Tsavaris v. Savannah Law School, LLC et al
Filing
98
ORDER granting 90 Motion for Review and Exclusion of Cost and reduces the total amount of cost taxed to Plaintiff to $1,000.00; granting 91 Motion to Continuance of Taxation of Costs Statutorily Authorized. Accordingly, the Court STAYS the taxation of costs pending the conclusion of the appeal to the United States Court of Appeals for the Eleventh Circuit. Signed by District Judge R. Stan Baker on 1/26/21. (wwp)
Case 4:18-cv-00125-RSB-CLR Document 98 Filed 01/26/21 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MAGGIE TSAVARIS,
Plaintiff,
CIVIL ACTION NO.: 4:18-cv-125
v.
SAVANNAH LAW SCHOOL, LLC, a
Georgia Limited Liability Company; JOHN
MARSHALL LAW SCHOOL, LLC, a
Delaware Limited Liability Company; JOHN
MARSHALL LAW SCHOOL, a Georgia
Corporation; JMLS 1422, LLC, a Delaware
Limited Liability Company; MICHAEL C.
MARKOVITZ; and MALCOLM MORRIS,
Defendants.
ORDER
This matter is before the Court on Plaintiff Maggie Tsavaris’ Motion for Review and
Exclusion of Costs, (doc. 90), and her Motion for Continuance of Taxation of Costs Statutorily
Authorized, (doc. 91). Plaintiff filed suit against Defendants Savannah Law School, LLC (“SLS”);
John Marshall Law School, LLC; John Marshall Law School, a Georgia Corporation; JMLS 1422,
LLC; Michael C. Markovitz; and Malcolm Morris, based on allegations surrounding the decision
to not renew her employment contract at SLS. (See doc. 14.) She asserted that all Defendants
besides Markovitz and Morris discriminated against her on account of her age, sex, and disability
in violation of the Age Discrimination in Employment Act of 1967 (ADEA), Title VII of Civil
Rights Act of 1964 (Title VII), and the Americans with Disabilities Act (ADA), respectively. (Id.
at pp. 18–27.) She also asserted state law claims of defamation, tortious interference with business
relations, and breach of contract against all Defendants. (Id. at pp. 27–33.) After the Defendants
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moved for summary judgment and all parties thoroughly briefed the issues, the Court granted
summary judgment to the Defendants on the federal claims and declined to exercise its
supplemental jurisdiction over the state law claims. (Doc. 82.) Following the Court’s grant of
summary judgment, the Defendants filed a Bill of Costs seeking to recover $10,356.09 in taxable
costs they incurred during the suit. (Doc. 88.) Plaintiff then filed her Motion for Review and
Exclusion of Costs, “object[ing] to all costs being taxed” against her. (Doc. 90, p. 2.) She also
filed a Motion for Continuance of Taxation of Costs Statutorily Authorized until the conclusion of
her appeal. (Doc. 91.) For the following reasons and in the manner delineated below, the Court
GRANTS Plaintiff’s Motion for Review and Exclusion of Costs. (Doc. 90.) The Court also
GRANTS Plaintiff’s Motion for Continuance of Taxation of Costs Statutorily Authorized. (Doc.
91.)
BACKGROUND
Plaintiff is a former law professor at SLS. (Doc. 63-2, p. 1.) On January 31, 2017, SLS’s
dean, Malcom Morris, told Plaintiff that he was not going to renew her contract for the next
academic year.
(Doc. 54-50, p. 1.)
After her termination, Plaintiff filed suit against the
Defendants, alleging violations of the ADEA, Title VII, and the ADA, as well as state law claims
of defamation, tortious interference with business relations, and breach of contract. (Doc. 14, pp.
18–33.)
During the discovery phase of litigation, Defendants paid a third-party vendor, Logikcull,
to host documents pertaining to the case on Logikcull’s data platform. (Doc. 88-2, pp. 1–12; doc.
88-1, pp. 5–6.) Defendants took the depositions of Plaintiff and Elizabeth Berenguer, (docs. 5430, 54-32), and Plaintiff deposed Morris and Markovitz, (docs. 54-34, 56-10). Three of these
individuals (Plaintiff, Morris and Markovitz) were parties to the suit; Berenguer was the SLS
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employee who had hired Plaintiff to teach at SLS, but she no longer worked there at the time of
Plaintiff’s termination. (Docs. 54-32, pp. 2, 7.) The day before Defendants planned to depose
Plaintiff, they served her attorneys with a notice that they would be having her deposition
videographically recorded. (Doc. 90-1, p. 2.) Nothing in the record indicates that Plaintiff objected
to this notice. Finally, during the discovery period, Defendants also served subpoenas on Indiana
University McKinney School of Law (“Indiana”), Florida International University College of Law
(“FIU”), and University of Miami School of Law (“Miami”) to collect information about
Plaintiff’s employment at those institutions. (See doc. 88-2, p. 14.)
After discovery concluded, Defendants filed their Motions for Summary Judgment. (Docs.
54, 55, 56.) The Court ultimately granted Defendants summary judgment on Plaintiff’s federal
law discrimination claims and then declined to exercise its supplemental jurisdiction over the
remaining state law claims. (Doc. 82.) The Court entered judgment in favor of Defendants and
against Plaintiff on the federal claims on March 17, 2020. (Doc. 83.) Defendants then filed a Bill
of Costs seeking to tax Plaintiff for several of their litigation costs. (Doc. 88.) According to their
“Memorandum of Law in Support of Defendants’ Bill of Costs[,]” Defendants seek $6,609.39 for
“Stenographic Fees,” which includes fees for transcripts of the depositions of Berenguer, Morris,
Plaintiff, and Markovitz and for “a video copy of three of those depositions.” (Doc. 88-1, pp. 3–
4.) Defendants also request $660.00 for “Service of Process Fees” which includes the costs of
serving subpoenas on FIU, Indiana, and Miami. (Id. at pp. 4–5.) Defendants next seek $3,025.00
for “document-hosting costs, which represents fees paid to third-party vendor Logikcull.” (Id. at
pp. 5–6.) Finally, Defendants assert that they spent $61.70 on fees securing documents from the
PACER system, which should be taxed to Plaintiff. 1 (Id. at p. 6.)
1
“The Public Access to Court Electronic Records system (“PACER”) is an electronic system that allows
registered users to access judicial records online from federal appellate, district, and bankruptcy courts.”
3
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Plaintiff subsequently filed her Motion for Review and Exclusion of Costs, arguing that
Defendants’ asserted costs should not or cannot be taxed against her for a variety of reasons. (Doc.
90.) Plaintiff also requests that the Court consider her financial status in its decision regarding
costs. (Id. at pp. 13–14.) She explains that she has no current income and does not have a 401(k)
or own real property, and that while she does have “modest savings” she has several monthly
expenses. (Doc. 90-2, p. 3; doc. 97-1, p. 2.) Plaintiff also filed a Motion for Continuance of
Taxation of Costs Statutorily Authorized. (Doc. 91.) In that Motion, she requests that the Court
grant a continuance on the taxation of the remaining costs that Defendants could seek against her
until the United States Court of Appeals for the Eleventh Circuit rules on her appeal of the Court’s
summary judgment order. (Id. at pp. 1–2.) Defendants filed Responses to both Motions, (docs.
94, 95), and Plaintiff filed a Reply, (doc. 97).
DISCUSSION
Defendants seek to recover $10,356.09 in alleged taxable costs they incurred during the
suit. (Doc. 88.) Under Federal Rule of Civil Procedure 54(d)(1), a court may award costs to the
prevailing party 2 in an action. Fed. R. Civ. P. 54(d)(1). In addition, 28 U.S.C. § 1920 “enumerates
expenses that a federal court may tax as a cost under the discretionary authority found in Rule
54(d).” Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441–42 (1987). “When
challenging whether costs are properly taxable, the burden lies with the losing party, unless the
Theodore D’Apuzzo, P.A. v. United States, No. 16-62769-CIV-Scola, 2018 WL 2688760, at *1 (S.D. Fla.
Apr. 13, 2018).
2
The Court granted Defendants summary judgment as to Plaintiff’s federal claims and then declined to
exercise its supplemental jurisdiction over the remaining state law claims. (Doc. 82.) This is sufficient for
Defendants to be considered prevailing parties in this action. See Head v. Medford, 62 F.3d 351, 355 (11th
Cir. 1995) (“That the district court declined to exercise its supplemental jurisdiction under 28 U.S.C. § 1367
and dismissed all of plaintiff’s remaining state law claims, does not impair the fact that, as far as the federal
case was concerned, defendants prevailed.”).
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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). Plaintiff argues that several of the costs that Defendants seek to tax
against her are not authorized by the statute, (doc. 90, pp. 3–13), and, as to those costs that are
statutorily authorized, she asserts that the Court should not tax those costs against due to her
financial status, (id. at pp. 13–14). She also argues that the Court should issue a continuance as
to the statutorily authorized costs until the resolution of her appeal. (Id. at p. 13; doc. 91.) The
Court will address these arguments in turn.
I.
Statutorily Authorized Costs
Plaintiff argues that 28 U.S.C. § 1920 does not permit taxation of several of the costs that
Defendants seek to collect from her. (Doc. 90, pp. 3–13.) Specifically, she claims that neither the
statute nor any caselaw permits her to be taxed for Defendants’ document hosting expenses, (id.
at pp. 3–7); that Defendants cannot make the showing necessary to require her to pay for
Defendants’ costs associated with any of the videotaped depositions or with the stenographicallyrecorded deposition of Elizabeth Berenguer, (id. at pp. 7–10, 12–13); and that the statute does not
authorize taxing her for Defendants’ PACER fees or for their expenses spent on serving
summonses and subpoenas, (id. at p. 10–11).
A.
Document Hosting Costs
In their Memorandum in support, Defendants “request $3,025[.00] in document-hosting
costs, which represents fees paid to third-party vendor Logikcull.” (Doc. 88-1, p. 5.) Plaintiff
asserts that costs for hosting electronic documents do not fall within the parameters of 28 U.S.C.
§ 1920. (Doc. 90, pp. 3–7.) While a prevailing party may be awarded fees “for exemplification
and the costs of making copies of any materials where the copies are necessarily obtained for use
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in the case,” 28 U.S.C. § 1920(4), the Court is not aware of any case where the Eleventh Circuit
has expressly addressed whether electronic document hosting costs can be taxed against a losing
party. However, several district courts within this Circuit have determined that these costs cannot
be taxed. See, e.g., Nail v. Shipp, No. 17-cv-00195-KD-B, 2020 WL 1670459, at *12 (S.D. Ala.
April 3, 2020) (“Indeed, creating an electronic database/compilation or enhanced digital files ‘goes
well beyond the statutory intent’ for taxable digital copies.”) (quoting Finnerty v. Stiefel Labs.,
Inc., 900 F. Supp. 2d 1317, 1321–22 (S.D. Fla. 2012)); Abbott Point of Care, Inc. v. Epocal, Inc.,
No. CV-08-S-543-NE, 2012 WL 7810970, at *3 (N.D. Ala. Nov. 5, 2012) (“[A]lmost all district
courts considering the issue, including district courts within the Eleventh Circuit, have held that
the costs of creating and maintaining an electronic discovery database are not recoverable under §
1920 . . . .”). Defendants argue this case is distinguishable from the cases where taxation was
denied because, here, one of the reasons they hosted information on Logikcull was so that they
could perform specific Boolean searches that Plaintiff had requested. (Doc. 88-1, p. 5.) However,
Defendants fail to cite any cases from within this circuit indicating that this difference would or
should bring their costs within the statutory confines of 28 U.S.C. § 1920. 3 The Court’s own
3
Defendants cite one case from the Central District of California where a district court granted the
defendant’s request for “costs she incurred by retaining LogikCull [sic] online document management
services.” Baker v. Baker, No. 16-cv-08931 VAP (JPRx), 2018 WL 6190597, at *16 (C.D. Cal. Aug. 31,
2018). That case is distinguishable, however, as the defendant’s request for costs was made pursuant to 17
U.S.C. § 505, not 28 U.S.C. §1920, as here. Id. The distinction is important because 17 U.S.C. § 505,
which applies only in copyright infringement cases, states that a court may, in its discretion, allow “the
recovery of full costs.” 17 U.S.C. § 505. Critically, in Baker, the district court relied explicitly on the
United States Court of Appeals for the Ninth Circuit’s then-current interpretation of that statute as
permitting costs beyond those listed in 28 U.S.C. § 1920. Id. (citing, inter alia, Oracle USA, Inc. v. Rimini
St., Inc., 879 F.3d 948, 965–66 (9th Cir. 2018) (“[B]ecause 17 U.S.C. § 505 permits the award of full costs,
the award of costs under § 505 is not limited to the categories of costs described in 28 U.S.C. § 1920.”)).
Notably, shortly after the Baker order was entered, the United States Supreme Court rejected the Ninth
Circuit’s interpretation of 17 U.S.C. § 505 and reversed the circuit court’s decision in Oracle USA, holding
instead that 17 U.S.C § 505 does not authorize awards of costs beyond the six categories enumerated in 28
U.S.C. § 1920. See Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). Thus, even assuming
the Baker case was somehow be applicable to the case at hand, that court’s basis for awarding the Logikcull
costs is no longer sound.
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review of the caselaw supports the opposite conclusion. See, e.g., Akanthos Capital Mgmt., LLC
v. CompuCredit Holdings Corp., 2 F. Supp. 3d 1306, 1318 (N.D. Ga. 2014) (“But the cost of
creating a dynamic, indexed and searchable database is nothing more than an efficient, convenient,
modern-day version of paper document review. It cannot be taxed.”). While this Court is not
bound by another district courts’ decisions, the Court finds the Akanthos Capital Management
court’s reasoning to be persuasive, especially in light of Defendants’ failure to cite authority
supporting their proposed interpretation of 28 U.S.C. § 1920. Accordingly, Defendants cannot tax
Plaintiff for the fees they spent hosting documents on Logikcull.
While Defendants cannot recover fees for hosting information on an electronic database,
they can recover for the creation of digital copies of documents. See, e.g., Finnerty, 900 F. Supp.
2d at 1322 (“A prevailing party may tax the costs of making digital copies, but ‘Section 1920(4)
does not state that all steps that lead up to the production of copies of materials are taxable.’”)
(quoting Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 169 (3d Cir. 2012)).
The Logikcull invoice, a copy of which was attached to Defendants’ Bill of Costs, shows a charge
of $120.57 for “Upload Processing,” which—pursuant to the ordinary meaning of the term
“upload” in this context—involved the conversion of documents into a specific electronic format
so that they could be housed in Logikcull’s database. (Doc. 88-2, p. 1.) This cost is taxable. See
Akanthos Capital Mgmt., LLC, 2 F. Supp. 3d at 1318 (“The cost of converting ESI from a native
format to TIFF may be taxable as a modern analogue to photocopying paper documents. Other
tasks, such as digitizing paper documents, may also be taxable.”) (citations omitted). However,
the remainder of the expenses on the Logikcull invoices are only for “Project Hosting.” (Doc. 882, pp. 1–12.) Defendants have not provided the Court with a basis for taxing these costs; for
instance, they have not explained whether or how these fees are connected to making copies, much
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less have they described why—to the extent they could be deemed copying or related to copying—
they were necessary during the litigation. See, e.g., Monelus v. Tocodrian, Inc., 609 F. Supp. 2d
1328, 1335 (S.D. Fla. 2009) (“[G]eneral copying costs without further description are not
recoverable.”) (citing Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996)); Lee v. Am.
Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1335 (S.D. Fla. 2000) (“Plaintiff still bears the burden
of submitting a request for expenses that would enable the Court to determine what expenses were
incurred and whether Plaintiff is entitled to them.”). For all these reasons, the Court GRANTS
Plaintiff’s Motion for Exclusion of Costs as to Defendants’ expenses for hosting documents on
Logikcull. (Doc. 90.) However, the Defendants can recover $120.57 for “upload processing.”
B.
Deposition Costs
According to their Memorandum, Defendants seek “an award of $6,609.39 for the cost of
obtaining one copy of the stenographic deposition[s] of four witnesses in this case and a video
copy of three of those depositions.” (Doc. 88-1, p. 3.) They identify the four witnesses as Plaintiff,
Elizabeth Berenguer, Malcolm Morris, and Michael Markovitz, and they provide a chart showing
the amount they claim as the “stenographic fee[]” for each individual’s deposition. (Id. at p. 4.)
They do not, however, provide a similar chart for the three video-tape fees for which they seek
reimbursement. (See id.) In fact, they do not even state exactly whose depositions—other than
Plaintiff’s—they purchased video recordings of. The best the Court can do is deduce from a
statement in Defendants’ Response brief—that Defendants noticed Berenguer’s deposition “only
. . . as a stenographic deposition,” (doc. 95, p. 5)—that, to the contrary, Morris and Markovitz’s
depositions were not “only . . . stenographic deposition[s]” but were also video recorded and that
Defendants are seeking reimbursement for video tapes of their depositions (in addition to
Plaintiff’s deposition).
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Further frustrating matters, however, is Defendants’ failure to clearly state or show the
amount they were charged for two of the three video recordings. They provide copies of invoices
sent to them from court reporting services related to the depositions of Plaintiff, Morris, and
Markovitz. (See doc. 88-2.) (There is no invoice related to the deposition of Berenguer.) While
the invoice for Plaintiff’s deposition is itemized to show a specific amount of fees related to
videotaping, the invoices for Morris and Markovitz’s depositions do not even indicate that those
depositions were video recorded, nor do they indicate that Defendants had requested and were
charged for a video copy; and, even assuming each invoiced amount included a charge for a video
copy, the Court has no way of knowing which portion of the amount billed was for the stenographic
transcript and which portion was for the video tape. (See doc. 88-2, pp. 15–16.))
Finally (and most confusing of all), when the Court adds up the costs Defendants claim (in
the chart they provided) they incurred for stenographic fees for each witness, (doc. 88-1, p. 4), the
total is an exact match to the total amount that Defendants repeatedly claim to seek “for the cost
of obtaining one copy of the steno-graphic deposition of four witnesses in this case and a video
copy of three of those depositions,” which is $6,609.39. (Id. at pp. 3–4 (emphasis added); see also
doc. 95, p. 4.) Notably, the amount of stenographic fees that Defendants claim (in their Bill of
Costs memorandum) that they incurred for Plaintiff’s deposition is the same as the total amount
they were billed in relation to her deposition, which includes not only a charge for the original and
a copy of the transcript (which was only $1,273.50) but also fees for “video services” and other
miscellaneous items (which account for $1,612.65 of the total invoiced amount). (Compare doc.
88-1, p. 4 with doc. 88-2, p. 13.) Thus, it is entirely unclear to the Court whether the Defendants’
chart was inadvertently mislabeled as a list of “stenographic fees” when it actually includes both
the stenographic fees and the videotape fees for which Defendants seek reimbursement, or
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whether, instead, there are additional amounts (beyond the $6,609.39) that Defendants seek to
recover for fees for video recordings. Nonetheless, the Court proceeds with analyzing which, if
any, of these fees should be taxed to Plaintiff.
In her Motion, Plaintiff argues that she should not be taxed for any video copies of
depositions or for the stenographic copy of Elizabeth Berenguer’s deposition. (Doc. 90, pp. 7–10,
12–13.) She apparently does not object to the taxation of costs for the stenographic transcripts of
her own deposition or of the depositions of Morris and Markovitz. The Court analyzes each type
of recording in turn.
(1)
Video Recordings of Depositions
Under Eleventh Circuit precedent, a prevailing party must meet two requirements in order
to tax the costs of video recordings of depositions. Morrison v. Reichhold Chems., Inc., 97 F.3d
460, 465 (11th Cir. 1996). First, a party must have provided notice that the deposition would be
recorded by nonstenographic means (or by both stenographic and nonstenographic means), and
there must not have been any objection raised at that time by the other party to that method of
recordation. Id. Second, the party seeking the taxation of fees must offer an “explanation of why
it was necessary to obtain a copy of the video tapes for use in the case.” Id.; see also Stalvey v.
United States, No. 5:18-cv-00019, 2020 WL 4207118, at *4 (S.D. Ga. July 22, 2020) (“Morrison
is somewhat outdated because 28 U.S.C. § 1920 was subsequently amended to include costs for
‘electronically recorded transcripts;’ however, the reasoning underlying Morrison still applies
today.”).
As to the first requirement, the evidence here shows that, the day before Plaintiff’s own
deposition was to occur, Defendants notified her, in accordance with Federal Rule of Civil
Procedure Rule 30(b)(3)(B), that “videographic recording [would be] an additional method of
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recording [her] previously noticed deposition.” (Doc. 90-1, p. 2.) Plaintiff does not dispute that
she received this notice, but she argues that the notice was not provided well enough in advance
of the deposition. (Doc. 90, pp. 7–8.) The Eleventh Circuit has not proscribed a specific amount
of time within which such notice must be given in order to foreclose a later award of costs, and
Plaintiff has not shown why she needed more time to lodge objections to the video-recording of
her deposition. Thus, the evidence indicates that Defendants provided sufficient notice and that
Plaintiff did not object, in satisfaction of the first requirement.
As to the second requirement, Defendants argue that video-recording Plaintiff’s deposition
was necessary because they “were prepared to use portions of her videotaped deposition to
impeach her at trial.” (Doc. 88-1, p. 4.) Defendants do not, however, explain why it would be
necessary for them to have video footage—in addition to a stenographic transcript—of Plaintiff’s
deposition in order to impeach her at trial. While they cite Katz v. Chevaldina, a decision from
another district court, for the proposition that impeachment can be a reason for needing a video
copy of a deposition, (doc. 95 (citing Katz v. Chevaldina, 127 F. Supp. 3d 1285, 1294–95 (S.D.
Fla. 2015))), the facts in that case are easily distinguishable from the facts at hand. In that case,
the prevailing defendant sought to tax the plaintiff for the costs of the video-recording of the
plaintiff’s deposition. Katz, 127 F. Supp. 3d at 1294. She claimed that “the video could have been
useful for impeachment . . . since [p]laintiff’s credibility was always at issue in this matter.” Id.
Notably, however, the plaintiff in Katz had previously been convicted of perjury. Id. The
defendant also said a videotaped deposition was necessary because there was “no guarantee that
[p]laintiff would have testified at trial.” Id. With little analysis, the district court found that this
was enough to show that the videotaped deposition was necessary. Id. at 1294–95.
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Unlike the plaintiff in Katz, there is no evidence in this case that Plaintiff has ever been
convicted of perjury, so the concerns about her credibility at trial are not nearly as strong as they
were in Katz. In addition, Defendants have not provided any evidence (much less a reason) that
they believed Plaintiff might not testify in the event of a trial, which again distinguishes the facts
from Katz. As the Katz court itself acknowledged, the determination of whether a deposition is
necessary should be made on a “case-by-case basis.” Id. at 1292. Here, Defendants have failed to
show on the facts of this case why the possible need to impeach Plaintiff made it necessary for
them to have a video copy of her deposition. For these reasons, the Court declines to tax Plaintiff
with the cost Defendants incurred to obtain of a copy of Plaintiff’s video-taped deposition. As a
result, the only cost related to Plaintiff’s deposition that is taxable to Plaintiff is the $1,273.50
charge reflected on the invoice for the “original and one copy of the deposition,” (doc. 88-2, p.
13). See Am. Cas. Co. of Reading, Penn. v. Health Care Indem., Inc., No. 8:07-cv-0421-T-33EAJ,
2009 WL 1456429, *2 (M.D. Fla. May 22, 2009) (applying § 1920(2) and denying reimbursement
for mini-transcripts, ASCII disks, and postage and delivery charges of the court reporter); Suarez
v. Tremont Towing, Inc., No. 07-21430-CIV, 2008 WL 2955123, *3 (S.D. Fla. Aug. 1, 2008)
(court did not allow reimbursement for charges for exhibits, finding such were not taxable costs).
Plaintiff also challenges the taxation of costs for copies of the video recording of two other
depositions, which the Court believes to be those of Morris and Markovitz. (Doc. 90, pp. 7–10.)
As described above, Defendants have not provided evidence showing exactly how much they paid
for the video recordings of Morris and Markovitz’s depositions. This failure alone prevents
Defendants from recovering these costs. See DeBose v. USF Bd. of Tr., 811 F. App’x 547, 557
(11th Cir. 2020) (per curiam) (“We have held, however, that the party seeking costs and expenses
must submit a request that would enable the district court to determine an award.”) (citing Loranger
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v. Stierheim, 10 F.3d 776, 784 (11th Cir. 1994)). In her Motion, Plaintiff provides an additional
reason, asserting that “Defendants have offered no reason to demonstrate that the video tapes . . .
of any [of the other] depositions were necessary, as required by this Eleventh Circuit precedent.”
(Doc. 90, p. 9 (emphasis original).) In their Response Brief, Defendants do not offer any argument
as to why video copies of these two depositions were necessary. (See doc. 95, p. 5.) Thus, the
Court finds that Defendant cannot recover the costs for video copies of the remaining two
depositions. However, as Plaintiff has not moved to exclude the costs for the stenographic
transcripts of Morris and Markovitz’s depositions, Defendants may recover an unknown figure of
no more $1,339.09 for Morris’s stenographic deposition transcript and an unknown figure of no
more than $480.15 for Markovitz’s stenographic deposition transcript. 4
(2)
Transcript of Berenguer’s Deposition
Plaintiff also moves to exclude the cost Defendants incurred for a stenographic transcript
of Elizabeth Berenguer’s deposition, which was noticed by Defendants. (Doc. 90, pp. 12–13.)
“The question of whether the costs for a deposition are taxable depends on the factual question of
whether the deposition was wholly or partially necessarily obtained for use in the case.” E.E.O.C.
v. W&O, Inc., 213 F.3d 600, 620–21 (11th Cir. 2000) (internal citations and quotations omitted).
“The district court has discretion in determining whether or not a deposition was necessarily
4
Because the invoices for Morris and Markovitz’s depositions are not itemized, the Court cannot determine
if some part of the costs listed on those invoices includes fees for video copies. Without this information,
the Court is unable to conclude the amount being charged for the stenographic copies of each deposition.
Normally, the Court would require Defendants to resubmit their Bill of Costs, so the Court could make this
determination. See, e.g., Epling v. U.S., 958 F. Supp. 312, 317–318 (W.D. Ky. 1997) (“[Plaintiffs] are
granted leave to revise their petition in accordance with 28 U.S.C. § 1920 and to resubmit their amended
motion for the consideration of the Court.”). However, as described below, the Court, in its discretion, is
reducing the costs taxed against Plaintiff to $1,000.00 because of her financial status. (See Discussion
Section II, infra.) Because the Court is reducing the costs to $1,000.00, the exact cost of Morris and
Markovitz’s stenographic depositions is immaterial, so Defendants are not required to resubmit their Bill
of Costs.
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obtained within the meaning of the statute, and the court’s determination depends upon a factual
evaluation of the case by the district judge in terms of the case’s progress in his court.” Jeffries v.
Ga. Residential Fin. Auth., 90 F.R.D. 62, 63 (N.D. Ga. 1981); see also Ass’n for Disabled Ams.,
Inc., 385 F. Supp. 2d at 1289 (“District courts have great latitude in determining whether a
deposition was ‘necessarily obtained’ for use in the case.”) (quoting Newman v. A. E. Staley Mfg.
Co., 648 F.2d 330, 337 (5th Cir. 1981)).
Defendants state that they relied on Berenguer’s deposition “in their successful motions for
summary judgment, and numerous excerpts of [that] transcript[] were attached as [an] exhibit[] to
Defendants’ summary judgment papers.” (Doc. 88-1, p. 4.) As an initial matter, John Marshall
Law School, a Georgia Corporation, and JMLS 1422 did not use Berenguer’s transcript in their
Motion for Summary Judgment. (See doc. 56.) The remaining Defendants cited Berenguer’s
deposition in their Motions for Summary Judgment to explain her role in hiring Plaintiff, that she
reviewed Plaintiff’s teaching performance, and as evidence that Plaintiff made statements which
called into question Plaintiff’s professionalism. (Doc. 54, pp. 4–6; doc. 55, pp. 4–6.) However,
Berenguer’s interactions with Plaintiff took place in 2014 or before, and the facts undisputedly
show that Berenguer had left SLS by the time of Plaintiff’s 2017 termination and, as such, played
no role in her termination. (Docs. 54-32, pp. 2, 7, 29.) Nothing in the record indicates that
Morris―the decisionmaker in Plaintiff’s termination―consulted with Berenguer or relied on her
judgment at all when making his decision. Further, as Morris is one of the Defendants in this case,
he would have been in a position to inform his attorney that Berenguer had not played a role in
Plaintiff’s termination before they noticed and took her deposition. Berenguer’s deposition’s
irrelevance is further highlighted by the fact that the Court did not rely on its contents in its
summary judgment order. See, e.g., Johnston v. Borders, No. 6:15-cv-936-Orl-40DCI, 2017 WL
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1968352, at *5 (M.D. Fla. Apr. 24, 2017) (declining to tax costs of deposition when it did not
“appear that [the witness’s] deposition transcript was utilized in [d]efendants’ successful motion
for summary judgment”). It is true that a deposition’s use at summary judgment is not necessary
for it to be taxable. See Watson v. Lake Cty., 492 F. App’x 991, 996 (11th Cir. 2012) (per curiam)
(“Although use of a deposition at trial or in a summary judgment motion tends to show that the
deposition was necessarily obtained for use in a case, such a showing is not necessary to be
taxable.”). However, here, Defendants have offered no other reason for why it was necessary to
depose Berenguer, and thus the record only supports that “the deposition costs were merely
incurred for convenience, to aid in a more thorough preparation of the case, or for purpose of
investigation only, [and, as such,] are not recoverable.” DiCecco v. Dillard House, Inc., 149 F.R.D.
239, 214 (N.D. Ga. 1993). Accordingly, the Court finds that the Defendants cannot tax any costs
they incurred for Berenguer’s deposition to Plaintiff.
In sum, the Court GRANTS Plaintiff’s Motion as to the costs for the copies of video
recordings of any of the depositions and as to the cost of the stenographic copy of Berenguer’s
deposition. (Doc. 90.)
C.
Service of Process Costs and PACER Costs
Defendants also seek $660.00 for the costs of serving subpoenas on FIU, Indiana, and
Miami and $61.70 in PACER fees. (Doc. 88-1, pp. 4–6.) Plaintiff argues the service costs exceed
those allowed by statute and that the statute does not authorize taxing PACER costs at all. (Doc.
90, pp. 10–11.)
With regard to costs for service, the Eleventh Circuit has held that “private process server
fees may be taxed pursuant to §§ 1920(1) and 1921.” W&O, Inc., 213 F.3d at 624. However,
these fees cannot “exceed the statutory fees authorized” for having the United States Marshals
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Service effectuate service. Id. The U.S. Marshals Service’s rate to serve process is $65 per hour
for each item served, plus travel costs and other out-of-pocket expenses. 28 C.F.R. § 0.114(a)(3).
Defendants’ evidence attached to its Bill of Costs does not provide information as to the time
expended by the private process servers to effect service nor does it say anything about travel costs
or out-of-pocket expenses. (See doc. 88-2, p. 14.) Accordingly, the Defendants may only tax the
statutory minimum―$65―for each of the three subpoenas. See, e.g., James v. Wash Depot
Holdings, Inc., 242 F.R.D. 645, 649 (S.D. Fla. 2007) (awarding only the statutory minimum where
“[t]he documentation submitted . . . [did] not provide any information as to the time expended to
effectuate service by the private process servers or as to travel costs or other out-of-pocket
expenses incurred”). Therefore, Defendants may tax a total of $195.00 against Plaintiff for service
of process expenses. The Court GRANTS Plaintiff’s Motion as to the remainder of the costs
Defendants seek for service of process. (Doc. 90.)
Finally, the Eleventh Circuit appears to have not yet considered whether PACER fees may
be taxed under 28 U.S.C. § 1920. However, several district courts from within this Circuit have
held that these fees cannot be taxed. See, e.g., Crossfit, Inc. v. Quinnie, 232 F. Supp. 3d 1295,
1313 (N.D. Ga. 2017) (“PACER fees are also non-recoverable.”); Nail, 2020 WL 1670459, at *13
(“Pacer [sic] charges are usually not recoverable since parties to cases can view the documents in
their cases without incurring a charge.”); MB Reo-FL Church-2, LLC v. Tampa for Christ Church,
Inc., No. 8:16-cv-276-T-33AEP, 2018 WL 3008896, at *3 (M.D. Fla. June 15, 2018) (PACER fees
are “outside the scope of § 1920”). In their Response Brief, Defendants point to no caselaw to
support the taxation of their PACER fees against Plaintiff and, while they maintain that the fees
should, given their nature, be recoverable, they state that, “[g]iven the low amount of such fees in
this case, [they] do not object to Plaintiff’s request to withdraw the $61.70 in question from the
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Bill of Costs.” (Doc. 95, p. 7.) For these reasons, the Court GRANTS Plaintiff’s Motion as to
Defendants’ PACER fees. (Doc. 90.)
II.
Plaintiff’s Inability to Pay the Non-Excluded Costs
The Court calculates that Defendants are statutorily authorized to tax Plaintiff up to (but
no more than) $3,408.31, which is comprised of the following: $1,273.50 for Plaintiff’s
stenographic deposition transcript, (doc. 88-2, p. 13); an unknown figure of no more than
$1,339.09 for Morris’s stenographic deposition transcript, (id. at p. 16); an unknown figure of no
more than $480.15 for Markovitz’s stenographic deposition transcript, (id. at p. 15); $195.00 for
service of process expenses, (see Discussion Section I.C, supra); and $120.57 for uploading files
onto Logikcull, (see Discussion Section I.A, supra). Plaintiff asks the Court to “consider [her]
financial status in deciding upon costs.” (Doc. 90, pp. 13–14.) In Response, Defendants argue
that Plaintiff’s financial status “does not excuse the operation of 28 U.S.C.§ 1920.” (Doc. 95, p.
2.)
“[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 Transport, 229 F.3d
1012, 1039 (11th Cir. 2000). If the district court does decide to consider the non-prevailing party’s
financial status, then that party must provide “substantial documentation of a true inability to pay.”
Id. Here, Plaintiff provides evidence that she has no present income even though she continues to
search and apply for jobs. (Doc. 90-2, pp. 2–3.) She has “modest savings” but must make monthly
payments for “health insurance, rent, utilities, car payments and insurance, food,” and loans, as
well as her son’s college tuition. (Id. at p. 3.) She does not have a 401(k) and she does not own
title to any real property. (Doc. 97-1, p. 2.) It is true that a court, in setting the amount of costs to
be awarded, should consider the non-prevailing party’s financial situation only in “rare
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circumstances.” Chapman, 229 F.3d at 1039. However, Plaintiff has provided enough evidence
to show that she is unable to pay the full amount that Defendants seek to recover from her. See,
e.g., Mitchell v. Evergreen Transp., LLC, No. 2:12-cv-2461-AKK, 2014 WL 12607792, at *1
(N.D. Ala. June 11, 2014) (court reduced costs because the non-prevailing party was unemployed,
had to make several monthly payments, and did not own real property, stock, or bonds).
While a court may reduce the costs that a non-prevailing must pay pursuant to 28 U.S.C.§
1920, it “may not decline to award any costs at all.” Chapman, 229 F.3d at 1039. The Eleventh
Circuit has provided little guidance for district courts that engage in this cost reduction task besides
reminding courts that the cost-shifting provision serves the purpose of deterring non-meritorious
claims and that “no fee will provide no deterrence.” Id. (quoting Durrett v. Jenkins Brickyard,
Inc., 678 F.2d 911, 917 (11th Cir. 1982)). Defendants argue that Plaintiff has previous experience
with the federal legal system and as such she “knew the full risks of litigation before filing this
action.” (Doc. 95, p. 4.) However, Plaintiff is represented by experienced lawyers who, after
investigating her claim, found a good-faith basis for filing suit. The Court also notes that while
Plaintiff was unsuccessful on her federal claims, the Court declined to exercise supplemental
jurisdiction over her state law claims and expressed no view on their merits. (See doc. 82, pp. 33–
34.) In addition, while the Court recognizes the importance of deterring frivolous litigation, it
“also is cognizant of the other side of the loser pays coin; requiring the loser to pay full costs in
every circumstance can close access to the courthouse for those with limited means who cannot
afford to lose due to a substantial cost award.” Bryant v. Garren, No. 4:18-cv-106 (CDL), 2020
WL 5803460, at *4 (M.D. Ga. Sept. 29, 2020).
Taking into consideration the foregoing, the Court finds that taxing Plaintiff $1,000.00 is
appropriate given the totality of the circumstances including Plaintiff’s financial situation. The
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Court is aware that Plaintiff does have some “modest savings” and taxing her $1,000.00 is in line
with reductions made by other district courts in similar situations. See, e.g., id. at *4 (court reduced
costs from $11,121.45 to $1,112.14); Mitchell, 2014 WL 12607792, at *2 (court reduced costs
from $1,705.15 to $852.58); Daughtry v. Army Fleet Support, LLC, No. 1:11-cv-153–MHT, 2014
WL 466109, at *4 (court reduced costs from $13,874.99 to $3,000 which was split between 3
indigent defendants). Accordingly, the Court GRANTS Plaintiff’s Motion to the extent that it
reduces costs from up to $3,408.31 to $1,000.00.
III.
Continuance Pending Resolution of Appeal
Plaintiff also moves the Court to exercise its discretion to grant a continuance on the
taxation of costs pending the resolution of her appeal with the Eleventh Circuit. (Doc. 91.)
Defendants argue that Plaintiff has not made a sufficient showing to justify a continuance. (Doc.
94.) In support, Defendants cite Mann v. Washington Metropolitan Area Transit Authority. (Id.
at p. 2 (citing Mann v. Wash. Metro. Area Transit Auth., 185 F. Supp. 3d 189, 194 (D.D.C. 2016)).)
In Mann, the district court, faced with determining whether to stay the taxation of costs pending
an appeal, applied a four-factor test taken from the Supreme Court’s decision in Nken v. Holder.
See Mann, 185 F. Supp. 3d at 194 (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). Nken was
not a taxation of costs case but instead concerned the standard for granting a stay in an immigration
appeal. Nken, 556 U.S. at 423–24. Nonetheless, the district court used the four-factor test from
Nken and ultimately did not grant the stay. Mann, 185 F. Supp. 3d at 196.
After reviewing the caselaw, the Court is unaware of any case where the Eleventh Circuit
applied the Nken four-factor test to a party’s request for a continuance of the taxation of costs.
However, several district courts in this Circuit have, in their discretion, delayed awarding costs
until the resolution of an appeal without requiring the party seeking the continuance to meet the
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requirements of the Nken test. See, e.g., Estate of Pidcock ex rel. Pidcock v. Sunnyland Am., Inc.,
726 F. Supp. 1322, 1341 (S.D. Ga. 1989) (“In its discretion, however, the Court may postpone the
awarding of costs until the resolution of the post-trial motions or even the resolution of any
appeal.”); Teagan v. City of McDonough, No. 1:15-cv-00607-ELR, 2018 WL 10455935, at *1
(N.D. Ga. May 9, 2018) (“Rather than resolving the issue of costs during the pendency of the
appeal, the Court determines that the ends of justice would be better served by denying the Bill of
Costs without prejudice and with leave to re-file after the conclusion of the appeal.”); U.S. ex rel.
Lewis v. Walker, No. 3:06-CV-16 (CDL), 2010 WL 5169085, at *1 (M.D. Ga. Dec. 13, 2010)
(“[T]he Court has discretion to postpone the taxation of costs pending the resolution of an
appeal.”). The Court finds that a continuance of the taxation of costs is appropriate pending the
outcome of Plaintiff’s appeal with the Eleventh Circuit. Therefore, the Court GRANTS Plaintiff’s
Motion for Continuance of Taxation of Costs Statutorily Authorized. (Doc. 91.)
CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff Maggie Tsavaris’ Motion for
Review and Exclusion of Costs and REDUCES the total amount of costs taxed to Plaintiff to
$1,000.00. (Doc. 90.) The Court also GRANTS Plaintiff’s Motion for Continuance of Taxation
of Costs Statutorily Authorized. (Doc. 91.) Accordingly, the Court STAYS the taxation of costs
pending the conclusion of the appeal to the United States Court of Appeals for the Eleventh Circuit.
SO ORDERED, this 26th day of January, 2021.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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