Monelus v. Tocodrian, Inc.

Decision Date23 April 2009
Docket NumberNo. 07-61801-CIV.,07-61801-CIV.
Citation609 F.Supp.2d 1328
PartiesCesar MONELUS, and others similarly situated, Plaintiff, v. TOCODRIAN, INC. d/b/a Sun Fish Grill, Defendant.
CourtU.S. District Court — Southern District of Florida

Anthony Maximillien Georges-Pierre, Remer & Georges-Pierre, Miami, FL, for Plaintiff.

Chris Kleppin, Glasser Boreth Ceasar & Kleppin, Plantation, FL, Sloan A. Carr, Ira Marcus P.A., Fort Lauderdale, FL, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING MOTION IN PART

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon the Report and Recommendation issued by Magistrate Judge Rosenbaum on March 31, 2009. [DE-48].

The Court notes that no objections to the Reports have been filed, and the time for filing such objections has passed. As no timely objections were filed, the Magistrate Judge's factual findings in the Report and Recommendation are hereby adopted and deemed incorporated into this opinion. LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir.1988), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.1993). Although no timely objections were filed, the Court has conducted a de novo review of the Report, and is otherwise fully advised in the premises.

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

ROBIN S. ROSENBAUM, United States Magistrate Judge.

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 Plaintiff's 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 of the Court's Final Judgment, on December 16, 2008, on any and all costs taxed by the Court. Id. In support of its Motion, Defendant also submitted the following information: two invoices from All Broward Process Corp., for service on Plaintiff, one invoice dated September 30, 2008, in the amount of $35.00, and the other invoice dated November 17, 2008, for $60.00, a photocopying counter record with various entries, including some for "Sunfish Grill," and an invoice from the National Reporting Service dated October 31, 2008, for the deposition of Plaintiff for the amount of $815.61. Id. Defendant indicated that it served its Motion on Plaintiff via U.S. mail at the address 5962 N.W. 20th St. Lauderhill, FL 33308, on January 14, 2009. Id.

Plaintiff's 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 Plaintiff's 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., 482 U.S. 437 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). The Court has the discretion to award those costs specifically enumerated in 28 U.S.C. § 1920. Crawford Fitting Co., 482 U.S. at 440-44, 107 S.Ct. 2494. The Court, however, may not tax as costs any items not authorized by statute. Id.; see also United States EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000) ("EEOC"); Morrison v. Reichhold Chemicals, Inc. 97 F.3d 460, 464-65 (11th Cir. 1996); Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F.Supp. 906, 913 (M.D.Fla.1989), aff'd, 914 F.2d 267 (11th Cir.1990).3 When challenging whether costs are taxable, the losing party bears the burden of demonstrating that a cost is not taxable, unless the knowledge regarding the proposed cost is within the exclusive knowledge of the prevailing party. See Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F.Supp.2d 1272, 1288 (M.D.Fla.2005); Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F.Supp. 906, 910 n. 1 (M.D.Fla.1989), aff'd, 914 F.2d 267 (11th Cir.1990).

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, 213 F.3d at 624 (holding private process server fees may be taxed under § 1920); see, e.g., Lovett v. KLLM, Inc., 2007 WL 983192, * 7 (N.D.Ga. March 26, 2007). Fees, however, should not exceed the statutory fees authorized in § 1921. Id. (citing Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir.1996)). The statutory limit set forth in 28 C.F.R. § 0.114 provides that fees charged by the United Sates Marshals Service for personal service of process shall be $45.00 per hour (or portion thereof). Private process server fees for service of subpoenas are similarly recoverable. See Dominguez v. Metro. Miami-Dade County, 2005 WL 5671449, *3 (S.D.Fla. Apr. 15, 2005) (holding costs of service of subpoenas recoverable); For Play Ltd. v. Bow to Stern Maint., Inc., 2006 WL 3662339, * 10 (S.D.Fla. Nov.6, 2006) (allowing private service processor fee averaging $28.73 per service).

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 because § 1920 allows for...

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