Katz v. Chevaldina

• Decision Date: 17 August 2015
• Docket Number: CASE NO. 12–22211–CIV–KING
• Citation: 127 F.Supp.3d 1285
• Parties: Ranaan Katz, Plaintiff v. Irina Chevaldina, Defendant.
• Court: U.S. District Court — Southern District of Florida

127 F.Supp.3d 1285

Ranaan Katz, Plaintiff

v.Irina Chevaldina, Defendant.

CASE NO. 12–22211–CIV–KING

United States District Court, S.D. Florida, Miami Division .

Signed August 17, 2015

Alan Jay Kluger, Jorge Roberto Delgado, Todd Alan Levine, Kluger Kaplan Silverman

Katzen & Levine, PL, Joshua Evan Saltz, Michael B. Chesal, Peretz Chesal & Herrmann, P.L., Miami, FL, for Plaintiff.

Benedict P. Kuehne, Michael T. Davis, Law Office of Benedict P. Kuehne, P.A., Herman Joseph Russomanno, Robert John Borrello, Russomano & Borello PA, Richard Jay Burton, Burton Firm, Miami, FL, Marc A. Burton, The Burton Firm, Peter J. Solnick, Peter J. Solnick PA, Aventura, FL, for Defendant.

ORDER GRANTING IN PART BILL OF COSTS AND GRANTING IN PART MOTION FOR ATTORNEY'S FEES

JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon Magistrate Judge Edwin G. Torres' May 6, 2015 Report and Recommendation (the "R & R on Costs") (DE 198), which recommends granting in part Defendant's Bill of Costs (DE 170), and Magistrate Judge Torres' May 6, 2015 Report and Recommendation (the "R & R on Fees") (DE 199),¹ which recommends granting in part and denying in part Defendant's Verified Motion for Attorney's Fees and Non–Taxable Costs (DE 177).

The Court has performed a de novo review of each R & R and Plaintiff's Objections to the R & R on Fees,² in addition to its review of the underlying motions, and the responses and replies thereto. Upon consideration of the record and the R & R, the Court finds that Magistrate Judge Torres' well-reasoned, thorough R & R accurately states the law and facts of the case.

Accordingly, it is ORDERED, ADJUDGED, and DECREED:

1. Magistrate Judge Edwin G. Torres' May 6, 2015 Report and Recommendation (DE 198) be, and the same is, hereby AFFIRMED and ADOPTED as an Order of this Court;

2. Defendant's Bill of Costs (DE 170) be, and the same is, hereby GRANTED IN PART and Defendant IRINA CHEVALDINA shall recover from Plaintiff RANAAN KATZ a total taxable costs award of $2,403.50, together with postjudgment interest on that sum from the date of this Order, for which sum let execution issue;

3. Magistrate Judge Edwin G. Torres' May 6, 2015 Report and Recommendation (DE 199) be, and the same is, hereby AFFIRMED and ADOPTED as an Order of this Court;

4. Plaintiffs Objections to the R & R (DE 201) be, and the same are, hereby OVERRULED;

5. Defendant's Verified Motion for Attorney's Fees and Non–Taxable Costs (DE 177) be, and the same is, hereby GRANTED IN PART and Defendant IRINA CHEVALDINA shall recover from Plaintiff RANAAN KATZ a total attorney's fee award of $152,433.68, for which sum let execution issue.

DONE and ORDERED

REPORT AND RECOMMENDATION

EDWIN G. TORRES, United States Magistrate Judge

This matter is before the Court pursuant to Defendant Irina Chevaldina's ("Defendant") Bill of Costs. [D.E. 170]. After due consideration of the Motion, Plaintiff Raanan Katz's ("Plaintiff") Objection to the Bill of Costs [D.E. 175], Defendant's Reply in Support of Bill of Costs [D.E. 176], and the record in this case, the Court recommends granting Defendant's Bill of Costs to the extent that $2,403.50 should be taxed.¹

I. BACKGROUND

Plaintiff holds the copyright to an unflattering photograph of himself which Defendant published as part of highly critical blog articles she wrote about Plaintiff. Plaintiff filed suit for copyright infringement against Defendant, asking the Court to enjoin Defendant from further use of the Photograph. [D.E. 148]. The Honorable James Lawrence King adopted the Report and Recommendation of Magistrate Judge Chris M. McAliley which recommended granting summary judgment for the Defendant, concluding: "that a reasonable trier of fact could reach only one conclusion: that Defendant's use of the photograph was fair, and did not constitute infringement." [D.E. 167 at 2], As a result, the Court directed the Clerk to enter judgment in favor of Defendant to close the case. [D.E. 168]. On October 6, 2014, Defendant filed the present Bill of Costs requesting the Clerk tax $2,623.50 in costs. [D.E. 170].

I. ANALYSIS

A. Standard for Awarding Costs

Federal Rule of Civil Procedure 54(d)(1) prescribes an award of costs for a prevailing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise. Tempay Inc. v. Biltres Staffing of Tampa Bay, LLC, 2013 WL 6145533, at *2 (M.D.Fla. Nov. 21, 2013). Rule 54 establishes a presumption that costs should be awarded unless the district court decides otherwise. Chapman v. Al Transp., 229 F.3d 1012, 1038 (11th Cir.2000). However, "the district court's discretion not to award the full amount of costs incurred by the prevailing party is not unfettered;" the district court must articulate a sound reason for not awarding full costs. Id. at 1039 (internal citations omitted).

Specifically, pursuant to 28 U.S.C. § 1920, the following may be taxed as costs:

(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 the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under [28 U.S.C. § 1923 ]; [and]

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828 ].

28 U.S.C. § 1920 ; seeCrawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 437, 440–41, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (finding that 28 U.S.C. § 1920 defines the term "costs" as used in Rule 54(d) and enumerates the expenses that a federal court may tax as a cost under the discretionary authority granted in Rule 54(d) ). The party seeking an award of costs or expenses bears the burden of submitting a request that enables a court to determine what costs or expenses were incurred by the party and the party's entitlement to an award of those costs or expenses. Loranger v. Stierheim, 10 F.3d 776, 784 (11th Cir.1994).

Upon granting Defendant's motion for summary judgment, judgment was entered in favor of Defendant on all counts. Thus, Defendant is the prevailing party in this action and is entitled to costs under Fed.R.Civ.P. 54(d). See Powell v. Carey Int'l, Inc., 548 F.Supp.2d 1351, 1356 (S.D.Fla.2008) (stating that a prevailing party is one who "prevailed on ‘any significant issue in the litigation which achieved some of the benefit the parties sought in bringing the suit’ ").

In the Bill of Costs proposed by Defendant, she requests that the Clerk tax the following as costs:

Defendant's First Deposition Transcript—Irina Chevaldina ($670.70);

Defendant's Second Deposition Transcript—Irina Chevaldina ($204.80);

Plaintiff's Deposition Transcript—Raanan Katz ($1159.00);

Deposition Videotape—Raanan Katz ($395.00);

Hearing Transcript—June 27, 2013, ($194.00).

[D.E. 170 at 4],

In Plaintiffs Objections to Defendant's Bill of Costs, Plaintiff contests Defendant's requests regarding each itemized expense. [D.E. 175]. As such, we will individually address whether these items are taxable costs under 28 U.S.C. § 1920.

B. Defendant's First Deposition Transcript

Plaintiff claims that Defendant's proposed cost of $670.70 for her deposition should be reduced by $80.00 because the CD/Condense package, delivery, and e-transcripts are not taxable costs. Costs for deposition transcripts are taxable under 28 U.S.C. § 1920(2) so long as the transcripts were "necessarily obtained for use in the case." See EEOC v. W & O, Inc., 213 F.3d 600, 620–21 (11th Cir.2000) (noting that costs of deposition transcripts may be taxed where the transcripts were, either wholly or partially, "necessarily obtained for use in the case"). Whether transcripts have been "necessarily obtained for use in the case," or merely for the convenience of counsel, is to be determined on a case-by-case basis. See, e.g., Desisto Coll., Inc. v. Town of Howey – i n– t he–Hills, 718 F.Supp. 906, 913 (M.D.Fla.1998). In determining the necessity of a deposition, the deposition must only appear to have been reasonably necessary at the time it was taken, regardless of whether it was ultimately used at trial. See EEOC, 213 F.3d at 620–21. The burden lies with the challenging party to show that the deposition was not related to an issue in the case at the time it was taken. Id. at 621.

Not all deposition costs are recoverable. Muldowney v. MAC Acquisition, LLC, 2010 WL 3385388, *2 (S.D.Fla.2010) ("the court will only consider those taxable costs stated under 28 U.S.C. § 1920"). Parties are ordinarily not reimbursed for extraneous costs associated with the depositions that are not expressly sanctioned or permitted by the statute. Courts in this District have determined that "... fees for expedited or condensed transcripts, compressed and miniscript versions, and CD ROMs with ASCII are not reimbursable under § 1920." See Licausi v. Symantec Corp., 2009 WL 3177566 *3 (S.D.Fla.2009) (citation omitted). Courier and postage fees are also not recoverable under § 1920. See Avirgan v. Hull, 705 F.Supp. 1544, 1548 (S.D.Fla.1989). Likewise, shipping costs are not recoverable. Fin. Bus. Equip. Solutions, Inc. v. Quality, 2009 WL 1423931, *3 (S.D.Fla. May 18, 2009).

Defendant has put forth no basis for an exception to the general rule that extraneous costs are not taxable in the case of the costs of her CD/Condense package, delivery, and e-transcripts. These optional deposition charges are extraneous, and thus cannot be reimbursed. Without any showing why these extraneous costs would be necessary, these extra costs attached to the deposition costs should be removed, and the Plaintiff should be taxed only $590.70 for Defendant's first deposition transcript.

C. Defendant's Second Deposition Transcript

Defendant seeks to tax costs for the transcript of Defendant's continued deposition at $154.80 for...