Cross

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THE NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Plaintiff,

v. Case No: 2:23-cv-851-JES-KRH

MARY RHUDE CROSS, as

guardian of A.C., a minor,

J.C., a minor, and L.C., a

minor, ANY UNKNOWN CHILDREN

OF CHAUNDRE K. CROSS,

Defendant.

MARY RHUDE CROSS, as

guardian of A.C., a minor,

J.C., a minor, and L.C., a

minor,

Counter-Claimant

v.

THE NORTHWESTERN MUTUAL LIFE

INSURANCE COMPANY,

Counter-Defendant.

OPINION AND ORDER

This matter comes before the Court on review of Northwestern

Mutual Life Insurance Company’s Bill of Costs (Doc. #171) filed on

March 18, 2026. Mary Rhude Cross filed an Objection (Doc. #174)

on April 1, 2026, and Northwestern Mutual filed a Response to

Objection (Doc. #184) on April 17, 2026. The requested costs will

be taxed as set forth below.

I.

Plaintiff Northwestern Mutual Life Insurance Company

(Northwestern) filed a Complaint (Doc. #1) against Sarah Jo Cross,

individually and as personal representative of the Estate of

Chaundre K. Cross, M.D., and Mary Rhude Cross as guardian of the

minor children. Northwestern sought to rescind the contract of

insurance with Chaundre Cross or for a declaratory judgment that

Chaundre Cross’s death was a suicide. Sarah Jo Cross was dismissed

individually and as a personal representative without prejudice.

(Doc. #34.) Mary Rhude Cross (Cross) filed a Counterclaim (Doc.

#54) against Northwestern for breach of contract.

On November 5, 2025, the Court denied summary judgment.

(Doc. #77.) On February 3, 2026, at the Final Pretrial Conference,

the Court issued directives on how the case would proceed at trial

before a jury. (Doc. #126.) The case proceeded to trial and on

March 3, 2026, the jury returned verdicts finding that Northwestern

was entitled to rescind the life insurance policy but that it did

not prove by a preponderance of the evidence that Dr. Cross died

by suicide. (Doc. #161.) Based on the verdicts, the Court

directed judgment as follows: (1) Northwestern was entitled to

rescind Dr. Cross’s policy, Policy No. 24021669, based on material

misrepresentations by him on his insurance application; (2) Mary

Rhude Cross did not show that such rescission was precluded by

ratification, waiver, or estoppel principles; (3) Northwestern’s

request for a declaratory judgment that Dr. Cross committed suicide

was denied; (4) Mary Rhude Cross has not established that

Northwestern Mutual breached its insurance contract; and (5)

Northwestern’s refusal to pay was justified because it was entitled

to rescind the policy. (Docs. #162, #168.)

The Bill of Costs (Doc. #171) seeks a total of $12,726.19 in

taxable costs. There is no objection to the $402 filing fee.

Mary Rhude Cross (Cross) objects to the costs of serving witness

subpoenas, the transcript costs, witness fees, and copying costs.

Cross suggests that Northwestern should be awarded an amount not

exceeding $4,704.44. In response, Northwestern notes that it

agreed to voluntarily reduce the demand before filing the request.

Northwestern agrees to further reduce the request in response to

an objection not previously raised for a total reduction of $467

as to service of process and $117.41 as to Dr. Mizyl Damayo.

II.

Cross does not dispute that Northwestern is entitled to costs

as the prevailing party pursuant to Fed. R. Civ. P. 54(d)(1), only

the amount of costs. “[A]bsent explicit statutory or contractual

authorization for the taxation of the expenses of a litigant’s

witness as costs, federal courts are bound by the limitations set

out in 28 U.S.C. § 18211 and § 1920.” Crawford Fitting Co. v. J.

T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Under Section 1920,

A judge or clerk of any court of the United

States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or 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 this

title;

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries,

fees, expenses, and costs of special

interpretation services under section 1828 of

this title.

28 U.S.C. § 1920. Northwestern seeks (1) Fees of the clerk; (2)

Fees for service of summons and subpoenas; (3) Fees for printed or

electronically recorded transcripts necessarily obtained for use

in the case; (4) Fees for witnesses; and (5) Fees for

exemplification and the costs of making copies of materials where

the copies are necessarily obtained for use in the case. (Doc.

#171, p. 1.) The Court discusses each in turn.

1 This provides that a witness “in attendance at any court”

shall be paid an “attendance fee of $40 per day,” plus travel

expenses enumerated in the statute. 28 U.S.C. § 1821.

A. Fees of the Clerk

Northwestern seeks to recover the $402.00 filing fee.

Taxation of the filing fee is authorized by 28 U.S.C. § 1920(1),

and Cross does not object. Northwestern may recover the $402.00

filing fee.

B. Service Fees for Summons and Subpoenas

Northwestern seeks taxation of $5,305.60 for fees for service

of summons and subpoenas. Cross objects that the request includes

costs for subpoenas that were never served, resulted in no records

being obtained or used at trial, that were unnecessary because

they were already in hand prior to filing suit, or were a result

of attempted service on incorrect addresses. (Doc. #174, pp. 3-

4.) In response, Northwestern notes that some costs were removed

“from the outset” and other amounts were reduced based on the $65

an hour limit with rush services and other services reduced as

noted on the invoices. Northwestern agrees to a reduction of $467

to the extent that some “non-served” subpoenas should not be

taxable. (Doc. #184, pp. 5-8.)

A prevailing party may recover, pursuant to 28 U.S.C. §

1920(1), the costs of service of the summons and complaint, as

well as the costs of service of deposition and trial subpoenas, as

limited by 28 U.S.C. § 1921. U.S. E.E.O.C. v. W&O, Inc., 213 F.3d

600, 624 (11th Cir. 2000). Under § 1921(b), these service fees

may not exceed the amount set by the Attorney General by regulation

as fees for service by the U.S. Marshal. 28 C.F.R. § 0.114(a)(3).

The current fee for personal service of process is $65 per hour

for each item served, plus travel costs and other out-of-pocket

expenses. Id.

The fact that medical records were subpoenaed early in the

case does not reduce the costs as they were necessary for use at

trial. Therefore, The Court will allow a total of $4,838.60.

C. Transcripts

Plaintiff seeks $5,100.95 for the deposition costs of Averina

Cela, Sheila Ann Hauerwas, Adam Heiderman, Jason Kestly, Vera F.

Dolan, Dana Castro, and Alan Brown. Cross objects that Averina

Cela, Dr. Alan Brown, Vera Dolan, and Dr. Dana Castro all appeared

at trial and provided live testimony and so the transcript costs

should not be reimbursed. (Doc. #174, p. 5.)

Under § 1920(2), fees for transcripts “necessarily obtained

for use in the case” are taxable. The “necessarily obtained”

component is not an empty requirement. “Where the deposition

costs were merely incurred for convenience, to aid in thorough

preparation, or for purposes of investigation only, the costs are

not recoverable.” U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620

(11th Cir. 2000) (citing Goodwall Const. Co. v. Beers Const. Co.,

824 F. Supp. 1044, 1066 (N.D. Ga. 1992), aff'd, 991 F.2d 751 (Fed.

Cir. 1993)). “The question of whether the costs for a deposition

are taxable depends on the factual question of whether the

deposition was wholly or partially ‘necessarily obtained for use

in the case.’” Id., at 620-21 (citing Newman v. A.E. Staley Mfg.

Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981) (quoting § 1920(2))).

For a deposition of a party, the deposition must have been

“reasonably necessary.” Id. at 622.

Whether the non-parties also appeared at trial does not mean

that the depositions were not necessary for use in the case to

prepare for summary judgment or impeachment. The costs will be

permitted in the amount of $5,100.95.

D. Witnesses

Plaintiff seeks taxation of witness fees in the amount of

$1,353.15. Cross objects to the witness fees to the extent that

the fees are duplicative, witnesses did not appear, or the fees

are in excess of the $40 limit without an adequate explanation.

Cross disputes $1,038.84 of the total. (Doc. #174, p. 5.) In

response, Northwestern agrees that there is one duplication with

regard to Dr. Mizyl Damayo and it is agreed that the amount should

be reduced by $117.41. Northwestern otherwise explains the

mileage rate applied for witnesses to the Fort Myers Courthouse

was .58/mile rate. (Doc. #184, pp. 11-12.)

Witness fess may be taxed as costs under 28 U.S.C. § 1920(3).

“In Crawford, the Supreme Court held that, ‘when a prevailing party

seeks reimbursement for fees paid to its own expert witnesses, a

federal court is bound by the limit of § 1821(b), absent contract

or explicit statutory authority to the contrary.’” Morrison v.

Reichhold Chemicals, Inc., 97 F.3d 460, 463 (11th Cir. 1996)

(quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

439 (1987)). Under 28 U.S.C. § 1821, a witness attending court

or a deposition shall be paid an attendance fee of $40 per day,

plus travel to and from the place of attendance and during such

attendance. 28 U.S.C. § 1821(b). A witness who travels by common

carrier can be paid actual expenses of travel based on the means

of “transportation reasonably utilized and the distance

necessarily traveled” to the place of attendance. 28 U.S.C. §

1821(c)(1). A travel allowance for mileage, toll charges, “normal

travel expenses”, and a subsistence allowance shall also be paid.

28 U.S.C. § 1821(c)(2)-(4), (d). Effective January 1, 2026, the

rate per mile is $0.725 for use of a privately owned automobile.2

After eliminating the duplicative cost for Dr. Mizyl Damayo

and noting that the mileage rate applied is less than the current

rate, the Court will grant witness costs in the amount of

$1,235.74.

E. Copy Costs

Plaintiff seeks $564.49 for the cost of making copies which

were necessarily obtained for use in the case. Cross disputes

$480.86 of this amount because Northwestern provides no

2https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-

etc/privately-owned-vehicle-pov-mileage-reimbursement-rates.

explanation. (Doc. #174, pp. 5-6.) Northwestern responds that

the only copying costs sought are those related to the central

issues in this case. (Doc. #184, p. 12.)

Under 1920(4), fees for “exemplification and copies” are

permitted if necessary for use in the case. “Copies attributable

to discovery” are a category of copies recoverable under § 1920(4).

U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000)

(citation omitted).

In evaluating whether copies were necessary,

the Court does not award costs for copies made

merely for counsel's convenience, such as

multiple copies of documents. [] Similarly,

general copying costs without further

description are not recoverable. [] The costs

associated with copying documents for the

purpose of providing them to the court,

however, are reimbursable. [] Likewise, a

prevailing party may recover costs of copies

produced to opposing counsel. [] Thus, a party

must demonstrate that copies were necessarily

obtained for a reimbursable use in the case.[]

Monelus v. Tocodrian, Inc., 609 F. Supp. 2d 1328, 1335 (S.D. Fla.

2009) (internal citations omitted).

As previously noted, the fact that the copies were obtained

early in the case does not make them any less necessary for use in

the case. The Court will allow a total of $564.49.

Accordingly, it is hereby

ORDERED:

Defendants’ Objection (Doc. #174) is sustained in part.

Plaintiff's Bill of Costs (Doc. #171) is GRANTED in part.

Plaintiff shall submit a revised Bill of Costs consistent with

this Order for a total of $12,141.78. The Clerk shall tax costs

based on the revised Bill of Costs.

DONE and ORDERED at Fort Myers, Florida, this Ist day of

June 2026.

AA 9 Pe,

JQH E. STEELE

5 ISR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record