McDaniel v. Bradshaw et al
Filing
227
ORDER granting in part and denying in part 203 Motion to Tax Costs; granting in part and denying in part 204 Motion for Bill of Costs. Signed by Judge James I. Cohn on 12/20/2011. (prd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-81082-CIV-COHN/Seltzer
MORRIS McDANIEL,
Plaintiff,
vs.
RIC L. BRADSHAW, as Sheriff of Palm
Beach County and the CITY OF
BOYNTON BEACH, as Boynton Beach
Police Department,
Defendants.
/
ORDER GRANTING IN PART BILLS OF COSTS
THIS CAUSE is before the Court upon Defendant City of Boynton Beach’s
Verified Motion for Bill of Costs [DE 203], Plaintiff’s Response Opposing Bill of Costs
[DE 211], the City’s Reply [DE 216], Defendant Ric L. Bradshaw’s Bill of Costs [DE
204], Plaintiff’s Response Opposing Bill of Costs [DE 213], and Bradshaw’s Reply [DE
218]. The Court has carefully considered the motions and is otherwise fully advised in
the premises.
I. BACKGROUND
On August 25, 2011, the Court entered a final summary judgment in favor of
Defendants City of Boynton Beach (“City”) and Defendant Ric L. Bradshaw, as Sheriff
of Palm Beach County (“PBSO”), and against Plaintiff Morris McDaniel. Defendants
then each filed a Bill of Costs, seeking a variety of costs and expenses. Plaintiff
opposes the requests on grounds that Defendants failed to provide evidence to support
all costs, making specific objections to various items sought by Defendants.
II. DISCUSSION
A. Legal Standard to Award Costs
The United States Supreme Court has interpreted Fed. R. Civ. P. 54(d) to grant
federal courts discretion to refuse to tax costs in favor of the prevailing party. See
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). Moreover, “[i]n the
exercise of sound discretion, trial courts are accorded great latitude in ascertaining
taxable costs.” Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1526 (11th Cir.
1985) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)). 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. Crawford Fitting Co, 482
U.S. 437, 445 (1987).
The costs allowed in 28 U.S.C. § 1920 are as follows:
(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.
In the present case, Defendant City seeks costs totaling $4,964.99 for the
following items: (1) fees for printed or electronically recorded transcripts necessarily
obtained for use in the case ($4,413.99); (2) fees for witnesses ($470.00); and (3) fees
for copying and exemplification ($80.80). Defendant PBSO seeks costs totaling
$6,387.10 for the following items: (1) fees for service of subpoenas ($350.00); (2) fees
2
for printed or electronically recorded transcripts necessarily obtained for use in the case
($3,114.21); (3) fees for witnesses ($215.74); and (4) fees for copying and
exemplification ($2,707.15). Plaintiff objects to particular items within these categories.
B. Transcript Fees
Plaintiff objects to any fees for expediting deposition transcripts, for video
services, and for Sergeant Ulrich Naujoks’ deposition. With regard to costs for
expedited deposition transcripts, Plaintiff contends that both the City and PBSO are
seeking an unnecessary expedited rate for Plaintiff’s May 31, 2011 deposition, while
PBSO is seeking an expedited rate for Gena Rowlands’ June 20, 2011 deposition.
PBSO defends the expedited charge for Rowlands’ deposition because the summary
judgment deadline in this case was only a few days later on June 25, 2011 [DE 204-1 at
p. 11]. PBSO also contends that “Plaintiff refused to allow the process server access to
serve Gena Rowlands at their home on several occasions.” PBSO Reply at 7 [DE 218].
However, the documents cited by PBSO merely state that the process server was
“unable to make contact at original address,” so Rowlands was served at her business
address, which is the Palm Beach County Sheriff’s Office. Verified Return of Service,
Exhibit A to Reply [DE 218-1]. In other words, Rowlands worked for PBSO. Although it
is true that her deposition was taken on the Monday just prior to the Friday motion
deadline, there is no support in the record as to why the deposition was taken so late as
to necessitate an expedited transcript. In the absence of the true cost of the expedited
service, the Court will only award the transcript copy rate paid by the City, $444.74, and
not the $681.65 paid by PBSO, for a reduction of $236.91 (about 35%) of PBSO’s
request.
With regard to the objection to the expedited rate for Plaintiff’s May 31, 2011
deposition, the record does contain evidence that Plaintiff unreasonably delayed his
3
deposition from May 4, 2011. However, the deposition was still taken 24 days prior to
the summary judgment deadline. Defendants have not shown sufficient cause for an
expedited rate.1 The Court will reduce the City’s cost for the transcript by 35%, or
$593.78, but not reduce the itemized costs for the appearance fee, exhibit fees,
litigation support disk, video, or condensed transcript. See invoice at p. 3 of DE 203-1.
The Court will not reduce either Defendants’ cost of obtaining the video of the
deposition. Costs for a properly noticed, non-objected to video recording of a
deposition are taxable under § 1920, pursuant to Morrison v. Reichhold Chemicals, Inc.,
97 F.3d 460, 464-65 (11th Cir. 1996).
Finally, with regard to Plaintiff’s objections to Sergeant Ulrich Naujoks’ deposition
as not necessary because he was employed by PBSO, “[i]n determining whether the
cost of a particular deposition is taxable, ‘the district court must evaluate the facts of
each case and determine whether all or any part of a copy of any or all of the
depositions was necessarily obtained for use in the case.’” Blevins v. Heilig-Meyers
Corp., 184 F.R.D. 663, 666 (M.D.Ala.1999) (quoting Newman v. A.E. Staley Mfg. Co.,
648 F.2d 330, 337 (5th Cir. June 1981)). “[W]here the deposition costs were merely
incurred for convenience, to aid in a more thorough preparation of the case, or for
purpose of investigation only, the costs are not recoverable.” Id. (quoting DiCecco v.
Dillard House, Inc., 149 F.R.D. 239, 241 (N.D. Ga.1993)). “[A] district judge has great
latitude in determining whether a deposition was ‘necessarily obtained for use in the
case’ or was obtained merely for the convenience of the attorneys.” Id. (quoting
Newman, 648 F.2d at 337). The Court concludes that Sgt. Naujoks’ deposition
transcript was necessarily obtained, as evidenced by the fact that Plaintiff filed this
1
The Court accepts that the City’s cost for this transcript is higher than the copy
rate paid by PBSO.
4
deposition in support of his motion for summary judgment [DE 132]. Simply because
he was employed by PBSO is not a reason to strike costs for his deposition.2
C. Witness Fees
Plaintiff objects to the witness fees that both the City and PBSO are seeking for
trial subpoenas served upon Defendants’ own witnesses for a trial that never took
place. Defendants contend that they issued the trial subpoenas and witness checks on
Thursday, August 18, 2011, after completion of mediation on August 16, for the trial
then scheduled to commence on Monday, August 29, 2011. On Thursday, August 25,
2011, the Court granted Defendants’ motions for summary judgment and entered
summary judgment. While Defendants may have sent the subpoenas out a bit early,
the timing of when summary judgment was entered was late enough to justify the daily
witness fee portion of the costs.3
However, Plaintiff also contends that trial subpoenas and witness fees were
unnecessary because all of Defendants’ witnesses worked for either the City or PBSO.
Defendant PBSO argues that its policy is that “its employees must be subpoenaed for
Court appearances in order for the officer to be validly excused from his or her work
schedule as well as for administrative record keeping purposes.” It is one thing to have
this reasonable policy for subpoenas issuing from outside the PBSO – it is quite
another for a party suing the PBSO to have to pay witness fee costs to PBSO or City
employees formally served to comply with PBSO’s internal policy. From the standpoint
2
The cost for Plaintiff’s aborted deposition on May 4, 2011 ($271.15) is
properly taxed against Plaintiff, despite this amount also being awarded as a sanction,
because Plaintiff never paid the sanction. Plaintiff need not pay this amount twice, but
it is included in the cost award.
3
There is no justification for taxing the travel portion of the witness fee since no
such travel took place. Because these witnesses are under the control of Defendants,
those fees paid can be recovered.
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of § 1920, these witness fees are not reasonable. Thus, the Court will strike $215.74
from PBSO’s cost request, and $470.00 from the City’s request.
D. Exemplification and Copying
Plaintiff objects to various costs sought by Defendants under the category of
exemplification and costs of making copies, as general copying that is not taxable under
§ 1920. Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir.1996). Plaintiff objects
to the City’s request for $77.00 for copies of court records for “an unrelated case.”
However, the City states that the records concerned a prior dispute between Plaintiff
and his wife, Gena Rowlands, that were relevant to the issues in this case. The Court
being familiar with the record in this case and the reason for Plaintiff’s arrest that
precipitated this § 1983 action concludes that the City’s copy costs are necessary and
taxable.
Plaintiff’s objections to PBSO’s copying costs consist of the following arguments:
1) many of the copies were duplicative and unnecessary; 2) the descriptions suggest
that PBSO’s attorneys copied documents to discuss with PBSO that were produced by
PBSO; 3) counsel copied the documents again to attach to its summary judgment
motion even though such documents are scanned and filed electornically; and 4)
counsel copied “mailed correspondence,” without further identification. In reply, PBSO
relies upon the standard in E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000)
(“whether the prevailing party could have reasonably believed that it was necessary to
copy the papers at issue”), and the explanations provided with its Bill of Costs.
Defendant bears the burden of identifying the taxable versus the non-taxable costs.
Upon objection of certain charges by Plaintiff, it becomes Defendants’ burden to
undertake the line by line analysis to support the taxable costs.
Upon review of PBSO’s explanations, contained at pp. 3-4 of DE 204-1, the
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Court concludes that only a small portion of copying was sufficiently supported as
reasonably necessary. The Court notes that the invoice descriptions put forth by PBSO
are vague and consist almost entirely of copying for internal purposes only. Upon a
detailed review of the submission, the following invoice dates could not reasonably be
considered necessary:
November 2, 2010 – copies of documents from client and correspondence ($26.10)
January 28, 2011 – same
April 4, 2011
($69.40)
– copies of discovery responses and copies needed for conference
with client ($321.00)
May 5, 2011
–
copies for deposition notebooks and mailed correspondence
($317.80)4
June 6, 2011
–
copies of exhibits to be attached to Motions, mailed
correspondence, copies for deposition notebook, filing of Notices of
Deposition, etc. ($565.50)
July 8, 2011
–
copies of multiple summary judgment filings for notes and review,
filing of Notices of Deposition, filing of Emergency Motion (3 page
motion filed at DE 113), copies of exhibits to be attached to motion,
mailed correspondence, etc. ($738.00)5.
August 1, 2011 –
copies of mailed correspondence and begin copies trial preparation
notebooks ($256.90)
September 2, 2011 --
copies of mediation report, mailed correspondence and
copies for trial preparation notebooks inclusive of all exhibits
and depositions ($243.90)
Thus, the Court will strike $2,538.60 in copying costs, leaving a total of $168.55 in
4
The Court will tax the cost for Palm Beach State College records, invoiced
separately at $22.35, despite Plaintiff’s objection that he never received a copy of these
records.
5
The Court will tax the cost for Palm Beach County School Board records,
invoiced separately at $18.90.
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copying costs.6
III. CONCLUSION
The Court will grant Defendant City an award of $3,901.21 in taxable costs, and
Defendant PBSO an award of $3,395.85. Accordingly it is ORDERED AND
ADJUDGED as follows:
1.
Defendant City of Boynton Beach’s Verified Motion for Bill of Costs [DE 203] is
hereby GRANTED in part and DENIED in part;
2.
Defendant Ric L. Bradshaw’s Motion for Bill of Costs [DE 204] is hereby
GRANTED in part and DENIED in part;
3.
The court will separately enter a judgment for costs.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 20th day of December, 2011.
Copies furnished to:
Counsel of record on CM/ECF
6
The reasonableness of this amount is confirmed by the City’s request of only
$80.80 in copying costs.
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