The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SOUTHEAST DEVELOPMENT
PARTNERS, LLC, & SOUTHEAST
LAND VENTURES, LLC,
Plaintiffs and Counter-
Defendants,
Case No. 3:23-cv-00846-CRK-PDB
v.
ST. JOHNS COUNTY, FLORIDA,
Defendant, Counterclaimant, and
Third-Party Plaintiff.
INTRODUCTION
Before the Court is Plaintiffs’/Counter-Defendants’ Southeast Development
Partners, LLC and Southeast Land Ventures, LLC (collectively “SEDP”) motion to
the stay proceeding and specifically staying enforcement of the
Defendant’s/Counterclaimant’s, St. Johns County, Florida (the “County”), Bill of
Costs. Motion to Stay Proceeding, ECF No. 77 (Oct. 23, 2024) (“Motion to Stay”). For
the reasons that follow, the motion is denied.
BACKGROUND
This dispute arises from a contract between a county and a developer, where
the cost to improve a road in connection with a development under the contract far
exceeded estimated costs. See generally Am. Compl., Jul. 21, 2023, ECF No. 5. The
county maintained the developer committed to building the road regardless of the
cost, while the developer maintained that its cost commitments were limited. Id.; see
also St. John’s County, Fla. Ans. And Aff. Defenses to Am. Compl. and Am.
Counterclaim, Aug. 10, 2023, ECF No. 16. The County sought summary judgment
and the Plaintiff sought partial summary judgment. See St. John’s County, FL. Mot.
Summ. J., Apr. 26, 2024, ECF No. 44; SEDP Mot. Partial Summ. J., Apr. 26, 2024,
ECF No. 47. On September 13, 2024, this Court granted summary judgment in favor
of the County and denied SEDP’s motion for partial summary judgment. See Opinion
and Order, Sept. 13, 2024, ECF No. 69. The Court entered Judgment the same day.
Judgment, Sept. 13, 2024, ECF. No. 70. On September 25, 2024, the County filed its
Bill of Costs and supporting documentation. Bill of Costs, Sept. 25, 2024, ECF No.
73. SEDP did not file any response to the Bill of Costs. SEDP did however file a
notice of appeal on October 14, 2024. Notice of Appeal, Oct. 14, 2024, ECF No. 74. On
October 16, 2024, the Clerk taxed costs against SEDP in the amount of $22,177.48.
Bill of Costs Taxed, Oct. 16, 2024, ECF No. 75. SEDP filed this Motion to Stay on
October 23, 2024. See Mot. to Stay. The County filed its response on November 5,
2024. See St. John’s County, Fla. Resp. Opp. Pl. Mot. to Stay Pending Appeal, Nov.
11, 2024, ECF No. 79 (“County Resp.”).
DISCUSSION
The County argues that Plaintiffs’ motion is moot because Plaintiffs waived
any challenge to the Clerk’s taxation of costs by failing to timely petition this Court
for review. County Resp. at 2, 4-7. Further, the County argues that even if Plaintiffs’
motion is not moot, the motion should be denied on the merits. Id. at 7.
I. Mootness
Plaintiffs seek to stay enforcement of the Bill of Costs. See generally Mot. to
Stay. The County argues that the Motion to Stay is moot because SEDP failed to
timely challenge the Bill of Costs. County Resp. at 2, 4-7. Because the Motion to
Stay seeks to delay enforcement of costs, not preclude those costs, SEDP’s motion is
not moot.
Federal Rule of Civil Procedure 54 “codifies a venerable presumption that
prevailing parties are entitled to costs,” and grants district courts discretion to award
costs other than attorney’s fees to prevailing parties. Marx v. General Revenue Corp.,
568 U.S. 371, 377 (2013); Fed. R. Civ. P. 54(d)(1). Specifically, Rule 54 provides that
a clerk may tax costs other than attorney’s fees on 14 days’ notice, and “[o]n motion
served within the next 7 days, the court may review the clerk’s action.” Fed. R. Civ.
P. 54(d)(1). The Court’s function in the taxation of costs process “is merely to review”
the Clerk’s determination, “[t]herefore nothing normally can come before the court
until the clerk has acted and an objection has been made.” Lowe v. STME, LLC, 2019
WL 2717197, at *3 (M.D. Fla. June 28, 2019). The types of costs that may be taxed
by the Clerk under Rule 54 are enumerated in 28 U.S.C. § 1920. See 28 U.S.C. §
1920.
Here, the County is correct that SEDP has waived the opportunity to challenge
the imposition of costs. However, SEDP’s motion does not challenge the costs
themselves, rather it seeks to delay the collection of those costs until the completion
of the appeal. Mot. to Stay at 1. Therefore, SEDP’s motion is not moot.
II. Motions to Stay
When evaluating a motion to stay, courts generally weigh four factors: “(1)
whether the stay applicant has made a strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418,
434 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors
are the “most critical.” Nken, 556 U.S. at 434. For the first factor, the applicant must
demonstrate “more than a mere possibility of relief.” Nken, 556 U.S. at 434; see
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008).
Here, SEDP fails to demonstrate that it is entitled to a stay. SEDP argues that
because the Eleventh Circuit Court of Appeals (“Court of Appeals”) may interpret the
underlying issues of this dispute differently than this Court in a de novo review,
SEDP has a substantial likelihood of prevailing on the merits on appeal. Mot. to Stay
at 4-5. Simply observing that the Court of Appeals may disagree with this Court does
not demonstrate how SEDC has “more than a mere possibility” of success on appeal.
Nken, 556 U.S. at 434. Regarding the second factor, SEDP argues that absent a stay
SEDP may incur unrecoverable fees disputing the County’s Proposed Bill of Costs
and may incur additional fees in moving for the return of costs plus their own costs
should they prevail on appeal. Mot. to Stay at 5. An injury is only irreparable “if it
cannot be undone through monetary remedies,” and SEDP has failed to demonstrate
how potential future costs incurred could not be remedied through repayment.
Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987).
For the third factor, SEDP contends that the County will not be prejudiced by
a stay because there has not been a monetary judgment against SEDP and the
County’s basis to recover costs may be eliminated on appeal and SEDP will retain the
burden to show the proposed costs are excessive or unreasonable.1 Mot. to Stay at 6.
The County’s Response in Opposition to SEDP’s Motion to Stay and the
accompanying Exhibit of Day Late’s notice to the County raise concerns as to SEDP’s
ability to satisfy payment of the proposed costs should the Court of Appeals affirm
this Court’s decision, given that neither entity may continue developing Grand Oaks
and at least one entity is a named defendant in five active, related proceedings.
County Resp. at 10-12; County Resp. Ex. A. Thus, the County may be injured by a
stay as SEDP may have a reduced capacity to satisfy payment of costs after an appeal.
Finally, SEDP argues that judicial economy principles warrant a stay because
enforcement of the proposed Bill of Costs will require time and resources from the
Court and parties, and further resources would be wasted litigating the return of
costs should SEDP succeed on appeal. Mot. to Stay at 6. Due to the concern about
1 As discussed above, SEDP has already waived the opportunity to challenge the
imposition of the bill of costs by failing to move to vacate the bill of costs within the
7-day period allotted by Rule 54. See Fed. R. Civ. P. 54(d)(1); Garret v. University of
South Florida Board of Trustees, No. 8:17-cv-2874-T-23AAS, 2020 WL 4810301, at *1
(M.D. Fla. July 24, 2020).
SEDP’s potential inability to satisfy payment of costs, the public interest does not lie
in allowing SEDP to further delay such payment.
SEDP points to several instances where the Court has stayed or abated
enforcement of costs until after an appeal is heard, however, these cases are
inapposite. Mot. to Stay at 3-4. SEDP highlights In re Imagitas, Inc. as an example
of this Court continuing a stay of any costs motions until the resolution of all appeals,
but unlike here, no costs had yet been determined or taxed. In re Imagitas, Inc., No.
3:07-md-2, 3:07-cv-389, 3:07-cv-390, 3:07-cv-391, 3:07-cv-391, 3:07-cv-392, 3:07-cv-
393, 3:07-cv-394, 3:07-cv-395, 2011 WL 6934127, at *5 (M.D. Fla. Dec. 30, 2011).
Similarly, in Gray v. Novell, Inc., the Court deferred the determination of attorneys’
fees and costs pending appeal to conserve the judiciary and parties’ resources, while
here the costs have already been determined. Gray v, Novell, Inc., 2010 WL 2593608,
at *13 (M.D. Fla. Feb. 22, 2010). SEDP cites Kearney Construction Company v.
Travelers in support of the proposition that this Court has discretion to stay
enforcement of costs pending appeal, and although this Court retains such discretion,
as Kearney explains, in the case of a non-monetary judgment courts look to the four
factors described above, as the Court does here. Kearney Constr. Co. v. Travelers
Cas. & Sur. Co. Of Am., No. 8:09-cv-1850, 2017 WL 2116730, at *2 (M.D. Fla. Apr.
19, 2017) (quoting Hilton v. Braunskill, 481 U.S. at 776). As noted by the County,
this case is more akin to Garrett v. Univ. of S. Fla. Bd. Of Tr., where plaintiff failed
to timely request to vacate the Clerk’s bill of costs and moved to stay enforcement of
such costs. County Resp. at 5-7; Garret v. University of South Florida Board of
Trustees, No. 8:17-cv-2874-T-23AAS, 2020 WL 4810301, at *1 (M.D. Fla. July 24,
2020). Garrett denied the plaintiff’s motion to stay because the plaintiff could not
demonstrate a likelihood of success on appeal or irreparable injury, as SEDC has
similarly failed to demonstrate its entitlement to a stay. Garrett, at *1-2.
CONCLUSION
For the foregoing reasons SEDP’s Motion to Stay is denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge*
Dated: November 13, 2024
New York, New York
* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by
designation.