United States District Court, M.D. Florida, Tampa Division
NATHANIEL R. BRAZILL, Plaintiff,
JOHN MINERS, et al., Defendants.
D. WITTEMORE, United States District Judge
THE COURT are Defendants', Flores, Johnson,
Miners, Price, Series and Ziegler's Amended Motion to Tax
Costs (Dkt. 131), Plaintiffs opposition (Dkt. 134), and
Defendants' reply (Dkt. 137). Plaintiff brought this
action under 42 U.S.C. § 1983. On December 29, 2017, the
Court entered judgment in favor of Defendants and against
Plaintiff (Dkt. 128). Defendants, as prevailing parties, seek
an award of costs incurred under Federal Rule of Civil
Procedure 54, 28 U.S.C. § 1920, and Local Rule 4.18
U.S.C. § 1920 sets forth the categories of trial
expenses recoverable under Rule 54(d). Defendants request
reimbursement in the amount of $3, 536.65 - $170.00 for
service of Plaintiffs witnesses for deposition; $155.10 in
copying costs; $1, 651.55 for the court reporter appearance
fee for, and transcript of, Plaintiffs deposition; and $1,
560.00 for court reporter appearance fees for Plaintiffs
witnesses' depositions (Dkt. 129).
contends that Defendants' costs should either be denied
or reduced by 75%. He argues that: 1) the cost of his
deposition "should be limited to only 25% of the total
amount sought" because "the deposition was unduly
prolonged" (Dkt. 135, p. 2); 2) the cost of deposing
Plaintiffs witnesses, Curry, Faulk, and Lanier, should be
denied or reduced because "[d]eposing all three
witnesses was not necessary for the proper presentation of
the Defendant's [sic] case" and the depositions were
"unduly prolonged" (Id., p. 4); 3) the
cost of deposing Plaintiffs witnesses, Baker and Edwards,
should be denied as unnecessary and redundant, since
Plaintiff, Curry, Faulk, and Lanier already had been deposed,
Plaintiff previously explained the expected testimony of his
witnesses, and Defendants did not obtain the transcripts of
Plaintiff s witnesses or use their testimony in
Defendants' motion for summary judgment (Id., p.
5); 4) the photocopying costs should be denied, since
Defendants failed to support the request with adequate
documentation regarding the nature of the items copied and
which copies were not already paid for by Plaintiff
(Id., p. 6); and 5) all costs should be denied or
reduced because he is indigent and acted in good faith in
bringing this action (Id., pp. 7-8).
Plaintiffs financial status
court declines to deny Defendants' motion or reduce the
costs on the basis of Plaintiffs alleged indigent status.
See Harris v. Forsyth, 742 F.2d 1277 (11th Cir.
1984) (costs may be taxed against an indigent party);
Chapman v. AI Transport, 229 F.3d 1012, 1039 (11th
Cir. 2000) (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)."). And even if the court was to consider
Plaintiffs financial status, he has failed to file
documentation demonstrating a true inability to pay.
Process Server Fees
fees for service of the deposition subpoenas on Plaintiffs
witnesses are taxable. See Powell v. Carey Intern.,
Inc., 548 F.Supp.2d 1351, 1356 (S.D. Fla. Mar. 12,
2008). And the court disagrees with Plaintiffs argument that
the witnesses' deposition costs are not taxable because
taking their depositions was unnecessary and redundant. The
witnesses were listed on Plaintiffs witness list (see Dkt.
105-1, pp. 1-2), and Plaintiff has failed to show that the
depositions were not related to an issue in the case. See
Ogilvie v. Swank, 2016 U.S. Dist. LEXIS 86692, at *4
(M.D. Fla. July 5, 2016) ("Courts have generally held
that depositions of individuals named on the witness list at
trial are recoverable as costs necessary for the case.")
(citing Maris Distrib. Co. v. Anheuser-Busch, Inc.,
302 F.3d 1207 (11th Cir. 2002)). Accordingly, the $170.00 for
service of Plaintiff s witnesses for deposition will be
Court reporters' fees
court finds that the court reporters' fees for Plaintiff
and his witnesses' depositions are taxable. See Smith
v. Conner, 2014 U.S. Dist. LEXIS 56465 (M.D. Fla. April
23, 2014), affd sub nom. Smith v. Warden Hardee Corr.
Inst., 597 Fed.App'x 1027, 1032 (11th Cir. 2015)
(taxing appearance fees); Held v. Held, 137 F.3d
998, 1002 (7th Cir. 1998) (although not specifically
mentioned in 28 U.S.C. § 1920, deposition attendance
fees charged by court reporter are taxable). But see
Newman v. Hous. Auth. of the City of Fort Lauderdale,
2007 U.S. Dist. LEXIS 6797, at *7 (S.D. Fla. Jan. 31, 2007)
(court reporter's deposition appearance fees are not
taxable as they are not "listed in § 1920").
extent that Plaintiff contends that his witnesses'
depositions were unduly prolonged by defense counsel, the
contention is conclusory, self-serving, and unsupported by
evidence or allegations of fact other than "[t]he
depositions of Lanier and Curry were three hours in length
and. . .the deposition of Faulk was six hours long over two
days." (Dkt. 134, p. 4). The duration of those
depositions complied with Rule 30(d)(1), Fed.R.Civ.P
("Unless otherwise stipulated or ordered by the court, a
deposition is limited to one day of 7 hours."), and
Defendants have explained why it was necessary to complete
Faulk's deposition on a second day (see Dkt. 137, p. 2;
Dkt. 103, p. 2). Plaintiff therefore has not met his burden
to demonstrate that the witnesses' depositions were
unduly prolonged by defense counsel. See Ortiz v. N.H.
Inc., 2017 U.S. Dist. LEXIS 204024, *19 (S.D. Fla.
December 12, 2017) ("Upon the filing of a timely motion
or bill of costs, which sets forth in detail the amounts
requested, the opposing party has the burden of showing that
the costs requested fall outside the scope of [28 U.S.C.
§ 1920] or were otherwise unreasonable.")
(citations omitted); To the extent that Plaintiff contends
that his deposition was unduly prolonged, his deposition was
less than 6!/2 hours (see Dkt. 137, p. 1; Dkt.
129, p. 16) and therefore in compliance with Rule 30(d)(1).
Moreover, having reviewed Plaintiffs deposition, the court
cannot agree with Plaintiff that defense counsel unduly
prolonged his deposition. Accordingly, the court
reporters' fees will be taxed in full.
Cost of the transcript of Plaintiffs deposition
for transcripts are taxable if they were 'necessarily
obtained for use in the case[.]'" Lozman v. City
of Riviera Beach, 679 Fed.Appx. 979, 980 (11th Cir.
2017) (quoting 28 U.S.C. § 1920(2)). Plaintiffs
deposition transcript was "necessarily obtained for use
in the case" because is was filed in support of
Defendants' motion for summary judgment (see Dkt. 122-4).
See Osahar v. United States Postal Serv., 136
Fed.Appx. 259, 261 (11th Cir. 2005) (affirming district
court's award of costs for plaintiffs deposition
transcript where "entirety of [plaintiffs] deposition
transcript was filed in support of [defendant's] motion
for summary judgment" and therefore was
'"necessarily obtained for use in the
case.'") (citation omitted). Accordingly, the cost
of Plaintiff s deposition transcript will be taxed in full.