# Horowitz v. Allied Marine, Inc

> District Court, S.D. Florida · July 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10643580

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10643580

## Opinion text

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

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10643580. Public record. Not legal advice.