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Berbridge v. Sam's East, Inc.

United States District Court, S.D. Florida

October 31, 2017

TANIA P. BERBRIDGE, Plaintiff,
v.
SAM'S EAST, INC., a/b/a SAM'S CLUB Defendant.

          OMNIBUS ORDER

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon Defendant, Sam's East, Inc.'s (“Defendant”) Motion for Entitlement to Attorney's Fees and Costs, ECF No. [89] (“Motion for Entitlement”); Defendant's Bill of Cost, ECF No. [93] (“Bill of Cost”); and Defendant's Motion to Tax Fees and Costs ECF No. [97] (“Motion to Tax”). The Court has carefully reviewed Defendant's Motions, the record, all supporting filings, the parties' briefs, the exhibits attached thereto, and is otherwise fully advised. For the reasons that follow, Defendant's Motion for Entitlement is denied in part and granted in part; Defendant's Bill of Costs is granted in part and denied in part; and Defendant's Motion to Tax is denied as moot.

         I. BACKGROUND

         On October 15, 2016, Tania P. Berbridge (“Plaintiff”) filed a negligence claim in the Seventeenth Judicial Circuit Court in Broward County as a result of injuries allegedly sustained in a slip-and-fall incident at a Sam's East, Inc. store on August 8, 2015. ECF No. [1-1] at 1. Defendant then removed the action to this Court. ECF No. [1]. During the course of the proceedings, Defendant filed a Motion for Summary Judgment, which the Court granted, finding that no genuine issue of material fact existed as to Defendant's alleged constructive notice. ECF No. [87]. Defendant timely filed its Motion for Entitlement, Bill of Costs, and Motion to Tax, seeking an order taxing costs pursuant to 28 U.S.C. § 1920 and awarding attorney's fees pursuant to Florida Statute § 768.79. ECF Nos. [89], [93], and [97]. Additionally, Defendant filed a Notice of Non-Objection to Bill of Costs, wherein Defendant advised the Court of Plaintiff's agreement to certain taxable costs pursuant to 28 U.S.C § 1920 in the amount of $5, 175.54. ECF No. [98].

         II. LEGAL STANDARD

         a. Taxable Costs

         Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). Although the Court has broad discretion in determining taxable costs, a court may not award any costs that are not authorized by statute. See United States EEOC v. W&O, Inc. 214 F.3d 600, 620 (11th Cir. 2000). In the Motion for Entitlement, Defendant seeks an award of costs pursuant to 28 U.S.C § 1920, which provides that the following costs are taxable:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for the 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 under section 1828 of this title.

28 U.S.C § 1920.

         When determining whether costs are taxable, the burden lies on the losing party to demonstrate that the cost is not taxable, “unless the knowledge regarding the proposed cost is a matter within the exclusive knowledge of the prevailing party.” Vega v. Alvarez, No. 14-21635-CIV, 2015 WL 11217233, at *1 (S.D. Fla. Sept. 21, 2015). Nonetheless, the prevailing party is still required to submit requests for costs with sufficient particularity so that the Court may determine what costs were incurred and whether the prevailing party is entitled to them. Ferguson v. N. Broward Hosp. Dist., No. 10-61606-CIV, 2011 WL 2583754, at *3 (S.D. Fla. Aug. 15, 2011).

         b. Entitlement to Attorney's Fees

         Section 768.79 provides that “if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees. . . . if the judgment is one of no liability.” Fla. Stat. § 768.79. Section 768.79 “applies in federal diversity cases” and “provides for a fee award when a party rejects an offer to settle the specific lawsuit.” Panama City Beach Condos, LP v. Adjusters Int. Co, Inc., Case No. 4:08cv369, 2009 WL 5214970, *2 (N.D. Fla. Dec. 28, 2009). To ...


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