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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:20-cv-80993-WPD

TIMOTHY O’BRYAN

Plaintiff,

vs. 

JOE TAYLOR RESTORATION, INC., a Florida

Corporation, AARON GETTY, individually, 

KAREN RADEWICZ, individually, and

GLENDA GALARZA, individually, 

Defendants.

 /

DEFENDANTS’ MOTION TO TAX COSTS UNDER 28 U.S.C. § 1920

AND INCORPORATED MEMORANDUM OF LAW

Defendants, JOE TAYLOR RESTORATION, a Florida for profit corporation (“JTR”), 

AARON GETTY, individually, KAREN RADEWICZ, individually, and GLENDA GALARZA, 

individually (hereinafter collectively referred to as “Defendants”), by and through undersigned 

counsel, pursuant to Fed. R. Civ. P. 54, 28 U.S.C. §1920 and S.D. Fla. 7.3(a) and (c), hereby file 

their motion to tax costs under 28 U.S.C. § 1920 and incorporated memorandum of law, and as 

grounds therefor, state as follows:

1. Plaintiff filed his operative amended complaint on November 18, 2020, suing 

Defendants for allegedly unpaid sick leave time under the Emergency Paid Sick Leave Act. See 

ECF No. 19.

2. On June 10, 2021, a jury returned a verdict in favor of Defendants. ECF No. 78. 

The Court entered final judgment in favor of Defendants the next day, on June 11, 2021. ECF No. 

82.

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3. Defendants are prevailing parties in this suit as they received a favorable verdict, 

and Plaintiff recovered nothing in this action. 

4. As the prevailing parties, Defendants are entitled to reasonable costs incurred in the 

defense of this lawsuit, permitted by 28 U.S.C. § 1920. 

5. Defendants incurred $7,095.81 in taxable costs in the defense of this suit. These 

include private process server fees, fees and disbursements for printing, and fees for 

exemplification and the costs of making copies of materials, which copies were necessarily 

obtained for use in the case. The costs expended in this case were reasonably and necessarily 

incurred in protecting Defendants’ interests. The costs expended are reflected in this Bill of Costs 

which has been filed with the Court on Form AO 133. See Bill of Costs filed concurrently herewith

as Exhibit A.

MEMORANDUM OF LAW

A prevailing party is “[a] party in whose favor a judgment is rendered, regardless of the 

amount of damages awarded.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & 

Human Res., 532 U.S. 598, 603 (2001); Util. Automation 2000, Inc. v. Choctawhatchee Elec. 

Coop., 298 F.3d 1238, 1248 (11th Cir. 2002).

Under 28 U.S.C. §1920 and Rule 54 of the Federal Rules of Civil Procedure, a prevailing 

party is entitled to court costs for “(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; and (6) compensation of court appointed experts, 

compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation 

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services under section 1828 of this title.” See 28 U.S.C. §1920.

“A prevailing party may recover costs as a matter of course unless otherwise directed by 

the Court or applicable statute.” See Monelus v. Tocodrian, Inc., 609 F. Supp. 2d 1328 (S.D. Fla. 

2009). The burden of challenging whether costs are taxable falls upon the non-prevailing party. 

Id., citing Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 

1288 (M.D. Fla. 2005). If a case is litigated to judgment on the merits in favor of the defendant, 

the defendant is the prevailing party. Pickett v. Iowa Beef Processors, 149 F. App’x 831, 832 (11th

Cir. 2005).

A. Private process server fees (not exceeding the Marshal’s fee)

Although section 1920 only refers to “[f]ees of the clerk and marshal,” courts have held 

this section permits taxation of subpoena fees charged by a private process server if the rates do 

not exceed the fees of U.S. Marshals to effectuate service. See Monelus, 609 F. Supp. 2d at 1334;

EEOC v. W & O, Inc., 213 F.3d 600, 623-24 (11th Cir. 2000). Where the invoices do not reflect 

the time spent by private process servers, the service fees are recoverable at an amount up to $65 

per subpoena. Id.; see Small v. Ford Motor Co., 2015 WL 203178 at *2 (S.D. Fla. Jan. 14, 2015) 

(permitting a recovery up to $65 per subpoena for service of subpoenas).

Here, Defendants seek to recover private process server fees not exceeding $65 per 

subpoena for the service of three (3) subpoenas issued to Dr. Jack Newcomer (once in connection 

with a notice of non-party production, once for deposition, and once for trial). Defendants also 

seek to recover private process server fees not exceeding $65 per subpoena for the service of its 

trial subpoena on Plaintiff. Defendants’ private process server fees were lower than the rates used 

by the U.S. Marshal’s office at $40 per subpoena. Defendants request $160.00 for the 4 subpoenas 

served throughout litigation.

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B. Fees for printed or electronically recorded transcripts necessarily obtained for 

use in the case

Deposition transcripts are taxable costs under 28 U.S.C. § 1920. W & O, Inc., 213 F.3d at 

620 (11th Cir. 2000); Equal Employment Opportunity Comm'n v. Doherty Group, Inc., 2020 WL 

8181630, at *3 (S.D. Fla. Dec. 29, 2020), report and recommendation adopted sub nom. Equal 

Employment Opportunity Comm'n v. Doherty Enterprises, Inc., 2021 WL 148734 (S.D. Fla. Jan. 

15, 2021). A court may tax costs “associated with the depositions submitted by the parties in 

support of their summary judgment motions.” Monelus, 609 F. Supp. 2d at 1337 (S.D. Fla. 2009). 

Transcripts are “necessarily obtained” for use in the case where testimony was needed for 

impeachment at trial, the deponent was on the other party's trial witness list, or the deposition was 

“necessary to the issues when taken, even if use of a deposition is minimal or not critical to that 

party's ultimate success. Procaps S.A. v. Patheon, Inc., 2016 WL 411017 at *3 (S.D. Fla. Feb. 2, 

2016); Belniak v. Florida Highway Patrol, 2014 WL 12650628, at *2 (M.D. Fla. May 7, 2014), 

report and recommendation adopted, 2014 WL 12650674 (M.D. Fla. June 3, 2014) (“Generally, 

taxation of deposition costs of witnesses who were listed on the losing party's witness list is 

reasonable “because the listing of those witnesses indicated both that the [opposing party] might 

need the deposition transcript to cross-examine the witnesses” and that the information those 

people had was discoverable.”). Further, “obtaining deposition transcripts for use during discovery 

may be taxable as long as it is necessary to the issues in the case when the deposition was 

taken.” Id. at 1337. The non-prevailing party bears the burden of showing that specific deposition 

costs or a court reporter's fee was not necessary for use in the case or that the deposition was not 

related to an issue present in the case at the time of the deposition. Monelus, 609 F. Supp. 2d at

1337.

Defendants incurred court reporter fees and costs for obtaining the deposition transcripts 

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of Timothy O’Bryan and Dr. Jack Newcomer. Defendants also incurred costs for obtaining copies 

of the deposition transcripts of the individual defendants, Aaron Getty, Glenda Galarza, and Karen 

Radewicz, which were taken at Plaintiff’s insistence. And Defendants also incurred costs for 

obtaining the deposition transcript of Stuart Rosenfeldt, who Plaintiff also deposed (and attempted 

to call at trial). The propriety of each deposition transcript is briefly explained below.

• Timothy O’Bryan – the necessity for Plaintiff’s deposition is prescient and obvious.

• Aaron Getty – the necessity for a named Defendant’s deposition is prescient and 

obvious. Moreover, he was called at trial by Plaintiff as a witness, and his deposition transcript 

was used by both parties in their respective examinations. 

• Glenda Galarza and Karen Radewicz – same analysis as Aaron Getty

• Dr. Jack Newcomer – Plaintiff’s treating physician who was initially disclosed as a 

person with knowledge of the allegations. Dr. Newcomer was an essential part of Defendants’ 

defense, as his progress notes indicated unequivocally that he did not order Plaintiff to quarantine 

at any point. His testimony and records produced were cited extensively in Defendants’ summary 

judgment motion, and his records were admitted into evidence at trial (and also were used as 

demonstrative aids during Defendants’ closing argument). Although he was subpoenaed for trial, 

Defendants ultimately determined it was not necessary to call Dr. Newcomer as a witness.

• Stuart Rosenfeldt – an HR and labor consultant for Defendants. Rosenfeldt’s 

deposition was taken at Plaintiff’s insistence. Rosenfeldt was also proffered as a witness by 

Plaintiff at trial. The costs of his deposition transcript were necessary in that Defendants needed 

to prepare for him to be called as a witness, despite Defendants’ argument he was irrelevant to the 

issues in this matter, and the fact he ultimately was not called due to Defendants’ stipulation in 

connection with the alleged testimony on which Mr. Rosenfeldt was supposedly being called to 

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testify.

For convenience purposes, Defendants have prepared this deposition chart.

Deponent Appears on 

Plaintiff’s

Initial

Disclosures 

List

Appears on 

Plaintiff’s 

Trial 

Witness List

Used In 

Defendant’s 

Summary 

Judgment 

Motion

Subpoenaed or 

Called to Testify 

at Trial

T. O’Bryan X X X X

A. Getty X X X

G. Galarza X X X X

K. Radewicz X X X

Dr. 

Newcomer

X X X X

S. Rosenfeldt X X

Defendants paid court reporter fees for copies of the transcripts of all depositions taken in 

this case for their use in further discovery, pretrial motions, including their motion for summary 

judgment, and for use at trial. Many of the above transcripts were cited in Defendants’ Motion for 

Summary Judgment or Reply to Plaintiff’s Response to same. Each deposition transcript ordered 

was for a witness who was actually called to testify at trial, was proffered as a witness, or was 

subpoenaed for trial. Further, with respect to Rosenfeldt’s deposition, if a deposition was taken by 

the non-prevailing party, the prevailing party “may recover the costs associated with obtaining a 

copy of a deposition transcript.” Procaps, 2016 WL 411017 at *3.

The total amount claimed for court reporter fees and deposition transcripts in this matter is 

$2,432.30. 

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C. Fees for exemplification and the costs of making copies of any materials where 

the copies are necessarily obtained for use in the case.

Costs of making copies and fees for exemplification are taxable under Section 1920(4). 

Recoverable costs under Section 1920(4) are those “necessary to duplicate an electronic document 

in as faithful and complete a manner as required by rule, by court order, by agreement of the 

parties, or otherwise.” CBT Flint Partners, LLC v. Return Path., Inc., 737 F.3d 1320, 1328 (Fed. 

Cir. 2013). Copies of oversize documents are taxable. Arcadian Fertilizer, L.P. v. MPW Indus. 

Svcs., Inc., 249 F.3d 1293, 1296 (11th Cir. 2001).

In this case, Defendants incurred costs in preparing oversized documents for use at closing 

argument. The Eleventh Circuit has held that under § 1920, a party is entitled to recover fees for 

making copies of any materials where the copies are necessarily obtained for use in the case. Here, 

Defendants had oversized displays of certain key emails between Plaintiff and Defendants, as well 

as two progress notes from Dr. Newcomer, highlighted and enhanced for the jury’s review during 

closing arguments. These oversized displays were on evidence that was admitted without objection 

at trial and discussed extensively on examinations of Plaintiff and the named Defendants.

Additionally, Defendants prepared a demonstrative aid which was used during closing 

arguments: a timeline of events. As to the demonstrative aid used at trial, the Eleventh Circuit 

specifically has held:

28 U.S.C. 1920(4) allows “[f]ees for exemplification and copies of papers

necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). For costs to

be taxed under § 1920(4), an item must fit within either the category “copies

of paper” or the category “exemplification.” We read “copies of paper” to

mean reproductions involving paper in its various forms and conclude that

because oversize documents and color photographs are capable of this

characterization, taxation of these costs was not error.

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Arcadian Fertilizer, 249 F.3d at 1296.

1 The timeline was necessarily prepared for use in this case 

because it referenced the key dates in both Plaintiff’s and Defendants’ testimonies. The costs 

incurred for producing both the oversized documents and demonstrative aid are $3,826.75.

Further, costs of copies of pleadings, correspondence, documents tendered to the opposing 

party and documents prepared for the court's consideration are recoverable.” Procaps, 2016 WL 

411017, at *6 (S.D. Fla. Feb. 2, 2016). This includes the “costs associated with copying documents 

for the purpose of providing them to the court,” and “copies produced to opposing counsel.” Id., 

citing Monelus, 609 F. Supp. 2d at 1335. Defendants seek to recover the costs of providing a paper 

copy of the Exhibit Notebook provided to the Court and to opposing counsel at trial, as well as 

two copies of the Exhibit Notebook and Trial Notebook for its own use during trial (one for 

undersigned and one for his associate). Defendants represent the digital versions of the Exhibit 

Notebook totals 201 pages and the Trial Notebook totals 412 pages, all of which are documents 

which were used for the purposes of discovery, for the preparation of trial, and to generally advance 

the case towards resolution.2 See Procaps, 2016 WL 411017, at *6. And the digital versions 

necessarily exclude the cost for binders, tabs, and any other ease of use features. Because “rates 

between $0.10 and $0.25 per page are recoverable,” see id., Defendants seek reimbursement at a 

1 Arcadian Fertilizer is somewhat outmoded. In 2008, Congress amended § 1920(4) “by 

striking ‘copies of papers’ and inserting ‘the costs of making copies of any materials where the 

copies are[.]” Powell v. The Home Depot, U.S.A., Inc., 2010 WL 4116488, at *19 (S.D. Fla. Sept. 

14, 2010), report and recommendation adopted, 2010 WL 4102933 (S.D. Fla. Oct. 18, 2010); 

Durden v. Citicorp Trust Bank, FSB, 2010 WL 2105921, at *4 (M.D. Fla. Apr. 26, 2010). The 

current version of § 1920(4) now allows taxation of costs for “[f]ees for exemplification and the 

costs of making copies of any materials where the copies are necessarily obtained for use in the 

case[,]” which includes a demonstrative aid.

2 Defendants attach the respective Tables of Contents of the Exhibit and Trial Notebooks as 

support for these recoverable costs. See Exhibits B & C. If necessary, Defendants have no 

objection to filing the pdf versions of the printed documents.

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rate of $0.17 cents per page. This would total $140.08 (for two Trial Notebooks) and $136.68 (for 

four Exhibit Notebooks), for a total of $276.76 for the costs of these in-house copies.

The total amount of claimed for copies and exemplification in this matter is $4,103.51

[$3,826.75 + $276.76].

D. Fees for witnesses

Costs of witness appearances at deposition are taxable under Section 1920(3). Defendants 

were charged $400.00 by Dr. Newcomer for his appearance at deposition, which he was paid. The 

costs incurred for Dr. Newcomer’s deposition are $400.00.

CONCLUSION

WHEREFORE, Defendants, JOE TAYLOR RESTORATION, a Florida for profit 

corporation (“JTR”), AARON GETTY, individually, KAREN RADEWICZ, individually, and 

GLENDA GALARZA, individually, respectfully request this Court enter an Order of taxable costs 

of $7,095.81 in favor of Defendants, and entering any further relief deemed just and proper.

CERTIFICATE OF PRE-FILING GOOD FAITH CONFERENCE

Pursuant to S.D. Local Rules 7.1(a)(3) and 7.3, Defendants’ counsel conferred with 

Plaintiffs’ counsel on July 9, 2021, to discuss costs, as required by the local rules, by sending him 

a finalized version of this motion. Counsel for Plaintiffs did not respond to Defendants’ conferral.

Dated: July 12, 2021 Respectfully submitted,

Boca Raton, FL

Daniel R. Levine

DANIEL R. LEVINE, ESQ.

Florida Bar No. 0057861

E-mail: DRL@PBL-Law.com

PADULA BENNARDO LEVINE, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Attorneys for Defendants

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