Opinion
Case No. 6:04-cv-1415-Orl-28KRS.
May 31, 2006
REPORT AND RECOMMENDATION
This cause came on for consideration without oral argument on Plaintiff's Motion to Review Taxation of Costs, doc. no. 83, and the response thereto, doc. no. 86.
I. BACKGROUND.
Judgment was entered against Plaintiff Gary L. Mock on February 3, 2006. Doc. No. 76. On February 16, 2006, Defendant Bell Helicopter Textron Inc. (Bell) filed a Bill of Costs in the amount of $5,768.16, which costs were taxed by the Clerk of Court on February 21, 2006. Doc. No. 80. Mock now asks the Court to review and reduce the award of costs. Doc. No. 83. Specifically, Mock objects to the taxation of $612.50 in mediation fees and $159.50 in overnight courier fees.
II. ANALYSIS.
Federal Rule of Civil Procedure 54(d) provides that "costs other than attorneys' fees shall be awarded as of course to the prevailing party unless the court otherwise directs." The Supreme Court has held that 28 U.S.C. § 1920 "enumerates [the] expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)." Crawford Fitting Co. v. J.T. Gibbons Inc., 482 U.S. 437, 441-42 (1987). Section 1920 provides as follows:
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 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 copies of papers 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.
The Supreme Court has held that this list is exclusive. Crawford Fitting, 482 U.S. at 441.
A. Mediation Fees.
Mock contends that mediation fees are not mentioned in § 1920, and are thus not properly taxed as costs. Bell responds that courts have awarded mediation fees as costs, and cites several cases in support of that contention.
None of the cases cited stand for Bell's proposition. In Osahar v. United States Postal Service, 136 Fed. Appx. 259, 261 (11th Cir. 2005), the Eleventh Circuit declined to reduce an award of costs where the record did not support the contention "that the bill of costs improperly included the costs of mediation." Thus, it appears that the prevailing party in Osahar did not include mediation fees in its bill of costs.
In Kotek v. Almost Family Inc., a district judge of this court assessed mediation fees as a cost only pursuant to a provision of the case management and scheduling order that permitted him to do so. Case No. 2:03-cv-691-FTM-29DNF, 2005 WL 1126558 (May 12, 2005). In the opinion, the judge wrote that "mediation costs are not taxable under § 1920." Id. at * 3. The Case Management and Scheduling Order in the present case provides that mediation fees "shall be borne equally by the parties" unless altered by order of the Court. Doc. No. 31 at 11. As such, Kotek also does not support the award of mediation fees in this case.
Finally, in Dumas v. Tyson Foods, Inc., 139 F. Supp. 2d 1243 (N.D. Ala. 2001), the court awarded mediation costs to the prevailing party in a case brought under Title VII, 42 U.S.C. § 2000e, et seq. Under civil rights statutes, including Title VII, the prevailing party is entitled to litigation expenses in addition to costs taxable under 28 U.S.C. § 1920. See, e.g., Dowdell v. City of Apopka, 698 F.2d 1181, 1189-90 n. 12 (11th Cir. 1983). Accordingly, the case does not support the proposition that costs as defined in Rule 54(d) and § 1920 include mediation fees.
Because § 1920 does not explicitly authorize the award of mediation fees, such fees were improperly taxed. See, e.g., Scelta v. Delicatessen Support Servs., Inc., 203 F. Supp. 2d 1328, 1339-40 (M.D. Fla. 2002).
B. Overnight Courier Fees.
Mock also contends that overnight courier fees are not included in § 1920, and requests that the Court reduce the taxation of costs by $159.50. In Attachment C to the Bill of Costs, Bell represented that these costs were for delivery of subpoenas. The costs for delivery range between $10.22 and $49.00. Doc. No. 80, attachment C. Bell represented that the nonparty witnesses agreed to accept service of the subpoenas by overnight courier, and that this method of service was less expensive than fees authorized for service of subpoenas by the United States Marshals Service. Doc. No. 86.
Under the law of this circuit, fees incurred in serving witness subpoenas can be taxed under § 1920 provided that they do not exceed the fees authorized by 28 U.S.C. § 1921. EEOC v. WO, Inc., 213 F.3d 600, 623-24 (11th Cir. 2000). The regulation setting the rate for service of process fees under § 1921 provides that the United States Marshals Service may collect $45.00 plus travel costs and other out-of-pocket expenses for each subpoena that was personally served. 28 C.F.R. § 0.114. Because the cost of serving each subpoena by courier did not exceed the fees that the United States Marshals Service could collect for personal service of the subpoenas, these amounts were appropriately taxed.
III. RECOMMENDATION.
For the reasons set forth in the foregoing report, I respectfully recommend that the Court GRANT Plaintiff's Motion to Review Taxation of Costs, doc. no. 83, with respect to the mediation fees included in the Bill of Costs, and DENY the motion with respect to the fees for service of process included in the Bill of Costs. I further recommend that the Court VACATE the Bill of Costs taxed by the Clerk of Court, doc. no. 80, and ORDER that Plaintiff Gary L. Mock pay costs in the amount of $5,155.66 to Defendant Bell Helicopter Textron, Inc.
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.