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Brazill v. Miners

United States District Court, M.D. Florida, Tampa Division

April 3, 2018

NATHANIEL R. BRAZILL, Plaintiff,
v.
JOHN MINERS, et al., Defendants.

          ORDER

          JAMES D. WITTEMORE, United States District Judge

         BEFORE 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 (M.D.Fla.).

         28 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).

         Plaintiff 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).

         I. Plaintiffs financial status

         The 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.

         II. Process Server Fees

         The 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 taxed.

         III. Court reporters' fees

         The 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").

         To the 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.

         IV. Cost of the transcript of Plaintiffs deposition

         "[F]ees 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.

         V. ...


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