Opinion
Case No. 99-6033-CIV-Jordan/Bandstra
February 11, 2002
REPORT AND RECOMMENDATION
THIS CAUSE came before the Court on Defendant City of Fort Lauderdale's Verified Motion to Tax Costs (D.E. 360) filed on October 22, 2001; Defendant City of Fort Lauderdale's Request for Hearing on Motion to Tax Costs (D.E. 362) filed on October 24, 2001; and Defendants, the North Broward Hospital District and Wilson Guintero's Verified Motion to Tax Costs (D.E. 363) filed on October 25, 2001. On February 4, 2002, these motions were referred to United States Magistrate Judge Ted E. Bandstra by the Honorable Adalberto Jordan for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b). Having carefully reviewed the motions, the responses and replies thereto, all supporting documentation, the court file and applicable law, the undersigned recommends as follows:
(1) that Defendant City of Fort Lauderdale's Verified Motion to Tax Costs (D.E. 360) filed on October 22, 2001, be GRANTED IN PART in the amount of $9,653.74;
The defendant, City of Fort Lauderdale, in its reply brief to its Verified Motion to Tax Costs, lists costs which were not previously requested, but which were incurred in its defense of Officers Magnifesta and Del Rio. These new costs are not properly before the Court since any such request for costs would be untimely at this juncture. The undersigned notes that the City did not formerly request recovery of these new costs but simply referenced such costs to evidence the "modest" nature of its motion. Furthermore, the City was allowed to file an untimely reply which was to address the unsubstantiated expert witness fees requested. Nonetheless, the City failed to address the expert fees in its reply.
(2) that Defendant City of Fort Lauderdale's Request for Hearing on Motion to Tax Costs (D.E. 362) filed on October 24, 2001, be DENIED AS MOOT; and
(3) that Defendants, the North Broward Hospital District and Wilson Quintero's Verified Motion to Tax Costs (D.E. 363) filed on October 25, 2001, be GRANTED IN PART in the amount of $10,106.81.
ANALYSIS
Rule 54(d) of the Federal Rules of Civil Procedure provides, in pertinent part, that costs "shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54 (d). The award of costs is largely controlled by statute. Under 28 U.S.C. § 1920, a judge may tax as costs the following:
1. Fees of the clerk and marshal;
2. Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3. Fees and disbursements for printing and witnesses;
4. Fees for exemplification and copies of papers 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 of Section 1828 of this title.
Although Rule 54(d) gives federal courts discretion to deny costs under these subsections, it does not authorize courts to award costs beyond the statutory levels. See Crawford Filling Co. v. J.T. Gibbons. Inc., 482 U.S. 437 (1987). Thus, this Court will disallow any costs which are not provided for in 28 U.S.C. § 1920.
In this case, it is undisputed that the defendants prevailed on the central issues of the case, having prevailed on their motions for summary judgment. Sherry Manufacturing Co. v. Towel King of Florida. Inc., 822 F.2d 1031 (11th Cir. 1987). Accordingly, defendants are entitled to reimbursement of their reasonable costs pursuant to Rule 54(d) and as authorized by 28 U.S.C. § 1920. In support of its request for costs, defendants provide the Court with "affidavit[s] of costs" and ask to be reimbursed for all of their costs, with no argument, case law or documentary support for the amounts listed. The Court has reviewed defendants' listed costs and recommends as follows:
1. Photocopy Costs
Defendant, the City of Fort Lauderdale, requests photocopying costs in the amount of $1026.79 (defendant withdrew its request for $78.21 and $40.00 for miscellaneous copy costs). Fees for photocopying documents necessarily obtained for use in the case are compensable under 28 U.S.C. § 1920 (4). "Copies attributable to discovery, copies of pleadings, correspondence, documents tendered to the opposing party, copies of exhibits, and the documents prepared for the Court's consideration are recoverable." Desisto College v. Town of Howey-in-the-Hills, 718 F. Supp. 906, 913 (M.D. Fla. 1989), aff'd, F.2d 267 (11th Cir. 1990). As stated in Freeman v. Dole, 609 F. Supp. 541 (D.D.C. 1985), "the issue is not whether such costs are recoverable, but whether the costs upon consideration were reasonably expended." Id. at 544. In this case, the charges for photocopying reflected that the copies were attributable to discovery, copies of pleadings, legal research, correspondence, documents furnished to the defendants, copies of exhibits and documents prepared for the Court's consideration. The Court concludes that the requested photocopying costs are reasonable and recoverable. Accordingly, the undersigned recommends that defendant the City of Fort Lauderdale recover $1026.79 for this expense.
2. Depositions and Hearing Transcripts
Under 28 U.S.C. § 1920 (2), the costs of obtaining transcripts "necessarily obtained for use in the case" are taxable. National Bancard Corp. v. Visa. U.S.A. Inc., 112 F.R.D. 62, 66 (S.D. Fla. 1986) (citations omitted). To be taxable, transcripts need to be "reasonably necessary."Barber v. Ruth, 7 F.3d 636 (7th Cir. 1993). Transcripts of depositions of witnesses expected to be called at trial are "reasonably necessary."Allen v. U.S. Steel Corp., 665 F.2d 689, 6970 (5th Cir. 1989); National Bancard Corp., 112 F.R.D. at 65-66. This is so regardless of whether the witnesses were actually called at trial or the case even made it to trial. As the Fifth Circuit Court of Appeals explained, "[i]f, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party." Costs v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (citations omitted).
Both defendants request deposition costs which were incurred in taking the depositions of the various parties and witnesses pertinent to this action. Additionally, hearing transcripts and court reporter fees are included in this request. The undersigned finds these costs to be reasonably necessary and recommends that these costs be awarded under § 1920(2). As such, the undersigned recommends that the defendant, City of Fort Lauderdale, be awarded $8,432.95. Additionally, defendant, North Broward Hospital District, should be awarded $8,445.25.
3. Service of Process/Subpoenas and Witness Attendance
Defendants request reimbursement for service of subpoenas and witness attendance. Witness and subpoena fees, such as those requested are generally recoverable where it appears that the depositions were reasonably necessary at the time they were to be taken. EEOC v. WO. Inc., 213 F.3d 600 (11th Cir. 2000). The undersigned recommends that these costs, which are ordinary and customary, be taxed. As such, the undersigned recommends that the defendant, City of Fort Lauderdale, be awarded $194.00; and that the defendant, North Broward Hospital District, be awarded $1,661.56.
4. Miscellaneous Expenses
Both defendants initially requested mediation costs, expert witness expenses, and videotape costs. However, within its reply, defendant North Broward Hospital District withdrew its requests for these costs recognizing that they are not recoverable costs under § 1920. Although the City of Fort Lauderdale withdrew its request for mediation costs within its reply, it continues to seek taxation of $43.20 for a videotape, and $2,200.00 for expert fees without citing any authority to support entitlement to these sorts of costs. Further, the Court finds no controlling law to support these requests. Accordingly, the undersigned recommends that defendant's charges for these costs be disallowed.
In its reply brief, defendant, the North Broward Hospital District, withdrew its request for the expert witness expenses it incurred ($9,384.00) and the videotape it requested ($43.20). Accordingly, the undersigned deducted those amounts from the costs awarded to this defendant.
Calculating the recoverable amounts, the undersigned recommends that this Court award defendant, City of Fort Lauderdale, the total sum of $9,653.74 and that this Court award defendant, North Broward Hospital District, the total sum of $10,106.81 for recoverable costs incurred in this litigation.
RECOMMENDATION
For all of the foregoing reasons, the undersigned recommends as follows:
(1) that Defendant City of Fort Lauderdale's Verified Motion to Tax Costs (D.E. 360) filed on October 22, 2001, be GRANTED IN PART in the amount of $9,653.74;
(2) that Defendant City of Fort Lauderdale's Request for Hearing on Motion to Tax Costs (D.E. 362) filed on October 24, 2001, be DENIED AS MOOT; and
(3) that Defendants, the North Broward Hospital District and Wilson Quintero's Verified Motion to Tax Costs (D.E. 363) filed on October 25, 2001, be GRANTED IN PART in-the-amount of $10,106.81.
The parties may serve and file written objections to this Report and Recommendation with the Honorable Adalberto Jordan, United States District Judge, within ten (10) days of receipt. See 28 U.S.C. § 636 (b)(1)(C); United States v. Warren, 687 F.2d 347 (11th Cir. 1982), cert. denied, 460 U.S. 1087 (1983); Hardin v. Wainwright, 678 F.2d 589 (5th Cir. Unit B 1982); see also Thomas v. Arn, 474 U.S. 140 (1985).