United States District Court, M.D. Florida, Fort Myers Division
ABSOLUTE ACTIVIST VALUE MASTER FUND LIMITED, ABSOLUTE EAST WEST FUND LIMITED, ABSOLUTE EAST WEST MASTER FUND LIMITED, ABSOLUTE EUROPEAN CATALYST FUND LIMITED, ABSOLUTE GERMANY FUND LIMITED, ABSOLUTE INDIA FUND LIMITED, ABSOLUTE OCTANE FUND LIMITED, ABSOLUTE OCTANE MASTER FUND LIMITED, and ABSOLUTE RETURN EUROPE FUND LIMITED, Plaintiffs,
SUSAN ELAINE DEVINE, Defendant.
OPINION AND ORDER
E. STEELE SR. UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant's Motion for
Award of Costs and Fees (Doc. #713 and Doc.
#741) filed on July 25, 2018. Also filed are
the Declaration of Matthew D. Lee (Doc. #714) and a proposed
Bill of Costs (Doc. #715) in the amount of $104, 725.37.
Plaintiffs filed an Opposition (Doc. #732) on August 22,
2018, along with the Declaration of David Spears in Support
(Doc. #733). Defendant filed a Reply in Support (Doc. #750)
of her motion and another Declaration (Doc. #751) with
exhibits on October 2, 2018. Plaintiffs filed a Sur-Reply
(Doc. #752), and a Declaration of Christopher Dysard (Doc.
#753) on October 23, 2018. The parties were granted leave to
file the motion, response, and supporting declarations under
seal. (Docs. ## 728, 729, 738, 739, 741, 742.)
Court briefly summarizes the relevant portions of the lengthy
and contentious procedural history of this case as follows:
case was initiated on June 1, 2015, by a Complaint (Doc. #2)
and an Ex Parte Motion (Doc. #3) filed under seal.
(Doc. #7.) The six-count, 144-page Complaint alleged a money
laundering enterprise to conceal fraudulently obtained funds
taken in a penny stock scheme orchestrated by defendant Susan
Devine and her non-party former husband Florian Homm.
1, 2015, the Court entered a 69-page Opinion and Order (Doc.
#10) granting plaintiffs an ex parte Temporary
Restraining Order enjoining defendant from transferring,
converting, withdrawing or otherwise disposing of any money
or other assets. Defendant was also enjoined from the
destruction or disposal of her financial documents, and
limited discovery was permitted. Plaintiffs were required to
post a $10, 000 bond, and a preliminary injunction hearing
was set. The bond monies were deposited with the Clerk of
Court on July 7, 2015. (Doc. #15.)
Temporary Restraining Order was extended through July 30,
2015 (Doc. #55), and then through October 1, 2015 (Doc. #67),
and was modified and extended on August 3, 2015 (Doc. #68) to
exclude certain assets and August 24, 2015 (Doc. #76) to
release sums to pay expenses. On September 17, 2015, the
Court granted the parties' joint request to consolidate
the preliminary injunction hearing with the trial on the
merits (Doc. #83). On September 25, 2015, a Case Management
and Scheduling Order (Doc. #89) was entered. Laird Lile,
Orion Corporate and Trust Services, Ltd., and Conrad Homm
were allowed to intervene for the limited purpose of
protecting their interests in the assets described in their
motions. (Doc. #156.)
January 14, 2016, plaintiffs filed an Amended Complaint (Doc.
#196) to correct certain pleading deficiencies. The 147-page
Amended Complaint alleged two federal RICO claims (Counts I
and II), a state RICO claim and a Florida Civil Remedies for
Criminal Activities claim (Counts III and IV), a state law
unjust enrichment claim (Count V), and a state law
constructive trust claim (Count VI).
February 1, 2016, the temporary restraining order was further
amended to allow defendant to pay for the maintenance and
upkeep of foreign properties from foreign accounts, and to
allow the opening of accounts to accept rental income for
entities with rental income. (Doc. #230.) On February 2,
2016, the temporary restraining order was modified to allow a
release of funds for the reasonable living and educational
expenses and attorneys' fees for Isabella Devine and
Conrad Homm. (Doc. #233.) On March 21, 2016, a modification
was granted to allow defendant to rent out a villa in Spain
with the rental income to be reported to plaintiffs on a
monthly basis. (Doc. #333.)
April 19, 2016, the Court denied defendant's request to
dissolve the Temporary Restraining Order, leaving the issue
of the preliminary injunction for trial. (Doc. #368.)
Defendant filed a Notice of Interlocutory Appeal (Doc. #383),
but the appeal was later voluntarily dismissed. (Doc. #601.)
February 8, 2017, the Court granted in part defendant's
Motion to Dismiss Amended Complaint. (Doc. #521.) The Court
dismissed Counts I and II (the federal RICO counts) and the
Florida RICO and Florida Civil Remedies for Criminal
Activities claims (Count III and IV) without prejudice
because they did not set forth plausible claims that the
wrongful acts were committed domestically and not abroad.
(Id., p. 56.) Count VI was dismissed with prejudice
because constructive trust is not a freestanding cause of
action but a remedy to the unjust enrichment claim.
(Id., p. 62.) The motion was denied as to the unjust
enrichment claim. (Id., p. 63.) The Court granted
plaintiffs leave to file a second amended complaint.
(Id., p. 65.)
February 28, 2017, plaintiffs notified the Court that they
were choosing not to file a Second Amended Complaint (Doc.
#527), leaving only Count V for unjust enrichment as the
operative claim. Defendant moved to dissolve the Temporary
Restraining Order as not being justified by the unjust
enrichment claim, the only remaining claim. (Doc. #530.) On
May 8, 2017, the Court directed plaintiffs to file a Second
Amended Complaint which included only the remaining state
claim of unjust enrichment without the superfluous
allegations. (Doc. #559.) On May 15, 2017, the Second Amended
Complaint (Doc. #560) was filed.
25, 2017, the Court issued an Opinion and Order (Doc. #575)
granting defendant's motion to dissolve the Temporary
Restraining Order. Plaintiffs filed an interlocutory appeal
(Doc. #576), which on February 20, 2018, was deemed
voluntarily dismissed by plaintiffs. (Doc. #681.) On February
14, 2018, plaintiffs filed a Notice of Voluntary Dismissal
Without Prejudice Pursuant to Rule 41(a)(1)(A)(i) (Doc.
February 21, 2018, the Court entered an Order (Doc. #682)
dismissing the case without prejudice pursuant to the Notice
of Voluntary Dismissal Without prejudice (Doc. #680), and
directed the Clerk to close the case.
April 20, 2018, defendant filed a Motion for Entry of Partial
Final Judgment (Doc. #685). This Motion sought entry of a
final judgment in favor of defendant as to the counts of the
Amended Complaint which had been dismissed on February 8,
2017. After extensive briefing, on July 11, 2018, the Court
directed judgment in favor of defendant and against
plaintiffs dismissing Counts I, II, III, IV, and VI with
prejudice. (Doc. #707.) Judgment (Doc. #708) was issued on
July 11, 2018.
now seeks an award of costs pursuant to Federal Rule of Civil
Procedure 54(d) as a prevailing party; costs and
attorney's fees pursuant to Fed.R.Civ.P. 37(d), the
Court's inherent authority, and the Florida RICO Act; and
damages pursuant to Fed.R.Civ.P. 65 against the temporary
restraining order bond. The Court discusses each below.
seeks taxable costs of either $105, 425.37 (Doc. #713, p. 11;
Doc. #714, p. 2 ¶ 4) or $104, 725.37 (Bill of Costs, p.
1) pursuant to Fed.R.Civ.P. 54(d) as the prevailing party in
this case. A “prevailing party” is entitled to
recover costs other than attorney fees as a matter of course
unless a federal statute, the Federal Rules, or a court order
provide otherwise. Fed.R.Civ.P. 54(d)(1). The costs which may
be taxed in favor of a prevailing party are set forth in 28
U.S.C. § 1920. Plaintiffs object to many of the costs,
discussed below, and seek to reduce taxable costs to $3,
264.50. (Doc. #732, p. 29.) Plaintiffs have provided a chart
(Doc. #753-10) of the requested costs and their objections.
Costs Incurred After February 28, 2017
argue the Court should deny all costs incurred after February
28, 2017, the date plaintiffs filed their Notice of election
to pursue only the unjust enrichment count. (Doc. #527.)
Plaintiffs implicitly acknowledge that defendant became the
prevailing party as to the five counts plaintiffs decided not
to pursue as of this date. Plaintiffs argue, however, that
their subsequent February 14, 2018 voluntary dismissal of the
unjust enrichment count pursuant to Rule 41(a)(1)(A)(i) did
not create prevailing party status as to that last remaining
count because a voluntary dismissal is not a resolution on
the merits. Since defendant was not a prevailing party as to
the unjust enrichment count, plaintiffs argue, it would be
inequitable to tax any costs incurred between these dates
since these costs could only relate to the unjust enrichment
claim. (Doc. #732, pp. 30-32.) Plaintiffs compute these
impermissible costs as totaling $12, 712.33. (Doc. #753-10,
p. 8.) The Court rejects this position for several reasons.
certainly well-settled that “[p]revailing parties are
entitled to receive costs under Fed.R.Civ.P. 54(d)”,
U.S. EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th
Cir. 2000), while non-prevailing parties cannot be awarded
such costs, Lipscher v. LRP Publ'ns,
Inc., 266 F.3d 1305, 1321 (11th Cir. 2001). But
prevailing party status relates to the case, not just
individual counts within the federal case. Thus, a party may
be considered a “prevailing party” under Rule
54(d) without prevailing on all counts. Head v.
Medford, 62 F.3d 351, 354-55 (11th Cir. 1995);
Lipscher, 266 F.3d at 1321. To be a prevailing
[a] party need not prevail on all issues to justify a full
award of costs, however. Usually the litigant in whose favor
judgment is rendered is the prevailing party for purposes of
rule 54(d).... A party who has obtained some relief usually
will be regarded as the prevailing party even though he has
not sustained all his claims.... 10 Wright & Miller,
supra, § 2667, p. 129-130. Cases from this and other
circuits consistently support shifting costs if the
prevailing party obtains judgment on even a fraction of the
Medford, 62 F.3d at 354-55 (quoting United
States v. Mitchell, 580 F.2d 789, 793-94 (5th Cir. 1978)
(citations omitted)). Ordinarily, to be a prevailing party
requires a judgment or some “judicial
imprimatur” that prompts a material alteration
in the legal relationship of the parties. Buckhannon Bd.
& Care Home, Inc. v. W.Va. Dep't of Health
& Human Res., 532 U.S. 598, 605 (2001).
five unpursued counts were dismissed with leave to amend on
February 8, 2017; plaintiffs decided not to re-file such
counts on February 28, 2017; and an order and a judgment were
entered on July 11, 2018 dismissing the five counts with
prejudice and the unjust enrichment count in the Second
Amended Complaint without prejudice. (Docs. ## 707, 708.)
Defendant thus became the prevailing party in the case as of
July 11, 2018, when defendant succeeded on significant claims
and there was a change in the legal relationship between the
parties through a resulting enforceable judgment. Farrar
v. Hobby, 506 U.S. 103, 109, 111 (1992). The Court will
not exclude costs simply because they were incurred after
February 28, 2017.
Items of Taxable Costs
submitted a proposed Bill of Costs (Doc. #715) of $104,
725.37. It is undisputed that the Court may tax six
categories of litigation expenses as costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically
recorded transcripts necessarily obtained for use in the
(3) Fees and disbursements for printing and
(4) Fees for exemplification and the costs
of making copies of any materials where the copies are
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this
(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. All parties agree that taxable costs
are limited to those costs enumerated in § 1920. The
Court addresses each category of costs sought by defendant.
Filing and Docket Fees
to 28 U.S.C. § 1923, the Bill of Costs seeks the costs
of docket fees associated with plaintiffs' discontinuance
of the civil action ($5.00) and the fee for filing a motion
for judgment ($5.00). (Doc. #715, p. 1, and Exh. 6.) These
are taxable costs, 28 U.S.C. § 1920(1), and the $10.00
will be taxed.
Bill of Costs also seeks the cost of the $505 appellate
filing fee paid on May 20, 2016, in conjunction with
defendant's interlocutory Notice of Appeal (Doc. #383)
from the Opinion and Order (Doc. #368) denying
defendant's Motion to Dissolve the Temporary Restraining
Order. (Doc. #715, p. 1, and Exh. 1.) This appeal was later
voluntarily dismissed by defendant. (Doc. #601.) Since
defendant was not the ...