The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WENDALL HALL,
Plaintiff,
v. Case No. 3:15-cv-1054-J-39PDB
LIEUTENANT PETER MEROLA,
Defendant.
________________________________
ORDER
Following a jury trial, judgment was entered in favor of Defendant. See
Verdict (Doc. 242); Judgment (Doc. 243). As the prevailing party, Defendant
moves for taxation of costs in the amount of $1,317.34 (Doc. 245; Motion) for
the following items, as set forth in the Bill of Costs (Doc. 245-1; Ex. A): fees of
the Clerk; witness and subpoena fees; fees for copies or printing; and fees for
Plaintiff’s deposition transcript. See Ex. A at 1; Motion at 1-2. Plaintiff opposes
the motion (Doc. 253; Resp.).
The types of costs for which Defendant seeks reimbursement are
recoverable under 28 U.S.C. § 1920, as Plaintiff readily acknowledges. See
Resp. at 3-4. And Rule 54(d)(1) of the Federal Rules of Civil Procedure
“establishes a presumption that [allowable] costs are to be awarded to a
prevailing party.” See Chapman v. AI Transp., 229 F.3d 1012, 1038 (11th Cir.
2000) (citing Fed. R. Civ. P. 54(d)(1)). However, Plaintiff asks the Court to
wholly deny Defendant’s motion because Plaintiff is indigent. See Resp. at 1-3.
A district court has discretion to consider as a factor the non-prevailing party’s
financial status if the non-prevailing party shows “clear proof” of “dire financial
circumstances.” See Chapman, 229 F.3d at 1039. In considering the non-
prevailing party’s financial status, a district court my not compare the parties’
financial resources, nor may it “decline to award any costs at all.” Id.
Upon review of the docket, the Court finds Plaintiff is indigent. The
Court granted Plaintiff permission to proceed in forma pauperis on appeal. See
Order (Doc. 250). In his motion seeking to proceed as a pauper (Doc. 249),
Plaintiff declared under penalty of perjury that he was released from prison in
mid-2019, and was thereafter civilly detained at the Florida Civil Commitment
Center (FCCC); he has no money in his FCCC resident bank account; and he
does not own anything of value.
Accordingly, the Court exercises its discretion to reduce the award of
costs by fifty percent based on Plaintiff’s demonstrated “dire financial
circumstances.” See Chapman, 229 F.3d at 1039. See also J.B. by & through
K.B. v. Walt Disney Parks & Resorts US, Inc., No. 614CV1900ORL22GJK,
2017 WL 3065119, at *8 (M.D. Fla. July 19, 2017) (reducing an award by fifty
percent); Jessup v. Miami-Dade Cty., No. 08-21571-CIV, 2011 WL 294417, at
*2 (S.D. Fla. Jan. 27, 2011) (reducing an award by forty-five percent); Brown
v. U.S. Dep’t of Agric., No. 6:06CV1329ORL18UAM, 2008 WL 203382, at *2
(M.D. Fla. Jan. 23, 2008) (reducing an award by fifty percent).
As another reason to wholly deny Defendant’s motion, Plaintiff asserts
an award of costs would have a “chilling effect” on future litigants who suffer
civil rights violations, citing an unreported district court order, Mamani v.
Sánchez Berzaín, 08-21063-CIV-COHN/SELTZER, 2018 WL 7021966, at *2
(S.D. Fla. Dec. 12, 2018) (denying a motion to tax costs because the plaintiffs
were not only indigent but because the case was novel and complex and the
imposition of costs against the plaintiffs, who were relatives of Bolivian
residents allegedly massacred by the Bolivian military, would have a “chilling
effect on future human rights litigants”). See Resp. at 3.
Not only is Mamani factually and legally distinguishable from this one,
but Plaintiff cites no Eleventh Circuit authority recognizing a potential
“chilling effect” as a factor district courts may consider in ruling on a motion
for taxation of costs. On the contrary, the Eleventh Circuit has emphasized
Rule 54(d)(1) establishes a presumption that a prevailing party should be
awarded costs, and courts should have a “sound basis” to override that
presumption “since denial of costs is in the nature of a penalty.” See Chapman,
229 F.3d at 1038-39. Moreover, according to binding Eleventh Circuit
precedent, a district court may not “decline to award any costs at all.” Id. at
1039.
Finally, Plaintiff objects to some of Plaintiff’s specific requests. See Resp.
at 3-4. For instance, Defendant requests the Clerk to tax $200.00 for “service
of summons and subpoena.” See Ex. A at 1. Defendant does not explain or
provide documentation for these costs, though it appears they were incurred to
obtain the presence of Defendant’s three trial witnesses. Plaintiff does not
dispute the dollar amount but contends subpoenas were unnecessary because
the witnesses each work for the Florida Department of Corrections, implying
the witnesses would have voluntarily appeared to testify at trial. Plaintiff cites
no authority for this assertion, nor does he offer anything other than conjecture
to show that the defense witnesses would have testified at trial if not
subpoenaed. Given “[f]ees for service of summons and subpoena” are a taxable
item under § 1920, and Plaintiff fails to demonstrate such costs should not be
taxed, Plaintiff’s objection to this item is overruled. See U.S. E.E.O.C. v. W&O,
Inc., 213 F.3d 600, 624 (11th Cir. 2000) (holding that “private process server
fees may be taxed pursuant to §§ 1920(1) and 1921”).
Defendant requests the Clerk to tax $454.25 for “printed or electronically
recorded transcripts.” See Ex. A at 1. Plaintiff asserts this cost should not be
taxed because Defendant “does not identify which transcripts are subject to
this claim . . . or why those transcripts were reasonably necessary to the case.”
See Resp. at 4. It is true that Defendant does not explain this item in the Bill
of Costs. However, in his motion, Defendant clarifies that this cost was
incurred to secure Plaintiff’s deposition. See Motion at 1-2. Because this is a
taxable cost under § 1920, Plaintiff’s objection is overruled.
As to the remaining item in dispute, Defendant requests the Clerk to tax
$49.95 for copies or printing. See id.; Ex. A at 1. When the basis for certain
costs is solely within the knowledge of the moving party, such as costs for
photocopies, the moving party must demonstrate such costs were necessarily
incurred. Indeed, the Bill of Costs form includes a special note advising
prevailing parties of their obligation to provide documentation in support of a
request for taxation of costs: “Attach to [the] bill an itemization and
documentation for requested costs in all categories.” See Ex. A at 1. See also
Maronda Homes, Inc. of Fla. v. Progressive Express Ins. Co., No.
614CV1287ORL31TBS, 2015 WL 6468191, at *4 (M.D. Fla. Oct. 26, 2015) (“To
recover for photocopy expenses, a prevailing party must produce adequate
documentation to show that the copies at issue were reasonably intended for
use in the case.” (quoting George v. GTE Directories Corp., 114 F. Supp. 2d
1281, 1299 (M.D. Fla. 2000))); Powell v. Carey Int’l, Inc., 548 F. Supp. 2d 1351,
1360 (S.D. Fla. 2008) (“The burden of establishing entitlement to photocopying
expenses lies with the prevailing party.”). See also 28 U.S.C. § 1920(4) (“Fees
for exemplification and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case.”).
Defendant provides no itemization or documentation in support of the
request to tax $49.95. In the Bill of Costs, Defendant says he incurred these
costs for “[f]lees and disbursements for printing.” See Ex. A at 1. Confusingly,
in the motion, Defendant says he seeks reimbursement of “copy costs for
exemplification of Defendant’s docket filings,” but no additional explanation is
provided. See Motion at 1-2. Given the lack of explanation and documentation,
the Court is unable to assess whether these costs were reasonably necessary
or whether the rate of copying/printing was reasonable. Therefore, Plaintiffs
objection to this item is sustained, and the Court will deny Defendant’s motion
as to the copying/printing costs in the amount of $49.95.
For the reasons discussed, Defendant’s motion (Doc. 245) is granted in
part and denied in part. The Clerk is directed to enter a cost judgment
providing that the prevailing party, Defendant Peter Merola, recover from the
non-prevailing party, Plaintiff Wendall Hall, costs in the amount of $633.70.!
DONE AND ORDERED at Jacksonville, Florida, this Ist day of
December 2020.
Bhan) Booms
BRIAN J. DAVIS
United States District Judge
! Rounded up to the nearest penny, $633.70 is half of the total amount
Defendant seeks ($1,317.34) minus the copying/printing costs ($49.95).
Jax-6
c:
Counsel of Record