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McNeeley v. Wilson

United States District Court, M.D. Florida, Fort Myers Division

August 30, 2017

STEPHEN MCNEELEY, Plaintiff,
v.
NORMAN WILSON, SERGIO BERTUZZI, ANTHONY FENECH, NICHOLAS RISI, MARK GEYER and SHERIFF OF CHARLOTTE COUNTY, FLORIDA, Defendants.

          ORDER

          JOHN ANTOON II, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' joint motion for costs (Doc. 425) filed under Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920, and Middle District of Florida Local Rule 4.18. Plaintiff, who is now proceeding pro se, did not file a response to the motion. For the reasons that follow, the Court will grant in part and deny in part Defendants' motion.

         I.

         Defendants, who are the prevailing parties, filed a joint motion for costs. Defendants contend that they are entitled to recover costs against Plaintiff pursuant to Rule 54, Federal Rules of Civil Procedure and Local Rule 4.18 (M.D. Fla. 2009). In support, Defendants submit a bill of costs and receipts, claiming entitlement to $14, 449.49 in total costs. According to Defendants' motion, their costs are categorized as follows: (1) fees for printed or electronically recorded transcripts totaling $10, 577.20; (2) printing fees totaling $1, 539.85; (3) witness fees totaling $208.54; and (4) fees for exemplification and costs of making copies totaling $2, 123.90.

         II.

         As background, Plaintiff is currently serving a life sentence while in the custody of the Secretary of the Florida Department of Corrections. Plaintiff initiated this action by filing a pro se 42 U.S.C. § 1983 Civil Rights Complaint Form alleging in pertinent part an excessive use of force claim stemming from an incident that occurred while Plaintiff was detained at the Charlotte County Jail. The Court granted Plaintiffs motion to proceed in forma pauperis and two years into litigation granted Plaintiffs motion to appoint counsel. Doc. 139. The case ultimately proceeded to a five-day jury trial. At trial, the Charlotte County Sheriff moved for judgment on the pleadings (Doc. 408), which the Court granted (Doc. 409). The question of liability as to the remaining correctional officer defendants went to the jury. The jury returned a defense verdict. Doc. 420.

         III.

         Federal Rule of Civil Procedure 54(d) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). There is a presumption arising from Rule 54(d)(1) that costs are to be taxed in favor of a prevailing party. Fed.R.Civ.P. 54(d)(1) (emphasizing that absent a federal statute or rule of court, costs "should be allowed" to the prevailing party). "To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so." Chapman v. Al Transport. 229 F.3d 1012, 1039 (11th Cir. 2000) (en banc). "[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)." ANG v. Coastal International Sec. Inc.. 417 F.App'x 836, 838 (11th Cir. 2011) (citations omitted). However, if considering financial status, the Court "must require substantial documentation of a true inability to pay." Id.

         Title 28 U.S.C. § 1920 enumerates the costs that may be taxed at the discretion of the court. Crawford Fitting Co. v. J.T. Gibbons Inc.. 482 U.S. 437, 441 (1987). Costs that may be awarded under § 1920 include: "(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; [and] (4) fees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920. In the exercise of sound discretion, the court is accorded great latitude in ascertaining taxable costs. E.E.O.C v. W&O. Inc., 213 F.3d 600, 621 (11th Cir. 2000). However, such costs may not exceed those permitted by 28 U.S.C. § 1920. Matthews v. Crosby. 480 F.3d 1265, 1276 (11th Cir. 2007)(citations omitted); see also Crawford. 482 U.S. at 445 (stating "absent explicit statutory or contractual authorization for the taxation of the expense of a litigants' witnesses as costs, the federal courts are bound by the limitations set out in 28 U.S.C. § 1820 and § 1920.").

         IV.

         Defendants in this case are considered the prevailing parties because the Court granted the Defendant Sherriff s motion for judgment on the pleadings at trial and the jury returned a defense verdict for the remaining defendants. Defendants seek reimbursement of the following costs:

         A. Fees for Printed or Electronically Recorded Transcripts

         Defendants seek reimbursement for $10, 577.20 in costs for the transcript of the January 20, 2015 hearing before Judge Chappell, the transcript of Plaintiffs criminal hearings, and the deposition transcripts of: Mark Geyer, Stephen McNeeley, Sergio Bertuzzi, Norman Wilson, Anthony Fenech, David Cox, Dale Speicher, Nicholas Risi, Lorrie Gordan Scheribung, R.N., Daniel Staub, Chistopher Wertenbach, William Gaut, Dr. Richard Lipsey, Lori Butts, Ph.D., and Terry Jones. Doc. 425 at 3-4. Defendants note that they have deducted from their request the costs for "shipping and handling/delivery as well as for condensed transcripts." Id. at 3, n. 1.

         The Court first addresses Defendants' request for deposition transcript costs. A prevailing party may tax the costs for a deposition. 28 U.S.C. § 1920(2); W&O. Inc. 213 F.3d at 620. However, deposition costs are not taxable when the "costs were merely incurred to convenience, to aid in thorough preparation, or for purposes of investigation only." Id. (internal quotation marks omitted). Thus, in order to recover the costs for a deposition, it must have been, in whole or part, ...


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