Doherty v. Borrows, et al.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 23-CV-14395-RKA
KEITH ROBERT DOHERTY,
Plaintiff,
vs.
DEPUTY BORROW, et al,
Defendants.
_______________________________________/
REPORT AND RECOMMENDATION ON MOTION TO TAX COSTS (AND
MEMORANDUM OF LAW) [ECF No. 183]
Defendants Mark Borrows and Mark Phillips (the “Remaining Defendants”),
in their individual capacities, move for an award of $4,708.47 in costs pursuant to
Federal Rule of Civil Procedure 54(d)(1) against pro se Plaintiff Keith Doherty. ECF
No. 183 at 1 (“the Motion”). For the following reasons, the Motion should be
GRANTED in part and DENIED in part.
I. PROCEDURAL HISTORY
On December 12, 2023, Mr. Doherty filed a Complaint alleging violations of 8
U.S.C. § 43; 28 U.S.C. § 1343; and the 4th, 5th, 8th, and 14th Constitutional
Amendments. ECF No. 1. The Complaint was dismissed without prejudice, and he
filed an Amended Complaint against multiple Defendants, including the Remaining
Defendants. See ECF Nos. 4, 5, 11.
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The Remaining Defendants filed a Motion to Dismiss. ECF No. 110. In the
Motion to Dismiss, the Remaining Defendants alerted the Court that Mr. Doherty
made an error in his Amended Complaint: he said that he did not have litigation
history. ECF No. 110 ¶4-6.
After being notified of the issue, the Court entered an Order to Show Cause
why the case should not be dismissed without prejudice for concerns about Mr.
Doherty’s failure to disclose his litigation history. ECF Nos. 130, 131. After briefing,
the matter was referred to me for a Report and Recommendation and an evidentiary
hearing. ECF Nos. 134, 135, 136, 137, 138, 139, 140, 149, 150.
I held an evidentiary hearing on July 7, 2025. ECF No. 155. Mr. Doherty failed
to appear and left an ex parte voicemail explaining why he could not appear. ECF No.
156. I entered an Order requiring Mr. Doherty to provide documentation explaining
why he could not appear at the hearing, but Mr. Doherty did not timely respond. ECF
Nos. 156, 157, 158. Subsequently, he filed an appeal that was dismissed for want of
prosecution. ECF No. 162, 168, 169.
Then, the case was referred to me for an Amended Report and
Recommendation about whether the matter should be dismissed with or without
prejudice as malicious under 28 U.S.C. § 1915(e)(2)(B)(i) or, in the alternative, for his
failure to comply with the Court’s Orders. ECF No. 170 at 3. I recommended that the
case be dismissed with prejudice, and Judge Altman accepted and adopted the Report
and Recommendation in full. ECF No. 175, 182.
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On February 4, 2026, the Remaining Defendants filed the Motion. ECF No.
183. Mr. Doherty filed an appeal of Judge Altman’s order accepting and adopting my
Report and Recommendation. ECF No. 184. Judge Altman then entered the following
Order:
The Defendants filed a 183 Motion to Tax Costs. That motion was sent
to Doherty's e-mail address at keithdoherty5@gmail.com. See Motion to
Tax Costs [ECF No. 183] at 4. Doherty hasn't responded, so the motion
would be ripe for decision—except we think that Doherty hasn't received
notice of the motion at all. See generally Docket. That's because when he
filed his 184 Notice of Appeal, Doherty revealed to us that he'd returned
to state prison after we dismissed this case. See Notice of Appeal [ECF
No. 184] at 1 ("I am an inmate confined to an institution today . . . [and]
I am depositing the Notice of Appeal . . . in the Institution's internal
mail system[.]").
So, here's what we'll do: First, we ORDER the Defendants to mail a copy
of their 183 Motion to Tax Costs to Doherty's current address by March
11, 2026. Second, by that date, the Defendants must certify their
attempts to confer with Doherty in good faith as required by Local Rule
7.1(a)(3)—or else we'll strike their motion. Third, Doherty will have
until March 25, 2026, to respond to the motion. See S.D. Fla. 7.1(c)(1)
(requiring parties to "file and serve an opposing memorandum of law no
later than fourteen (14) days after service of the motion"). If Doherty
doesn't timely respond, we'll find that he's unopposed to any award of
costs. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir.
2014) ("A party's failure to respond to any portion or claim in a motion
indicates such portion, claim or defense is unopposed."); Corwin v. Walt
Disney Co., 475 F.3d 1239, 1255 (11th Cir. 2007) ("Because the objection
[to the Clerk's taxation of costs] was untimely, the district court did not
abuse its discretion in failing to address the objection on the merits.").
Signed by Judge Roy K. Altman on 3/9/2026. (gan) (Entered: 03/09/2026)
ECF No. 187. The Remaining Defendants complied. ECF No. 188. Mr. Doherty did
not file a response. Thus, the Motion is now ripe.
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II. LEGAL BACKGROUND
A. Prevailing Party
Under the Federal Rules, prevailing parties are entitled to recover costs as a
matter of course unless otherwise directed by the court or statute. See Fed. R. Civ. P.
54(d)(1). There is no prevailing party unless there has been a “material alteration of
the legal relationship of the parties.” Tex. State Tchr. Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791-92 (1989).
A plaintiff has materially altered the legal relationship between the parties if
it “has succeeded on ‘any significant issue in litigation which achieve[d] some of the
benefit the parties sought in bringing suit.’” Id. at 792-93 (citation omitted) (bracket
in original). A defendant prevails “whenever the plaintiff’s challenge is rebuffed,
irrespective of the precise reason for the court’s decision. The defendant may prevail
even if the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.”
CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 431 (2016); see also Beach Blitz
Co. v. City of Mia. Beach, Fla., 13 F.4th 1289, 1298-99 (11th Cir. 2021) (involuntary
dismissal for failure to state a claim was sufficient to make defendant a prevailing
party). A party who gets an enforceable judgment is a “prevailing party” because it
“has received at least some relief based upon the merits of a claim.” Util. Automation
2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1248 (11th Cir. 2002).
B. Recoverable Costs
Rule 54(d) creates a presumption in favor of awarding costs to the prevailing
party. See Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991).
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Such presumption, however, is not without limits and courts may only tax costs as
authorized by statute. See EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000)
(citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)).
Title 28, United States Code, Section 1920 enumerates expenses that a federal
court may tax as a cost under the discretionary authority found in Rule 54(d). Section
1920 provides in part:
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. “Absent explicit statutory or contractual authorization, the Court
is limited to those costs specifically enumerated in 28 U.S.C. § 1920.” See EEOC, 213
F.3d at 620; Crawford Fitting Co., 482 U.S. at 445. In the exercise of sound discretion,
the Court receives great latitude in ascertaining taxable costs. See EEOC, 213 F.3d
at 621. Even if the costs motion is unopposed, the Court has an independent
obligation to ensure the costs awarded are proper. ACLU v. Barnes, 168 F.3d 423, 428
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(11th Cir. 1999) (“[I]t is as much the duty of courts to see that excessive fees and
expenses are not awarded as it is to see that an adequate amount is awarded.”).
1. Transcripts
“The Eleventh Circuit has held that costs for deposition transcripts are
generally taxable as long as the transcripts were ‘necessarily obtained for use in the
case.”’ Embroidme.com, Inc. v. Travelers Prop. Cas. Co. of Am., No. 12-81250-CIV,
2014 WL 5325211, at *5 (S.D. Fla. Aug. 20, 2014) (quoting EEOC, 213 F.3d at 620-
21). “In determining the necessity of a deposition, it must only appear to have been
reasonably necessary at the time it was taken.” Id.
“[D]eposition costs are taxable even if a prevailing party's use of a deposition
is minimal or not critical to that party's ultimate success.” Monelus v. Tocodrian, Inc.,
609 F. Supp 2d 1328, 1337 (S.D. Fla. 2009) (citation omitted). “Although the use of a
deposition at trial or in a summary judgment motion tends to show that the
deposition was necessarily obtained for use in a case, such a showing is not necessary
to be taxable.” Kaplan v. Nautilus Ins. Co., No. 17-cv-24453, 2020 WL 9458649, at *3
(S.D. Fla. Aug. 11, 2020) (citing see Watson v. Lake Cnty., 492 F. App'x 991, 996 (11th
Cir. 2012)). “[E]ven where a deposition is not ultimately used as part of a prevailing
party's case, [the Eleventh Circuit has] held that the costs of the deposition are
taxable under § 1920 where no evidence shows that the deposition was unrelated to
an issue in the case [when taken].” Id. (quoting Watson, 492 F. App'x at 996-97).
But, “[w]here the deposition costs were incurred for the prevailing parties'
convenience, such as to aid in thorough preparation or for the purposes of
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investigation only, the costs are not recoverable.” Watson, 492 F. App'x at 996 (citing
EEOC, 213 F.3d at 620).
2. Appearance Fees
There is a split of authority whether appearance fees are taxable costs. Feise
v. N. Broward Hosp. Dist., No. 14-cv-61556, 2017 WL 3315144, at *3 (S.D. Fla. Aug.
3, 2017); see also Club Madonna, Inc. v. City of Mia., No. 16-25378-CIV, 2022 WL
16701244, at *3 (S.D. Fla. Oct. 12, 2022) (citing see, e.g., Joseph v. Nichell's Caribbean
Cuisine, Inc., 950 F. Supp. 2d 1254, 1258 (S.D. Fla. 2013)). For context,
In 2008, § 1920 was amended from “fees of the court reporter for all or
any part of the stenographic transcript” to fees “for printed or
electronically recorded transcripts.” See Miles v. Jones, No. 08-20612-
CIV, 2011 WL 10565588, at *2 (S.D. Fla. Feb. 4, 2011) (citing Pub. L.
110-406, § 6; 122 Stat. 4292). As a result of the 2008 amendment, some
courts have found that appearance fees are not taxable, as only fees for
the transcript itself are recoverable. See Miles, 2011 WL 10565588 at *2;
Rodriguez v. Marble Care Int'l, Inc., 862 F. Supp. 2d at 1320. However,
other courts have found that appearance fees are recoverable, despite
the amendment to § 1920. See Nelson, 2014 WL 2195157 at *2; Levy v.
Remy Cointreau USA, Inc., No. 14-20906-CV, 2015 WL 12868176, at *3
(S.D. Fla. Mar. 31, 2015).
Feise, 2017 WL 3315144, at *3. Still, "[t]he majority of courts in this district and the
appellate courts which have addressed the issue have found that court reporter
attendance fees are generally recoverable under § 1920(2)." Club Madonna, 2022 WL
16701244, at *3 (citing Rakip v. Paradise Awnings Corp., No. 10-20004-CIV, 2014 WL
12737632, at *6 (S.D. Fla. Jan. 2, 2014)).
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3. Other Costs
A “Defendant should not be reimbursed for extraneous fees not permitted
under Section 1920.” Embroidme.com, Inc., 2014 WL 5325211, at *4. These costs
include “‘... fees for expedited or condensed transcripts, compressed and miniscript
versions, and CD ROMs with ASCII,’” especially without explanation. See id. (citation
omitted).
C. Burden
The movant has the initial burden on a motion for costs. Loranger v. Stierheim,
10 F.3d 776, 784 (11th Cir. 1994) (holding that “the burden rests with [the movant]
to submit a request for expenses that would enable the district court to determine
what expenses were incurred on the federal litigation”). “The movant must not only
show that the costs claimed are recoverable, but must also provide sufficient detail
and sufficient documentation regarding those costs in order to permit challenges by
opposing counsel and meaningful review by the court.” Woods v. Progressive Am. Ins.
Co., No. 19-cv-80517, 2024 WL 454401, at *2-3 (S.D. Fla. Feb. 6, 2024) (emphasis in
original). A motion for costs can be denied when sufficient support is not provided. Id.
at *3.
But, “[u]pon the filing of a timely bill of costs, which sets forth in detail the
amounts requested, the opposing party has the burden of showing that the costs
requested fall outside the scope of 28 U.S.C. § 1920 or are otherwise unreasonable.”
R.M. v. Miami-Dade Cnty., No. 20-cv-25270, 2022 WL 2669489, at *2 (S.D. Fla. June
20, 2022), report and recommendation adopted, 2022 WL 2666887 (S.D. Fla. July 11,
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2022). “Because the parties have equal knowledge to the utility of transcripts, the
party [ ] challeng[ing] the proposed costs bears the burden of showing that specific
deposition costs ... [were] not necessary . . .” Kaplan, 2020 WL 9458649, at *2.
III. ANALYSIS
Prevailing Party
The Remaining Defendants are the prevailing party. Judge Altman adopted
and accepted my Report and Recommendation to dismiss the case against the
Remaining Defendants with prejudice. ECF No. 182 at 14. That ruling affected a
change in the legal relationship between the parties by dismissing Mr. Doherty’s suit.
Recoverable Costs
The Remaining Defendants moved for $4,708.47 in taxable costs related to one
transcript for Mr. Doherty’s deposition, which was used “to defend against Plaintiff’s
claims,” and other costs. ECF No. 183 at 3. Mr. Doherty did not file a response and,
therefore, does not dispute these costs. ECF No. 187 (“If Doherty doesn't timely
respond, we'll find that he's unopposed to any award of costs.”). Still, I have an
independent duty to determine whether requested fees are recoverable and
reasonable.
In the attached invoice, $2,152.95 was spent on the original transcript;
$1,291.77 was spent to expedite the transcript in 5 days; $145.25 was spent for 1.5
“Non-Traditional Hours”; $20.00 was spent on a condensed transcript; $95.00 was
spent on the first hour of appearance; an additional $95.00 per hour was spent on 9.5
additional hours of appearance (totaling $902.50); $45.00 was spent on the transcript
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handling and processing; and $55.00 was spent on litigation, technology, support and
security management. ECF No. 183-2 at 2.
First, the Remaining Defendants support their need for Mr. Doherty’s
transcript to defend the claims. ECF No. 183 at 3 (the transcript “was necessary for
use in this case and to defend against Plaintiff’s claims.”). The deposition resulted in
463 pages1 of testimony and included information that was used in the Remaining
Defendants’ Motion to Dismiss. See ECF No. 110-2; ECF No. 110 at 2-4. Thus, I find
the $2,152.95 for the original transcript is a reasonable and recoverable cost.
Second, the Remaining Defendants seek 10.5 hours in appearance fees totaling
$997.50. ECF No. 183-2 at 2. The court reporter’s appearance is required to produce
a transcript. Price v. United Techs. Corp., No. 99-8152, 2000 U.S. Dist. LEXIS 21504,
at *5 (S.D. Fla. Nov. 16, 2000). Thus, I find that the appearance fees are recoverable.
Third, the remaining fees are not recoverable. The Remaining Defendants
provide no caselaw or argument to support a contrary finding.2 See Embroidme.com,
Inc., 2014 WL 5325211, at *5 (holding that providing “no explanation regarding why
these optional charges for digital copies and for shipping were necessary” is
insufficient to support a cost award because certain costs were not shown to be
“necessary rather than merely convenient”).
1 The Invoice uses the term “units” for the 463, which I infer to mean “pages.” ECF
No. 183-2 at 2.
2 In fact, the Remaining Defendants do not address these fees beyond the itemized
entries in the invoice. ECF No. 183-2 at 2.
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The cost for expediting the transcript ($1,291.77) is not recoverable because
the Remaining Defendants have not explained why an expedited transcript was
necessary. See Kemp v. Miami-Dade Cnty., No. 17-21783-CIV, 2018 WL 11476228, at
*2 (S.D. Fla. Oct. 18, 2018) (“If an expedited transcript is necessary, then the
prevailing party may recover the costs to expedite.”), report and recommendation
adopted, 2019 WL 13260546 (S.D. Fla. Jan. 4, 2019). As well, the costs for transcript
handling and processing ($45.00); litigation technology, support and security
management ($55.00); and for the condensed transcript ($20.00) are not recoverable.
Gulf Bldg., LLC v. Phila. Indem. Ins. Co., No. 22-CV-60573, 2023 WL 8438465, at *4
(S.D. Fla. Nov. 2, 2023) ("Miscellaneous costs associated with deposition transcripts,
such as shipping and handling, expedited delivery of transcripts, exhibit costs, or
condensed transcripts, are not taxable because generally, they are incurred for
convenience of counsel, as opposed to being necessarily obtained for use in the case."),
report and recommendation adopted, 2023 WL 8433693 (S.D. Fla. Dec. 4, 2023).
Finally, it is unclear to me what the “Non-Traditional Hours” cost totaling
$146.25 is. ECF No. 183-2 at 2. It is the Remaining Defendant’s burden to adequately
support their Motion. They have not met their burden on this cost. As a result, I
cannot determine whether any portion of this cost is reasonable, so I recommend
denial of the “Non-Traditional Hours” cost.
Thus, the Remaining Defendants should be able to recover a total of $3,150.45
in taxable costs for the original transcript and appearance fees. See ECF No. 183-2 at
2. The remaining requested costs totaling $1,558.02 should not be awarded.
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REPORT AND RECOMMENDATION
Accordingly, this Court RECOMMENDS that the District Court GRANT in
part and DENY in part the Motion.
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable Roy Altman, United States District Court for
the Southern District of Florida, within FOURTEEN (14) DAYS of being served with
a copy of this Report and Recommendation. Failure to timely file objections shall
constitute a waiver of a party's "right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions." 11th Cir. R. 3-1 (2016).
If counsel do not intend to file objections, they shall file a notice
advising the District Court within FIVE DAYS of this Report and
Recommendation.
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 29th day of April 2026.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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