Lucibella v. Town of Ocean Ridge et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 9:20-CV-82156-DSL
RICHARD LUCIBELLA,
Plaintiff,
vs.
OFFICERS RICHARD ERMERI,
NUBIA PLESNIK, and
TOWN OF OCEAN RIDGE,
Defendants.
_______________________________________/
REPORT AND RECOMMENDATION REGARDING DEFENDANTS’
MOTION TO TAX COSTS [ECF No. 302]
As a prevailing party, the defendant, Town of Ocean Ridge, moves for taxable
costs under 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d). For the reasons stated below,
it is RECOMMENDED that the Motion for Bill of Costs be GRANTED IN PART and
DENIED IN PART.
LEGAL PRINCIPLES
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). Federal Rule of Civil Procedure 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). This presumption is not without limits, and courts
may only tax costs as authorized by statute. See U.S. EEOC v. W&O, Inc., 213 F.3d
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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). See
Crawford Fitting Co., 482 U.S. at 441–42. This section 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. It is well settled that Section 1920 should be narrowly construed.
West v. Zacharzewski, 2019 WL 2567665, at 2* (S.D. Fla. May 29, 2019). The party
seeking to tax costs must justify its request with specific evidence:
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. See Lee v. American Eagle Airlines,
Inc., 93 F.Supp.2d 1322, 1335 (S.D.Fla.2000) (movant “bears the burden
of submitting a request for expenses that would enable the court to
determine 	what 	expenses 	were 	incurred 	and 	whether 	Plaintiff 	is
entitled to them”) (citing Loranger v. Stierheim, 10 F.3d 776, 784 (11th
Cir.1994)). The movant should justify its cost claims by adequately
describing the necessity of the services provided and their relationship
to the case. See Davis v. Commercial Union Ins. Co., 892 F.2d 378, 385
(5th Cir.1990) (ruling that the district court did not abuse its discretion
in denying costs where “the affidavit in support of the motion for costs
‘fail[ed] to set out with sufficient particularity [the expenditures] in
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order for the Court to determine the reasonableness' of the costs.”).
Indeed, failure to submit supporting documentation verifying the costs
incurred and the services rendered (e.g., bills, invoices, receipts, etc.) can
be grounds for denial of costs. See Johnson v. Mortham, 173 F.R.D. 313,
318 (N.D.Fla.1997).
Porcelanas Florencia, S.A. v. Caribbean Resort Suppliers, Inc., 06-22139-CIV, 2009
WL 1456338, at *6 (S.D. Fla. May 22, 2009).
The overarching principle is that taxable costs must have been necessarily
incurred for use in the case, and not merely for the convenience of counsel. For
example, printed or electronically recorded transcripts necessarily obtained for use
in the case may be taxed pursuant to Section 1920(2). See Bynes-Brooks v. N. Broward
Hosp. Dist., No. 16-cv-60416, 2017 WL 3237053, at *1 (S.D. Fla. July 31, 2017) (J.
Bloom) (citing W&O, 213 F.3d at 620-21). Extra fees for items such as shipping,
exhibits, expedited copies, condensed transcripts and CD-ROMs are generally not
recoverable. George v. Florida Dept. of Corrections, No. 07-80019, 2008 WL 2571348,
*6 (S.D. Fla. May 23, 2008); Suarez v. Tremont Towing, Inc., No. 07-21430, 2008 WL
2955123, *3 (S.D. Fla. Aug. 1, 2008).
In this case, the Town is the prevailing party. Mr. Lucibella opposes the Motion
in part. ECF No. 305. Nonetheless, the Court has an independent obligation to ensure
that the costs awarded are proper under Section 1920. See Valley v. Ocean Sky Limo,
82 F. Supp. 3d 1321, 1325 (S.D. Fla. 2015) (“[T]he Court has an independent
obligation to review . . . bills of costs to independently determine whether . . . the costs
sought to be taxed are properly taxable pursuant to the cost statute.”). The Court
retains discretion to decline to award some or all of the prevailing party’s costs.
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Campbell v. Rainbow City, Alabama, 209 Fed. Appx. 873, 875 (11th Cir. 2006). But,
“a ‘persuasive reason’ ’’ is required. Friends of Everglades v. S. Florida Water Mgmt.
Dist., 865 F. Supp. 2d 1159, 1165 (S.D. Fla. 2011) (citing Charles Alan Wright, et al.,
Federal Practice and Procedure § 2668 (3d ed.1998)).
DISCUSSION
The Town filed a Bill of Costs seeking $9,521.89. ECF No. 302. The categorized
costs were:
Fees for the filing 	$400
Fees for service of subpoenas 	$2,229
Fees for transcripts 	$5,443.65
Fees for copies 	$1,449.24
ECF No. 302. The costs are supported by receipts appended to the Bill of Costs. In his
Response, Mr. Lucibella objects to all but $1,998.11 of these costs. ECF No. 305 at 6.
1. 	Fees of the Clerk and Marshal
It is well-settled that private process server fees may be taxed pursuant to
Section 1920, provided they do not exceed the service rates charged by the U.S.
Marshal’s Service. W & O, Inc., 213 F.3d at 624; Davis v. Sailormen, Inc., No. 6:05-
cv-1497-Orl-22JGG, 2007 WL 1752465, at *2–3 (M.D. Fla. June 15, 2007) (awarding
costs for service of subpoenas based on Marshal’s rates). The current regulations
provide that the Marshal’s Service charges $65.00 per hour for each subpoena served.
See 28 C.F.R. § 0.114.
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Here, the Town seeks to recover $2,229 in service expenses. ECF No. 302 at 3–
5. Mr. Lucibella objects to $1502 of these expenses. ECF No. 305 at 3–4. The Town's
Motion and supporting documents reflect process server fees which range from $25
to $99, in addition to fees for rush service, check advance, and additional addresses.
ECF No. 302 at 4–56.
The Town did not establish that there were any extraordinary circumstances
warranting expedited service. Therefore, rush service fees will not be awarded. See
Cardona v. Mason and Dixon Lines, Inc., No. 16-22704-CIV, 2018 WL 369160, at *4
(S.D. Fla. Jan. 10, 2018) (finding rush fees will not be awarded absent extraordinary
circumstances). The Court calculates the additional fee for rush service in the instant
case to be $335. ECF No. 302 at 4–13. Accordingly, the Court will disallow $335 from
the Town’s request.
The Court identified multiple charges for service to individuals at additional
addresses, totaling to $175 in fees (ECF No. 302 at 12, 14, 19, 20, 31, 36, 53). The
Town does not provide a sufficient explanation why witnesses had to be served
multiple times at multiple addresses. Therefore, the cost of $175 for these multiple
service attempts will be disallowed. See, e.g., Guzy v. QBE Specialty Ins. Co., No. 20-
23169-CIV, 	2023 	WL 	2244829, 	at 	*10 	(S.D. 	Fla. 	Feb. 	9, 	2023), 	report 	and
recommendation adopted, 2023 WL 2240456 (S.D. Fla. Feb. 27, 2023).
The Town also requests $40 in check advance fees (ECF No. 302 at 22, 23) and
$297 in nationwide service fees (ECF No. 302 at 18, 28, 52). Similar to above, the
Town does not justify the necessity of those charges, and, therefore, those costs of $40
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and $297 will be disallowed. Rodriguez v. Costco Wholesale Corp., No. 22-CV-22255,
2024 WL 808977, at *4 (S.D. Fla. Jan. 11, 2024) (finding the costs not taxable when
the prevailing party did not explain the need for the additional charges).
Accordingly, the Court finds that the Town's request for fees in connection with
service of subpoenas shall be reduced by $847, making the Town's total taxable cost
for service $1,382. Moreover, the Town has requested $400 for the filing fee incurred
after the case was removed. ECF No. 302 at 3. Filing fees are taxable costs under 28
U.S.C. § 1920, and thus the Court allows the full $400 filing fee to be taxable.
2. 	Transcripts
Printed transcripts and the stenographer’s attendance fee for necessarily
obtained transcripts are taxable. Whittier v. City of Sunrise, 2008 WL 5765868, *5
(S.D. Fla. Dec. 3, 2008) (finding that under § 1920, the transcript and attendance fee
of the court reporter are recoverable); George v. Florida Dept. of Corrections, 2008 WL
2571348, *6 (S.D. Fla. May 23, 2008). Courier, postage, exhibits, expedited copies,
condensed transcripts, and shipping and handling fees are not taxable costs under
Section 1920. Katz v. Chevaldina, 127 F. Supp. 3d 1285 (S.D. Fla. 2015); see also
George, 2008 WL 2571348 report and recommendation adopted in part, No. 07-cv-
80019, 2008 WL 11412061, at *6 (S.D. Fla. July 7, 2008) (finding expedited and
condensed transcripts not recoverable where claimant was unable to prove necessity,
rather than mere convenience); Suarez v. Tremont Towing, Inc., 2008 WL 2955123,
*3 (S.D. Fla. Aug. 1, 2008) (declining reimbursement for delivery charges or charges
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for exhibits); Univ. of Miami v. Intuitive Surgical, Inc., No. 04-20409-CIV, 2007 WL
781912 (S.D. Fla. Mar. 13, 2007) (finding videotapes of the same deposition, copies of
transcript exhibits, postage and handling are not taxable).
The Town seeks $5,443.65 for transcripts. ECF 302 at 5–8. Of this, Mr.
Lucibella objects to $325 in alleged optional deposition charges and $10 for a
videoconference fee, arguing the Town has not shown why these costs are necessary.
ECF No. 305 at 5–6. The Town claims the transcripts are taxable in their entirety
because they were reasonably necessary for use in the case. ECF No. 306 at 4.
The Town has not offered any explanation why these extraneous expenses were
necessary, including those surcharges associated with exhibits, transcript technology
package, condensed transcript, handling and processing, videoconference, production
and archival, and medical and technical fees. ECF No. 302 at 57–62. See Andre v.
Biro, No. 19-62181-CIV, 2022 WL 889970, at *3 (S.D. Fla. Feb. 18, 2022), report and
recommendation 	adopted, 	2022 	WL 	888363 	(S.D. 	Fla. 	Mar. 	25, 	2022) 	(“[T]he
undersigned finds the video technology package and the shipping associated with the
[p]laintiff's deposition to be for the convenience of the party and not recoverable.”);
Cotayo v. Fed. Express Corp., No. 20-CV-60919, 2022 WL 16716022, at *3 (S.D. Fla.
Sept. 16, 2022), report and recommendation adopted, 2022 WL 16714261 (S.D. Fla.
Nov. 	4, 	2022) 	(finding 	unexplained 	costs 	for 	deposition 	technology 	packages,
condensed transcripts, production and archival, scheduling administration fees, and
exhibits should be denied when the prevailing party offers no explanation why these
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extraneous expenses should be taxed); Harrell v. City of Opa-Locka, No. 20-CV-21927,
2022 WL 1609090, at *5–6 (S.D. Fla. May 3, 2022), report and recommendation
adopted, 	2022 	WL 	1605333 	(S.D. 	Fla. 	May 	20, 	2022) 	(finding 	costs 	for
“Medical/Technical surcharge” should be denied when the prevailing party offers no
explanation why these extraneous expenses were necessary and taxable)
Having reviewed the invoices for the transcript charges (ECF No. 302-1 at 57,
59, 62), the Court finds the following costs associated with the transcripts to not be
reasonably necessary for the depositions used in preparation for and at trial: exhibits,
transcript 	technology 	package, 	condensed 	transcript, 	handling 	and 	processing,
videoconference, 	production 	and 	archival, 	and 	medical 	and 	technical 	fees.
Accordingly, the Court finds that the Town's taxable costs shall be reduced by
$686.40, making the Town's total taxable cost for transcripts $4,757.25.
3. 	Copies
Section 1920 specifically allows a prevailing party to recover fees for “the costs
of making copies of any materials where the copies are necessarily obtained for use
in the case.” 28 U.S.C. § 1920(4).
The party moving for an award of copy costs has the burden of showing
that the copies were necessarily obtained for use in the case.” The
moving party must present evidence “regarding the documents copied
including their use or intended use.” This evidence should include
information regarding the purpose of the copies, whether the copies were
related to the action, and what the copies were for.
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See Levy v. Remy Cointreau USA, Inc., No. 14-20906-CV, 2015 WL 12868176, at *4
(S.D. Fla. Mar. 31, 2015), report and recommendation adopted, 2015 WL 12866378
(S.D. Fla. June 11, 2015). The Eleventh Circuit has stated that “in evaluating
whether copying costs are recoverable, the court should consider whether the
prevailing party could have reasonably believed that it was necessary to copy the
papers at issue.” U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000).
The Town requests $1,449.24 for copying Mr. Lucibella’s police practices
expert’s files, in addition to copying costs associated with obtaining Mr. Lucibella’s
medical, business, and court records. ECF No. 302-1 at 63–83. Mr. Lucibella has no
objections to the Towns’ request to recover $1,021.76 for copying charges, but objects
to the balance of $437.40. ECF No. 305 at 3–4.
The Town claims the $1,449.24 associated with obtaining records, including
medical, business, and court records were necessarily obtained for use in this case as
Mr. Lucibella made multiples allegations, including:
mental and physical injuries, aggravation of an existing
medical condition, loss of time, damage to his reputation,
loss of all property insurance coverage, loss of business
contracts, forced divestiture of business assets by the State
of Florida, suspension of pilot license, and loss of position
as Vice Mayor of Ocean Ridge as a result of his arrest on
October 22, 2016, and subsequent prosecution as described
in the operative complaint. [ECF No. 21, at ¶¶ 25, 32, 34,
56, 64(d), 66].
ECF No. 302 at 9. Mr. Lucibella has not duly responded to this argument. “It is
axiomatic 	that 	arguments 	not 	supported 	and 	properly 	developed 	are 	deemed
waived.” W. Sur. Co. v. Steuerwald, No. 16-cv-61815, 2017 WL 5248499 *3 (S.D. Fla.
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Jan. 17, 2017), aff'd, 760 F. App'x 810 (11th Cir. 2019). “When parties do not fully
develop their arguments and support them with citation to legal authority, the
burden upon the Court is improperly increased.” Id. (citing Hewlett-Packard Co. v.
CP Transp. LLC, No. 12-cv-21258, 2012 WL 4795766, at *2 (S.D. Fla. Oct. 9, 2012)).
“Thus, ‘[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.’” Id. (quoting McPherson v. Kelsey,
125 F.3d 989, 995-996 (6th Cir. 1997)). The Town has demonstrated that the copies
were necessary for use in this case.
The Court finds that the Town is entitled to the total amount requested for
copies of $1,449.24. See White v. Creative Hairdressers, Inc., No. 11-60723-CIV, 2013
WL 12140370, at *3 (S.D. Fla. July 15, 2013) (citing Fla. Keys Citizens Coal., Inc. v.
U.S. Army Corp. of Eng'rs, 386 F. Supp. 2d 1266, 1270 (S.D. Fla. 2005) (“Photocopies
attributable to discovery, copies of pleadings, correspondence, documents tendered to
the opposing party, copies of exhibits, and documents prepared for the Court's
consideration are all recoverable.”)), report and recommendation adopted, 2013 WL
12142368 (S.D. Fla. Aug. 22, 2013).
REPORT AND RECOMMENDATION
Accordingly, this Court RECOMMENDS that the District Court tax $7,988.49
in costs pursuant to 28 U.S.C. § 1920 as follows:
Fees for the filing 	$400
Fees for service of subpoenas 	$1,382
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Fees for transcripts 	$4,757.25
Fees for copies 	$1,449.24
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable David S. Leibowitz, United States District
Judge 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 this 25th day of February, 2026, at
West Palm Beach in the Southern District of Florida.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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