Short

United States District Court

Middle District of Florida

Jacksonville Division

KOREY SHORT,

Plaintiff,

v. NO. 3:25-cv-274-MMH-PDB

FEDERAL RESERVE BANK OF ATLANTA,

Defendant.

Report and Recommendation

The defendant moves for the taxation of $425.00 in costs under Rule

54(d)(1), Federal Rules of Civil Procedure, and 28 U.S.C. § 1923.1 Doc. 34

(motion); Doc. 35 (proposed bill of costs); Doc. 35-1 (filing-fee receipt); Doc. 37

(court-ordered supplement on whether the defendant is a “prevailing party”).

The plaintiff has not responded, and the time for doing so has passed.

I. Procedural History

The plaintiff, proceeding without a lawyer, sued the defendant in state

court for allegedly false and deceptive advertising. Doc. 1-1.

The defendant removed the case to this court, Doc. 1, and moved to

dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to

state a claim upon which relief can be granted, Doc. 2. The defendant argued

1The defendant also purports to file the motion under Local Rule 7.01. Doc. 34 at

1. That rule applies to attorney’s fees and non-taxable expenses, not to taxable costs

under Rule 54(d)(1).

that the alleged facts and cited law provide no basis for a claim by the plaintiff

against the defendant. Doc. 2 at 3, 58.

The court, on its own, struck the complaint because the complaint failed

to inform the defendant of the claims that the plaintiff was attempting to bring,

contained few or no factual allegations, included no demand for relief, and

violated the rules regarding separately numbered paragraphs and separately

identified counts. Doc. 13. The court denied the defendant’s motion to dismiss

as moot. Doc. 13 at 6.

The defendant filed a case management report, Doc. 14, and the plaintiff

filed papers objecting to removal, Docs. 15, 16, 18. The court, on its own, struck

the case management report because the defendant had filed it unilaterally

and overruled the plaintiff’s objections because removal was proper. Doc. 20 at

13. The court observed that the plaintiff had not filed an amended complaint

as directed, stayed case-management obligations, and gave the plaintiff more

time to file an amended complaint. Doc. 20 at 3, 5–6. The plaintiff also

unsuccessfully fought removal in state court. See Doc. 37 ¶¶ 510.

The plaintiff filed an amended complaint. Doc. 22. The defendant moved

to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can

be granted or to strike under Rule 12(f)(2) for insufficiently pleaded claims and

for an order “dismissing this action without further notice.” Doc. 23 at 1. The

defendant again argued that the alleged facts and cited law provide no basis

for a claim by the plaintiff against the defendant. Doc. 23 at 28.

The plaintiff filed a “[s]tatement of claim,” Doc. 24, and a “demand for

[judgment],” Doc. 25 (all caps omitted). The court, on its own, observed that the

plaintiff had not responded to the motion to dismiss and ordered him to

respond to the motion and show cause why the case should not be dismissed

without prejudice for failure to prosecute. Doc. 26.

The defendant, “in an abundance of caution,” Doc. 27 ¶ 4, again moved

to dismiss under Rule 12(b)(6) or to strike under Rule 12(f)(2), explaining that

it was responding to the statement and demand, Docs. 24, 25, because the

plaintiff may have filed the papers intending to amend his pleading, Doc. 27.

The defendant repeated the arguments it had made before, added arguments

to address new assertions by the plaintiff, including that counsel for the

defendant had acted unethically, and again asked for dismissal without further

notice. Doc. 27 at 315.

The plaintiff filed another “demand for [judgment].” Doc. 28 (all caps

omitted). The court, on its own, struck the paper because the plaintiff failed to

cite legal authority to support his requests and failed to confer with the

defendant’s counsel before filing the paper. Doc. 29.

The plaintiff never responded to the motions to dismiss or strike the

amended complaint, Docs. 23, 27, and failed to file anything to show cause why

the action should not be dismissed without prejudice for failure to prosecute.

The court, on its own, therefore entered this order of dismissal:

Based on Plaintiffs failure to respond to this Court's Orders, the

undersigned concludes that Plaintiff has failed to prosecute this action.

Therefore, pursuant to Rule 41(b) and Local Rule 3.10, dismissal of this action

yatlibul □□□□□□□□□□□□□□□□□□□□□□□□ Bsa Brown v, Pillshesses Publse Dept. No,

06-13131, 205 Fed. Appx. 802, 802 (11th Cir. Nov. 15, 2006), Accordingly, it is

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ORDERED:

1. This case is DISMISSED WITHOUT PREJUDICE.

2. The Clerk of the Court is directed to enter judgment dismissing this

case without prejudice, terminate any remaining deadlines or pending

motions as moot, and close the file.

Doc. 30 at 2.

As directed, the clerk entered the judgment dismissing the case “without

prejudice”; terminated the defendant’s motions to dismiss, Docs. 238, 27;

terminated the plaintiffs “demand for [judgment],” Doc. 25; and closed the file,

Doc. 31 at 1. The clerk included in the judgment this form language: “Any

motions seeking an award of attorney’s fees and/or costs must be filed within

the time and in the manner prescribed in Local Rule 7.01, United States

District Court Middle District of Florida.” Doc. 31 at 1 (bolding omitted).

II. Motion

Fourteen days later, the defendant filed the current motion for the

taxation of costs. Doc. 34. With the motion, the defendant filed a proposed bill

of costs describing $405.00 as “Fees of the Clerk” and $20.00 as “Docket Fees

under 28 U.S.C. § 1928,” Doc. 35, and a receipt from the clerk for $405.00, Doc.

35-1. The plaintiff failed to respond to either the motion or the bill of costs, and

the fourteen-day response period under Local Rule 3.01(d) has passed.

The court ordered the defendant to supplement the motion with

authority to support that the defendant is the “prevailing party” entitled to

costs. Doc. 36 (quoting Rule 54(d)(1)). The court explained that if no

supplement or motion for an extension of time was received in a timely

manner, the court would consider the motion withdrawn and direct the clerk

to terminate the motion. Doc. 36 at 3.

The defendant timely supplemented the motion, Doc. 37; a surprise,

considering the small amount at stake—$425.00—and the presumed burden of

collection. The defendant purports to have filed twelve exhibits with the

supplement—papers from the state court—but filed no exhibits. See Doc. 37

¶¶ 510 (referencing Exhibits A through L “attached hereto”). The defendant

relies on Beach Blitz Co. v. City of Miami Beach, 13 F.4th 1289 (11th Cir. 2021),

and distinguishes United States v. $70,670.00 in United States Currency, 929

F.3d 1293 (11th Cir. 2019), to argue that it is the “prevailing party” because it

successfully removed the case from state court despite heavy opposition from

the plaintiff, Doc. 37 at 710; see also Docs. 15, 16, 18 (the plaintiff’s papers

objecting to removal); Doc. 37 ¶¶ 510 (describing the plaintiff’s state-court

opposition), and because the orders striking the plaintiff’s papers and

dismissing the action, see Docs. 13, 20, 29, were consistent with arguments that

the defendant had made and the relief that it had requested in its motions to

dismiss or strike, Doc. 37 at 9–10; see Docs. 2, 23, 27 (the defendant’s motions).

The plaintiff recently filed a “letter to the court” stating that he was

trying to obtain information about the litigation and asking the court to process

an application. Doc. 38. He makes no mention of costs or his position on taxing

them. See Doc. 38.

III. Law

A. “Prevailing Party” in Rule 54(d)(1)

Rule 54(d)(1) provides, “Unless a federal statute, these rules, or a court

order provides otherwise, costs—other than attorney’s fees—should be allowed

to the prevailing party.”

Under the rule, the “prevailing party” is entitled to costs, U.S. E.E.O.C.

v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000), whether the plaintiff or the

defendant, Tanker Mgmt., Inc. v. Brunson, 918 F.2d 1524, 1527 (11th Cir.

1990), while a non-prevailing party is not, Worsham v. United States, 828 F.2d

1525, 1527 (11th Cir. 1987); Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716,

723 (5th Cir. 1978), amended on reh’g on other grounds, 593 F.2d 22 (5th Cir.

1979); but see Terry Props., Inc. v. Standard Oil Co., 799 F.2d 1523, 1540 (11th

Cir. 1986) (upholding the taxation of costs against counter-defendants because

the counterclaimants would not have filed unsuccessful counterclaims but for

the lawsuit, and the counterclaims were a “reasonable effort to forestall” the

counter-defendants’ continued harassment of the counterclaimants); accord

Eagleview Techs., Inc. v. MDS Assocs., 190 F.3d 1195, 1200 (11th Cir. 1999).

“[T]he obvious purpose of imposing litigation costs upon losing parties is

to relieve the prevailing party from at least a portion of the total expense of

litigation[.]” Ga. Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 794, 799

(11th Cir. 1988). A court abuses its discretion by failing to provide a reason for

denying costs. Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995); Walters v.

Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977).

The rule on costs has been part of the Federal Rules of Civil Procedure

since their inception, and the concept has been in place since well before then.

See Fed. R. Civ. P. 54(d) (1938) (“Except when express provision therefor is

made either in a statute of the United States or in these rules, costs shall be

allowed as of course to the prevailing party unless the court otherwise

directs[.]”); Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013) (“Rule

54(d)(1) codifies a venerable presumption that prevailing parties are entitled

to costs.”); id. at 377 n.3 (“Prior to the … federal rules, prevailing parties were

entitled to costs as of right in actions at law while courts had discretion to

award costs in equity proceedings.”); Taniguchi v. Kan Pac. Saipan, Ltd., 566

U.S. 560, 564 (2012) (“Although the taxation of costs was not allowed at

common law, it was the practice of federal courts in the early years to award

costs in the same manner as the courts of the relevant forum State.”); Marek

v. Chesny, 473 U.S. 1, 7–8 (1985) (“By the time the [rules] were adopted in

1938, federal statutes had authorized and defined awards of costs to prevailing

parties for more than 85 years.”); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240, 248 n.19 (1975) (“On March 1, 1793, Congress enacted a general

provision governing the awarding of costs to prevailing parties in federal

courts: ‘That there be allowed and taxed in the … courts of the United States,

in favour of the parties obtaining judgments …, such compensation for their

travel and attendance, and for attornies and counsellors’ fees, except in the

district courts in cases of admiralty and maritime jurisdiction, as are allowed

in the supreme or superior courts of the respective states.’” (quoted authority

omitted)), superseded by statute on other grounds; United States v. Schurz, 102

U.S. 378, 408 (1880) (“[A] careful examination of the authorities leaves us no

option but to follow the rule that the prevailing party shall recover of the

unsuccessful one the legal costs which he has expended in obtaining his

rights.”); Vincennes Steel Corp. v. Miller, 94 F.2d 347, 348 (5th Cir. 1938)

(“Costs … were unknown to the common law[.] Costs were first allowed as an

increment of the judgment, where plaintiff recovered, under the statute of

Gloucester (6 Edw. I, Ch. 1). … [T]he same privilege was extended to the

prevailing defendant under the statute of 23 Henry VIII, Ch. 15, Sec. 1. Prior

to the fee bill of 1853, no federal statute awarded costs, but the acts mentioned

above became a part of our general law under which costs were awarded to the

successful party.” (footnote omitted)).

At the time of the rules’ inception, Black’s Law Dictionary defined

“prevailing party” in this way:

That one of the parties to a suit who successfully prosecutes the action

or successfully defends against it, prevailing on the main issue, even

though not to the extent of his original contention.

The one in whose favor the decision or verdict is rendered and judgment

entered.

The party prevailing in interest, and not necessarily the prevailing person.

To be such does not depend upon the degree of success at different stages of

the suit, but whether, at the end of the suit, or other proceeding, the party who

has made a claim against the other, has successfully maintained it. Thus,

where the court grants defendant a new trial after verdict for plaintiff,

defendant is the “prevailing party” on that trial, and entitled to costs, although

the plaintiff again gets verdict on retrial.

Black’s Law Dictionary 1412 (3d ed. 1933) (internal citations omitted). The rule

has changed since then only to change when the clerk may tax costs, to

separate the rule on attorney’s fees, and stylistically. See Fed. R. Civ. P. 54

advisory committee’s notes to 1993 and 2009 amendments.

Eleventh Circuit precedent on Rule 54(d)(1) makes this much clear. A

party need not prevail on all issues to qualify as the “prevailing party.” United

States v. Mitchell, 580 F.2d 789, 793 (5th Cir. 1978), superseded by statute on

other grounds. If the resolution of the litigation results in no “material change”

in the “legal relationship” between the parties, neither party is a “prevailing

party.” Royal Palm Props., LLC v. Pink Palm Props., LLC, 38 F.4th 1372, 1376,

1380 (11th Cir. 2022). A defendant is the “prevailing party” if the court enters

judgment based on a jury verdict finding for the defendant on all claims against

that defendant, In re Nissan Antitrust Litig., 577 F.2d 910, 918 (5th Cir. 1978),

even if the jury found for the plaintiff on claims against other defendants, Gray

v. Koch Foods, Inc., 144 F.4th 1298, 131415 & n.7 (11th Cir. 2025). A

defendant is the “prevailing party” if the defendant obtains from the plaintiff

a voluntary dismissal with prejudice. Mathews v. Crosby, 480 F.3d 1265, 1276

(11th Cir. 2007); see Affordable Aerial Photography, Inc. v. Prop. Matters USA,

LLC, 108 F.4th 1358, 1364 n.6 (11th Cir. 2024) (discussing Mathews and

explaining that the docket showed the district court had entered an order on

motions for voluntary dismissal with prejudice). A defendant is the “prevailing

party” if the defendant obtains summary judgment based on an affirmative

defense regarding a release in a settlement agreement. Myricks v. Fed. Reserve

Bank of Atl., 480 F.3d 1036, 1043 (11th Cir. 2007). And a defendant is the

“prevailing party” if the court grants summary judgment for the defendant on

all federal claims, even if the court declines to exercise supplemental

jurisdiction over many more state claims. Head, 62 F.3d at 355–56. In contrast,

a defendant is not the “prevailing party” if summary judgment for the

defendant is reversed, Al-Rayes v. Willingham, 914 F.3d 1302, 1310 (11th Cir.

2019), or if the plaintiff obtained nominal damages, Three-Seventy Leasing

Corp. v. Ampex Corp., 528 F.2d 993, 998 (5th Cir. 1976).

B. “Prevailing Party” or “Substantially Prevails” in Other Laws

“Congress has enacted more than 200 subject-specific federal statutes

that explicitly authorize the award of costs to prevailing parties in litigation.”

Rimini St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 338 (2019).

Many of the Eleventh Circuit and Supreme Court decisions interpreting

the term “prevailing party” or the similar term “substantially prevails” are in

the context of 42 U.S.C. § 1988(b), which permits a court to “allow the

prevailing party … a reasonable attorney’s fee as part of the costs” in actions

under certain civil rights statutes; 42 U.S.C. § 2000e-5(k), which permits a

court to “allow the prevailing party … a reasonable attorney’s fee (including

expert fees) as part of the costs” in Title VII employment actions; 42 U.S.C.

§ 3613(c)(2), which permits a court to “allow the prevailing party … a

reasonable attorney’s fee and costs” in fair housing actions; 17 U.S.C. § 505,

which permits a court to “allow the recovery of full costs by or against any

party” and “a reasonable attorney’s fee to the prevailing party as part of the

costs” in copyright actions; 42 U.S.C. § 1973l(e) (now 52 U.S.C. § 10310(e)),

which permits a court to “allow the prevailing party … a reasonable attorney’s

fee, reasonable expert fees, and other reasonable litigation expenses as part of

the costs” in voting rights actions; and 28 U.S.C. § 2465(b)(1), which makes

the United States liable for “reasonable attorney fees and other litigation costs

reasonably incurred by the claimant” if the claimant “substantially prevails”

in a forfeiture action.

The Eleventh Circuit has relied on cases outside the Rule 54(d)(1)

context to interpret “prevailing party” in Rule 54(d)(1). See, e.g., Royal Palm,

38 F.4th at 1376 (“While the majority of the Supreme Court’s prevailing party

jurisprudence … comes from civil rights actions, there is no reason to believe

that its definition of the legal term ‘prevailing party’ varies across different

legal contexts.”); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)

(observing that § 1988(b) was patterned after civil rights and voting laws and

stating that “[t]he standards … in th[e] opinion are generally applicable in all

cases in which Congress has authorized an award of fees to a ‘prevailing

party’”); Loggerhead Turtle v. Cnty. Council of Volusia Cnty., 307 F.3d 1318,

1322 n.4 (11th Cir. 2002) (observing that the Eleventh Circuit interprets

“substantially prevailed” consistently with “prevailing party”).

In Buckhannon Board & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, a case involving § 3613(c)(2) (fair housing), the

Supreme Court observed that “prevailing party” is a “legal term of art.” 532

U.S 598, 603 (2001). The Court explained that Black’s Law Dictionary defines

the term as, “A party in whose favor a judgment is rendered, regardless of the

amount of damages awarded <in certain cases, the court will award attorney’s

fees to the prevailing party>.—Also termed successful party.” Id. (quoting

Black’s Law Dictionary 1145 (7th ed. 1999)). The Court explained that

“prevailing party” status requires a “material alteration of the legal

relationship of the parties,” id. at 604 (quoting Tex. State Tchrs. Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989)), marked by “judicial

imprimatur,” id. at 605. Rejecting the “catalyst” theory, the Court affirmed an

order denying fees for plaintiffs whose action was mooted by legislation

eliminating a requirement that they had challenged. Id. at 600–01, 605. Citing

fee and cost provisions from civil rights and voting laws, the Court noted, “We

have interpreted these … provisions consistently, and so approach the nearly

identical provisions at issue here.” Id. at 603 n.4 (internal citation omitted).

Years later, in CRST Van Expedited, Inc. v. Equal Employment

Opportunity Commission, a case involving § 2000e-5(k) (Title VII), the

Supreme Court distinguished defendants from plaintiffs because the parties

“come to court with different objectives.” 578 U.S. 419, 431 (2016). The Court

provided this explanation:

A plaintiff seeks a material alteration in the legal relationship

between the parties. A defendant seeks to prevent this alteration to

the extent it is in the plaintiff’s favor. The defendant, of course, might

prefer a judgment vindicating its position regarding the substantive

merits of the plaintiff's allegations. The defendant has, however,

fulfilled its primary objective whenever the plaintiff’s challenge is

rebuffed, irrespective of the precise reason for the court’s decision.

The defendant may prevail even if the court’s final judgment rejects

the plaintiff's claim for a nonmerits reason.

Id. The Court thus held that “a defendant need not obtain a favorable judgment

on the merits … to be a ‘prevailing party.’” Id. The Court declined to decide

whether “a defendant must obtain a preclusive judgment … to prevail.” Id. at

434.

Earlier this year, in Lackey v. Stinnie, a case involving § 1988(b) (civil

rights), the Supreme Court turned to the definition of “prevailing party” in

Black’s Law Dictionary at the time of § 1988(b)’s passage under the rationale

“that when Congress borrows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it presumably knows and adopts

the cluster of ideas that were attached to each borrowed word.” 604 U.S. 192,

200 (2025) (internal quotation marks and quoted authority omitted). Under

that definition, “prevailing party” is “the party ‘who successfully prosecutes the

action or successfully defends against it’”; “prevailing party” status “does not

depend upon the degree of success at different stages of the suit, but whether,

at the end of the suit, or other proceeding, the party who has made a claim

against the other, has successfully maintained it.” Id. (quoting Black’s Law

Dictionary 1352 (rev. 4th ed. 1968)).

The Court held that “prevailing party” in § 1988(b) excludes plaintiffs

who merely obtain a preliminary injunction “[b]ecause preliminary injunctions

do not conclusively resolve the rights of parties on the merits[.]” Id. at 201. The

Court observed that its holding “is consistent with” its § 1988(b) precedents

holding that “a plaintiff ‘prevails’ when a court grants enduring judicial relief

that constitutes a ‘material alteration of the legal relationship of the parties.’”

Id. at 202 (quoting Tex. State Tchrs., 489 U.S. at 792–93). The Court observed

that “external events that moot the action and prevent the court from

conclusively adjudicating the claim” do not make the plaintiff a “prevailing

party.” Id. at 207. The Court cautioned that “[a] different body of caselaw

addresses when a defendant is a ‘prevailing party’ for the purposes of other fee-

shifting statutes.” Id. at 204 n.*. Citing CRST, the Court continued, “Our

decision … should not be read to affect our previous holding that a defendant

need not obtain a favorable judgment on the merits to prevail, nor to address

the question we left open of whether a defendant must obtain a preclusive

judgment in order to prevail.” Id.

In a case involving § 1988(b) (civil rights), the Eleventh Circuit has

observed that “[t]he term ‘prevailing party’ is a flexible one that is dependent

on the relief sought and actually obtained in a particular case.” B & J Music,

Inc. v. McAuliffe, 719 F.2d 1536, 1538 (11th Cir. 1983); see, e.g., Walker v.

Anderson Elec. Connectors, 944 F.2d 841, 842–43, 847 (11th Cir. 1991) (holding

that a plaintiff who had abandoned requests for declaratory and injunctive

relief and demanded damages but received none was not the “prevailing party”

under § 2000e–5(k) (Title VII) despite a jury finding of sexual harassment

because that status “requires the attainment of something more tangible”).

In a case involving § 505 (copyright), the Eleventh Circuit, relying on

CRST, explained, “[A] defendant does not attain prevailing-party status

merely because, as a practical matter, a plaintiff is unlikely or unable to refile

its claims.” Prop. Matters, 108 F.4th at 1363. Instead, for a defendant to be the

“prevailing party,” “the court itself must act to reject or rebuff the plaintiff’s

claims,” id.; i.e., “the rejection of the plaintiff’s attempt to alter the parties’

legal relationship must be marked by judicial imprimatur,” id. at 1366

(internal quotation marks and quoted authority omitted).

Applying that jurisprudence, the Eleventh Circuit has held that

defendants were “prevailing parties” under § 1988(b) (civil rights) even though

they won on jurisdictional grounds because the plaintiff came to court for relief

but left with nothing after the district court dismissed the claims and the

Eleventh Circuit affirmed. Provitola v. Comer, No. 24-14079, 2025 WL

2779939, at *1 (11th Cir. Sept. 30, 2025). The Eleventh Circuit has held that a

claimant “substantially prevailed” under § 2465(b)(1) (forfeiture) because,

through a voluntary motion to dismiss with prejudice filed after a year of

litigation, the government abandoned its attempt to materially alter the

parties’ legal relationship, the district court “explicitly approved the dismissal

by granting the government’s motion,” and “the dismissal with prejudice

prevents the government from re-litigating this same claim in the future.”

United States v. $8,500.00 in U.S. Currency, No. 23-10971, 2025 WL 2406318,

at *4–5 (11th Cir. Aug. 20, 2025); see also Anthony v. Marion Cnty. Gen. Hosp.,

617 F.2d 1164, 1169–70 (5th Cir. 1980) (holding that the defendant was the

“prevailing party” under § 1988(b) (civil rights) and § 2000e-5(k) (Title VII),

because “[a]lthough there ha[d] not been an adjudication on the merits in the

sense of a weighing of facts, there remain[ed] the fact that a dismissal with

prejudice is deemed an adjudication on the merits for the purposes of res

judicata” and, therefore, the defendant “clearly prevailed”).

In contrast, the Eleventh Circuit has held that a defendant was not the

“prevailing party” under § 505 (copyright) because the plaintiff voluntarily

dismissed the action without a need for judicial action, reasoning that the

dismissal lacked the required judicial imprimatur. Prop. Matters, 108 F.4th at

136364. The Eleventh Circuit has held that a defendant was not the

“prevailing party” under § 505 (copyright) because the plaintiff voluntarily

dismissed the action with prejudice four days after the defendant moved to

dismiss without needing the district court’s permission to dismiss and before

any ruling on any substantive motion. Affordable Aerial Photography, Inc. v.

Reyes, No. 23-12051, 2024 WL 4024619, at *2 (11th Cir. Sept. 3, 2024). The

Eleventh Circuit has held that a defendant was not the “prevailing party”

under § 505 (copyright) because the plaintiff voluntarily dismissed the action

without prejudice after a year of litigation, explaining that “even assuming

future action by [the plaintiff] may be unlikely or now barred by the statute of

limitations, those facts are irrelevant because the court did not rebuff or reject

[the plaintiff]’s claims on any grounds” and that although “CRST abrogated

any requirement that judicial action be ‘on the merits,’” CRST “did not

abrogate the requirement of ‘judicial imprimatur’ for prevailing defendants.”

Affordable Aerial Photography, Inc. v. Trends Realty USA Corp., No. 23-11662,

2024 WL 835235, at *1, *3–4 (11th Cir. Feb. 28, 2024).

In Beach Blitz—the case on which the defendant relies—the district

court dismissed four of five claims against a city and others “without prejudice

and without leave to amend,” ruling that some defendants had immunity and

the plaintiff had failed to state claims for violations of procedural and

substantive due process rights. 13 F.4th at 1292–93, 1295. The district court

dismissed the remaining claim “without prejudice and with leave to amend,”

ruling that “amendment might not [have] be[en] futile.” Id. at 1295. The

plaintiff did not amend, and the district court dismissed the remaining claim

without prejudice, entered judgment for the city, and found that the city was

the “prevailing party” under § 1988(b) (civil rights). Id. at 129596.

To determine whether the city was the “prevailing party” under

§ 1988(b), the Eleventh Circuit asked “whether the district court’s judgment

rebuffed [the plaintiff]’s efforts to effect a material alteration in the legal

relationship between the parties.” 13 F.4th at 1298. “Put another way,” the

Eleventh Circuit continued, “we conduct a practical examination of whether

‘the case was resolved in the defendant’s favor.’” Id. (alteration omitted)

(quoting CRST, 578 U.S. at 432). The Eleventh Circuit held that the judgment

had “rebuffed” the plaintiff’s “attempt to alter its legal relationship with the

defendants, thereby resolving the litigation in the defendants’ favor.” Id. The

Eleventh Circuit reasoned that the “dismissal was involuntary”; the district

court had acted in response to the defendants’ motion to dismiss, which the

plaintiff had opposed; the district court had refused to give the plaintiff the

relief demanded; and the district court had denied leave to amend. Id. The

Eleventh Circuit added, “Still another indicator that [the plaintiff]’s attempt

to alter its legal relationship with the [c]ity was rebuffed is the fact that the

district court’s judgment dismissed [the] claims on the merits in the sense that

the court passed directly on the substance of [the plaintiff]’s claims[,]” having

entered the order in response to a Rule 12(b)(6) motion to dismiss, making the

order a judgment on the merits. Id. at 1298–99 (internal alteration, quotation

marks, and quoted authority omitted).

The Eleventh Circuit observed that the district court’s dismissal of the

claims “without prejudice” was confusing, and that “a claim-preclusive

judgment would be a further indication that [the plaintiff] was fully rebuffed

and that the [c]ity prevailed.” Id. at 12991300. The Eleventh Circuit

concluded that it did not have to decide whether the judgment was preclusive

because of the “plenty of reasons to conclude that [the plaintiff] was rebuffed”:

“The judgment was involuntary and carried judicial imprimatur, denied leave

to amend, and resulted from a Rule 12(b)(6) merits determination.” Id. at 1300.

“As a matter of ‘common sense,’” the Eleventh Circuit concluded, the judgment

“plainly rebuffed [the plaintiff]’s attempt to alter its legal relationship with the

[c]ity and resolved the case in the defendant’s favor.” Id. (internal alteration,

quotation marks, and quoted authority omitted). The Eleventh Circuit

emphasized, “A ‘without prejudice’ label, without more, cannot alter our

conclusion in this case: in every practical sense, the district court rebuffed [the

plaintiff]’s effort to alter its legal relationship with the [c]ity.” Id.

The Eleventh Circuit declined to decide whether the Supreme Court in

CRST established “a bright-line rule that a defendant prevails whenever it

secures an involuntary dismissal of any kind.” Id. (internal quotation marks

and quoted authority omitted). The Eleventh Circuit observed that “[n]othing

in [CRST] goes that far” and that “it remains an open question whether [some]

types of non-merits involuntary dismissals should confer prevailing party

status,” such as “involuntary dismissals that, in some cases, may permit the

plaintiff to immediately re-file the exact same claims against the exact same

defendant, albeit in an alternative forum”; for example, because of lack of

personal jurisdiction, an arbitration clause, or forum non conveniens. Id. at

1301. The Eleventh Circuit added, “It is not obvious to us whether or not a

court in such cases can truly be said to have rebuffed the plaintiff’s attempt to

alter its legal relationship with the defendant or to have resolved the litigation

in the defendant’s favor.” Id.

In $70,670.00 in U.S. Currency—the case the defendant distinguishes—

the district court permitted the government to dismiss a forfeiture complaint

without prejudice—over the claimants’ objections—after a state-court

judgment made the forfeiture action irrelevant. 929 F.3d at 1296. The Eleventh

Circuit ruled that the claimants had not “substantially prevailed” under

§ 2465(b)(1) “because a dismissal without prejudice places no ‘judicial

imprimatur’ on ‘the legal relationship of the parties,’ which is ‘the touchstone

of the prevailing party inquiry.’” Id. at 1303 (quoting CRST, 578 U.S. at 422).

The Eleventh Circuit observed that “[a] voluntary dismissal without prejudice

renders the proceedings a nullity and leaves the parties as if the action had

never been brought.” Id. (internal quotation marks and quoted authority

omitted). The Eleventh Circuit emphasized that “the order of dismissal pose[d]

no legal bar precluding the government from refiling the same forfeiture action

in the future[,]” even though, “as a practical matter, it might be difficult for the

government to pursue a subsequent civil forfeiture action ... because [the

properties] may be difficult to bring back within the district court’s in rem

jurisdiction.” Id. (internal quotation marks and quoted authority omitted). The

Eleventh Circuit reasoned that “this practical difficulty is irrelevant” because

“[w]hat matters is that the claimants have not obtained a final judgment

rejecting the government’s claim to the defendant funds.” Id. (internal

alterations, quotation marks, and quoted authority omitted). Comparing the

circumstance to the holding in Buckhannon, the Eleventh Circuit observed

that “a plaintiff’s voluntary decision to withdraw a claim” is “the mirror image”

of “a defendant’s voluntary change in conduct,” which “lacks the necessary

judicial imprimatur.” Id. The Eleventh Circuit emphasized that despite the

district court’s instruction to “distribute the funds pursuant to [a s]tipulation”

of the claimants and their attorney, the government’s claim of superior title to

a claimant’s share of the funds remained unadjudicated. Id. at 1303–04.

IV. Analysis

No precedent on “prevailing party” under Rule 54(d)(1) addresses the

circumstances here: a plaintiff loses arguments on removal in state and federal

courts; the defendant moves to dismiss for failure to state a claim upon which

relief can be granted or to strike for insufficiency of the pleading; and the

federal court—on its own and without deciding the motions—dismisses the

action without prejudice because the plaintiff failed to respond to court orders

and prosecute the action.

To decide whether the defendant is the “prevailing party” under these

circumstances, the court may draw from the Black’s Law Dictionary definition

of “prevailing party” when the rule on costs was first enacted, from the

Eleventh Circuit’s Rule 54(d)(1) jurisprudence, and, as the Eleventh Circuit

has done to interpret Rule 54(d)(1), from the Eleventh Circuit’s and Supreme

Court’s jurisprudence on “prevailing party” or “substantially prevails” in other

laws. No matter the law, the reasons for taxing costs in favor of the prevailing

party are similar, see McDaniel, 855 F.2d at 799; “prevailing party” is a legal

term of art, see Buckhannon, 532 U.S at 603; and the “prevailing party”

definition has not materially changed over time, see Black’s Law Dictionary

1412 (3d ed. 1933) (“That one of the parties to a suit who successfully

prosecutes the action or successfully defends against it, prevailing on the main

issue, even though not to the extent of his original contention.”), and Black’s

Law Dictionary 1352 (rev. 4th ed. 1968) (same); Black’s Law Dictionary 1145

(7th ed. 1999) (“A party in whose favor a judgment is rendered, regardless of

the amount of damages awarded[.]”); Black’s Law Dictionary 1349 (12th ed.

2024) (same).

The defendant is not a “prevailing party” under Rule 54(d)(1). The

defendant did not “successfully defend[] against” the action or “prevail[] on the

main issue” insofar as the court dismissed the action on its own, without

prejudice, and without addressing the defendant’s Rule 12(b)(6) or Rule 12(f)(2)

arguments. See Black’s Law Dictionary 1412 (3d ed. 1933) (quoted). The

resolution of the litigation resulted in no “material change” in the “legal

relationship” between the parties insofar as the court dismissed the action

without prejudice, see Royal Palm, 38 F.4th at 1380 (quoted), resulting in a

“nullity” and leaving “the parties as if the action had never been brought,”

$70,670.00 in U.S. Currency, 929 F.3d at 1303 (quoted). The plaintiff’s

“challenge” was not “rebuffed” insofar as the court merely acted on its own to

control its docket and effectuate a consequence for failing to follow orders. See

CRST, 578 U.S. at 431 (quoted). Whether the plaintiff will bring another

action, as a practical matter, is “irrelevant.” See Prop. Matters, 108 F.4th at

1365 (quoted); $70,670.00 in U.S. Currency, 929 F.3d at 1303 (quoted). And

because “prevailing party” depends on the result rather than the degree of

success at different stages of the litigation, that the defendant successfully

removed the case and kept it here matters naught. See Fed. R. Civ. P. 54(d)(1);

Black’s Law Dictionary 1412 (3d ed. 1933); Royal Palm, 38 F.4th at 1376.

Contrary to the defendant’s arguments, Doc. 37 at 710, the

circumstances here are less like those in Beach Blitz, in which the court acted

in response to the defendants’ opposed motion to dismiss, “passed directly on

the substance” of the claims, refused to give the plaintiff the relief demanded,

and denied the plaintiff leave to amend, see 13 F.4th at 1299–1300 (quoted);

and more like the circumstances in $70,670.00 in U.S. Currency, in which the

court, over the claimants’ objections, granted the government’s voluntary

motion to dismiss without prejudice, see 929 F.3d at 1299, 1303.

Because the defendant is not the “prevailing party” under Rule 54(d)(1),

the defendant is not entitled to costs against the plaintiff.

V. Recommendation

The undersigned recommends denying the defendant’s motion for the

taxation of costs, Doc. 34, as supplemented, Doc. 37.

VI. Objections and Responses

“Within 14 days after being served with a copy of [a] recommended

disposition, a party may serve and file specific written objections to the

proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). An objection

must not exceed 10 pages. Local Rule 3.01(b). “A party may respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ.

P. 72(b)(2). A response must not exceed 10 pages. Local Rule 3.01(c). “The

district judge must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also

28 U.S.C. § 636(b)(1)(C) (“A [district judge] shall make a de novo determination

of those portions of the report or specified proposed findings or

recommendations to which objection is made.”). “A party failing to object

to … findings or recommendations … in a report and

recommendation ... waives the right to challenge on appeal the district court’s

order based on unobjected-to factual and legal conclusions[.]” 11th Cir. R. 3-1.

Entered in Jacksonville, Florida, on December 2, 2025.

Ke ~ P ir pas J? Vp □□

y Patricia D. Barksdale

United States Magistrate Judge

C: Korey Short

3243 Justina Ter. Apt. 2

Jacksonville, FL 32277

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