Behavior Analyst Certification Board, Inc. v. Vera Rodriguez

United States District Court

for the

Southern District of Florida

Behavior Analyst Certification )

Board, Inc., dba Pearson Vue, and )

NCS Pearson, Inc., Plaintiffs, )

Civil Action No. 21-22834-Civ-Scola

)

v. )

)

Evelyn Vera Rodriguez, Defendant. )

Order on Magistrate Judge’s Report and Recommendations and Entering

Final Default Judgment

This matter was referred to United States Magistrate Judge Jonathan

Goodman for a report and recommendations on Plaintiffs Behavior Analyst

Certification Board, Inc., doing business as Pearson Vue, and NCS Pearson,

Inc.’s motions for default judgment and for fees and costs. Judge Goodman

issued a report, recommending that the Court (1) grant the Plaintiffs’ motion for

default judgment (ECF No. 17), awarding them $144,810.00 in damages, and (2)

grant, in part, and deny, in part, the Plaintiffs’ motion for fees and costs (ECF

Nos. 34, 36), awarding them $33,817.00. (Rep. & Recs., ECF No. 38.) The

Plaintiffs have filed objections, identifying a clerical inaccuracy in the attorney’s

fees calculation and complaining that Judge Goodman erred in not awarding

them their investigative costs. (Pls.’ Objs., ECF No. 39.) Irrespective of the limited

scope of the objections, the Court has considered Judge Goodman’s report on a

de novo basis and, aside from the calculation error, finds it cogent and

compelling. While the Court appreciates the Plaintiffs’ forthrightness, in

identifying the mathematical discrepancy, in Defendant Evelyn Vera Rodriguez’s

favor, at the same time, the Court finds their objections about the investigative

costs unavailing. Accordingly, the Court affirms and adopts Judge Goodman’s

report and recommendations (ECF No. 38), modifying it, only narrowly, as to the

computational correction, thus overruling, in part, and sustaining, in part, the

Plaintiffs objections (ECF No. 39) and, therefore, (1) granting the Plaintiffs’

motion for default judgment (ECF No. 17) and (2) granting, in part, and

denying, in part, the Plaintiffs’ motions for fees and costs (ECF Nos. 34, 36).

First, as to the computational and clerical discrepancies, in the number of

hours submitted by the timekeepers in this case, the Court sustains the

Plaintiffs’ objections as to the $931 overage calculated by Judge Goodman.

Correspondingly, the Court modifies the $33,817.00 fee awarded, reducing it to

$32,886.00.

Conversely, the Court finds the Plaintiffs’ objections as to Judge

Goodman’s recommendation that the Court deny their bid for an award of their

investigative costs, unavailing. In their initial motion seeking costs, the Plaintiffs

sought $57,013.78 for amounts “incurred retaining Nathans Investigations, LLC

to investigate the nature and scope of the harm and damages incurred by the

[Board] as a result of Rodriguez’s theft.” (Pls.’ Mot. for Fees and Costs, ECF No.

34, 4.) As Judge Goodman points out, the Plaintiffs, in seeking these costs,

reference the Defend Trade Secrets Act, Florida’s Uniform Trade Secrets Act, and

Federal Rule of Civil Procedure 54(d)(1) as legal support for their request. (Rep. &

Recs. at 37.) None of these authorities, however, like Judge Goodman explains

and the Plaintiffs do not dispute, supports an award for the investigative costs

the Plaintiffs seek. Further, again as noted by Judge Goodman, the Plaintiffs’

submission did not comply with the Local Rules, which requires, among other

things, that movants use a particular Administrative Office form when seeking

taxable costs. And, finally, to the extent the Plaintiffs seek non-taxable costs,

they presented no authority justifying the award and, what’s more, it appears

such costs are frequently denied by Courts in this district.

In their objections, the Plaintiffs do not address any of these shortcomings.

Instead, they point to a provision of the Copyright Act, allowing for the recovery

of “full costs,” and a district court in the Eastern District of Virginia’s order,

granting such costs, describing it as a “close issue.” (Pls.’ Objs. at 5 (quoting Ez-

XBRL Sols., Inc. v. Chapke, 117CV700LMBTCB, 2018 WL 5808724, at *11 (E.D.

Va. Sept. 25, 2018), rep. and recs. adopted, 117CV00700LMBTCB, 2018 WL

5809406 (E.D. Va. Oct. 22, 2018)).) The Court declines to consider the Plaintiffs’

argument, submitted for the first time in their objections. Williams v. McNeil, 557

F.3d 1287, 1292 (11th Cir. 2009) (“a district court has discretion to decline to

consider a party’s argument when that argument was not first presented to the

magistrate judge”); see also Borden v. Sec’y of Health & Human Servs., 836 F.2d

4, 6 (1st Cir. 1987) (parties must take before the magistrate judge “not only their

best shot but all of their shots”) (cleaned up).

In sum, then, the Court (1) sustains, in part, and overrules, in part, the

Plaintiffs’ objections (ECF No. 39); (2) affirms and adopts Judge Goodman’s

report and recommendations (ECF No. 23), modifying it to the limited extent

described above; (3) grants, in part, and denies, in part, the Plaintiffs’ motions

for fees and costs (ECF Nos. 34, 36); and (4) grants the Plaintiffs’ motion for

default judgment (ECF No. 17). As a result, the Court enters final default

judgment against Defendant Evelyn Vera Rodriguez and in favor of Plaintiffs

Behavior Analyst Certification Board, Inc,. and NCS Pearson, Inc., awarding the

Plaintiffs $144,810.00 in damages and $32,886.00 in fees.

The Court directs the Clerk to close this case. The Court also denies as

moot any other pending motions in this case.

Done and ordered at Miami, Florida on September 23, 2022.

zobs N. Scola,

United States District Judge

Copy via U.S. mail to:

Evelyn Vera Rodriguez

3115 SW 69th Ave.

Miami, FL 33155