting non-prevailing parties’ claim that
awarding costs pending appeal would waste judicial resources, because “most of the
work ha[d] already been done”).
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Nor is the Court persuaded by Plaintiffs’ claim that, due to their limited financial
resources, taxing costs against them would cause irreparable harm. The Eleventh
Circuit has held that “a non-prevailing party’s financial status is a factor that a district
court may, but need not, consider in its award of costs pursuant to Rule 54(d).”
Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000) (en banc). For a court to
consider a non-prevailing party’s financial situation in assessing costs, that party must
present “substantial documentation of a true inability to pay.” Id. In other words, there
must be “clear proof of the non-prevailing party’s dire financial circumstances before
that factor can be considered.” Id. Also, despite Plaintiffs’ invitation to do so here, the
court may “not consider the relative wealth of the parties.” Id. And even in the “rare
circumstances” where the non-prevailing party’s financial status is considered, “a court
may not decline to award any costs at all.” Id.
Although Plaintiffs contend that they “are of modest means and live within a tight
budget to meet their significant household expenses,” DE 107 at 3, they have produced
no evidence of their alleged inability to pay costs. The Court therefore declines to
reduce Defendant’s costs award on this basis. Further, taxing costs against Plaintiffs
would cause no irreparable harm since they could recover those costs following a
successful appeal. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (“Mere injuries,
however substantial, in terms of money, time and energy necessarily expended in the
absence of a stay, are not enough. The possibility that adequate compensatory or
other corrective relief will be available at a later date, in the ordinary course of litigation,
weighs heavily against a claim of irreparable harm.” (internal quotation marks omitted)).
The Court also finds that it would be unfair to withhold from Defendant taxable
costs to which it is legally entitled. For the same reason, the public interest does not
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favor a stay. Because Plaintiffs have not shown that postponing a decision on taxable
costs is warranted here, the Court will deny the Stay Motion.
B.
Costs Motion
Plaintiffs assert that many of the costs Defendant seeks to recover are not
taxable under § 1920. A presumption exists in favor of awarding costs. See Manor
Healthcare Corp. v. Lomello, 929 F.2d 633, 639 (11th Cir. 1991). “When 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). Thus, the Court will specifically address
only the costs that Plaintiffs have challenged. See Ferguson v. N. Broward Hosp. Dist.,
2011 WL 3583754, at *1-*3 (S.D. Fla. Aug. 15, 2011).3
1.
Deposition Transcripts
Defendant seeks reimbursement of $11,142.00 for costs associated with
deposition transcripts. See DE 96 at 1; DE 96-2 at 1-2; DE 99 at 4. Plaintiffs object to
several elements of these costs: (1) charges for video recordings in addition to written
transcripts; (2) optional expenses such as photocopies, mini-transcripts, and delivery;
(3) per-page transcript costs; and (4) fees for rough drafts of transcripts. Plaintiffs
argue that these expenses were unnecessary or excessive, and thus are not taxable.
Section 1920(2) authorizes recovery of “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2).
A deposition is considered necessary if it was “related to an issue which was present in
3
In this regard, Plaintiffs have not contested Defendant’s recovery of $80.00 in
witness fees. See DE 96 at 1-2; 96-2 at 6; 28 U.S.C. § 1920(3).
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the case at the time the deposition was taken.” EEOC v. W&O, Inc., 213 F.3d 600, 621
(11th Cir. 2000) (internal quotation marks omitted). But when deposition costs are
“merely incurred for convenience, to aid in thorough preparation, or for purposes of
investigation only, the costs are not recoverable.” Id. at 620 (internal quotation marks
omitted). A prevailing party may recover the costs of both a video recording and a
written transcript when the party notices a deposition to be recorded by both means,
and the opposing party does not timely object. See Morrison v. Reichhold Chems., Inc.,
97 F.3d 460, 464-65 (11th Cir. 1996) (per curiam). Yet the prevailing party still “must
explain why it was necessary to obtain a copy of both videotaped and transcribed
depositions for use in the case.” Ferguson v. Bombardier Servs. Corp., 2007 WL
601921, at *3 (M.D. Fla. Feb. 21, 2007); see Morrison, 97 F.3d at 465. Also, unless
shown to be necessary, optional deposition costs such as rush transcripts, mini-scripts,
and delivery are not taxable. See Davis v. United States, 2010 WL 3835613, at *4-*5
(S.D. Fla. Sept. 7, 2010); Univ. of Miami v. Intuitive Surgical, Inc., 2007 WL 781912,
at *1 (S.D. Fla. Mar. 13, 2007). And while this District has adopted maximum per-page
rates for transcripts prepared by court reporters, see http://www.flsd.uscourts.gov, that
rate schedule “is not binding in assessing the reasonableness of a private
stenographer’s deposition-transcript fees.” Ashkenazi v. S. Broward Hosp. Dist.,
2014 WL 3673308, at *3 (S.D. Fla. July 23, 2014).
With these standards in mind, and having closely reviewed the parties’ briefs and
supporting documents, the Court finds that most of the challenged deposition costs are
recoverable under 28 U.S.C. § 1920(2). Defendant, however, may not tax the following
costs against Plaintiffs:
6
!
The $942.00 in charges for videotaping Teresita Sorrels’s
deposition are not taxable, since Defendant has not shown that
it was necessary to obtain a video recording of the deposition
in addition to a written transcript. See DE 96-2 at 8-9.
!
Defendant may not recover $698.10 of the optional transcript costs
contested by Plaintiffs because Defendant has not demonstrated
that these items were necessary rather than merely convenient.
See DE 96-2 at 11-15, 17, 21-22, 24-25; DE 99-1 at 1-2.
The Court will therefore deduct these charges from the requested deposition costs.
2.
Service of Subpoenas
Defendant also moves to recover $1,560.00 in subpoena service fees for
depositions and medical records. See DE 96 at 1; DE 96-2 at 2-5. “[P]rivate process
server fees may be taxed pursuant to §§ 1920(1) and 1921.” W&O, 213 F.3d at 624.
Such costs are normally limited to $65.00, the standard hourly rate that the U.S.
Marshals Service charges for serving a document. See 28 U.S.C. § 1921(b); 28 C.F.R.
§ 0.114(a)(3); W&O, 213 F.3d at 624.4
Plaintiffs assert that nearly all Defendant’s subpoenas were unnecessary
because the deponents had agreed to appear voluntarily and Plaintiffs had produced
the relevant medical records. Plaintiffs also object to rush charges for many of the
subpoenas. More, Plaintiffs observe that some persons served with subpoenas were
not deposed or did not produce any records.
4
Plaintiffs note that when most of the subpoenas were served in this case, the
standard cost limit was only $55.00. See Revision to United States Marshals Service
Fees for Services, 78 Fed. Regis. 59817-01 (Sept. 30, 2013) (increasing Marshals’
normal service fees from $55.00 to $65.00 per document, effective Oct. 30, 2013).
But in the instances where Defendant seeks more than $55.00 for serving a subpoena,
the additional costs arise from service on a rush basis, out of state, or at multiple
addresses. As discussed above with regard to rush service, the Court finds that these
costs were necessary and support recovery of more than the standard amount.
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The Court finds, however, that it was prudent for Defendant to ensure the
deponents’ appearances through subpoenas rather than depending on their voluntary
attendance. It was likewise reasonable for Defendant to issue subpoenas for relevant
medical records, instead of simply relying on Plaintiffs’ assurance that all such records
had been produced. And as explained in Defendant’s Reply, the expedited nature of
discovery in this action warranted rush service of many subpoenas. See DE 99 at 6;
see also Monelus v. Tocodrian, Inc., 609 F. Supp. 2d 1328, 1334 (S.D. Fla. 2009)
(allowing recovery of service charge exceeding standard rate, in part because cost was
“justified and appropriate in light of the specific facts of the case”). Also, that some of
the persons for whom subpoenas were issued had no responsive records, or ultimately
were not deposed, did not make Defendants’ service of the subpoenas unnecessary.
Defendant therefore may recover the full amount of its requested service costs.
3.
Copies
Last, Defendant moves to tax copying costs totaling $1,346.35. See DE 96 at 1;
DE 96-2 at 5-6. 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). Although the non-prevailing party usually must show
that a cost is not taxable, a proposed copying cost “is a matter within the exclusive
knowledge of the prevailing party.” N. Broward Hosp. Dist., 2011 WL 3583754, at *3
(internal quotation marks omitted). Thus, the documents supporting copying costs must
“provide sufficient detail about those charges for the Court to determine whether they
were necessary and reasonable.” Brooks v. Peer Review Mediation & Arbitration, Inc.,
2012 WL 5410405, at *5 (S.D. Fla. Nov. 6, 2012).
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Here, Plaintiffs maintain that Defendant has not provided adequate evidence to
support recovery of its copying costs. The Court agrees. In its Motion and Reply,
Defendant states that the documents copied were “medical records and expert records
for use in review by attorneys and experts” and were “essential and relevant.” DE 96-1
at 8; DE 99 at 10. But neither Defendant’s summary of costs nor the attached invoices
give any details about the purpose of each copy order or the general content of the
documents. See DE 96-2 at 5-6, 55-76. Absent such information, the Court cannot
assess whether the requested copying charges were necessary and reasonable.
See Brooks, 2012 WL 5410405, at *5; see also Monelus, 609 F. Supp. 2d at 1335
(explaining that the prevailing party “cannot simply make unsubstantiated claims that
copies of the documents were necessary”). Accordingly, none of these costs will be
taxed against Plaintiffs.
III.
Conclusion
For the reasons discussed, it is hereby
ORDERED AND ADJUDGED as follows:
1.
Plaintiffs’ Motion to Defer Ruling on the Defendant’s Motion to Tax Costs and/or
Alternative Motion to Stay Execution as to Any Costs Judgment Rendered
[DE 100] is DENIED;
2.
Defendant’s Motion to Strike Plaintiffs’ Reply in Support of the Stay Motion
[DE 108] is DENIED AS MOOT;
3.
Defendant’s Motion for Bill of Costs [DE 96] is GRANTED IN PART and
DENIED IN PART;
4.
Defendant shall recover from Plaintiffs a total of $11,141.90 in taxable costs; and
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5.
The Court will enter a separate Final Judgment Taxing Costs.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 3rd day of September, 2014.
Copies provided to:
Counsel of record via CM/ECF
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