ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING MOTION IN PART
THIS CAUSE is before the Court upon the Report and Recommendation issued by Magistrate Judge Rosenbaum on March 31,2009. [DE^8].
Accordingly, it is ORDERED AND ADJUDGED as follows:
1) The Report and Recommendation [DE-48] is hereby ADOPTED.
2) Defendant’s Verified Motion to Tax Costs [DE-44] is hereby GRANTED IN PART AND DENIED IN PART.
3) Plaintiff is ORDERED to pay Defendant’s costs in the amount of $1074.64, plus post-judgment interest at the rate of 0.50%, accruing as of December 16, 2008, the date of the original Final Judgment for Defendant [DE-41],
REPORT AND RECOMMENDATION
This matter is before the Court upon Defendant’s Verified Motion to Tax Costs [D.E. 44] based upon an Order of Reference [D.E. 45] entered by the Honorable William P. Dimitrouleas pursuant to 28 U.S.C. § 636. Upon review of Defendant’s Motion and the Court file, the Court recommends that Defendant’s Verified Motion to Tax Costs [D.E. 44] be granted in part and denied in part as set forth herein.
I. BACKGROUND
Plaintiff Cesar Monelus (“Plaintiff”) filed this case, alleging violations of the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.) for alleged overtime violations. [D.E. 1]. Specifically, Plaintiff asserted pursuant to the provisions of 29 U.S.C. § 207(a)(1) that his former employer, Defendant Tocodrian, Inc., d/b/a Sun Fish Grill (“Defendant”), failed to compensate him and others similarly situated, for unpaid overtime labor. Id.
After Defendant filed an answer and in the midst of the discovery period, on May 2, 2008, Plaintiffs counsel filed a Motion to Withdraw due, in part, to Plaintiffs failure to cooperate in the litigation of this matter. [D.E. 27]. On May 21, 2008, the Court granted counsel for Plaintiffs Motion [D.E. 30]. No other counsel has since filed an appearance on behalf of Plaintiff. Thus, Plaintiff became a pro se litigant.
On November 14, 2008, Defendant filed a Motion for Summary Judgment [D.E. 32]. Plaintiff failed to file a response. As a result, the Court issued an Order to Show Cause on December 8, 2008, requiring Plaintiff to show cause no later than December 15, 2008, why Defendant’s Motion should not be granted. [D.E. 37]. Again, Plaintiff failed to respond to the Court’s Order to Show Cause. Consequently, on December 16, 2008, the Court issued an Order Granting Defendant’s Motion for Summary Judgment [D.E. 40] and a separate Final Judgment in favor of Defendant [D.E. 41].
On January 14, 2009, Defendant timely filed its Verified Motion to Tax Costs [D.E. 44] and a Bill of Costs [D.E. 44-2], the items pending before the Court in this Report. In its Motion, Defendant requests reimbursement for a total of $1,179.46, which Defendant asserts is comprised of the following costs: $95.00 in service of process fees; $268.85 in photocopying costs; and $815.61 in court reporter fees.
Id.
Additionally, Defendant seeks payment of interest flowing from the date
Plaintiffs response to Defendant’s Motion was due on February 12, 2009, but he failed to respond. As a result, on February 5, 2009, the Court issued an Order to Show Cause to Plaintiff. [D.E. 46]. The February 5th Order to Show Cause required Plaintiff to respond to Defendant’s Motion by February 12, 2009, and stated “Plaintiffs failure to comply with this Order may constitute grounds for the Court to grant Defendant’s Verified Motion to Tax Costs [D.E. 44] by default.” Id. The Court sent this Order to Show Cause and a copy of Defendant’s Motion by certified mail to Plaintiff at the same address indicated in Defendant’s Motion, and received the certified mail receipt back with the name “Monelus Cesar” signed in the signature block, and the date of February 12, 2009, stamped on the card, confirming that Plaintiff received the Defendant’s Motion and the Court’s February 5th Order to Show Cause.
Despite Plaintiffs receipt of these items, on February 12, 2009, Plaintiff did not file a response to the Court’s February 5th Order to Show Cause. Therefore, on February 17, 2009, the Court issued a Second Order to Show Cause to Plaintiff. [D.E. 47]. The February 17th Second Order to Show Cause required Plaintiff to respond by March 3, 2009, and warned that “if Plaintiff fail[ed] to respond timely to this Second Order to Show Cause, the Court shall grant Defendant’s Verified Motion to Tax Costs [D.E. 44] by default.” Id. (emphasis in the original). 1 Once again, Plaintiff failed to respond to the Court’s Second Order to Show Cause by March 3, 2009.
As of today’s date, the Court has not received any response from Plaintiff to Defendant’s Motion. The Court now considers the reasonableness of Defendant’s Motion on its face, in light of the relevant statute and case law.
II. ANALYSIS
A. Standard for Taxation of Costs
A prevailing party may recover costs as a matter of course unless otherwise directed by the Court or applicable statute.
See
Fed.R.Civ.P. 54(d)(1).
2
Congress has delineated which costs are recoverable under Rule 54(d), Fed.R.Civ.P.
See
28 U.S.C. § 1920;
see also Crawford Fitting Co. v. J.T. Gibbons, Inc.,
In this case, Defendant is the prevailing party. Consequently, Defendant is presumptively entitled to an award of costs.
B. Specific Costs Sought
In the pending Motion, Defendant seeks $1,179.00 in taxable costs. [D.E. 44], Although Plaintiff has failed to object to the costs set forth in Defendant’s Motion, the Court nonetheless reviews each category of the items sought in the Defendant’s Motion, and whether Defendant can properly receive monies for these categories of costs under the statute.
1. Fees for Service of Subpoena and Defendant’s Motion for Summary Judgment
According to case law, “private process server fees may be taxed pursuant to §§ 1920(1) and 1921 [of the statute].”
EEOC,
In this case, Defendant requests a total of $95.00 in costs incurred for the service on Plaintiff of a subpoena for his deposition and Defendant’s Motion for Summary Judgment. [D.E. 44, 44-2]. Defendant asserts that these charges are recoverable
Defendant asserts that the September 30th invoice by the private process server for $35.00 was for the service of the subpoena for Plaintiffs deposition and falls below the $45.00-per-hour cost charged by U.S. Marshal. Id. Thus, Defendant concludes, the $35.00 is a recoverable cost under the statute and should be taxed against Plaintiff. Id.
Furthermore, regarding the cost for the service of Defendant’s Motion for Summary Judgment on Plaintiff, Defendant also argues that this cost is recoverable. Id. While Defendant admits that the private process server charged $60.00 for serving the Summary Judgment Motion, as reflected in the November 17, 2008 invoice, Defendant contends that this higher cost was justified because it took the process server numerous attempts, and, thus, significant amounts of time, to serve Plaintiff. Id. As a result, Defendant avers that if a U.S. Marshal had been used, the U.S. Marshal’s Service would have charged more than $60.00 for service. Id. Additionally, Defendant indicates that due to Plaintiffs past failures to participate in the case, Defendant had to make personal service of the Summary Judgment Motion to ensure and verify receipt by Plaintiff. Id. In fact, Defendant points out that the Honorable William P. Dimitrouleas cited to Defendant’s proof of service in his Order Granting Defendant’s Motion for Summary Judgment, as evidence that Plaintiff had been served, but had not filed a response to the motion. Id.; see D.E. 40, at 1 n. 1. In light of these circumstances, Defendant concludes that Plaintiff should be taxed for a total of $95.00 in costs for private process server fees.
As indicated above, Plaintiff filed no response to Defendant’s Motion. Consequently, Plaintiff does not dispute the specific amounts of the costs sought by Defendant.
After review of the statute, case law and Defendant’s arguments, the Court finds that the $95.00 in costs sought by Defendant are recoverable under the statute. First, the service by a private process server is recoverable under the statute and case law. Second, while the Court acknowledges that it is generally unnecessary to use a private process server to serve a motion on an opposing party here, Plaintiff is not represented by counsel and was pro se at the time of service of the subpoena and Defendant’s Motion for Summary Judgment. Furthermore, as indicated by the case file, Plaintiff has failed on numerous occasions to respond to the Court’s Orders, thus, making proof of notice particularly important to Defendant and the Court. Though service of Defendant’s Summary Judgment Motion amounted to more than $45.00, the Court agrees with Defendant that a higher cost of $60.00 was justified and appropriate in light of the specific facts of the case, and based on Defendant’s explanation of the $60.00 charge, the Court finds that the private service actually cost less than the $45.00-per-hour rate charged by the U.S. Marshal. In view of the circumstances of this case, the Court holds that it was reasonable and necessary for Defendant to employ a private process server in serving the subpoena and Defendant’s Motion for Summary Judgment on Plaintiff. Accordingly, the Court recommends that Defendant recover $95.00 in costs associated with service on Plaintiff.
With respect to the photocopying costs claimed by Defendant, the Court notes that the costs of photocopies are recoverable if the copies were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4);
EEOC,
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.
Helms,
Here, in support of the costs for photocopying, Defendant asserts in its Motion
In its review of Defendant’s photocopying counter record in support of its photocopying costs, the Court notes that the record includes column titles of “Group Name” and “Total Copy Counter.” [D.E. 44, 44-2]. Each group name is paired with a corresponding total copy count which appears to list the total number of copies billed to that particular group. Id. While some of the entries in the record are marked out by handwritten lines, the entries that are not marked out reveal the number of copies that appear to be associated with Defendant’s client, Sun Fish Grill, under the group name “Sunfish Grill.” Id. It appears that entries relating to Sun Fish Grill add up to 1,181 copies, 4 which at $.19 per page, totals $224.96 sought by Defendant as recoverable.
After considering Defendant’s Motion and its photocopying counter record, the Court finds that based on Defendant’s representations, the costs for photocopies made by Defendant for the purpose of correspondence with opposing counsel and filing documents with the Court are recoverable under the statute. While Defendant also represents that some of the costs were for “copies retained by counsel,” [see D.E. 44, at 6], which may or may not be reimbursable, depending on the purpose, in view of the lack of objection from Plaintiff, the Court recommends the award of costs for all the 1,181 copies sought.
Defendant also requests that it be allowed to recover $.19 per page for all recoverable copies. [D.E. 44]. In making this request, Defendant relies on
Pawnbrokers and Secondhand Dealers Ass’n v. City of Fort Lauderdale,
3. Court Reporter Fees
Pursuant to § 1920(2), costs are recoverable for the “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.”
Id.
“Taxation of deposi
While admission into evidence or use during cross-examination at trial tends to demonstrate that a transcript was necessarily obtained, “[i]t is not necessary to use a deposition at trial to be taxable. ...”
W & O,
Because the parties presumably have equal knowledge of the basis for each deposition, unlike costs relating to photocopies, the non-prevailing party bears the burden of showing that specific deposition costs or a court reporter’s fee was not necessary for use in the case or that the deposition was not related to an issue present in the case at the time of the deposition.
W & O,
Defendant also seeks to recover the court reporter appearance fees, transcripts and deposition costs for Plaintiffs deposition, including postage and handling costs, in the amount of $814.30.
5
[D.E. 44, 44-2]. The National Reporting Service invoice dated October 31, 2008, reflects the following charges: $95.00 for the court reporter’s first hour appearance fee; $130.00 for two additional hours of the court reporter’s appearance fee; $580.00 for an original transcript and copy of the transcript; and $8.50 for postage and handling.
Id.
Defendant supports its requests for these deposition costs by asserting that it used the deposition transcripts throughout the course of litigation and in preparation for trial. [D.E. 44]. Specifically, Defendant indicates that it supported its successful Motion for Sum
Based on Defendant’s representations regarding the uses of Plaintiffs deposition testimony, as a general matter, Defendant has demonstrated that Plaintiffs deposition was “necessarily obtained for use in the case.” Furthermore, as Plaintiff has filed no response, Plaintiff has failed to meet his burden of showing that any portion of the deposition was not related to an issue which was present in the case at the time the deposition was taken. Accordingly, the Court finds that as an initial matter Defendant is entitled to costs incurred with respect to Plaintiffs deposition, but now must determine whether all costs associated with the deposition are recoverable under case law.
Under the statute, recoverable costs include deposition transcript costs and attendance fees of the court reporter or per diem.
Ferguson v. Bombardier Serv. Corp.,
A conflict also exists in this Circuit regarding whether the copies of deposition transcripts are a part of the court reporter’s fee and, thus, taxable.
Compare Wells v. Xpedx, A Div. Of Int’l Paper Co.,
Here, the Court finds that under the statute and case law, Defendant’s requests for fees relating to the court reporter’s appearance fee at Plaintiffs deposition, totaling $225.00 ($95.00 + $130.00)
4. Post-Judgment Interest
Defendant, as the prevailing party in this case, is statutorily entitled to post-judgment interest pursuant to § 1961, which provides for interest on any money judgment recovered in district court in a civil case. 28 U.S.C. § 1961. Thus, the Supreme Court and the Eleventh Circuit have explained, “[W]hen a district court taxes costs against a losing party, the award of costs bears interest from the date of the original judgment.”
BankAtlantic v. Blythe Eastman Paine Webber, Inc.,
In this case, the Court entered Final Judgment on December 16, 2008. [See D.E. 41]. Thus, according to the Administrative Office of the United States Courts, the interest rate applicable for the week ending December 12, 2008, the week before the date of judgment, is 0.50%. This rate of interest should be applied to any award of costs, effective as of December 16, 2008, the date of the original Final Judgment for Defendant.
III. CONCLUSION & RECOMMENDATION
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Defendant’s Verified Motion to Tax Costs [D.E. 44] be GRANTED IN PART AND DENIED IN PART and that Plaintiff be ordered to pay Defendant’s costs in the amount of $1,074.64, 6 plus post-judgment interest at the rate of 0.50%, accruing as of December 16, 2008, the date of the original Final Judgment for Defendant.
The parties shall have ten (10) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable William P. Dimitrouleas, United States 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 shall bar the parties from at
Notes
. The Court sent its February 17th Second Order to Show Cause and a copy of Defendant's Motion via certified mail to Plaintiff to the same address as indicated in Defendant’s Motion on February 18, 2009. This mailing was returned to the Court as undeliverable by the U.S. mail.
. Rule 54(d)(1) provides that "except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” R. 54, Fed.R.Civ.P.
. Under 28 U.S.C. § 1920, the Court may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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.
. The Court has calculated and recalculated all the entries under Sun Fish Grill in the photocopying record and finds that it totals 1,181 copies, not 1,415 as indicated in Defendant's Motion. As a result, the Court will use 1,181 as the corrected a number of total copies made and sought as recoverable by Defendant.
. The Court has calculated and recalculated all the entries on the October 31, 2008, invoice from the National Reporting Service submitted by Defendant, and finds that it totals $814.30 (95.00 + 130.00 + 580.80 + 8.50), not $815.61 as indicated on the invoice itself and relied upon in Defendant’s Motion. As a result, the Court will use $814.30 as the corrected amount of costs for the deposition of Plaintiff sought as recoverable by Defendant.
. Adding up the recoverable costs of $95.00 for use of the private process server, $165.34 for photocopying, and $814.30 for fees relating to Plaintiff’s deposition, totals $1,074.64.