Desisto College v. Town of Howey-In-The-Hills

• Decision Date: 29 June 1989
• Docket Number: No. 87-1-Civ-Oc-14.,87-1-Civ-Oc-14.
• Citation: 718 F. Supp. 906
• Parties: DESISTO COLLEGE, INC. and Loren E. Horner, Plaintiffs, v. The TOWN OF HOWEY-IN-THE-HILLS, Thomas P. Line, in his individual capacity, and Paul Mazade, in his individual capacity, Defendants.
• Court: U.S. District Court — Middle District of Florida

718 F. Supp. 906

DESISTO COLLEGE, INC. and Loren E. Horner, Plaintiffs, v. The TOWN OF HOWEY-IN-THE-HILLS, Thomas P. Line, in his individual capacity, and Paul Mazade, in his individual capacity, Defendants.

No. 87-1-Civ-Oc-14.

United States District Court, M.D. Florida, Ocala Division.

June 29, 1989.

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Roderick MacLeish, Jr., Fine & Ambrogne, Boston, Mass., Stephen H. Durant, Martin, Ade, Birchfield & Johnson, P.A., Jacksonville, Fla., for plaintiffs.

Keith R. Mitnick, and John Robertson, Robertson & Williams, & Mitnik, P.A., Orlando, Fla., for defendants.

ORDER

SUSAN H. BLACK, District Judge.

This case came on to be heard on the Defendants' Amended Motion For Attorneys' Fees, Pursuant To 42 U.S.C. § 1988 & Rule 11, filed April 24, 1989, and Plaintiff's Motion For Review Of The Clerk's Taxation Of Costs, filed May 9, 1989. Plaintiffs filed a memorandum opposing the defendants' motion on May 15, 1989. Roderick MacLeish, counsel for plaintiffs, filed a memorandum opposing the part of defendants' motion relating to Fed.R.Civ.P. 11 sanctions, on May 15, 1989. The Court heard oral argument on May 25, 1989.

I. Costs

The defendants seek recovery of costs in the amount of $37,915.12 under 28 U.S.C. § 1920, 28 U.S.C. § 1821, and 42 U.S.C. § 1988. The defendant Thomas P. Line separately seeks recovery of costs in the amount of $2,306.25 under 28 U.S.C. § 1920 and 42 U.S.C. § 1988. The Court shall first summarize the law concerning the award of costs and then review the particular items that plaintiff argues cannot be awarded.

Fed.R.Civ.P. 54(d) states that costs are "allowed as of course" to the prevailing party. See Fed.R.Civ.P. 54(d). Based on this language and the procedure whereby the Clerk of Court is authorized to tax costs administratively and without Court approval, the Court finds that there exists a presumption that the prevailing party will receive costs. See Fed.R.Civ.P. 54(d); see also Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1242 (7th Cir.1985). To rebut this presumption, the losing party must demonstrate that "there is some fault, misconduct, default, or action worthy of penalty on the party of the prevailing side." Hudson, 758 F.2d at 1242 (quoting Delta Air Lines v. Colbert, 692 F.2d 489, 490 (7th Cir.1982)).¹

The costs allowed under Fed.R.Civ.P. 54(d) are those items specifically set out in 28 U.S.C. § 1821, 28 U.S.C. § 1920, or some other "explicit statutory or contractual authorization." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 & 445, 107 S.Ct. 2494, 2497 & 2499, 96 L.Ed.2d 385, 391 & 393 (1987). Although Fed.R.Civ.P. 54(d) gives the Court discretion to deny costs under those statutes, Fed.R.Civ.P. 54(d) does not authorize the Court to award prevailing parties costs above the statutory levels. Id. 482 U.S. at 444-45, 107 S.Ct. at 2499, 96 L.Ed.2d at 393.

In this case, the Court granted the defendants' motion for summary judgment, see DeSisto College, Inc. v. Town Of Howey-In-The-Hills, 706 F.Supp. 1479, 1507 (M.D. Fla.1989), thereby making the defendants prevailing parties under Fed.R.Civ.P. 54(d). The defendants thereafter filed their bill of costs on April 25, 1989. The Clerk on the same date taxed costs against the plaintiffs.²

Pursuant to Fed.R.Civ.P. 54(d), the plaintiffs moved for the Court to review the Clerk's taxation of costs. In particular, the plaintiffs argue that the defendants cannot recover any costs under 42 U.S.C. § 1988, pursuant to this Court's order of March 23, 1989, and that the defendants' costs sought under 28 U.S.C. § 1920 and 28 U.S.C. § 1821, should be reduced. The Court will address each of these arguments in turn.

A. The March 23, 1989, Order

The defendants originally filed a "motion for costs" on February 17, 1989. On March 23, 1989, this Court entered an order striking the defendants' motion because the Court found that the defendants had not filed a bill of costs as required by Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920, and because the Court could not distinguish among the costs that the defendants sought under 42 U.S.C. § 1988, 28 U.S.C. § 1920, and 28 U.S.C. § 1821. The Court directed the defendants to file a bill of costs which did not include as costs those items that could be recovered as attorney's fees under 42 U.S.C. § 1988. See March 23, 1989, order at 7, ¶ 3. Despite this direction, the defendants nonetheless included attorney's fees items on their bill of costs.

Although 42 U.S.C. § 1988 read literally states that a reasonable attorney's fee may be allowed the prevailing party "as part of the costs," such costs have not been allowed "as of course" to prevailing defendants. Because 42 U.S.C. § 1988 permits prevailing defendants to recover costs only upon meeting a higher burden, see infra, the Court shall disallow costs which the defendants seek under the authority of 42 U.S.C. § 1988. The Court shall discuss attorney's fees under 42 U.S.C. § 1988 infra.

B. Reduction Of Defendants' Costs

The plaintiffs do not dispute that the defendants may recover their costs under 28 U.S.C. § 1920 and 28 U.S.C. § 1821. The plaintiffs argue, however, that the defendants have not established that the costs listed in their bill of costs satisfy the requirements of 28 U.S.C. § 1920,³ or 28

U.S.C. § 1821.⁴

1. Transcript Of Court Hearing

Plaintiffs concede that the defendants may recover $292 for the stenographic transcript of the hearing on the defendants' motion for summary judgment under 28 U.S.C. § 1920(2). The Court shall, therefore, award the defendants $292 for that cost.

2. Depositions

The Court may award fees of the court reporter for all or any part of the stenographic transcript "necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Whether or not a stenographic transcript was "necessarily obtained for use in the case" or merely for the convenience of the attorney is to be determined on a case by case basis. Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981). The Court enjoys wide latitude in this determination. Id. Furthermore, contrary to plaintiffs' argument, this circuit has rejected any blanket rule that a deposition must be admitted in evidence in order to be recoverable. See Murphy v. City Of Flagler Beach, 761 F.2d 622, 631 (11th Cir.1985).

The disposition of a case on a motion for summary judgment is no impediment to an award of costs. Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir.1985). Furthermore, the necessity of a deposition is determined in light of the facts known at the time that the deposition was taken. Hudson, 758 F.2d at 1243.

In this case, the plaintiffs argue that the $14,582.98 sought by the defendants as fees of the court reporter at the depositions in this case were not necessarily obtained for use in the case. Plaintiffs state that the Court's finding that the parties' extreme factual contentions were not material to the case rendered virtually all of the depositions unnecessary.

The Court finds that the plaintiffs' argument is given with the benefit of hindsight. It is the foolhardy litigant who, although believing in the strength of a dispositive legal issue, conducts no discovery into an opponent's allegations or discovery on alternative theories. The defendants in this case vigorously pressed their legal theories while at the same time conducting discovery on plaintiff's allegations. This Court cannot now state that such discovery was unnecessary in light of the extraordinary relief sought by the plaintiffs and the derogatory nature of plaintiffs' allegations. The Court finds that the defendants necessarily took the depositions in order to answer the plaintiffs' arguments raised in the plaintiffs' motions for summary judgment and for potential use at trial.

Furthermore, this Court does not find that the defendants' discovery as to nonmaterial issues was not necessarily obtained for use in the case. By definition, when a court grants a motion for summary judgment, the court finds that there is no dispute as to any material fact. It was not the intention of Congress in 28 U.S.C. § 1920 to preclude parties prevailing on motions for summary judgment from recovering their costs for depositions. In addition, even depositions needed to establish nonmaterial facts are often necessary to elucidate the factual background in a case and make it possible for the court to discern the material from the nonmaterial issues.

Finally, the Court notes that the plaintiffs, on the one hand, as evidenced by the plaintiffs' appeal, continue to dispute the merits of the case and contend that the factual issues that the Court found were not material were indeed material. On the other hand, the plaintiffs in the instant motion embrace the Court's finding of nonmateriality. The plaintiffs cannot have it both ways.

The Court, therefore, finds that the depositions were necessarily taken for use in the case. The Court will award $14,582.98 to the defendants for the costs of the court reporter in stenographically recording depositions.

3. Subpoena Service

The defendants seek reimbursement of $807.94 for expenses incurred in serving subpoenas for depositions under 28 U.S.C. § 1920 and 28 U.S.C. § 1821. The defendants claim that they are entitled to costs incident to taking depositions under these provisions.

The Court finds that the language of the aforementioned statutes does not permit recovery of these costs, and the defendants conceded at oral argument that they had no authority for recovery of these costs. See also Zdunek v. Wash. Metro. Area Trans. Auth., 100 F.R.D. 689, 692 (D.D.C.1983) (costs for service of subpoenas not recoverable under 28 U.S.C. § 1920(1)). The Court will, therefore, disallow the cost of subpoena service.

4. Mileage And Travel

The defendants claim reimbursement in the amount of $1,518.26 as travel and mileage costs of their deponents. The defendants claim...