Smallwood v. Davis

Filing 128

ORDER re: 120 Bill of Costs. Defendants' Bill of Costs will be TAXED in part to Plaintiff. The final amount to be taxed will be determined following Plaintiff's election as to whether to properly document his stated indigence within 7 days of today's Order. Signed by Judge Lisa G. Wood on 6/29/2017. (csr)

3fn tl^e ?Htttteb
IBisitnct Conrt
for tfie ^otttfient Biotnct of 4S>eorsia
li^opcrooo Sitfitoiott
JOHN SMALLWOOD,

Plaintiff,
No.

V.

5:14-CV-87

T&A FARMS, TIMOTHY DALE DAVIS,
ALPHINE DAVIS, and STAGEY
DINWIDDIE,
Defendants.

ORDER

Defendants'

Bill of Costs,

dkt.

no.

120,

will be TAXED in

part to Plaintiff for the reasons below.
Background

Represented
race

by

counsel.

discrimination

on

October

Defendants prevailed at a
26,

2017.

Dkt.

on May 10, 2017.

No.

117.

28,

jury trial

sued

Defendants

2014.

that

Dkt.

No.

for
1.

concluded on April

Defendants filed their bill of costs

Dkt. No.

ripe for disposition.

Plaintiff

120.

The bill is fully briefed and

Dkt. Nos. 123-27.
Legal Standard

Costs
allowed
A0 72A

(Rev. 8/82)

to

that
a

are

statutorily authorized are

prevailing

party.

Fed.

R.

Civ.

presumptively
P.

54(d)(1);

Grady v. Bunzl Packaging Supply Co.^ 161 F.R.D. 477, 478

Ga. 1995)
83

(N.D.

(citing W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.

(1991) ) .

"The

non-prevailing party bears

the burden of

demonstrating that a challenged cost is not taxable."
States

V.

8677972,

Aegis

at *2

Therapies,

(S.D.

Ga.

Inc.,

Dec.

No.

11,

2015).

has discretion not to award costs.

F.Sd

1012,

1038

(11th

Cir.

Medford,

"To

62

defeat

F.3d 351,

the

354-55

presumption

2015

(en

Id.

at

banc).
1039

deny

that

a

Id.;

see

also Anq v.

836,

838

(11th Cir.

.

.

district

court may,

a

district

Coastal

2011)

Sec.,

(per curiam).

consider
Inc.,

factor

.

417

.
F.

.

."

App'x

"If a district court

. chooses to consider the non-prevailing party's financial

status,

it should require substantial documentation of a

inability

to

pay."

district

court

parties.

Id.

Id.

should
'Even

non-prevailing party's
.,
Id.

Int'l

Id.

status is a

but need not,

that

(per curiam)).

costs,

non-prevailing party's financial

229

(citing Head v.

1995)

full

But

court must have and state a sound basis for doing so."

"[A]

WL

The district court

(11th Cir.

and

210-72,

Chapman v. AI Transp.,

2000)

discretion "is not unfettered."

CV

United

a

court may

"Moreover,

not

consider

in

those

financial

not

decline

the

rare

when

awarding

relative

to

any

a

of

the

where

circumstances

award

costs

wealth

circumstances are

true

the

considered

costs

at

all."

DISCUSSION

Some of the costs sought by Defendants will be taxed.
I.

SERVICE COSTS ARE TAXED.

Plaintiff

summons

of

contends

subpoena"

Defendants
summons

first

actually

and

that

^'fees

cannot be taxed.
sought

subpoena."

to

Dkt.

tax

of

Dkt.

^'[f]ees

No.

120

at

services

No.

123 at

3.

service

for
1.

of

of

Such

a

cost

category appears on this Court's standard bill of costs,
id.,

see

and it is statutorily authorized even though Defendants

used a private process-server.
F.3d 600,
II.

623-24

DEFENDANTS'

{11th Cir.

U.S.

EEQC v.

W&O,

Inc.,

213

2000).

TRANSCRIPT

TAX

IS

REDUCED

DUE

TO

AN

UN-

ITEMIZED RECEIPT.

The

transcription

reduced.
states

cost

requested by

must

be

The invoice they provided is not itemized—it simply

that

$1613.80

is

due

three different depositions.
not

Defendants

preclude

an

award

of

for

the

Dkt.

costs

original

No.

when

and

120 at 6.
counsel

a

copy of

This ^'does

declares

under

penalty of perjury that the costs are correct and necessarily
incurred."

No.

10-2125,

Frischhertz

2009 WL 2382960,

counsel made

SmithKline

2013 WL 3894021,

see also Hassinqer v.

2931,

v.

such a

at *4

(E.D.

JP Morgan Chase

at *1

(E.D.

declaration.

Beechan

La.

Dkt.

La.

& Co.,

Corp.,

July 26,
Civ.

July 27,
No.

A.

2009).

120 at 1.

Civ.

A.

2013);
No.

06-

Here,

But,

as

Plaintiff points out,

impermissible

costs

like

No.

Am.

No.

123 at

2016 WL 3523873,

appeal filed,

Guarantee

at

4.

2010

Ins.

WL

Co.

v.

1935998,

flat-rate

States

Postal

U.S.

at

shipping

Service

for

[and]

shipping

objection is

Solvay S.A., Civ. A.

(S.D.

Tex.

(5th Cir. Aug.

June 28,
1,

2016);

Fidelity & Guar.

*12

To find the proper reduction,

United

]

This

*4-5

2016 WL 3523873

& Liab.

4:06CV655,

2010).
the

No.

fees [

See United States ex rel. King v.

H-06-2662,

2016),

^'delivery

Dkt.

handling charges."
valid.

the invoice might reflect

(E.D.

Mo.

Co.,

May

10,

the Court observes that

offers

three-pound

priority,

envelopes

one-day,
from

the

transcript company's zip code to defense counsel's for $23.85.
Postage

Price

Calculator,

USPS.COM,

https://goo.gl/EQYjtG.

Multiplying that by three for the number of transcripts here,

the

Court

reduces

Defendants'

transcript

bill

by

$71.55,

to

$1542.25.
III.

DEFENDANTS'

Defendants'
reasons.
possesses.

COPYING TAX IS REDUCED.

copying

cost

must

also

be

cut,

for

three

A party cannot tax costs for copies of documents it
Lumara

Health

2014 WL 11858152, at *2

Ltd.

(N.D. Ga.

Sav.

& Loan Ass'n of Atlanta v.

300

(N.D.

Ga.

discovery that

1991).

v.

July 15,

Am.

Therefore,

Reese,

Ins.

No.

1:12-CV-2491,

2014);

Co.,

143 F.R.D.

^^Defendants'

Defendants produced to

Fulton Fed.

Plaintiffs

copy
.

.

of
.

292,

the
[is]

not recoverable" unless the original documents were tendered
to

Plaintiffs.

1993,

2011

Fressell v.

1984).

WL

Bell v.

13175079,

Copies

a

(M.D.

at

AT & T Tech.,

for

no.

6,

the

No.

June

Ill,

1,

115

taxable.

1:06-CV-

2011);

{N.D.

Ga.

Harrington v.

2007

WL 1303032,

at

And Defendants here sought to tax
from the

transcript

reporter,

see

then redundantly sought to tax two more

under the guise of copying.

Therefore,

not

LLC,

Ga.

6:05-CV-1601,

Fla. May 3, 2007).

120-1 at

(N.D.

103 F.R.D.

are

No.

copy of each deposition

dkt.

*3

Inc.,

clients

Lockheed Martin Corp.,

*5

Callaway Partners,

only

Id. at 10.

copy

costs

that

will

be

taxed

are

copy):

70

for:

Consolidated

Pretrial

Order

(counsel

pages

•
•

Joint Proposed Verdict Form (counsel copy):

•
One copy of
the originals or

either
other

Joint Statement for Trial

than

Defendants'

(counsel copy): 2 pages
7 pages

each discovery pleading
(assuming
one copy were sent to Plaintiffs),
Initial

Disclosures,

which

were

not

provided to Plaintiffs: 43 pages
•

One

Plaintiffs

copy

of

(assuming

each

either

document

the

Defendants

originals

or

produced

one

to

copy

were

11,

this

sent to Plaintiffs): 1047 pages

•

At

One copy of trial exhibits: 567 pages

25

cents

per

page,

see

dkt.

no.

120-1

means the taxable copying costs come out to $434.

at

IV.

WITNESS COSTS ABE TAXED.

Defendants
mileage

appear

to

incorrect

distances);

mileage-reimbursement
$0.535/mile.

miscalculated

Dkt.

reimbursements.

have

No.

120

No.

124

at

Dkt.

rate).

28 U.S.C.

The

content/100715

Google Maps,
Defendants'

•

(last

GSA,

accessed

2

current

§ 1821(c)(2);

Mileage Reimhursement Rates,

at

their
2

witness

(identifying

(citing

incorrect

mileage

rate

is

Privately Owned Vehicle

https://www.gsa.gov/portal/

June

26,

2017).

According

to

the distance from home to the court for each of
witnesses

Ellie

is:

Thrift:

2.1

miles

(assuming

the

farthest

point down Glenmore Ave., as nothing narrower is allowed)
•

Cynthia Matthews:

30.9 miles

•

Nicole

31.4 miles

•

Lee Spikes: 15.9 miles

Smallwood:

The witness fees must therefore be reduced to $202.96.
V.

PLAINTIFF'S FINANCIAL STATUS IS INSUFFICIENTLY DOCUMENTED.

Lastly, Plaintiff asks "that given his financial position
.

.

. the Court not allow any costs to be awarded."

123 at 7.
AI

This would violate binding precedent.

Transp.,

229

F.3d

1012,

Nevertheless,

the

Court

did

1039
let

(11th
Plaintiff

Dkt. No.
Chapman v.

Cir.

2000).

submit

the

"substantial documentation" of his

inability to pay that the

Eleventh Circuit requires before a

cost reduction is allowed.

6

Dkt. No. 125.

Plaintiff only filed the unsupported statements

of his counsel, plus four paystubs.
Counsel's

statements

are

Dkt. Nos. 126, 126-1.

"insufficient

presumption that costs should be awarded."
Co.,

No.

12-80841-CIV,

14,

2015) .

any

evidence

[his]

concerning

07-21794-CIV,

[Plaintiff's]

income."

2011

WL

"Plaintiff

Perez

v.

13172510,

has

not

set

the

*1

(S.D.

Fla.

Jan.

They "do not provide
assets,

Saks

at

overcome

Small v. Ford Mot.

at

So are the four paystubs.

current

2011) .

2015 WL 203178,

to

as

opposed

Fifth Ave.,

*11

forth

{S.D.
the

to

Inc.,

No.

Feb.

14,

of

his

Fla.
details

monthly expenses and other debts, or how he supports himself."
Yurus V.

Variable Annuity Life Ins.

2131309,

at *5

(N.D.

Co.,

No.

Fla. July 28, 2006).

4:01CV17,

2006 WL

Nor has he provided

documentation as to "whether there is any additional income or
marital property to which he has access."
Cty.

at *4

Bd.

of Cty.

(M.D.

Fla.

Comm'rs,

Apr.

29,

No.

Gonzales v.

8: ll-CV-1397,

2013).

"In sum.

2013 WL 1810820,

Plaintiff[ ] ha[s]

failed to provide a complete picture of [his]
."

Liese

v.

Indian

River

14388-CIV, 2011 WL 13112249, at *2
Nevertheless,

the

Court

Pasco

financial status

Mem.

Hosp.,

(S.D.

Fla. May 24, 2011).

suspects

that

Inc.,

No.

Plaintiff

could

establish indigence meriting a further reduction in costs.
he does seek further reduction in costs,

09-

If

he must file within 7

days

of

report.

today's

Order

the

appended

financial-information

Said information should be filed under seal.
CONCLUSION

For the reasons above, the taxable portion of Defendants'
bill of costs currently stands at—

Fees for service of summons and subpoena: $277.60
Transcript costs: $1542.25
Copying costs: $434
Witness fees:

TOTAL:

$202.96

$2456.81

The final amount to be taxed will be determined following

Plaintiff s

election as

to whether to properly document

stated indigence within 7 days of today's Order.

SO ORDERED, this 29th day of June,

2017.

HGIT. LISA GODBEY WOOD, JUDGE
UNITED STATES
SOUTHERN

DISTRICT COURT

DISTRICT OF GEORGIA

his

APPENDIX

(See Fed. R. App.

P.

Form 4)

3^n tl^e INntteii States! Btsitrttt Court
tor tl^e ^otttliem IBiotrirt ot C^eorgta
l^apcrooo SBiiitsiion
JOHN SMALLWOOD,

Plaintiff,
No.

V.

5:14-CV-87

T&A FARMS, TIMOTHY DALE DAVIS,
ALPHINE DAVIS, and STAGEY
DINWIDDIE,
Defendants.

AFFIDAVIT ACCOMPANYING RESPONSE IN OPPOSITION TO DEFENDANTS'
BILL OF COSTS

Affidavit in Support of Motion
I

swear or affirm under

Instructions

Complete all questions in this

penalty of perjury that, because application and then sign it.
of my poverty, I cannot pay the Do not leave any blanks: if the
answer to a question is ^^0,"
entire amount of the costs
^'none," or '^not applicable
Defendants seek to tax. I
believe I

redress.

am entitled to

I

swear or affirm under

penalty of perjury under United
States laws that my answers on
this

form are true and correct.

Signed:

(N/A)," write in that response.

If you need more space to answer

a question or to explain your
answer, attach a separate sheet
of paper identified with your
name, your case's docket number,
and the question number.
Date:

1.

For both you and your spouse estimate the average amount of
money received from each of the following sources during the
past 12 months. Adjust any amount that was received weeklyr
biweekly, quarterly, semiannually, or annually to show the
monthly rate. Use gross amounts, that is, amounts before any
deductions for

taxes or otherwise.

Average monthly amount Amount expected next
during the past 12
month

Income source

months
You

Spouse

You

Spouse

Employment

$

$

$

$

Self-employment

$

$

$

$

Income from real property (sue!

$

$

$

$

Interest and dividends

$

$

$

$

Gifts

$

$

$

$

Alimony

$

$

$

$

Child support

$

$

$

$

Retirement

$

$

$

$

Disability (such as social
security, insurance payments)

$

$

$

$

Unemployment payments

$

$

$

$

Public-assistance
welfare)

$

$

$

$

$

$

$

$

$

$

$

$

as rental income)

{such as social

security, pensions, annuities,
insurance)

Other

(such as

(specify):

Total monthly income:

2.

List your employment history for the past two years, most
recent employer first. (Gross monthly pay is before taxes or
other deductions.)

10

Employer

Dates of employment

Address

Gross

monthly pay
$
$
$

3.

List your spouse's employment history for the past two years,
most recent employer first. (Gross monthly pay is before taxes
or other deductions.)
Employer

Dates of employment

Address

Gross

monthly pay
$
$

$

4.

How much cash do you and your spouse have? $_

Below, state any money you or your spouse has in bank accounts
or in any other financial institution.

Financial

Type of Account Amount you
have

Institution

Amount your

spouse has

$

$

$

$

5.

$

$

List the assets, and their values, which you own or your

spouse owns. Do not list clothing and ordinary household
furnishings.

11

Other r e a l e s t a t e

Home

(Value)

$

(Value)

Motor vehicle #1

(Value)

$

$

Make and year:
Model:

Registration #:

Motor vehicle #2

(Value)

$

Other assets

(Value)

Other a s s e t s

(Value)

$

$

Make and year:
Model:

Registration #:

6.

State every person, business, or organization owing you or
your spouse money, and the amount owed.
Person owing you or your

Amount owed to you Amount owed to your
spouse

spouse money

$

$

$

$

$

$

$

$

State the persons who rely on you or your spouse for support.
Name [or, i f under 18, initials
only]

12

Relationship

Age

8.

Estimate the average monthly expenses of you and your family.
Show separately the amounts paid by your spouse. Adjust any
payments that are made weekly, biweekly, quarterly,
semiannually, or annually to show the monthly rate.
You

Your Spouse

$

$

Utilities (electricity, heating fuel,
water, sewer, and telephone)

$

$

Home maintenance

$

$

Food

$

$

Clothing

$

$

Laundry and dry-cleaning

$

$

Medical and dental expenses

$

$

Transportation (not including motor vehicle $

$

Rent or home-mortgage payment

(include lot

rented for mobile home)
Are real estate taxes

[

]

Yes

[

]

included?

No

Is property insurance included?
[ ]

Yes

[ ] No

(repairs and upkeep)

payments)

Recreation, entertainment, newspapers,
magazines, etc.
Insurance
payments)

$

$

(not deducted from wages or included in mortgage

Homeowner's

or

renter's:

$

$

Life:

$

$

Health:

$

$

Motor vehicle:

$

$

Other:

$

$

$

$

$

$

Taxes

(not deducted from wages or included
in mortgage payments) (specify):
Installment payments
Motor Vehicle:

13

Credit card

(name):

$

Alimony, maintenance, and support paid to

$

$

$

$

$

$

$

Other:

$

$

(name):

$

$

Department store

$

$

others

Regular expenses for operation of business,
profession,

or farm (attach detailed

statement)

Other (specify):

Total monthly expenses:

9.

Do you expect any major changes to your monthly income or
expenses or in your assets or liabilities during the next 12
months?

[ ]

10

No

Have you spent

If yes, describe on an attached sheet

or will you be spending —any money for

expenses or attorney fees in connection with this lawsuit?
[ ] Yes [ ] No
If yes, how much? $

11

Provide any other information that will help explain why you
cannot pay the costs Defendants seek.

12.

State the city and state of your legal residence.

Your daytime phone number: (

Your age:

)

Your years of schooling:

Last four digits of your social—security number:

14