DeBose v. USF Board of Trustees et al

RESPONSE to Motion re MOTION for miscellaneous relief, specifically for District Court Review of Costs Taxed

M.D. Fla.December 7, 2018

1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CIVIL ACTION NO. 8:15-cv-02787-EAK-AEP ANGELA DEBOSE, ) ) Plaintiff, ) v. ) ) UNIVERSITY OF SOUTH FLORIDA ) BOARD OF TRUSTEES, UNIVERSITY ) OF SOUTH FLORIDA, AND ELLUCIAN, ) L.P., ) ) Defendants. ) ____________________________________/ PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR DISTRICT COURT’S REVIEW OF COSTS TAXED BY CLERK AND ALTERNATIVELY PLAINTIFF’S MOTION FOR LEAVE TO AMEND/CORRECT BILL OF COSTS Plaintiff Angela DeBose responds to Defendant University of South Florida Board of Trustees’ (“USFBOT”) Motion for District Court’s Review of Costs Taxed by Clerk. In her response, Plaintiff states as follows: INTRODUCTION Plaintiff prepared a proposed bill of costs in an aggregate amount of $34,325.00. (Doc. 508), an Itemized Bill of Costs Table (“Table”) (Doc. 509, #1), and supporting documentation that identifies the items. In the Table, Plaintiff separately identifies and sums her taxable costs, including a column to explain the associated taxable costs. Defendant did not object to Plaintiff’s proposed Bill of Costs until after the Clerk’s taxation. Defendant defends a motion for the district court’s review in a ridiculous pleading to suggest that Plaintiff should not have the modest recovery taxed at $34,325, following three years of litigation and a trial by a jury. The Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 1 of 10 PageID 9394 2 Plaintiff listed $102,520 in total costs. Notably, the Supreme Court has viewed these costs as narrow in scope and, in sum, a fraction of the full expenses ordinarily incurred in federal litigation.1 Plaintiff’s Bill of Cost at $34,325, is consistent with that expectation at only a fraction of the total. USFBOT now moves the Court to review Plaintiff’s Bill of Cost. In its motion, Defendant writes faulty allegations and spends much of the time arguing about costs that Plaintiff does not identify or claim as taxable costs (e.g. parking, medical reports, etc.). Defendant attempts to draw the Court into its arguments by casting a negative light on the Clerk, implying she was not competent in performing her work, and DeBose as a money grubbing plaintiff. Clearly, the Defendant’s objective is to reduce or eliminate Plaintiff’s recovery. Defendant understands that the only way to do so is to overcome the high burden favoring costs to the prevailing party, by taking the low road to suggest “fault, misconduct, default, or action worthy of penalty”2. In a double-minded argument, the Defendant implies impropriety by the Plaintiff while at the same time unintentionally pointing out DeBose’s diligence to research and inadvertence in relying on inapplicable rules from another middle district court. Defendant’s objective appears to be a burden shifting scheme to pose argument about costs that are “known” to Defendant and “not exclusively known” to Plaintiff, to shift its high burden to defeat the costs taxed—to the Court, the Clerk, and of course first and foremost, the Plaintiff. PROCEDURAL BACKGROUND 1 Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2006 (2012). 2 The irony of the Defendant’s accusations are whimsical (i.e. volatile, capricious, erratic, mercurial), considering this Defendant admitted to the destruction of Plaintiff’s work files while on a litigation notice to preserve her evidence (See Doc. 66,84); was shown to have falsely answered the magistrate about Plaintiff’s contract status (5/23/2017 Hearing); as a Defendant/state agency impermissibly concealed the USFBOT-Ellucian-Diamond contract from discovery; and suborned perjury from its employees to render multiple false affidavits, changing their stories about the timing and circumstances of their destruction of Plaintiff’s work files.) Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 2 of 10 PageID 9395 3 On October 2, 2018, following a Jury Trial, Judgment was entered in favor of the Plaintiff in the amount of $310,500.00. (Doc. 475). On November 2, 2018, following the Order of the Court [499], Plaintiff submitted her Bill of Costs (Doc. 508). On November 21, 2018, the Clerk taxed the costs. (Doc. 520). On November 28, Defendant filed a motion requesting the District Court’s Review of the Costs Taxed by the Clerk (Doc. 521). On December 2, 2018, Plaintiff filed a Motion to Strike the Defendant’s motion as an untimely objection. (Doc. 522). On December 4, 2018, the Court denied Plaintiff’s motion to strike, finding the motion for district court review was timely. (Doc. 526). LEGAL STANDARD Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, costs incurred by the prevailing party may be assessed against the non-prevailing party. Not all costs incurred during litigation can be reimbursed, however. The types of costs that may be taxed against the non- prevailing party are identified in 28 U.S.C. § 1920. The district court may only award the costs authorized by this statute. See Crawford Fitting Co. v. JT Gibbons, Inc., 482 U.S. 437, 442, 107 S. Ct. 2494, 2497-98, 96 L.Ed.2d 385 (1987). The opposing party to the taxation of costs must overcome the presumption under Rule 54(d) that the prevailing party should be allowed costs. Weller v. Finger, 2010 WL 2465522, *5 (S.D. Ala. June 15, 2010); Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007). “To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so.” Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000). If the prevailing party has “exclusive knowledge regarding the proposed cost”, then it has the burden to demonstrate that the cost is taxable. Spatz v. Microtel Inns and Suites Franchising, Inc., 2012 WL 1587663, *6 (S.D. Fla. May 4, 2012). Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 3 of 10 PageID 9396 4 THE FACTS Plaintiff listed her costs paid to other attorneys in the Table. These costs were paid to DeBose’s former counsels, pursuant to signed retainer agreements that required Plaintiff to cover “costs” under the representation agreements. DeBose quantified the costs (Doc. 501), following the Court indication that such fees were recoverable as Attorney Fees. Plaintiff identified the costs paid to the attorneys in the Table because the sums she paid to Thompson Legal, for example, was entirely for cost reimbursement. Plaintiff requests to claim all taxable costs and fees related to their representation, and to prove by Affidavit from a qualified attorney, the reasonableness of their fees. 1. Fees of the Clerk. Section 1920(1). Plaintiff listed $3,500 for her filing fees for certain appeals and noted it in the Table. The $3,500 comprises appeals paid and for certain filing deficiencies Plaintiff asked the Eleventh Circuit to permit her to cure, prior to the closing of this case. Plaintiff relied on the attached Guidelines for Bill of Costs (Exhibit A) because it contains detailed explanations of items that should/may be included for each section. The form itself, standing alone, is confusing. Therefore, Plaintiff relied on this document to try to ascertain how to map the taxable items in her Table to the descriptions on the Bill of Cost Form. Plaintiff’s research showed that except for timing, the actual costs that may be taxed were consistent among federal district courts. This guide and other sources for federal courts, included filing fees paid to the district court for appeals. Plaintiff entered the cost for seven 2017-09-01 Clerk $ 505.00 2017-11-03 Clerk $ 505.00 2018-07-23 Clerk $ 505.00 2018-11-16 Clerk $ 1010.00 Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 4 of 10 PageID 9397 5 appeals at $500. The sum listed should have been $3,535. Plaintiff did not know if the $400 filing fee paid on 12/04/2015 should be listed as a “Fee of the Clerk” or Docket Fees under 28 U.S.C. 1923. Plaintiff requests leave to amend her Bill of Costs to list the $400 origination fee. Additionally, Plaintiff contends that the appeals were not frivolous taken after district court challenges to preserve matters for post judgment appeals. The appeals were not frivolous, even though taken interlocutory. The circuits are split as to whether appeals of interlocutory orders preserve the matters post judgment. DeBose sought to have the appeals reviewed on the merits but the Eleventh Circuit declined for lack of certification/jurisdiction. If not at all allowed to be claimed as taxable under Middle District of Florida local rule, Plaintiff withdraws the $3,500 and requests leave to amend her Bill of Costs to exclude the costs. At the same time, the Court should note the $3,500 does not include state court filing fees or appeals, as alleged by USFBOT. Plaintiff did not claim the $75 fee paid for the petitions for writ of mandamus in state court action 15-CA-005663 or 17-CA-002114. Defendant is aware that Plaintiff is already at the statutory limit for 15-CA-005663, having requested her costs. Plaintiff did not claim any filing fees related to the state court appeals. Plaintiff did not claim filing fees related to 17-CA-1652 or 17-CA-000893. These items are listed on Plaintiff’s bank statements, and they would be—as Plaintiff Pro Se3, paid them from her personal accounts as needed. 2. Fees of the Marshal. Section 1920(1). Marshal Fees are recoverable for service of summons and other process. The costs of private process servers are also taxable under section 1920(1), but only to the extent that the costs do not exceed the amounts charged by the U.S. Marshal Service for the same work. EEOC 3 Plaintiff has emphasized that while she is bar-certified, her status is and has always been “non-practicing”. Plaintiff does not maintain any client trust accounts. Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 5 of 10 PageID 9398 6 v. W&O, Inc., 213 F.3d 600, 623-24 (11th Cir. 2000). The U.S. Marshal presently charges $65 per hour for each item served, “plus travel costs and any other out-of-pocket expenses.” 28 C.F.R. § 0.114(a)(3), amended by 78 Fed.Reg. 59,817, 59,819 (Sept. 30, 2013); see also 28 U.S.C. § 1921(a)(1); http://www.gsa.gov/mileage. DeBose used a local company, ATA Process, LLC (“ATA”), to serve process and/or serve subpoenas. ATA generally charges $40. The only higher rates reflected in Plaintiff’s Bill of Costs were for out-of-state service on Ellucian, L.P. or expedited service required for witnesses, Andrea Diamond (“Diamond”) and Bob Sullins (“Sullins”), to appear at trial. Defendant previously accepted service on Sullins’ behalf for other related matters but declined service in this instance. Sullins, who was deposed, appeared at trial pursuant to the subpoena but was not called by the Plaintiff because of time; nor was Sullins, Defendant’s witness, called by the Defendant. Defendant listed Kimberly Doud as accepting service for Diamond in its witness list, and DeBose did also. While Doud may have agreed to accept service from Defendant, she declined to do so from the Plaintiff. Therefore, Diamond was unavailable; the admission of her deposition was uncontested. Plaintiff asserts the expedited service of process was necessary and the costs taxed are appropriate. USFBOT states DeBose submitted documentation to the Clerk reflecting service on individuals who did not give testimony during discovery or at trial. Marquisha Wilson (“Wilson”) and Willette Roach (“Roach”) were served subpoenas on March 3, 2017. Wilson and Roach were subpoenaed to appear at the March 21, 2017 hearing on Plaintiff’s Motion for Sanctions. Ms. Wilson was expected to provide direct testimony of her first-hand knowledge that Paul Dosal asked Alexis Mootoo to order the destruction of the Plaintiff’s files, when they visited the Registrar’s Office, shortly after DeBose’s termination. However, the Magistrate Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 6 of 10 PageID 9399 7 denied Plaintiff’s motion to allow oral testimony. (Doc. 113). Additionally, Wilson and Roach could not possibly appear at trial when they and all of Plaintiff’s other witnesses were excluded by Order of the Court.4 The testimony of these witnesses was important to material issues in the case and not out-of-bound irrelevant discovery. Defendant also states the Clerk taxed $7,500.00 in process server fees when DeBose’s Table clearly shows $2,000. As noted above, DeBose relied on the District Court Guide to know which costs fall under the specifically described categories on the Bill of Costs form. The guide was the only source DeBose found that explicitly provided guidance as to what to include and where. DeBose used the Guide to develop her Table. For taxable items in DeBose’s Table that did not have a clear mapping to an item on the Bill of Costs form, DeBose grouped the costs with another item. All of Plaintiff’s research consistently referred to the eight or nine specifically described categories. Therefore, DeBose did not notice that the form had a field for these itemized taxable costs in a field, “Other costs”. DeBose, therefore, requests leave to amend her Bill of Costs to list the itemized costs in the Table, without a specifically described category, in the “Other costs” field. 3. Fees for printed or electronically recorded transcripts necessarily obtained for use in the case. Section 1920(2). The cost of obtaining any printed or electronically recorded transcript is taxable if it was “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). As to deposition transcripts, the test of recovery is whether the taking of the deposition was reasonably necessary in light of the particular situation existing at the time of taking. See Watson v. Lake County, 492 F. App’x 991, 996-97 (11th Cir. Oct. 25, 2012) (citing United States E.E.O.C., 213 F.3d at 620)). Deposition 4 Plaintiff counsels did not disclose her fact witnesses by the deadline for such disclosure under Rule 26. The magistrate denied DeBose’s request to allow her witnesses to give testimony. Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 7 of 10 PageID 9400 8 expenses can thus be taxed even if the deposition was not introduced into evidence. Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982). However, transcript costs incurred for “the prevailing parties’ convenience, such as to aid in thorough preparation or for the purposes of investigation only” are not recoverable. Watson, 492 F. App’x at 996 (citing United States E.E.O.C., 213 F.3d at 620). DeBose used at summary judgment, at trial, and in her pleadings throughout, the depositions of: • Paul Dosal (to prove retaliatory animus, hostile retaliatory work environment, pretext, derogatory statements, race as a motivating factor, discrimination, retaliation, conspiring with Ellucian, etc.) • Ralph Wilcox (to prove hostile retaliatory animus “ism”, derogatory statements, race as a motivating factor, discrimination, retaliation, tortious interference with UNF, conspiring with Ellucian, impermissible objections anticipated from counsel, etc.) • Bob Sullins (to prove pretext and derogatory statements made about DeBose in emails) • Travis Thompson (to prove hostile retaliatory animus, derogatory statements, race as a motivating factor, discrimination, retaliation, etc.) • Caurie Waddell (to prove pretext, derogatory statements, etc.) • Carrie Garcia (to prove pretext, conspiring with Ellucian, etc.) • Shruti Kumar (to prove pretext and falsity of the contents of the Ellucian Report, etc.) • Andrea Diamond (to prove pretext and falsity of the contents of the Ellucian Report, conspiring with USFBOT, interference with DeBose’s employment) • Delonjie Tyson (to prove in DeBose’s Motion for Sanctions and Motion to Strike Affidavits as a Sham, USFBOT’s intentional destruction of DeBose’s files; the temporal proximity of the destruction to DeBose’s termination, the false affidavits of USFBOT’s employees concerning the destruction, etc.) DeBose responds that the deposition costs should be taxed as a matter of course, as all of testimony was relevant and material throughout the case—at summary judgment, in other matters, and for introduction at trial. Furthermore, deposition costs are regularly taxed under 28 U.S.C. § 1920 regardless of whether any portion of the deposition is admitted into evidence.5 5 See, e.g., Fitchett v. Stroehmann Bakeries, Inc., No. Civ. A. 95-284, 1996 WL 47977, *3 (E.D.Pa. Feb. 5, 1996) ("the party requesting the costs need not introduce the deposition at trial"); Card v. State Farm Fire and Casualty Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 8 of 10 PageID 9401 9 5. Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case. Section 1920(4). The cost of making copies of documents or photographs is taxable if such copies were necessarily obtained for use in the case. For costs to be awarded, an item must fit within one of two categories: “exemplification” or necessary “copies of any materials.” The Eleventh Circuit has adopted a relatively narrow definition of “exemplification” as “an official transcript of a public record, authenticated as a true copy for use as evidence.” Arcadian Fertilizer, L.P. v. MPW Industrial Svs., Inc., 249 F.3d 1293, 1297 (11th Cir. 2001). The trial transcripts and the court docket evince the many documents used by DeBose and/or admitted at trial to obtain meaningful, corroborating testimony; impeach witnesses; exemplify issues; and otherwise prove her case. 6. Docket fees under section 1923 of this title. Section 1920(5). Through inadvertence, DeBose did not list the $400 origination fee paid on December 4, 2015, when filing the complaint. DeBose requests leave to amend to include the filing fee. 7. Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. Section 1920(6). Plaintiff claimed no court-appointed experts or interpreters. 8. Witness Fees Fee and disbursements associated with the appearance of witnesses in the case are recoverable. “A witness who appears before a federal court ‘or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States is entitled to fees and allowances, including an attendance fee of $40 per day for each day’s attendance.’” Company, 126 F.R.D. 658, 661 (N.D.Miss. 1989) ("Deposition costs may be taxed even if the deposition is not introduced at trial"). Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 9 of 10 PageID 9402 10 Morrison, 97 F.3d at 463 (quoting 28 U.S.C. § 1821(a)(1) & 4 (b)). Witnesses may also be paid a “travel allowance equal to the mileage allowance … for official travel of employees of the Federal Government,” 28 U.S.C. § 1821(c)(2), and a “subsistence allowance … in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services … for official travel in the area of attendance by employees of the Federal Government.” 28 U.S.C. § 1821(d)(2). Wilson and Roach were subpoenaed as stated above in item 2. CONCLUSION WHEREFORE, the Plaintiff respectfully asks the Court for leave to amend/correct her Bill of Costs in accordance with Federal Rule of Civil Procedure 15, understanding the amount taxed could increase or decrease. Dated: December 7, 2018 Respectfully submitted, _/s/ Angela DeBose_____________ Angela DeBose, Plaintiff 1107 W. Kirby St. Tampa, Florida 33604 Telephone: (813) 932-6959 Email: awdebose@aol.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of December, 2018, the above and foregoing was filed with the Clerk of the Court to send electronic notice of the filing to counsel of record. __/s/ Angela DeBose__________________ Angela DeBose, Plaintiff 1107 W. Kirby Street Tampa, Florida 33604 Telephone: (813) 932-6959 Email: awdebose@aol.com Case 8:15-cv-02787-EAK-AEP Document 528 Filed 12/07/18 Page 10 of 10 PageID 9403