Opinion
Case No. 5:00-cv-135-Oc-10 GRJ
June 10, 2003
ORDER
This case is before the Court for consideration of the Defendant George Macaulay's Bill of Costs (Doc. 124), which the Clerk taxed on February 14, 2003 in accordance with Federal Rule of Civil Procedure 54(d)(1). The Plaintiff filed her objections to the Clerk's taxation of the Bill of Costs on February 24, 2003 (Doc. 132).
The Court notes that the Defendants jointly filed the Bill of Costs. However, because the Defendant Transworld Systems Incorporated has filed a "Suggestion of Bankruptcy" (see discussion infra), the Court will consider the Bill of Costs as to the Defendant Macaulay only.
Although the Plaintiffs objections are untimely pursuant to Rule 54(d)(1), the Court will exercise its discretion to consider the Plaintiffs untimely responses. See Johnson v. Mortham. 173 F.R.D. 313, 316 (N.D. Fla. 1997): see also American Key Corp. v. Cumberland Assoc., 102 F.R.D. 496, 497 (N.D. Ga. 1984) (stating that the timeliness requirement of Rule 54(d)(1) is not jurisdictional).
Preliminary Matter as to Transworld
As a preliminary matter, the Court notes that on May 23, 2003 the Defendant Transworld Systems Incorporated filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Missouri, Eastern Division. See Doc. 154 "Defendant's Suggestion of Bankruptcy." Accordingly, pursuant to 11 U.S.C. § 362, all proceedings in this case against Transworld Systems Incorporated are stayed subject to the right of any party to move at any time to re-open the action if such stay is lifted or dissolved, or for good cause shown. Plaintiff's Objections to Macaualy's Bill of CostsThe Plaintiff brought this action against the Defendant George Macaulay pursuant to the Fair Debt Collection Practices Act and the Florida Consumer Protection Practices Act. On January 30, 2003 (Doc. 121) the Court resolved these claims on summary judgment in favor of the Defendant and against the Plaintiff. On January 31, 2003 (Doc. 122) the Clerk entered judgment in favor of the Defendant and against the Plaintiff with costs to be assessed accordingly to law. The Defendant now seeks costs pursuant to either the federal or state act. The Plaintiff objects.
Doc. 149, Defendants' response to Plaintiffs motion to vacate costs.
1. Fair Debt Collection Practices Act
Federal Rule of Civil Procedure 54(d)(1) provides that "except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorney's fees shall be allowed as a matter of course to the prevailing party." The Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(a)(3), states that "[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." Thus, before the Court may award costs on this claim it must find that the Plaintiff acted in bad faith and for the purpose of harassment.
See Swanson v. Southern Oregon Credit Service. Inc., 869 F.2d 1222, 1229 (9th Cir. 1988); Latimer v. Transworld Systems Inc., 842 F. Supp. 274, 275 (E.D. Mich. 1993).
The Defendant contends that because he ultimately prevailed on summary judgment and because the Plaintiffs attorney has "never sued any director, officer, or manager in his representation of debtors who brought FDCPA claims against [Transworld Systems Incorporated]," the claims were brought in bad faith, to "harass a retired officer of the company." These contentions are insufficient to show that the Plaintiff acted in bad faith and for the purpose of harassment. Further, upon a close review of the record the Court is unable to find that the Plaintiff brought this action in bad faith and for the purpose of harassment. Accordingly, the Defendant Macaulay's Bill of Costs is due to be vacated.
2. Florida Consumer Collections Practices Act
The Florida Consumer Collections Practices Act, § 559.77(2), Fla. Stat., provides that "[i]f the court finds that the suit fails to raise a justiciable issue of law or fact, the plaintiff shall be liable for court costs and reasonable attorney's fees incurred by the defendant." The Act further provides that "[i]n applying and construing this section, due consideration and great weight shall be given to the interpretations of the . . . federal courts relating to the federal Fair Debt Collection Practices Act."
Applying this standard, the Court concludes that the mere fact that the Defendant prevailed on summary judgment, and the Defendant's unsubstantiated allegations of bad faith and harassment, are insufficient to show that the Plaintiff failed to raise a justiciable issue of law or fact. Further, upon a close review of the record the Court is unable to find that the Plaintiff failed to raise a justiciable issue of law or fact. Accordingly, the Defendant Macaulay's Bill of Costs is due to be vacated.
Conclusion
Upon due consideration, it is ordered that:
(1) the Plaintiffs "Motion to Vacate Costs Taxed by the Clerk" (Doc. 132) is GRANTED as to the Defendant George Macaulay;
(2) the Bill of Costs (Doc. 124) entered by the Clerk is vacated and set aside as to the Defendant George Macaulay; and,
(3) because this action is now dormant, the Clerk is directed to administratively close the file.