1 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22244-JEM/Becerra

LEVY SIMON, et al., 

Plaintiffs, 

v. 

CITY OF FLORIDA CITY, et al., 

Defendants. 

_____________________________________/ 

REPORT AND RECOMMENDATION1 

ON DEFENDANTS’ MOTION TO TAX COSTS 

THIS CAUSE is before the Court upon Defendants, City of Florida City (“City 

Defendant”), Detective Frantz Hardy, Detective Auriz Leza, and Detective Marcus Terry’s 

(together with Leza and Hardy, “Detective Defendants”) (collectively, “Defendants”) Motion to 

Tax Costs and Incorporated Memorandum of Law (the “Motion”), ECF No. [43]. Plaintiffs Levy 

Simon and Youseline Pierre Simon (collectively, “Plaintiffs”) filed a Response in Opposition to 

Defendants’ Motion (the “Response”), ECF No. [45]. Defendants filed their Reply (the “Reply”), 

ECF No. [46]. Upon consideration of the Motion, the pertinent portions of the record, and being 

otherwise fully advised in the premises, it is hereby RECOMMENDED that Defendants’ Motion, 

ECF No. [43], be DENIED. 

I. BACKGROUND

Plaintiffs’ action arises out of the fatal shooting of Juvon Simon by Defendant Hardy of 

the Florida City Police on May 30, 2018. ECF No. [33] ¶ 4. Specifically, Plaintiffs alleged that 

1 The Honorable Jose E. Martinez, United States District Judge, referred this matter to the 

undersigned “to take all necessary and proper action as required by law.” ECF No. [47].

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despite the fact that Simon did not present a threat to the officers, Defendant Hardy fired three 

shots, hitting Simon and resulting in his death. Id. ¶ 7. Plaintiffs initiated this action against the 

Detective Defendants, individually and in their official capacities, as well as the City Defendant. 

Plaintiffs alleged that the City Defendant “maintained a custom or policy of using excessive force 

as evidenced by its failure to impose progressive discipline for misconduct.” Id. ¶ 77. Specifically, 

Plaintiffs alleged a violation of civil rights under Section 1983 against City Defendant and 

Defendant Hardy (Counts I, II); a conspiracy to obstruct the investigation of the shooting incident 

against City Defendant and Detective Defendants, (Counts III, VI); and a wrongful death count 

against City Defendant and Defendant Hardy (Counts IV, V). Id. ¶¶ 65–137. 

Plaintiffs Levy Simon and Youseline Pierre Simon filed their first Complaint against 

Defendants on May 29, 2020. ECF No. [1]. Plaintiffs thereafter filed their First Amended 

Complaint on July 16, 2020. ECF No. [12]. Defendants filed a Motion to Dismiss Amended 

Complaint on August 10, 2020, seeking to dismiss all counts, with the exception of Plaintiffs’ 

Section 1983 claim against Defendant Hardy. ECF No. [15]. The Court granted Defendants’ 

motion on March 1, 2021, with leave for Plaintiffs to amend the complaint a final time. ECF No. 

[32]. Plaintiffs filed a Second Amended Complaint on March 17, 2021. ECF No. [33]. Defendants 

again moved to dismiss the Second Amended Complaint on March 31, 2021. ECF No. [35]. 

Plaintiffs thereafter filed a Notice of Voluntary Dismissal, indicating “voluntary dismissal of this 

action without prejudice.” ECF No. [42]. On June 17, 2021, the Court entered a Final Order of 

Dismissal Without Prejudice. ECF No. [44].

On June 16, 2021—after Plaintiffs filed their Notice of Voluntary Dismissal but before the 

Court entered its Final Order of Dismissal Without Prejudice—Defendants filed the instant Motion 

pursuant to Federal Rule of Civil Procedure 54(d)(1), requesting costs in the amount of $931.20. 

ECF No. [43] at 4. Specifically, Defendants request $931.20 for “printed or electronically 

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recorded transcripts necessarily obtained for use in the case pursuant to § 1920(2).” Id. According 

to Defendants, they “are clearly the prevailing parties because the Plaintiff[s] achieved none of the 

benefits . . . sought in pursuing the lawsuit.” Id. at 2. Defendants argue that there is support in the 

Eleventh Circuit for the proposition that a party against whom a dismissal without prejudice is 

filed is entitled to cost. Id. Because they claim to have prevailed, Defendants seek the costs for 

transcripts of the two Plaintiffs, arguing that the depositions were “vital to the defense of this action 

and . . . would have been utilized as evidence at the summary judgment stage of the proceedings” 

and Plaintiffs “were listed in Plaintiff[s’] witness list.” Id. at 3.

Plaintiffs filed a Response arguing that Defendants are not prevailing parties given that the 

voluntary dismissal without prejudice simply placed Plaintiffs in the same legal position they were 

in before the lawsuit, and the Court never issued a judgment. See ECF No. [45] at 1, 4. Plaintiffs

further contend that Defendants’ cited authority is incorrect as there is no clear or binding 

precedent that entitles them to their costs. Id. at 2. Specifically, Plaintiffs argue that the authority 

cited by Defendants differs from the case at hand because those cases either did not concern 

voluntary dismissals without prejudice, or because the cases concerned a court’s authority to 

address collateral issues, such as fees, after voluntary dismissal. See id. at 2–3. Finally, Plaintiffs

argue that even if Defendants were prevailing parties, they are not entitled to costs because the 

deposition costs were not necessarily obtained since “[p]leadings had not even closed in this case; 

it was not necessary for the Defendants to incur any deposition costs while the matter remained in 

the motion-to-dismiss stage.” Id. at 5 (emphasis removed).

Defendants filed a Reply, arguing that “the Eleventh Circuit has approvingly cited other 

federal Court of Appeals decisions for the assertion that costs are recoverable pursuant to a 

voluntary dismissal without prejudice,” including cases cited by Defendants in their Motion. ECF 

No. [46] at 1–2. Defendants then argue that Plaintiffs’ voluntary dismissal is akin to a dismissal 

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with prejudice as to Defendant Hardy, because the statute of limitations has run on the state-law 

wrongful death claim against Detective Hardy. Id. at 2–3. According to Defendants, even if “the 

Court disagrees that costs are generally recoverable pursuant to a voluntary dismissal without 

prejudice, Defendants are nonetheless the prevailing parties as to Plaintiffs’ now-time-barred 

wrongful death claim against Detective Hardy.” Id. at 3. Finally, in response to Plaintiffs’ 

argument that the depositions were not necessarily obtained, Defendants counter that “the motion 

to dismiss that was pending prior to Plaintiffs’ depositions did not seek dismissal of the entire 

Amended Complaint” and “thus could not have disposed of the case in its entirety,” and note that 

the action had been pending for nearly a year at the time of Plaintiffs’ depositions. Id. at 4. 

II. ANALYSIS

The issue before the Court is whether Defendants can be “prevailing parties” as a result of 

Plaintiffs’ voluntarily dismissal without prejudice. To be sure, and as Defendants concede, the 

Eleventh Circuit has not considered this issue, although it has “approvingly” cited other Courts of 

Appeals for the proposition that they can recover their costs. ECF No. [46] at 1. Given that there 

is no clear or binding precedent on the issue, the undersigned looks to the general rule on what 

constitutes a prevailing party to determine whether Defendants are entitled to their costs. 

As an initial matter, under Federal Rule of Civil Procedure 54(d)(1), a prevailing party is 

entitled to recover costs as a matter of course unless directed otherwise by a court or statute. Manor 

Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991) (citing Fed. R. Civ. P. 54(d)(1)). 

Although Rule 54(d)(1) does not define the term “prevailing party,” courts have generally 

interpreted it to require a change in the parties’ legal relationship, through some type of court 

action. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 

U.S. 598, 604 (2001) (noting that two bases for attorney’s fees, “enforceable judgments on the 

merits and court-ordered consent decrees[,] create the material alteration of the legal relationship 

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of the parties necessary to permit an award of attorney’s fees.”) (citations and quotations omitted), 

superseded by statute on other grounds, Open Government Act of 2007, Pub.L. No. 110–175, 121 

Stat. 2524; Simon Prop. Group, L.P. v. Taylor, No. 20-14374, 2021 WL 4432686, at *2 (11th Cir. 

Sept. 27, 2021) (“To determine whether a defendant is a prevailing party, we ask whether the 

plaintiff was rebuffed [in its] efforts to effect a material alteration in the legal relationship between 

the parties” and “the rejection of the plaintiff’s attempt to alter the parties’ legal relationship must 

be marked by judicial imprimatur.”) (citations and quotations omitted). “To determine whether a 

litigant is a ‘prevailing party,’ the Eleventh Circuit applies a two-prong test, requiring ‘(1) a 

situation where a party has been awarded by the court at least some relief on the merits of his claim 

or (2) a judicial imprimatur on the change in the legal relationship between the parties.’” 

AmeriPath, Inc. v. Wetherington, No. 10-60766-CIV, 2011 WL 3475367, at *2 (S.D. Fla. Aug. 9, 

2011) (quoting Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 

(11th Cir.2003)). Therefore, in order to demonstrate that they are the prevailing parties, 

Defendants must show that (1) the Court awarded Defendants some relief on the merits, or (2) 

there was a judicial imprimatur as to a change in the parties’ legal relationship. See id. at *2 

(quoting Smalbein, 353 F.3d at 905). The Court finds that Defendants are not prevailing and not 

entitled to their costs.

First, Defendants cannot show that they succeeded in securing relief on the merits of any 

of the claims. Defendants assert that they are the prevailing party in this litigation because 

Plaintiffs did not achieve the benefits they sought and because the Court granted Defendants’ 

initial motion to Dismiss. ECF No. [43] at 2. However, Plaintiffs’ “failure to respond to 

Defendant[s’] motion to dismiss and the Court’s subsequent dismissal without prejudice does not 

amount to a judgment in Defendant[s’] favor” since the “Court did not render a ruling on the merits 

of the motion to dismiss or, for that matter, the claims raised in the [Second Amended] Complaint.” 

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Kent v. Los Angeles Lakers, Inc., No. 12-21055-CIV, 2013 WL 12382956, at *2 (S.D. Fla. Apr. 

17, 2013), report and recommendation adopted, No. 12-21055-CIV, 2013 WL 12382968 (S.D. 

Fla. Aug. 23, 2013).

Defendants’ argument that the voluntary dismissal amounts to a dismissal with prejudice 

for the state-law wrongful death claim against Detective Hardy, since the claim is now time-barred, 

does not change this analysis. See ECF No. [46] at 2. Indeed, the running of the statute of 

limitations on that claim did not result from any arguments made on the merits, and other courts 

within this District have found similar instances to be insufficient to render a litigant the prevailing 

party. See AmeriPath, Inc., 2011 WL 3475367, at *2 (reasoning that plaintiff was not a prevailing 

party where “[no] relief was ever entered or finally denied as to [defendant]” and the denial of

plaintiff’s motion for a temporary restraining order was not “because of any arguments [the 

defendant] made,” but rather because plaintiff failed to satisfy “the high burden required for the 

issuance of a temporary restraining order without allowing Defendants to respond” and “because 

certain motions that [defendant] had filed demand[ed] consideration prior to the Court making a 

determination as to whether injunctive relief is appropriate”) (internal citation and quotations 

omitted). Thus, the undersigned finds that Defendants have failed to show that they are prevailing 

parties, as Defendants have not been awarded relief on the merits. See Smalbein, 353 F.3d at 905; 

AmeriPath, Inc., 2011 WL 3475367, at *2. 

Second, the Court’s rulings in this case “did not result in any judicial imprimatur on the 

change in the legal relationship between” the Parties as to those claims that were voluntarily 

dismissed and could be brought again in the future. See AmeriPath, Inc., 2011 WL 3475367, at 

*3 (S.D. Fla. Aug. 9, 2011); Kent, 2013 WL 12382956, at *2 (“The dismissal without prejudice in 

this case . . . did [not] materially alter the relationship between the parties, as the dismissal left 

Plaintiffs free to bring their claims against Defendant at a later time”). However, Defendants argue 

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that there is one claim that cannot be litigated in the future, the state-law wrongful death claim 

against Detective Hardy, since it is now time-barred. ECF No. [46] at 2. Defendants contend that 

this claim is thus essentially dismissed with prejudice, which would render Defendants prevailing 

parties. See ECF No. [46] at 2–3; see also Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 

2007) (finding, without reference to the Smalbein analysis, that “[d]efendants, having obtained 

from [plaintiff] a voluntary dismissal with prejudice, are considered prevailing parties” and thus 

are entitled to costs).

Although Defendants’ argument is well-taken that there is a change in the legal relationship 

between Plaintiffs and Defendant Hardy as to this particular claim, and that one need not prevail 

on all claims in an action to be considered the prevailing party, neither Plaintiffs nor Defendants 

cite to any authority within this Circuit that directly addresses whether a change in relationship 

like the one here is marked by “a judicial imprimatur” as required under the Smalbein analysis. 

See Smalbein, 353 F.3d at 905. Although Plaintiffs’ state-law wrongful death claim as to 

Defendant Hardy is now time-barred, there has been no Court action on this issue to constitute a 

judicial imprimatur on the change. The Court’s Final Order of Dismissal Without Prejudice, ECF 

No. [44], is insufficient to meet the second Smalbein prong. See United States v. $70,670.00 in 

U.S. Currency, 929 F.3d 1293, 1303 (11th Cir. 2019) (noting that a “dismissal without prejudice 

places no judicial imprimatur on the legal relationship of the parties . . . . the order of dismissal 

poses no legal bar precluding the government from refiling the same [] action in the future.”) 

(internal citations and quotations omitted). 

Finally, even if the Court were to consider that it has discretion to award these costs, the 

most generous reading of the cases cited by Defendants, the undersigned is not persuaded that such 

relief is warranted here. See AmeriPath, Inc., 2011 WL 3475367, at *3 (“To the extent that 

[defendant’s] authorities stand for the proposition that this Court has discretion to award him costs 

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in this case, the Court declines to exercise this discretion as it finds no reason to award costs.”). 

Defendants submitted a four-page motion that offers nothing more than the statement that the

depositions were necessary. There also appears to be nothing about the procedural history or the 

facts that would merit awarding costs to Defendants. 

III. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Defendants’ Motion be DENIED. 

IV. OBJECTIONS

A party shall serve and file written objections, if any, to this Report and Recommendation 

with the District Court within SEVEN (7) DAYS of being served with a copy of this Report and 

Recommendation. The undersigned has shortened the objection period in this case given that 

matters addressed by the Court are discrete, and there is limited case law on the matter in any 

event. Failure to timely file objections will bar a de novo determination by the District Judge of 

anything in this Recommendation and 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); 28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade Police Dep’t Station 

#4, 977 F.3d 1185, 1191–92 (11th Cir. 2020).

DONE AND SUBMITTED in Chambers at Miami, Florida, on March 2, 2022. 

_________________________________ 

JACQUELINE BECERRA

UNITED STATES MAGISTRATE JUDGE

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