Opinion
Case No. 8:04-cv-2783-T-23TBM.
January 29, 2008
REPORT AND RECOMMENDATION
THIS MATTER is before the court on referral by the Honorable Steven D. Merryday for a Report and Recommendation on U.S. Fire's Verified Motion to Tax Costs (Doc. 369). See docket entry dated 11/7/2007. By its motion, Plaintiff seeks to recover $18,047.95 for the costs it has incurred in prosecuting this declaratory action and it urges that the costs are properly taxed against Defendants, James R. Mikes and Suncoast Country Clubs, Inc. Defendants have filed a response in opposition (Doc. 383).
I.
On December 27, 2004, United States Fire Insurance Company ("Plaintiff" or "U.S. Fire") filed this declaratory action against its insureds, Freedom Village of Sun City Center, Ltd., Freedom Group, Inc., and Frank Herold (collectively "Freedom Defendants" or "the Insureds"). In particular, U.S. Fire sought a declaration that no coverage existed for any claims asserted against its Insureds in the underlying state court action styled Suncoast Country Clubs, Inc. and James R. Mikes v. Freedom Village of Sun City Center, Ltd., Freedom Group, Inc. and Frank Herold, Case No. 98-5802 (the "Suncoast action"), due to the Insureds' five-year delay in providing it with notice of the action. See (Doc. 1). In March 2005, James R. Mikes and Suncoast Country Clubs, Inc. ("Mikes/SCC" or "Defendants") moved to intervene in the declaratory action, see (Doc. 12), and their motion to intervene was granted on April 15, 2005, see (Doc. 17). On October 6, 2005, the parties attended a court-ordered mediation, which proved unsuccessful. See (Doc. 51). On January 13, 2006, U.S. Fire sought leave to file an amended complaint, see (Doc. 106), and the motion was granted shortly thereafter. See (Doc. 120).
On February 10, 2006, U.S. Fire filed its Amended Complaint (Doc. 127) against the Freedom Defendants and Mikes/SCC, seeking a declaration that it was not liable for any portion of a settlement that was negotiated (in December 2005) in the Suncoast action. On June 2, 2006, U.S. Fire withdrew its defense of late notice. (Doc. 192). On June 6, 2006, the Freedom Defendants were dismissed from the instant action. (Doc. 194). On July 13, 2006, another court-ordered mediation was conducted. See (Doc. 221). In August and September 2006, the parties filed cross-motions for summary judgment. By Order (Doc. 362) dated October 16, 2007, the district court granted U.S. Fire's Motion for Final Summary Judgment (Doc. 252) and Judgment (Doc. 364) was entered in favor of Plaintiff and against Defendants. Thereafter, U.S. Fire filed its instant motion to tax costs (Doc. 369).
Pursuant to the terms of the Suncoast settlement, Mikes/SCC sought to recover from U.S. Fire the principal sum of $1,700,100 plus prejudgment interest for loss/damage suffered by Mikes/SCC at the hands of the Freedom Defendants under three umbrella policies issued by U.S. Fire.
On October 24, 2007, the Judgment was amended to conform with the court's Order (Doc. 362). See (Doc. 368).
II.
Rule 54(d) provides that costs other than attorney's fees "should be allowed to the prevailing party" unless a federal statute, the federal rules, or court order provides otherwise. Fed.R.Civ.P. 54(d)(1). This rule creates a presumption in favor of awarding costs to the prevailing party. Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1296 (11th Cir. 2001) (citing Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991)). In taxing costs under Rule 54, courts may tax only those costs explicitly authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). Under 28 U.S.C. § 1920, the following costs may be taxed: (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; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under § 1923; and (6) compensation of court appointed experts and interpreter services. 28 U.S.C. § 1920; Mathews v. Crosby, 480 F.3d 1265, 1276-77 (11th Cir. 2007). It is within the court's discretion to deny a full award of costs; however, the court "must have and state a sound reason for doing so." Chapman v. A.I. Transp., 229 F.3d 1012, 1039 (11th Cir. 2000). A district court's cost determination is reviewed for abuse of discretion. Id.
The Eleventh Circuit has recognized that the "denial of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of litigation." Chapman, 229 F.3d at 1039 (quoting Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977).
III.
By its instant motion, Plaintiff seeks to recover costs, pursuant to Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920. Specifically, U.S. Fire seeks to recover the following costs: Filing fees: $ 150.00 Process server fees: $ 200.38 Court reporter fees/transcripts: $11,691.41 Witness fees: $ 1,000.00 Mediation fees: $ 1,957.50 Toll charges: $ 562.83 Express mail: $ 320.08 Photocopies: $ 2,165.75 ____________ $18,047.95 See Ex. B (Doc. 369-3). Documentation in support of certain of these costs is appended to the motion. See Exs. C-F (Doc. 369-4 to 369-7). Counsel declares that all costs were necessarily incurred in this action. Ex. A (Doc. 369-2).Defendants counter that none of the charges sought are taxable (Doc. 383). First, Defendants urge that certain costs sought by Plaintiff are not compensable under § 1920. In particular, Defendants assert that the costs incurred for facsimiles, long-distance telephone calls and teleconferencing, couriers, express mail, postage, and mediation fees are not taxable under § 1920. Second, Defendants urge that Plaintiff is not entitled to recover the $1,000.00 witness (deposition) fee paid to Frank Hocko, the former claims manager assigned to this matter and the Plaintiff's primary Rule 30(b)(6) witness, because he essentially was a party/employee and thus Plaintiff may not collect a witness fee for his deposition. Even assuming that Plaintiff is entitled to a witness fee for Hocko's deposition, Defendants urge that the maximum amount it may recoup is the $40.00 attendance fee under 28 U.S.C. § 1821. Third, Defendants urge that Plaintiff is not entitled to costs for photocopying and court reporter fees/transcripts because Plaintiff failed to adequately describe the nature of such and therefore a determination cannot be made that such was necessarily obtained for use in the case. Finally, Defendants urge the court to exercise its discretion to deny the following: (1) costs incurred prior to Defendants becoming parties to this litigation in May 2005 (these costs include the filing fee, process server fees, and certain court reporter fees and photocopies); (2) costs incurred due to Plaintiff's "bogus late notice assertion and discovery abuses" (these costs include deposition fees for U.S. Fire employees taken in February, March, and August 2006); (3) costs incurred related to Plaintiff's state court joint-defense agreement (these costs include copy costs dated August 9, 2005, and certain depositions conducted in February and September 2005); and (4) all costs incurred prior to June 2006 when the Insureds were dismissed from this litigation. (Doc. 383).
Each category of costs is addressed in turn.
Fees of the Clerk and Fees for Service of Summons and Subpoena
Plaintiff seeks to recover the $150.00 filing fee for the complaint and $200.38 for the fees incurred in serving the summons and subpoena. Pursuant to §§ 1920(1) and 1921, these costs ordinarily should be taxed to Defendants. See 28 U.S.C. §§ 1920(1), 1921; EEOC v. W O, Inc., 213 F.3d 600, 624 (11th Cir. 2000) (holding private process server fees may be taxed under §§ 1920(1), 1921). However, it is recommended that the court exercise its discretion and deny Plaintiff's requests for the above costs. Notably, Defendants were not parties to the litigation at the time the costs were incurred; rather, Plaintiff brought suit against its Insureds, the Freedom Defendants. Furthermore, Plaintiff's basis for declaring no obligation to its Insureds essentially was a late notice defense that was later withdrawn.
Court Reporter Fees/Transcripts
Mediation fees
See W O, Inc. 213 F.3d at 621 Id. $4,989.95 See Mota v. Univ. of Tex. Houston Health Sci. Ctr.261 F.3d 512530 Brisco-Wade v. Carnahan 297 F.3d 781782-83 Sea Coast Foods, Inc. v. Lu-Mar Lobster Shrimp, Inc. 260 F.3d 10541061
Such is not the case in regards to the March 23, 2006, deposition of Mary Hughes. Review of the pleadings and docket fails to substantiate the need for the transcript of this deposition.
While Defendants urge that the costs incurred with Hocko's depositions should not be taxed because such related to Plaintiff's withdrawn late-notice defense, the parties and the court relied on the witness's testimony and thus the costs associated with such should be recoverable.
The undersigned accepts counsel's representation as to the amounts expended for these court reporter fees/transcripts.
Witness Fees
Plaintiff seeks to recover the $1,000.00 witness fee it paid to Frank Hocko to depose him at a time at which he was not employed by U.S. Fire. The recovery of witness fees under § 1920 is strictly limited by § 1821, which authorizes travel reimbursement and a $40.00 per diem. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2460 (2006). Under § 1821(b), a prevailing party may recover witness fees of up to $40.00 per day and travel expenses up to 100 miles for the appearance of witnesses at trial. Here, Plaintiff's documentation reveals this amount was an "attendance fee;" no travel expenses are alleged. Accordingly, it is recommended that the court tax Defendants $40.00 pursuant to the statutory authority cited above.
Toll Charges and Express Mail
Photocopies
See Scelta v. Delicatessen Support Servs., Inc. 203 F. Supp. 2d 13281339See Cullens v. Ga. Dep't of Transp.29 F.3d 14891494Dowdell v. City of Apopka698 F.2d 11811192see also W O, Inc. 213 F.3d at 621-22 $33.02 See See See id. $173.45 See See28 U.S.C. § 1920Duckworth v. Whisenant 97 F.3d 13931399Miller v. Kenworth of Dothan, Inc.117 F. Supp. 2d 12471266 See 28 U.S.C. § 1920 Cullens29 F.3d at 1494see also W O, Inc. 213 F.3d at 621-22 $568.05 See See Cullens 29 F.3d at 1494 Scelta203 F. Supp. 2d at 1340-41
Again, the undersigned accepts counsel's representation as to the amounts expended for these charges.
IV.
For the foregoing reasons, it is RECOMMENDED that the court GRANT in part and DENY in part U.S. Fire's Verified Motion to Tax Costs (Doc. 369). In particular, it is RECOMMENDED that Defendants be taxed $5,804.47 pursuant to 28 U.S.C. § 1920.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; M.D. Fla. R. 6.02; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20.