Delgado

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-20075-CIV-GAYLES/TORRES

MSC TRADING, S.A.,

Plaintiff,

v.

ANDRES PABLO DELGADO, and

SOUTH FLORIDA LUMBER CO.,

Defendants.

________________________________/

SUPPLEMENTAL REPORT AND RECOMMENDATION ON

PLAINTIFF’S MOTION FOR COSTS

This matter is before the Court on MSC Trading, S.A.’s (“Plaintiff”) motion for

attorney’s fees and costs [D.E. 90] against Andres Pablo Delgado and South Florida

Lumber CO. (“Defendants”) following an Order granting summary judgment and the

entry of a Final Judgment against Defendants in the total amount of $10,987,182.83.

[D.E. 81, 85]. The motion certified that no response or opposition was received to

the request for fees and costs, as contemplated by Local Rule 7.3, despite the service

of the motion on Defendants prior to its filing. Then after the motion was filed on

the docket, no timely response was filed in opposition to the motion either.

Accordingly, as per S.D. Fla. Local R. 7.1, the motion could be adjudicated in full by

default.

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Apart from that procedural default, the Court reviewed the record submitted

on the motion and found that it should also be granted on its merits. A Report and

Recommendation thus followed. [D.E. 107]. That Recommendation, however, only

focused on the request for fees, which predominated the motion, but overlooked that

the motion also included a request for reimbursement of costs. No objection has been

filed to the Report and Recommendation as to fees. But this Supplemental Report

and Recommendation is now entered to address the matter of costs that was omitted

from the original Report.

I. BACKGROUND

Plaintiff MSC is a Haitian company that purchased lumber from Defendants,

specifically South Florida Lumber that is a company operated by Delgado, for more

than a decade. In July 2020, after identifying that Defendants had overcharged

MSC by $8,205,000.00, the parties executed an Agreement for Recognition &

Payment of Debt (the “Agreement”) that obligated Defendants to repay MSC in

accordance with the payment schedule defined in the Agreement. Delgado, acting

in his individual capacity, separately guaranteed SFL’s repayment obligations in

writing (the “Guaranty”). In the months following the execution of the Agreement

and the Guaranty, Defendants paid $712,703.08 in accordance with the Agreement

but stopped making payments thereafter.

This lawsuit ensued. MSC filed a complaint against Defendants for four

claims under Florida law: (1) breach of the Agreement; (2) alternatively, unjust

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enrichment; (3) breach of the Guaranty by Delgado; and (4) fraud. Defendant South

Florida Lumber separately asserted two counterclaims—one for fraud and the other

for an accounting—against MSC.

On April 12, 2024, MSC filed a Motion for Summary Judgment that sought to

adjudicate the contract claims affirmatively in its favor. The undersigned issued a

Report and Recommendation on the motion. On July 29, 2024, the presiding Judge

adopted the Report and Recommendation in part [D.E. 81] and entered Final

Judgment in Plaintiff’s favor on August 29, 2024. [D.E. 85]. That Order specifically

reserved jurisdiction to make further orders in connection with enforcement of the

Final Judgment, “including the awarding of attorney’s fees and costs . . . . ”

Plaintiff then filed its motion for attorneys’ fees and costs on October 24, 2024.

[D.E. 90]. No timely response was filed in opposition to the motion, making it ripe

for adjudication. The undersigned entered a Report and Recommendation on

Plaintiff’s motion for attorney fees [D.E. 107] and now enters this Supplemental

Report and Recommendation as to the costs requested.

II. ANALYSIS

Plaintiff requests non-taxable costs amounting to $37,762.00: “These costs

include $1,262.06 in fees for express mail, filing and recording fees, and PACER

copies of various court documents as listed in Exhibit A, as well as $36,500 in non-

reimbursed fees expended by MSC with respect to the Arbitration[.]” [D.E 90-1 at

6].

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Ordinarily, Plaintiff’s request would run afoul of 28 U.S.C. § 1920.1 But we

are not bound by § 1920 where there is explicit contractual authorization to award

such costs to the prevailing party. See Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 445 (1987). To that end, the Guaranty these parties entered into

includes a broad provision allowing the Creditor (Plaintiff) to recover, “any and all

expenses (including without limitation, reasonable legal fees and expenses) incurred

by the Creditor in enforcing its rights under this Guaranty.” [D.E. 1 at 11]

(emphasis omitted).

Upon review of Plaintiff’s requested costs and given the breadth of the

provision in the Guaranty (“any and all expenses”), the undersigned finds that the

requested costs are recoverable in this case, even though they could not be deemed

“taxable” under section 1920. See Managed Care Sols., Inc. v. Cmty. Health Sys.,

Inc., No. 10-60170-CIV, 2013 WL 12086769, at *3 (S.D. Fla. Nov. 20, 2013), report

and recommendation adopted, No. 10-60170-CIV, 2014 WL 12479993 (S.D. Fla. Jan.

1 As to the duplication costs, this Circuit has recognized that “costs such as general

copying . . . are clearly non-recoverable” under § 1920. Duckworth v. Whisenant, 97

F.3d 1393, 1399 (11th Cir. 1996). PACER fees are also not recoverable: “[a]s there

is no explicit authorization to grant those costs under § 1920, they are not

recoverable.” Parrot, Inc. v. Nicestuff Distrib. Intern., Inc., No. 06-61231-CIV, 2010

WL 680948, at *15 (S.D. Fla. Feb. 24, 2010); see also Global Patent Holdings, LLC v.

Panthers BRHC LLC, No. 08-80013-CIV, 2009 WL 1809983, at *2 (S.D. Fla. June 25,

2009) (PACER fees not recoverable). Similarly, mediator fees do not fall within the

scope of taxable costs allowed under § 1920. See Marjam Supply Co. of Fla., LLC v.

Pliteq, Inc., No. 1:15-CV-24363, 2021 WL 1200422, at *23 (S.D. Fla. Mar. 5, 2021),

report and recommendation adopted, 2021 WL 1198322 (S.D. Fla. Mar. 30, 2022)

(“Mediation expenses are not recoverable under Section 1920.”).

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14, 2014) (awarding non-taxable costs of travel, copy, and telephone expenses where

prevailing party was contractually entitled to “necessary disbursements”); Brown

Jordan Int’l, Inc. v. Carmicle, No. 14-60629-CIV, 2017 WL 5633312, at *10 (S.D. Fla.

Aug. 7, 2017) (“It is well settled that expenses such as reimbursement for travel,

meals, lodging, photocopying, long-distance telephone calls, computer legal research,

postage, courier service, mediation, exhibits, documents scanning, and visual

equipment are typically recoverable as non-taxable costs.”) (internal citation

omitted), report and recommendation adopted, No. 14-60629-CIV, 2017 WL 5632811

(S.D. Fla. Aug. 22, 2017).

Even though they are recoverable, the Court must still address whether the

costs requested in the motion are reasonable (even though the failure to respond to

the motion could allow the Court to summarily award these costs by default). The

only amount that raises any possible issue relates to the $36,500 requested for

arbitration costs that were initially incurred after the parties’ dispute arose. The

parties initiated that process with the ICC, including the retention of an arbitrator,

but a dispute arose as to the funding of the arbitration. [D.E. 16 at 2–3]; [D.E. 90-1

at 88]. Though Plaintiff had already expended monies for that process, the parties

agreed to return to Court to adjudicate the case in part due to the arbitration costs

that still would have to be paid. [D.E. 16]. The amounts requested here represent

the costs Plaintiff incurred for this aborted process, which under the parties’

agreement was reasonably necessary at the time. And they are now part and parcel

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of the reasonable expenses Plaintiff incurred to achieve a favorable outcome to the

litigation. So, we find that they are reasonable and should be awarded.

Accordingly, we recommend awarding Plaintiff $1,262.06 in mail, filing,

recording, and PACER fees; and $36,500 in arbitration fees.

III. CONCLUSION

The undersigned hereby RECOMMENDS that Plaintiff be awarded the

following additional amounts that were included in the motion for fees, for a total of

$37,762.06 in costs:

1. $1,262.06 in mail, filing, recording, and PACER fees; and

2. $36,500 in arbitration fees.

Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days

from the date of this Supplemental Report and Recommendation to serve and file

written objections, if any, with the District Judge. Failure to timely file objections

shall bar the parties from a de novo determination by the District Judge of an issue

covered in the report and bar the parties from attacking on appeal the factual findings

contained herein. R.T.C. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.

1993); LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988); Nettles v. Wainwright, 677

F.2d 404, 410 (5th Cir. 1982) (en banc); 28 U.S.C. § 636(b)(1).

DONE AND SUBMITTED in Chambers at Miami, Florida this 6th day of

October, 2025.

/s/ Edwin G. Torres

United States Magistrate Judge

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