Horowitz v. Allied Marine, Inc

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-cv-60358-ALTMAN/Hunt

KENNETH A. HOROWITZ, as

Assignee of Underwater Exploration Company Inc.,

Plaintiff,

v.

ALLIED MARINE, INC.,

Defendant.

___________________________________/

OMNIBUS ORDER

The parties have filed several post-trial motions, which we’ll adjudicate together here. First,

Allied Marine, Inc., our Defendant, has filed an Amended Motion for Remittitur or New Trial [ECF

No. 248]. Second, Kenneth Horowitz, our Plaintiff, has filed a Motion to Tax Costs [ECF No. 243].

Third, Allied Marine has filed its own Motion to Tax Costs [ECF No. 247]. After careful review, we

DENY the Defendant’s Amended Motion for Remittitur or New Trial, GRANT in part and DENY

in part the Plaintiff’s Motion to Tax Costs, and DENY the Defendant’s Motion to Tax Costs.

BACKGROUND

After more than three years of litigation, the jury trial in this case began on April 22, 2024. See

Paperless Minute Entry for Trial Day 1 [ECF No. 210]. At trial, Horowitz presented three counts

from his Amended Complaint [ECF No. 27] to the jury: two express-warranty claims under the

Limited Warranty, see Amnd. Compl. ¶¶ 209–29 (Count I) (alleging that the express warranty “fails of

its essential purpose”); id. ¶¶ 267–83 (Count IV) (breach of express warranty), and one claim for breach

of the implied warranty of merchantability, id. ¶¶ 299–315 (Count VI). On April 29, 2024—after four

days of witness testimony, see Paperless Minute Entry for Trial Day 2 [ECF No. 213]; Paperless Minute

Entry for Trial Day 3 [ECF No. 214]; Paperless Minute Entry for Trial Day 4 [ECF No. 215]; Paperless

Minute Entry for Trial Day 5 [ECF No. 216], and another day of deliberations, see Paperless Minute

Entry for Trial Day 6 [ECF No. 218]—the jury returned its verdict.

The jury determined that Allied Marine was not liable on the express-warranty claims Horowitz

had asserted in Counts I and IV, see Jury Verdict [ECF No. 221] at 1, but found Allied Marine liable

under Count VI for breaching the implied warranty of merchantability, see id. at 3. The jury calculated

Horowitz’s damages as to Count VI to be $548,755.28, id. at 4, and found that Horowitz had failed to

mitigate his damages by $2,700.00, id. at 5. Accordingly, the jury awarded Horowitz a total of

$546,055.28 in damages. Ibid. On April 30, 2024, we entered judgment in favor of Allied Marine on

Counts I and IV, see Final Judgment [ECF No. 223] ¶ 2, and in favor of Horowitz on Count VI,

awarding him $546,055.28 in damages, id. ¶ 1.

On May 28, 2024, Allied Marine timely filed its First Motion for a New Trial [ECF No. 242].

See FED. R. CIV. P. 59(b) (“A motion for a new trial must be filed no later than 28 days after the entry

of judgment.”); see also Precision Wellness, LLC v. Demetech Corp., 2023 WL 5448038, at *4 (S.D. Fla. Aug.

24, 2023) (Bloom, J.) (“[T]he 28-day period in which to file a Rule 59 Motion is triggered not when

the Final Judgment is signed, but rather ‘28 days after the entry of the judgment’ . . . on the docket[.]”

(first quoting FED. R. CIV. P. 59(e); and then citing Ramos v. Boehringer Manheim Corp., 896 F. Supp.

1213, 1214 n.1 (S.D. Fla. 1994) (Mishler, J.))). Before we could review that Motion on its merits,

however, Allied Marine filed an Amended Motion for a New Trial (“Def.’s Amnd. Mot.”) [ECF No.

248], which we accepted, see Omnibus Order [ECF No. 246] at 3 (denying Allied Marine’s First Motion

for a New Trial as moot without ruling on the merits); see also Pate v. Seaboard R.R., Inc., 819 F.3d 1074,

1084 (11th Cir. 1987) (“We conclude that a district court may, in its discretion, allow an amendment

to a timely motion for a new trial prior to its decision on the merits of the motion and that the court

may consider new grounds raised in the amended motion.”). The parties have also filed Cross-Motions

to Tax Costs. See Plaintiff’s Motion to Tax Costs (“Pl.’s Costs Mot.”) [ECF No. 243]; Defendant’s

Motion to Tax Costs (“Def.’s Costs Mot.”) [ECF No. 247]. Each of these motions is now ripe for

resolution. See Plaintiff’s Motion to Tax Costs Reply (“Pl.’s Costs Reply”) [ECF No. 254]; Defendant’s

Motion to Tax Costs Reply (“Def.’s Costs Reply”) [ECF No. 255]; Defendant’s Amended Motion for

New Trial Reply (“Def.’s Amnd. Mot. Reply”) [ECF No. 256].

THE LAW

A motion for a new trial under Federal Rule of Civil Procedure 59(a) may be granted “for any

reason for which a new trial has heretofore been granted in an action at law in federal court,” FED. R.

CIV. P. 59(a)(1)(A), including when “the verdict is against the weight of the evidence . . . [or] the

damages are excessive,” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). “[W]hen

considering a motion for new trial, the trial judge may weigh the evidence, but it is proper to grant the

motion only if the verdict is against the great, not just the greater, weight of the evidence.” Ard v. Sw.

Forest Indus., 849 F.2d 517, 520 (11th Cir. 1988) (citing Watts v. Great Atl. & P. Tea Co., 842 F.2d 307,

310 (11th Cir. 1988)).

While “[f]ederal law governs the decision whether or not to grant a new trial, . . . an issue of

the sufficiency of damages awarded for a state claim is decided under state law.” Collins v. Marriott Int’l,

Inc., 749 F.3d 951, 960 (11th Cir. 2014). Under Florida law, when “determining whether an award is

excessive or inadequate in light of the facts and circumstances presented to the trier of fact,” courts

consider:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on

the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict

or misconceived the merits of the case relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages into account or

arrived at the amount of damages by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable relation to the amount of damages

proved and the injury suffered; and

(e) Whether the amount awarded is supported by the evidence and is such that it could

be adduced in a logical manner by reasonable persons.

FLA. STAT. § 768.74(5). But a court may not disturb the jury’s assessment of damages “unless it is so

inordinately large as obviously to exceed the maximum limit of a reasonable range within which the

jury may properly operate.” Bould v. Touchette, 349 So. 2d 1181, 1184-85 (Fla. 1977). And the “party

claiming an excessive verdict bears the burden to prove that the amount is not supported by the

evidence or that the jury was influenced by matters beyond the bounds of the record.” Subaqueous

Servs., Inc. v. Corbin, 25 So. 3d 1260, 1268 (Fla. 1st DCA 2010).

Under Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute, [the Federal Rules

of Civil Procedure], or a court order provides otherwise, costs—other than attorney’s fees—should

be allowed to the prevailing party.” The Eleventh Circuit has held that Rule 54 “creates a presumption

in favor of awarding costs to the prevailing party[.]” Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639

(11th Cir. 1991). A prevailing party is “one who has succeeded on any significant claim affording it

some of the relief sought.” Tex. State Teachers Ass’n v. Garland Ind. Sch. Dist., 489 U.S. 782, 791 (1989).

ANALYSIS

I. Allied Marine’s Amended Motion for New Trial

We’ll start with Allied Marine’s request that we “vacate the final judgment, set aside the jury’s

verdict on Count VI, and order a new trial on the issue of damages for that claim unless Horowitz

agrees to remit the excess damages awarded.” Def.’s Amnd. Mot. at 5. We won’t be doing any of those

things.

As we instructed the jury at trial, “[t]he measure of damages [for breach of warranty] is the

difference at the time and place of acceptance between the value of the goods accepted and the value

they would have had if they had been as warranted.” Apr. 29 Trial Tr. [ECF No. 241] at 1185:5–8;

accord FLA. STAT. § 672.714(2). The parties stipulated that Horowitz purchased the Yacht for

$1,254,000, see Joint Pretrial Stipulation [ECF No. 170] at 6 (“The Riva vessel was purchased by

Kenneth Horowitz for $1,254,000.”), which (all agreed) was evidence of the value of the Yacht as

warranted, cf. A&E Adventures LLC v. Intercard, Inc., 529 F. Supp. 3d 1333, 1348 n.11 (S.D. Fla. 2021)

(Altman, J.) (“The purchase price a plaintiff was willing to pay for a product in an arms-length

transaction is usually prima facie evidence of the market value of the product as promised[.]” (cleaned

up)); see also Verdict Form [ECF No. 221] at 5 (“The total value of damages cannot exceed

$1,255,150.00.”).1

In attacking the jury’s verdict, Allied Marine argues that the “evidence does not support a

finding that the delivered yacht at the time and place of acceptance was worth more than

$1,254,000 . . . [or] less than $1,214,000[,]” Def.’s Amnd. Mot. at 11—i.e., that “the upper limit of the

reasonable range of the base damages on Count VI was $41,155[,]” id. at 9. But the jury already rejected

that defense at trial. See Jury Verdict at 4 (concluding that Horowitz’s pre-mitigation damages equaled

$548,755.28). And, relying on the factors set forth in FLA. STAT. § 768.74(5), so do we.

Allied Marine starts by suggesting that Horowitz’s trial evidence somehow established that,

“at the time and place of acceptance, the delivered yacht was worth what [Horowitz] paid for it or

more,” making “no diminished-value damages . . . possible.” Def.’s Amnd. Mot. at 12. Here, Allied

Marine offers three arguments—all meritless.

First, Allied Marine presents a tortured interpretation of Horowitz’s trial testimony, which

(Allied Marine tells us) shows that, “from Horowitz’s own mouth, the value of the yacht at the time

and place of acceptance was exactly what he paid for it[.]” Ibid. Except that’s not what Horowitz said.

Here’s the relevant exchange from trial:

1 The additional $1,150 reflects the $1,150 service invoice Allied Marine admitted Horowitz should’ve

been permitted to include in his damages calculation. See Apr. 29 Trial Tr. at 1144:5–15 (“THE

COURT: [I]n no circumstances can the total damages exceed the value of the boat. . . . Plus the $1,150

invoice? MS. WITTER: Yes.”).

Q. Mr. Horowitz, the question that was pending at the time was: What is the value of

that Riva to you?

A. Because I was unable to use it, zero.

Q. And what was the value of the Riva after it was delivered to your dock?

A. 1,251,000 -- whatever I paid for it.

Q. No, I meant to you personally, as the user of the boat.

A. Zero.

Apr. 23. Trial Tr. at 168:16–23.

Allied Marine thus ignores Horowitz’s explicit clarification that, while he “paid” $1,251,000 for

the Yacht, he thought it was worth “[z]ero” dollars “after it was delivered to [his] dock[.]” Ibid.2 To

assign any weight to Allied Marine’s out-of-context account of Horowitz’s testimony would be to

betray our obligation to “[c]onsider[ ] the evidence as a whole, and view[ ] it in the light most favorable

to the verdict[.]” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1265 (11th Cir. 2008); see also Jury

Instructions [ECF No. 219] at 16 (“[Y]ou must consider all the evidence . . . . To decide whether you

believe any witness I suggest that you ask yourself . . . [d]id the witness appear to understand the

questions clearly[?]”). Allied Marine cannot cherry-pick testimony to meet its burden of showing that

the verdict “was contrary to the manifest weight of the evidence.” Subaqueous Servs., 25 So. 3d at 1267

(citing Brown v. Estate of Stuckey, 749 So. 2d 490, 494 (Fla. 1999)); see also Celador Int’l Ltd. v. Walt Disney

Co., 2010 WL 11505709, at *21 (C.D. Cal. Dec. 21, 2010) (denying a motion for new trial where the

“[d]efendants . . . mischaracterize[d] the witness’s testimony, citing only incomplete sections of

testimony taken out of context”).

2 Allied Marine also contends that, by answering the question, “[w]hat is the value of the boat to you?”

Horowitz only established that he believed the Yacht had “‘a negative value’ . . . at the time of trial”—

and not “at the time and place of acceptance,” Def.’s Amnd. Mot. at 16 (quoting Apr. 23. Trial Tr. at

154:19–21 (emphasis added)). This hyper-literalist, misleading account of Horowitz’s testimony is

directly undercut by Horowitz’s clarification that the “value of the Riva after it was delivered” was

“[z]ero.” Apr. 23. Trial Tr. at 168:16–23; see also Jonathan R. Cohen, The Immorality of Denial, 79 TUL.

L. REV. 903, 913 (2005) (noting that this kind of “[i]t depends on what the definition of ‘is’ is”

argument “speak[s] partial truths to obscure and mislead” (cleaned up)).

Second, Allied Marine claims that “Horowitz’s own surveyor opined that the value of the yacht

that Allied Marine delivered at the time and place of acceptance” was “‘approximately $1,600,000[,]’

. . . $346,000 more than the value of the yacht as warranted[.]” Def.’s Amnd. Mot. at 12 (quoting Ex.

D85 [ECF No. 229-35] at 11). But that valuation came in weeks before delivery, compare Ex. D85 at 1

(survey dated February 24, 2020), with Ex. P7 [ECF No. 226-1] at 12–14 (delivery certificate dated

March 17, 2020), so it doesn’t tell us much about the value of the Yacht “at the time and place of

acceptance[,]” FLA. STAT. § 672.714(2). In any event, the jury heard other evidence suggesting that the

Yacht was already defective when it pulled up to Horowitz’s dock. See Apr. 23 Trial Tr. at 96:18–97:2

(“When it got closer, I noticed that . . . both engine hatches were open, and I heard an alarm going. .

. . It was a high heat alarm . . . . I also saw, when I got on it, that there were gauges that were not

working.”). And the jury was entitled to believe Horowitz’s evidence over Allied Marine’s. In other

words, “a reasonable jury, making its own credibility determinations and weighing the evidence,” could

conclude that the pre-delivery appraisal value didn’t reflect the value of the Yacht as delivered. Onemata

Corp. v. Rahman, 2022 WL 18278477, at *3 (S.D. Fla. Dec. 7, 2022) (Dimitrouleas, J.).

It’s thus simply not the case (as Allied Marine suggests) that “the implications of Horowitz’s

own sworn testimony and Horowitz’s own marine survey make plain that the jury must have ignored

these two key pieces of evidence in order to reach its conclusion.” Def.’s Amnd. Mot. at 21. The jury

only ignored Allied Marine’s far-fetched interpretations of that evidence. See Kerrivan v. R.J. Reynolds

Tobacco Co., 2018 WL 6528415, at *4 (M.D. Fla. June 20, 2018) (Erickson, J.) (“Because the jury chose

to accept [the plaintiff’s] evidence and reject the defendants’ evidence does not mean the verdict was

illogical or without a reasonable basis.”).

Third, Allied Marine asks us to disregard “Horowitz’s subjective value conclusion . . . [as] legally

insufficient evidence of value in fact” at delivery. Def.’s Amnd. Mot. at 17 (citing Kia Motors Am., Inc.

v. Doughty, 242 So. 3d 1172, 1175 (Fla. 2d DCA 2018)). According to Allied Marine, the Second District

Court of Appeal’s ruling in Kia Motors dictates that “a claimant’s own subjective value conclusions . . .

[are] legally insufficient to establish the delivered [good’s] value in fact at the time and place of

acceptance.” Id. at 16 (citing Kia Motors, 242 So. 3d at 1177). Kia Motors doesn’t say that at all.

The court there found that the plaintiffs failed to offer any “evidence that would have enabled

the jury to determine the actual value of th[e] defective car at the time and place of sale,” since their

diminution argument was based only on “defects that did not begin to manifest themselves until nearly

a year after the car was purchased.” Kia Motors, 242 So. 3d at 1176. But the court never said that a

plaintiff’s subjective assessment of value is categorically insufficient. See id. at 1177 (“We hold only that

in this case, [the plaintiffs] failed to produce any evidence to prove that value.” (emphasis added)). In

fact, “[c]ases binding on this court” hold the opposite—viz., “that ‘an owner of property is competent

to testify regarding its value.’” Neff v. Kehoe, 708 F.2d 639, 644 (11th Cir. 1983) (first quoting Dietz v.

Consolidated Oil & Gas, 643 F.2d 1088, 1094 (5th Cir. Apr. 1981);3 then citing Kestenbaum v. Falstaff

Brewing Corp., 514 F.2d 690, 698 (5th Cir. 1975); and then citing Justice v. Pennzoil Co., 598 F.2d 1339,

1344 (4th Cir. 1979)).

Just like any other lay witness’s opinion testimony, the “accuracy of [Horowitz’s] opinion ‘is a

matter for cross-examination and goes merely to the weight’” of the evidence. Chmura v. Monaco Coach

Corp., 2006 WL 709325, at *4 (M.D. Fla. Mar. 20, 2006) (Bucklew, J.) (quoting Meredith v. Hardy, 554

F.2d 764, 765 (5th Cir. 1977)); see also FED. R. EVID. 701 advisory committee’s note to 1972 proposed

rules (“[C]ross-examination and argument will point up the weakness.” (cleaned up)). And, since

Horowitz presented evidence that the Yacht was already defective at the time of delivery, see Apr. 23

Trial Tr. at 96:18–97:2 (“When it got closer, I noticed that . . . both engine hatches were open, and I

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down before October

1, 1981.

heard an alarm going. . . . It was a high heat alarm . . . . I also saw, when I got on it, that there were

gauges that were not working.”),4 the facts of Kia Motors are simply inapposite here. Even after cross-

examination, in fact, Horowitz’s evidence appeared to persuade the jury that the Yacht’s underlying

problems manifested at the time of delivery—and that their symptoms persisted long after. See, e.g.,

Apr. 25 Trial Tr. at 521:6–8 (“If you don’t adhere to the standards, aside from the safety issues that I

introduced, it also makes the appearance of the gremlins or the intermittent problems more

problematic[.]”). We refuse to disturb that reasonable finding. See Lane v. Celotex Corp., 782 F.2d 1526,

1528 (11th Cir. 1986) (“[I]t is the province of the jury to assess the probative value of the evidence.”).

Nor is Allied Marine correct to suggest that, “exclusive of Horowitz’s failure to mitigate

damages, the evidence supports diminished-value damages of no more than $40,000 for the yacht

itself.” Def.’s Amnd. Mot. at 10. Allied Marine arrives at this figure by relying only on the testimony

of its own witness (and Director), Simone Meletti, who opined that, “[b]ased on the items in the report

of the expert that [was] engaged by Allied [Marine] . . . if we consider everything, it would be a few

thousands of dollars, like $40,000” to fully repair the Yacht. Apr. 25 Trial Tr. at 672:15–19. But the

jury obviously disagreed—and we’re not entitled to throw out the jury’s verdict (along with Horowitz’s

evidence) as if Meletti were the only witness who testified at trial.

As we’ve said, the jury was well within its rights to consider Horowitz’s testimony that the

value of the Yacht at delivery was “[z]ero” dollars. Apr. 23. Trial Tr. at 168:16–23. And it wasn’t

unreasonable for the jury to conclude that the diminished value of the Yacht exceeded the summed

cost of the discrete repairs Allied Marine recommended. See Def.’s Amnd. Mot. at 19 & n.4 (“While it

is true that Herbert testified about the cost of repairs for certain electrical items (only), the amount

4 See also Apr. 25 Trial Tr. [ECF No. 239] at 523:6–9 (“Q. . . . [D]id the defects . . . [regarding] the

noncompliance with the standards -- did those exist at the time the boat was delivered? A. Yes, to the

best of my knowledge, absolutely.”).

that he gave totaled $1,375.30.” (citing Apr. 26 Trial Tr. [ECF No. 240] at 959:5–975:25)); id. at 18

(“Meletti testified that the repair of absolutely all of the yacht’s problems would cost no more than

$40,000[.]” (citing Apr. 25 Trial Tr. at 672:9–19)). After all, Horowitz adduced competent evidence

for his view that the Yacht’s problems were far more structural5—and that they prevented him from

using the boat for its intended purpose. See, e.g., Apr. 25 Trial Tr. at 523:3–5 (“It is not safe to be

operated by [a] recreational boater, and I would feel uncomfortable being on board that boat as it’s

being operated.”); id. at 526:10–14 (“Is the electrical system in the vessel as installed -- is the boat fit

for its intended purpose? A. Absolutely not. . . . It’s unsafe and it’s unreliable.”); Apr. 23 Trial Tr. at

146:24–25 (“The boat wasn’t safe. It wasn’t reliable. I couldn’t use it for what I wanted to.”). The jury,

in sum, after “weigh[ing] conflicting evidence and inferences, and determin[ing] the credibility of the

witnesses,” Lowe v. Pate Stevedoring Co., 558 F.2d 769, 772 (5th Cir. 1977) (cleaned up), found Horowitz’s

theory of the evidence more credible than Allied Marine’s—and it just isn’t our job to second-guess

their decision, see Isaacs v. Am. Petrofina, 368 F.3d 193, 196 (5th Cir. 1966) (“It is the function of the

jury, not the court, to weigh and evaluate the evidence on both sides of a contested question. If there

is a conflict in the evidence, the jury must resolve such conflict.” (quoting Wells v. Warren Co., 328 F.2d

666, 668–69 (5th Cir. 1964))).

5 See, e.g., Apr. 25 Trial Tr. at 525:17–526:7 (“[Q]. Is this a major repair to correct all of these issues?

A. Yes. It’s a huge repair to try to resolve all these issues. Q. And what would be involved? A. It would

be a vessel refit, yard period with the refit to -- you know, to repair all those faults that -- the helm

station, the engine compartment, the problem with the Seakeeper, the main panel. I mean these are

all the major organs of the boat, the working, the brains, the heart, the muscle of the boat. And all this

would have to be redone. Wiring runs would have to be replaced. It just goes on and on and on. Q.

Okay. Do you have an estimate as to a yard period? A. That would depend on what manpower’s

available, the lead time for the parts, what would be involved with removing the equipment, whether

the structural -- the structure would be have to be taken out. It would be several months, certainly.”);

Apr. 23 Trial Tr. at 70:5–8 (“[Y]ou should not be having all that electrical problem, and especially the

garage by itself, opening and closing by itself; the air conditioning unit, uhm, on and off by itself. It

could start a fire, potential fire.”).

In a last-ditch effort to avoid paying Horowitz for the diminished value of the Yacht, Allied

Marine protests that “only through speculation or conjecture could the jury have arrived at its eye-

popping base award of $548,755.28.” Def.’s Amnd. Mot. at 21. To overturn a jury’s award of damages,

a defendant must show that “the jury’s damage award exceeds the amount established by the

evidence.” Rodriguez, 518 F.3d at 1266 (first citing Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435,

1448 (11th Cir. 1985); and then citing Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1284 (11th Cir.

2000)); see also Bould, 349 So. 2d at 1184 (“A party who assails the amount of a verdict as being

excessive[ ] has the burden of showing it is unsupported by the evidence, or that the jury was

influenced by passion or prejudice.” (cleaned up)). Allied Marine doesn’t come close to meeting this

burden.

The jury’s valuation of Horowitz’s damages on Count VI—$548,755.28, see Jury Verdict at

4—is not “so inordinately large as obviously to exceed the maximum limit of a reasonable range within

which the jury may properly operate.” Bould, 349 So. 2d at 1184–85. Indeed, at trial, Horowitz offered

competent evidence for his position that his damages were equal to the full warranty value of the

Yacht. See, e.g., Apr. 23. Trial Tr. at 168:16–23 (“Q. . . . [W]hat was the value of the Riva after it was

delivered to your dock? . . . A. Zero.”); id. at 146:24–25 (“It just didn’t work. The boat wasn’t safe. It

wasn’t reliable. I couldn’t use it for what I wanted to.”). Allied Marine insisted that Horowitz’s damages

were far lower. See Apr. 25 Trial Tr. at 672:15–19 (“[I]f we consider everything, it would be a few

thousands of dollars, like $40,000.”). The jury, after “weigh[ing] the evidence [and] evaluat[ing] the

witnesses’ credibility,” Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196, 1206 (11th Cir. 2020) (citing

Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla. 1976)), arrived at a verdict “within

this range of values,” Kish v. McDonald’s Corp., 564 So. 2d 1177, 1180 (Fla. 4th DCA 1990); see also

Onemata Corp., 2022 WL 18278477, at *3 (affirming a jury award of $5,000,000 in contract damages

where “there was ample, competent evidence adduced at trial to support an award of at least the $5

million awarded by the jury”); Batista v. Avant Assurance Inc., 2023 WL 7545064, at *6 (S.D. Fla. Nov.

1, 2023) (Torres, Mag. J.) (“[W]hen the jury’s verdict comes in at less than what the Plaintiffs asked for,

it is a hard case to make that the verdict is grossly excessive or beyond the pale.”), report and

recommendation adopted, 2023 WL 8518952 (S.D. Fla. Dec. 8, 2023) (Altonaga, C.J.).

We’re therefore satisfied that “there is nothing in this record to support a holding that the

damages returned were [more] than could have been returned by a jury acting upon the evidence

before it[.]” Allied Chemical Corp. v. Eubanks Indus., Inc., 155 So. 2d 740, 742 (Fla. 3d DCA 1963) (citing

Handel v. Rudnick, 78 So.2d 709 (Fla. 1955)).6 On the contrary, the testimony Horowitz offered about

the Yacht’s longstanding, structural defects (and the scope of the repairs they required), see ante, at 10

n.5, provided a sufficient basis for the jury to “determine[ ] with ‘reasonable certainty’ [the]

Plaintiff’s . . . damages without engaging in speculation or guesswork,” Smoliak v. Greyhound Lines, Inc.,

2006 WL 8445233, at *3 (N.D. Fla. Oct. 13, 2006) (Smoak, J.) (first quoting DeAlmeida v. Graham, 524

So. 2d 666, 668 (Fla. 4th DCA 1987); and then citing Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953)).

Recognizing that it is emphatically the province of the jury to weigh the trial evidence in calculating

“the appropriate amount of damages,” Kerrivan, 953 F.3d at 1206 (cleaned up); see also Jefferson Realty of

Fort Lauderdale, Inc. v. U.S. Rubber Co., 222 So. 2d 738, 742 (Fla. 1969) (“The jury is the sole judge of

such factual issue and neither the trial judge nor an appellate court may substitute its judgment on

such issue for that of the jury.”), we decline to nullify their sound judgment here.

* * *

6 In its Motion, Allied Marine points to Jury Question No. 3—“Do the damages awarded include or

exclude the actual boat?” Jury Question and Answer Form (“Jury Q&A Form”) [ECF No. 220] at 2—

as evidence “that Horowitz’s lack of evidentiary support of damages caused the jury to consider

otherwise irrelevant information,” Def.’s Amnd. Mot. at 21. But we explicitly instructed the jury that

“possession of the physical boat is irrelevant to [their] calculation of damages,” Jury Q&A Form at 3,

and we have no reason to believe the jury ignored this (or any other) instruction, see Brink v. Direct Gen.

Ins. Co., 38 F.4th 917, 924 (11th Cir. 2022) (“[I]n this Circuit a ‘jury is presumed to follow jury

instructions.’” (quoting Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir. 1983))).

As Publius told us long ago, there remains an “inseparable connection between the existence

of liberty, and the trial by jury in civil cases,” which represents “the very palladium of free

government.” THE FEDERALIST No. 83 (Alexander Hamilton). After four days of attentively

considering testimony and more than a day of deliberations,7 the jury returned a verdict within the

“reasonable range of damages” based on the evidence the parties presented at trial. FLA. STAT. §

768.74(5). And we may not substitute our judgment (or Allied Marine’s) for theirs. See Guy. Tel. & Tel.

Co. v. Melbourne Int’l Comm’ns, Ltd., 329 F.3d 1241, 1247 (11th Cir. 2003) (“In reviewing the jury’s

verdict, it is not our province to substitute our judgment as to the correct measure of damages; instead,

we must determine whether the jury’s calculation was reasonable in light of the trial evidence.”). The

Defendant’s Amended Motion for Remittitur or New Trial is DENIED.

II. The Parties’ Cross-Motions to Tax Costs

Having determined that the jury’s verdict should stand, we’ll now take up the parties’ Cross-

Motions to Tax Costs. This analysis will proceed in two steps. First, we must decide whether either

party is a “prevailing party” entitled to costs. FED. R. CIV. P. 54(d)(1). Second, we must calculate “how

much, if any, costs should be awarded” to that party. SMS Audio, LLC v. Belson, 2017 WL 11631389,

at *2 (S.D. Fla. Aug. 4, 2017) (Middlebrooks, J.) (citing Head v. Medford, 62 F.3d 351, 355 (11th Cir.

1995)).

a. Determining Prevailing-Party Status

Generally, “the litigant in whose favor judgment is rendered is the prevailing party for

purposes of [R]ule 54(d).” Head, 62 F.3d at 354. Where, as here, the jury returned a mixed verdict, see

Final Judgment ¶ 1 (“[On Count VI], judgment shall be entered against the Defendant and in favor

7 See Apr. 29 Trial Tr. [ECF No. 241] at 1269:14–1270:3 (“THE COURT: . . . [W]e’ve never had a jury

like you. . . . I kept looking over at you guys, and everybody’s taking notes, paying close attention,

nodding when I give you instructions, clearly understanding everything that’s going on.”).

of the Plaintiff[.]”); id. ¶ 2 (“[On Counts I and IV], judgment shall be entered against the Plaintiff and

in favor of the Defendant[.]”), we ask whether the plaintiff has “prevailed on a significant issue in the

litigation and [has] obtained some of the relief [it] sought,” Tex. State Teachers Ass’n, 489 U.S. at 793.

As the Eleventh Circuit has explained:

[t]o be a prevailing party [a] party need not prevail on all issues to justify a full award of costs,

however. . . . A party who has obtained some relief usually will be regarded as the prevailing

party even though he has not sustained all his claims. . . . Cases from this and other circuits

consistently support shifting costs if the prevailing party obtains judgment on even a fraction

of the claims advanced.

Lipscher v. LRP Publ’ns, Inc., 266 F.3d 1305, 1321 (11th Cir. 2001) (quoting Head, 62 F.3d at 354).

By this standard, Horowitz is the prevailing party here. Armed with a judgment finding Allied

Marine “liable for breach of the implied warranty of merchantability (Count VI),” and awarding him

“$546,055.28 in damages,” Final Judgment ¶ 1, Horowitz “obtained relief on[ ] at least some of[ ] [his]

claims,” Walter Int’l Prods., Inc. v. Salinas, 2010 WL 2976919, at *3 (S.D. Fla. July 19, 2010) (Seitz, J.); see

also Tex. State Teachers Ass’n, 489 U.S. at 782 (“[T]to be considered a prevailing party . . . the plaintiff

must be able to point to a resolution of the dispute which changes the legal relationship between itself

and the defendant.”). As such, Horowitz’s “achievement of some of the benefits sought in bringing

his lawsuit makes [him] a prevailing party.” Dorvil v. Nationstar Mortg. LLC, 2020 WL 8408456, at *3

(S.D. Fla. Nov. 24, 2020) (Otazo-Reyes, Mag. J.) (citing Pickett v. Iowa Beef Processors, 149 F. App’x 831,

832 (11th Cir. 2005)), report and recommendation adopted, 2021 WL 355051 (S.D. Fla. Feb. 2, 2021)

(Martinez, J.).

Allied Marine, on the other hand, is (necessarily) not a prevailing party. See SMS Audio, 2017

WL 11631389, at *2 (“Even though Plaintiffs succeeded on some claims and Defendants on others,

‘[t]he plain language of Rule 54 unambiguously limits the number of prevailing parties in a given case

to one.’” (quoting Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010))). “A defendant is a

prevailing party if the plaintiff achieves none of the benefits sought in bringing its lawsuit.” Pickett, 149

F. App’x at 832 (emphasis added) (citing 10 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

§ 54.171[3][c][iv], at 54–285)). That’s simply not the case here. Although Allied Marine successfully

defended—and received favorable judgment as to—some of Horowitz’s claims, that’s not enough to

make it the prevailing party. See Walter Int’l, 2010 WL 2976919, at *3 (refusing to find that the

defendants were “the prevailing party,” even though they “did successfully defend against two claims

of tortious interference,” because the plaintiffs “obtained relief on[ ] at least some of[ ] their claims”).

Resisting this conclusion, Allied Marine advances four arguments—all unpersuasive.

One, Allied Marine claims that, because “the jury awarded [Horowitz] far less than the purchase

price and did not agree that Horowitz was entitled to a full refund[,] . . . Horowitz did not prevail on

the substantial issues in this case.” Defendant’s Response to Pl.’s Costs Mot. (“Def.’s Costs Resp.”)

[ECF No. 249] at 3 (cleaned up). But that’s irrelevant. See, e.g., Farrar v. Hobby, 506 U.S. 103, 113 (1992)

(“A judgment for damages in any amount . . . modifies the defendant’s behavior for the plaintiff’s

benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” (emphasis

added)); Lipscher, 266 F.3d at 1321 (“As the district court correctly noted, the jury returned a verdict

in favor of [the plaintiff] as to liability, and while the damage award was nominal, the district court

entered final judgment in [the plaintiff’s] favor as to damages. The district court did not err in finding

[the plaintiff] to be the prevailing party for Rule 54 purposes.”). Horowitz is the prevailing party, even

though he didn’t receive the full amount of the damages he requested, because he “obtained a jury

verdict of liability and damages and a final judgment of damages, albeit reduced from the [requested]

award, in his favor.” Dorvil, 2020 WL 8408456, at *3.

Two, Allied Marine thinks it’s the prevailing party because it “won two out of three counts and

prevailed on the majority of substantive issues brought before the jury.” Def.’s Costs Reply at 2

(emphasis added). This argument—that costs should go to the party who “wins” more claims—is

creative, since both of the “mixed verdict cases cited by Horowitz” happen to be cases in which “the

party that won on the majority of substantive issues was designated as the prevailing party.” Ibid.; see

also Plaintiff’s Response to Def.’s Costs Mot. (“Pl.’s Costs Resp.”) [ECF No. 250] at 3 (“In Dorvil,

‘Plaintiff obtained a jury verdict and Final Judgment in his favor on two [of three] counts.’” (quoting

Dorvil, 2020 WL 8408456, at *3)); id. at 4 (“In Walter Int’l Prods. v. Salinas, after the jury returned a

verdict in favor of the Plaintiff, the Plaintiff prevailed on six (6) out of eight (8) claims.”). It’s also

wrong.

Our Rule 54 analysis doesn’t turn on a simple accounting of which party won more counts at

trial. See, e.g., Jeffrey O. v. City of Boca Raton, 2007 WL 9702659, at *2 (S.D. Fla. Aug. 21, 2017)

(Middlebrooks, J.) (“[W]hile case law does use the term significant to describe the type of issue or

relief that entitles one to prevailing party status, there is no indication that the relief must be significant

when compared to what was sought. These cases use the term some, not most, or a majority of.”

(emphasis added) (first citing Tex. State Teachers Ass’n, 489 U.S. at 791 (1989); and then citing Mills ex

rel. Mills v. Freeman, 118 F.3d 727, 733 (11th Cir. 1997))). Instead, our Circuit has been clear that a

plaintiff need only obtain “some relief” to be the prevailing party. Lipscher, 266 F.3d at 1321. Horowitz

has done that here.

Three, Allied Marine (citing no law) maintains that it’s the “prevailing party because the Limited

Warranty was the central document in this case and the jury found that Allied did not breach this

express agreement.” Def.’s Costs Reply at 3 (cleaned up). Even if that were true, “the Supreme Court

rejected the ‘central issue’ test in [Texas State Teachers Ass’n v.] Garland,” and the Eleventh Circuit has

explicitly directed district courts to “no longer use th[at] test in their prevailing party determinations.”

Royal Palm Props., LLC v. Pink Palm Props., LLC, 38 F.4th 1372, 1382 n.7 (11th Cir. 2022) (citing Tex.

State Teachers Ass’n, 489 U.S. at 790). That’s really the end of that.8

Four, Allied Marine retreats from its position that it’s the prevailing party and argues, “[i]n the

alternative,” that “neither party is a prevailing party”—a determination that would allow us to order

that “each party . . . bear its own taxable costs.” Def.’s Costs Reply at 4–5. But, as we’ve made clear,

Horowitz is the prevailing party under the Eleventh Circuit’s “well-established” “definition of a

‘prevailing party,’” since it “obtain[ed] judgment on [at least some] of the claims advanced.” Lipscher,

266 F.3d at 1321 (quoting Head, 62 F.3d at 354). And Allied Marine offers no other “basis for

overcoming the strong presumption of awarding costs to the prevailing party under Rule[ ] 54(d).”

Dovril, 2020 WL 8408456, at *3 (first citing Trident Int’l, Ltd. v. Imperial Majesty Cruise Line, LLC, 2011

WL 845875, at *2 (S.D. Fla. Jan. 19, 2011) (Snow, Mag. J.), report and recommendation adopted, 2011 WL

845849 (S.D. Fla. Mar. 8, 2011) (Dimitrouleas, J.); then citing Lipscher, 266 F.3d at 1321; and then

citing Pickett, 149 F. App’x at 832).

Because Horowitz is the prevailing party, we DENY Allied Marine’s Motion to Tax Costs.

b. Calculating Horowitz’s Costs

Since Horowitz is the prevailing party, we may award him the following costs under 28 U.S.C.

§ 1920:

1. Fees of the clerk and marshal;

2. Fees for printed and electronically recorded transcripts necessarily obtained for

use in the case;

3. Fees and disbursements for printing and witnesses;

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 [Title 28];

8 For this same reason, we also reject Allied Marine’s related argument that Horowitz wasn’t the

prevailing party because “Allied was ultimately vindicated in its performance of the Limited Warranty,

which was a significant and central issue in the case.” Def.’s Cost Reply at 3.

6. Compensation of court appointed experts, compensation of interpreters, and

salaries, fees, expenses, and costs of special interpretation services under section

1828 of [Title 28].

28 U.S.C. § 1920 (cleaned up); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–42

(1987) (“[Sec. 1920] enumerates expenses that a federal court may tax as a cost under the discretionary

authority found in Rule 54(d).”). In his Motion, Horowitz asks that Allied Marine pay his “fees of the

clerk and marshal” ($402.00), see Pl.’s Costs Mot. at 3 (cleaned up), “costs associated with the service

of the summons and subpoenas related to witnesses for deposition and trial” ($1,128.11), ibid., “costs

associated with printed or electronically recorded transcripts” ($5,073.20), id. at 4, and “costs

associated with [ ] exemplification and . . . of making copies” ($2,950.24), ibid., totaling $9,553.55.

Allied Marine doesn’t object “to the filing fee in the amount of $402.00 as a recoverable cost,”

Def.’s Costs Resp. at 4, and Horowitz has since agreed to reduce his requested reimbursement for

transcripts to $5,043.60, which Allied Marine “believes [is] the proper calculation” of this cost, id. at

7; see Pl.’s Costs Reply at 6 (“In the interest [of] simplifying matters for the Court, Plaintiff will agree

to reduce the amount of costs sought for hearing and deposition transcripts in this matter to the

amount agreed to by Defendant, i.e., $5,043.60.”). We therefore GRANT Horowitz’s Motion to Tax

as to these unopposed costs.

That leaves only Horowitz’s requests for service costs and copying costs, both of which Allied

Marine opposes. See Def.’s Costs Resp. at 9 (“Allied objects to all costs except: Filing fee - $402[,]

Service of two subpoenas - $130[, and] Deposition and hearing transcripts - $5,043.60[.]” (cleaned

up)). We’ll take each in turn.

Allied Marine raises two objections to Horowitz’s request for $1,128.11 in costs related to

serving the summons and subpoenas.9 First, Allied Marine contends that it shouldn’t have to pay the

9 Like Allied Marine, we’re not sure how Horowitz arrived at this amount for service fees. See Def.’s

Costs Mot. at 4 (“It is not clear how such amount was calculated, as even the calculation of all invoices

“$144.36 in FedEx charges” and the Florida Secretary of State’s “$8.75” fee stemming from

Horowitz’s failed attempt to effectuate substitute service on Ferretti S.p.A. Id. at 5. We agree.

Horowitz voluntarily dismissed his claims against Ferretti S.p.A. on May 3, 2021. Notice of Voluntary

Dismissal [ECF No. 22]. And the “cost of the service of process upon dismissed defendants is not

recoverable.” Seacoast Nat’l Bank v. M/Y Viaggio, 2023 WL 6930685, at *6 (S.D. Fla. Oct. 2, 2023)

(Strauss, Mag. J.) (first citing Santos v. Taste 1 Grp., LLC, 2015 WL 13792370, at *3 (M.D. Fla. Nov.

16, 2015) (Toomey, Mag. J.), vacated as moot, Endorsed Order [ECF No. 54], No. 14-cv-00383 (M.D.

Fla. Nov. 20, 2015) (Howard, J.); and then citing Ramos v. Davis & Geck, Inc., 968 F. Supp. 765, 781

(D.P.R. 1997)), report and recommendation adopted, 2023 WL 6908985 (S.D. Fla. Oct. 19, 2023) (Ruiz, J.);

see also Wales-Walden v. AK “N” Eli, LLC, 2018 WL 6807343, at *3 (S.D. Fla. Oct. 12, 2018) (O’Sullivan,

Mag. J.) (“[T]he plaintiff is not entitled to recover for the costs of service . . . for dismissed

defendants[.]”), report and recommendation adopted, 2018 WL 6807316 (S.D. Fla. Oct. 29, 2018) (Ungaro,

J.). We therefore DENY Horowitz’s Motion as it relates to the costs of serving Ferretti S.p.A.

Second, Allied Marine objects to seven of Horowitz’s nine requests for costs relating to the

service of subpoenas on witnesses or for documents. Under 28 U.S.C § 1920, a prevailing party may

recover the costs for “each subpoena served on a witness the Plaintiff could have reasonably believed

was at least partially necessary to the litigation.” George v. GTE Directories Corp., 114 F. Supp. 2d 1281,

1299 (M.D. Fla. 2000) (Rodriguez, J.) (citing U.S. E.E.O.C. v. W & O, Inc., 213 F.3d 600, 621–24 (11th

Cir. 2000)). Even so, “[t]he expense of using a private process server is compensable only to the extent

authorized in 28 U.S.C. § 1921”—viz., “the prevailing party is only entitled to those fees that would

attached as Exhibit C to Horowitz’s Motion does not total such amount.”). We’ll therefore recalculate

the proper total based on the invoices Horowitz has submitted in support of his Motion. See Ex. C to

Pl.’s Costs Mot. [ECF No. 243] at 13–26.

have been incurred had the United States Marshal’s Service effectuated the service.” Espinoza v. Target

Corp., 2021 3550780, at *5 (S.D. Fla. Aug. 11, 2021) (Rosenberg, J.) (cleaned up).

Allied Marine first objects to Horowitz’s request that it cover the fees associated with serving

(1) Guy Gauvin, an anticipated witness who was neither “called by either party to trial” nor effectively

served at all, Def.’s Costs Resp. at 6 (citing Ex. C to Pl.’s Costs Mot. [ECF No. 243] at 21), and (2)

Michael Monahan, “a defense rebuttal expert witness,” id. at 5–6 (citing Ex. C to Pl.’s Costs Mot. at

18). As to Gauvin, the fact that Horowitz abandoned his attempt to properly serve him suggests that

this witness wasn’t even “partially necessary to the litigation[.]” Davis v. Sailormen, Inc., 2007 WL

1752465, at *3 (M.D. Fla. June 15, 2007) (Conway, J.) (cleaned up); see also Houston Specialty Ins. Co. v.

Fenstersheib, 2023 WL 4974071, at *3 (S.D. Fla. July 28, 2023) (Hunt, Mag. J.) (“Plaintiff should not be

entitled to recover for . . . the [subpoena] to Regency that was invoiced but not served.”), report and

recommendation adopted, 2023 WL 9228331 (S.D. Fla. Aug. 24, 2023) (Altman, J.). We also won’t make

Allied Marine pay the costs of serving Monahan, who was never called to testify and who wasn’t even

listed on Horowitz’s list of potential trial witnesses. See generally Plaintiff’s Trial Witness List [ECF No.

170-1]. As it was far too late for Horowitz to depose Monahan, see Ex. C to Pl.’s Costs Mot. at 18

(“Served: 4/2/2024”); Scheduling Order [ECF No. 20] at 2 (“[By] November 30, 2021[,] [a]ll

discovery, including expert discovery, shall be completed.” (emphasis omitted))—and because

Horowitz couldn’t have called Monahan to testify at trial even if he’d wanted to, see S.D. FLA. L.R.

16.1(e) (requiring the filing of “[e]ach party’s numbered list of trial witnesses” “no later than seven (7)

days prior to the pretrial conference”)—it was completely unnecessary for Horowitz to order that

subpoena. We therefore DENY Horowitz’s Motion as to those costs.

Next, Allied Marine challenges Horowitz’s request for the costs of serving five subpoenas duces

tecum. According to Allied Marine, “[t]he subpoenas sought only documents and Horowitz provides

no explanation as to how these subpoenas were necessary for the case.” Def.’s Costs Resp. at 6 (citing

Cont’l 332 Fund v. Hilz, 2020 WL 6595061, at *3 (M.D. Fla. Oct. 23, 2020) (McCoy, Mag. J.), report and

recommendation adopted, 2020 WL 6591192 (M.D. Fla. Nov. 10, 2020) (Chappell, J.)). But that wholly

misstates the parties’ relative burdens at this stage. When the Plaintiff is the prevailing party, it’s the

“Defendant’s burden to show that it was unnecessary to subpoena these [documents] for trial.” Royal

Bahamian Ass’n v. QBE Ins. Co., 2011 WL 13220459, at *3 (S.D. Fla. May 18, 2011) (Goodman, Mag.

J.) (emphasis added), report and recommendation adopted, 2011 WL 13220497 (S.D. Fla. June 20, 2011)

(Moreno, C.J.); see also Lomelo, 929 F.2d at 639 (noting that FED. R. CIV P. 54(d) “creates a presumption

in favor of awarding costs to the prevailing party which [the non-prevailing party] must overcome”

(citing Coyne–Delany Co. v. Cap. Dev. Bd. of Ill., 717 F.2d 385 (7th Cir. 1983))). Since Allied Marine

doesn’t do that, we’ll allow Horowitz to recover these costs.

In total, then, Horowitz should be reimbursed for seven subpoenas (i.e., the five subpoenas

duces tecum and the two to which Allied Marine doesn’t object). See Def.’s Costs Resp. at 7 (conceding

that Horowitz is entitled to costs for serving David Montoya and Nicola Rossi). Because “the

documentation submitted by [Horowitz] does not provide any information as to the time expended

to effectuate service by the private process server,” Berlinger v. Wells Fargo, 2016 WL 4920079, at *3

(M.D. Fla. Sept. 15, 2016) (Steele, J.), we’ll limit the cost of service to $65 per subpoena at most, see Race

v. Goodge, 2022 WL 20325961, at *2 (M.D. Fla. Jan. 12, 2022) (Barksdale, Mag. J.) (“When a party

requests more than $65 without providing evidence of how long service took or whether travel costs

or out-of-pocket expenses were incurred, courts have reduced the award to $65, the minimum charged

by the U.S. Marshal’s Service.” (cleaned up)), report and recommendation adopted, 2023 WL 2930889 (M.D.

Fla. Feb. 3, 2023) (Davis, J.). And we won’t allow Horowitz to recover twice for multiple attempts at

service (or for “rush” service). See, e.g., Cadle v. Geico Gen. Ins. Co., 2015 WL 4352048, at *3 (M.D. Fla.

Mar. 9, 2015) (Kelly, Mag. J.) (“[I]t is imperative that the party seeking costs for multiple service

attempts provide evidence justifying the need for multiple service attempts.”), report and recommendation

adopted, 2015 WL 4352048 (M.D. Fla. July 14, 2015) (Presnell, J.); Cardona v. Mason & Dixon Lines, Inc.,

2018 WL 369160, at *4 (S.D. Fla. Jan. 10, 2018) (O’Sullivan, Mag. J.) (“The Court finds that there were

no extraordinary circumstances in this matter requiring expedited service. As such, rush service fees

will not be awarded.”). After our careful review of the invoices presented for those subpoenas, see Ex.

C to Pl.’s Costs Mot. at 19–20, 22–26, we conclude that Horowitz is entitled to $355.00 in service-

related costs.10

Allied Marine also contests Horowitz’s request for $2,950.24 in copying costs. See Def.’s Costs

Resp. at 8 (“Allied has several objections to this cost.”). Federal law allows the prevailing party to

recover “the costs of making copies of any materials where the copies are necessarily obtained for use

in the case[.]” 28 U.S.C. § 1920(4). To receive reimbursement for copies it “reasonably believed [were]

necessary” to the litigation, W & O, 213 F.3d at 623, the prevailing party “must come forward with

‘evidence showing the nature of the documents copied and . . . how they were used,’” Scelta v.

Delicatessen Support Servs., Inc., 203 F. Supp. 2d 1328, 1341 (M.D. Fla. 2002) (Wilson, Mag. J.) (quoting

Fulton Fed. Savings & Loan Ass’n of Atlanta v. Am. Ins. Co., 143 F.R.D. 292, 300 (N.D. Ga. 1991)

(Forrester, J.)); see also Oliva v. NBTY, Inc., 2012 WL 12849960, at *8 (S.D. Fla. Feb. 2, 2012) (Snow,

Mag. J.) (“[The] burden of establishing entitlement to copying costs lies with the prevailing party[.]”

(cleaned up)), report and recommendation adopted, 2012 WL 12849958 (Dimitrouleas, J.).

According to Allied Marine, “the invoice presented by Horowitz is insufficient . . . to show

that the amount requested truly represents taxable costs.” Def.’s Costs Resp. at 8. We agree. Although

an invoice needn’t make “an accounting for each photocopy, . . . the prevailing party must make some

attempt to differentiate recoverable copying costs from non-recoverable general photocopying

10 That is, $65 for the David Montoya subpoena, see Ex. C to Pl.’s Costs Mot. at 19; $65 for the Nicola

Rossi subpoena, see id. at 20; $40 for the New Level Marine subpoena, see id. at 22; $40 for the NN

Marine subpoena, see id. at 23; $40 for the Furnace Marine subpoena, see id. at 24; $65 for the Sea-

Coast Marine subpoena, see id. at 25; and $40 for the MVAC subpoena, see id. at 26.

expenses.” Oliva, 2012 WL 12849960, at *8 (citing Scelta, 203 F. Supp. 2d at 1340). Horowitz doesn’t

do that. Instead, his invoice only differentiates between charges for “Color Prints” and “Black and

White Copies[.]” Ex. E to Pl.’s Costs Mot. [ECF No. 243] at 39.

In his Reply, Horowitz explains that these copies were of “trial exhibits,” which he

“thought . . . were necessary for the case.” Pl.’s Costs Reply at 6. But a party’s “unsubstantiated claims

that such documents were necessary is insufficient to permit recovery.” Corsair Asset Mgmt., Inc. v.

Mosdovitz, 142 F.R.D. 347, 352 (N.D. Ga. 1992) (citing Fulton, 143 F.R.D. at 300); see also Scelta, 203 F.

Supp. 2d at 1340 (denying copying costs where the parties’ “substantiation and description of their

photocopying expenses consist[ed] of each firm’s billing records which merely state[d] ‘copies’ or

‘photocopies’”). Because Horowitz provides no “evidence showing the nature of the documents

copied,” Fulton, 143 F.R.D. at 300 (emphasis added), we have “no basis for determining which copying

costs [are] compensable,” Oliva, 2012 WL 12849960, at *8 (first citing Scelta, 203 F. Supp. 2d at 1340–

41; and then citing Aranda v. Jewish Cmty. Servs. of S. Fla., Inc., 2007 WL 707384 (S.D. Fla. March 5,

2007) (McAliley, Mag. J.)); see also Scelta, 203 F. Supp. 2d at 1340–41 (“[S]ince the defendants have not

described the photocopying costs sufficiently to permit a determination of which photocopies were

necessarily obtained for use in this case, reimbursement for photocopying costs is rejected in its

entirety.” (cleaned up)). We therefore DENY Horowitz’s request for copy-related costs.

Taken together, then, Horowitz is entitled to recover, under Rule 54(d)(1) and 28 U.S.C. §

1920, $402.00 in clerk fees, $5,043.60 in transcript fees, and $355.00 in service fees—for a total award

of $5,800.60.

* * *

Accordingly, we hereby ORDER and ADJUDGE as follows:

1. The Defendant’s Amended Motion for Remittitur or New Trial [ECF No. 248] is DENIED.

2. ‘The Plaintiffs Motion to ‘Tax Costs [ECF No. 243] ts GRANTED in part (insofar as the

Plaintiff shall recover from the Defendant $5,800.60) and DENIED in part as to all other

requested relief.

3. The Defendant’s Motion to ‘Tax Costs [ECF No. 247] is DENIED.

4, ‘This case shall remain CLOSED.

DONE AND ORDERED in the Southern District of Florida on July 3, 2024.

“ae

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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