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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ESTATE OF JAMES PETER RUSH, 

JACQUELINE FINN, as PERSONAL 

REPRESENTATIVE,

Plaintiff,

v.

HON. BOBBY HADDOCK, as Sheriff of 

Washington County and individually, and 

JONATHAN RACKARD, and FRANK 

STONE, individually,

Defendants.

Case No. 5:10-cv-152-RS

PLAINTIFF’S OBJECTION TO DEFENDANTS’ MOTION FOR COSTS 

AND REQUEST FOR DELAY ON RULING ON COSTS

COMES NOW Plaintiff, JACQUELINE FINN, by and through the undersigned attorney, and submits her objection to Defendants‟ Bill of Costs for $4,285.54, 

after Defendants prevailed on Defendants‟ Motion for Summary Judgment (Doc. 42). 

Plaintiff‟s objections should be sustained because Defendants seek to tax costs that 

are not recoverable under 28 U.S.C. §1920. Further, because this case is on appeal to 

the Eleventh Circuit, Plaintiff requests that the court delay ruling on this issue until 

after the conclusion of the appeal.

MEMORANDUM OF LAW

Not every cost associated with litigation is taxable or recoverable 

under 28 U.S.C. § 1920. The statute limits recovery of costs to the following 

specific items:

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(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 the Title; and

(6) Compensation for court appointed experts, compensation of 

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

interpretation services under Section 1828 of this Title.

A. Transcripts

Defendant submitted $3,636.90 in its bill of costs for transcripts in this case. 

Whether the costs for a deposition are taxable depends on whether the 

deposition was wholly or partially “necessarily obtained for use in the case.” U.S. 

E.E.O.C. v. W&O, Inc, 213 F.3d 600, 621 (11th Cir. 2000) (quoting Newman v. 

A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. 1981). “[W]here the deposition 

costs were merely incurred for convenience, to aid in thorough preparation, or 

for purposes of investigation only, the costs are not recoverable.” Goodwall Const. 

Co. v. Beers Const. Co., 824 F.Supp. 1044, 1066 (N.D.Ga.1992). A district judge 

“has great latitude in determining whether a deposition was „necessarily obtained 

for use in the case‟ or was obtained merely for the convenience of the attorney.” 

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Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B June 1981).

Not all of the transcripts obtained by Defendants in this case are properly 

submitted in a Bill of Costs. Defendants have submitted a bill for the deposition 

of former Medical Examiner Cameron Snider, including $561.65 for deposition 

costs and $433.00 for the costs of video-recording the deposition. However no 

part of the Defendants‟ Motion for Summary Judgment was based on actual 

medical issues and no testimony by Dr. Snider was referenced in the Motion. 

Defendants essentially defended the case based on how the decedent would 

have looked to the Defendant law enforcement officers at the time of his arrest 

and imprisonment and what the decedent is known to have told them.

Further, there was no use of video in Defendants efforts to dispose the case. 

Therefore the transcript was not necessarily obtained for this case and the video 

recording is certainly not taxable, so that $994.65 should be subtracted from costs.

Of the other depositions taken by Defendants, only the deposition of Edward 

Rush was used in Defendants Motion for Summary Judgment. The Edward Rush 

deposition constituted only $242.25 of the $924.75 deposition costs. The Edward 

Rush deposition lasted exactly one hour, beginning at 10:52 a.m. and ending at 

11:52 a.m., so that one hour‟s appearance fee would also be taxable. The $7.00 

shipping charge is not taxable. George v. Florida Department of Corrections, 2008 WL 

2571348 (S.D. Fla. 2008). Thus the only taxable deposition costs are $282.25. 

Therefore, an additional $642.50 should be subtracted from the total costs.

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Some courts have held that transcript delivery fees are taxable and others have 

reached the contrary conclusion. See, e .g., Preis v. Lexington Ins. Co., 2007 WL 

3120268, * 4 (S.D.Ala. Oct.22, 2007) (such costs constitute “ordinary business 

expenses,” not costs recoverable under Section 1920); Kerns v. Pro-Foam of South 

Alabama, 2007 WL 2710372, * 3 (S.D.Ala. Sept.13, 2007) (same); Henderson v. Home 

Depot U.S.A., Inc., 2006 WL 4978430, *4 (M.D.Fla. July 6, 2006) (same); Eggleston v. 

Bradshaw, 2007 WL 1760912, *4 (S.D.Fla. June 18, 2007) (delivery and shipping fees 

denied as being for convenience of counsel); University of Miami v. Intuitive Surgical 

Inc., 2007 WL 781912, * 1(S.D.Fla. March 13, 2007) (same). Likewise, the cost of 

copying exhibits has been found taxable in some cases and not in others. See 

University of Miami, supra, *1. In any case, Defendants here have not demonstrated 

that the delivery costs or exhibit copy costs associated with the transcripts were

not merely for counsel's convenience, but constituted a necessary expense. 

Consequently, Defendants should not recover for this portion of costs incurred in 

relation to court reporter fees. George v. Florida Dept. of Corr., 07-80019-CIV, 2008 

WL 2571348 (S.D. Fla. May 23, 2008). The cost of shipping and copying exhibits 

totaled $13.00 for the April 29, 2011 depositions and $56.00 for the May 4, 2011 

depositions, totaling $69.00 that should not be taxable.

B. Copies

Defendants seek $87.99 for copies. Defendants‟ Bill of Costs recites that 

on April 18, 2011, it had coping charges from Legally Copied, Inc., of $23.49 

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and on May 17, 2011, it had copying charges from Legally Copied, Inc., of 

$64.50. The Bill of Costs does not indicate how many copies were made, how 

much was charged per copy, nor what they were used for.

The costs of photocopies are recoverable if the copies were “necessarily 

obtained for use in the case.” 28 U.S.C. § 1920(4); Desisto College, Inc. v. Town of 

Howey-in-the Hills, 718 F.Supp. 906, 913 (M.D. Fla.1989) (copies of pleadings, 

discovery, documents tendered by the opposing party and documents prepared 

for the court's consideration constitute recoverable costs), aff'd, 914 F.2d 267 

(11th Cir.1990). The party moving for taxation of costs must present evidence 

“regarding the documents copied including their use or intended use.” Cullens v. 

Georgia Dept. of Trans. 29 F.3d 1489, 1494 (11th Cir.1994); see also Helms v. WalMart Stores, Inc., 808 F.Supp. 1568, 1570 (N.D.Ga.1992), aff'd, 998 F.2d 1023 

(11th Cir.1993). Since only prevailing party knows why the copies were made, it 

cannot simply make unsubstantiated claims that copies of the documents were 

necessary. Helms, 808 F.Supp. at 1570 (citing Corsair Asset Mgmt., Inc., 142 F.R.D. 

347, 353 (N.D.Ga.1992)); see, e.g., Ferguson v. Bombardier Serv. Corp., 2007 WL 

601921, * 4 (M.D.Fla. Feb. 21.2007) (copies of checks paid to copy service 

companies without explanation of underlying charge were not properly charged). 

Rather, the prevailing party must provide information regarding the purpose of 

copies charged so the court will be able to determine whether the rates paid for 

copies were reasonable, whether the copies made were related to the action at 

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issue, and what the copies were for. See, e.g., Lee v. American Eagle Airlines, Inc., 93 

F.Supp.2d 1322, 1335-36 (S.D.Fla.2000) (denying copying costs where prevailing 

party failed to provide description of copies, including why rates paid reasonable 

or how expenses related to case). George v. Florida Dept. of Corr., 07-80019-CIV, 

2008 WL 2571348 (S.D. Fla. May 23, 2008). Here, Defendants have done none 

of the above and are not entitled to the $87.99 claimed cost of copies.

C. Ruling should be delayed

This Judgment has been appealed. The Court has discretion to defer a 

ruling on the taxation of costs until after the determination of the appeal by the 

Eleventh Circuit. See American Infra-Red Radiant Co. v. Lambert Industries, Inc., 

D.C.Minn.1966, 41 F.R.D. 161 (D.C. Minn. 1966) (Where losing party in patent 

infringement case had petition for certiorari pending before United States 

Supreme Court, district court in exercise of its discretion would grant 

continuance of taxation of costs pending disposition of petition for certiorari).

It would not make sense to grant costs to Defendants when the costs would 

have to be disgorged if Plaintiff prevailed on her appeal.

D. Conclusion

For the reasons above, Defendant‟s bill of costs of $4285.54 should be reduced 

by $1,794.14, leaving $2,491.40. However, Plaintiff asks the Court to defer its ruling 

on costs until the conclusion of the appeal in this matter.

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WHEREFORE, Plaintiff requests that the Court grant Plaintiff‟s objections to 

the Bill of Costs but delay ruling until the conclusion of Plaintiff‟s Appeal.

Respectfully submitted,

s/James Cook____________________

JAMES V. COOK

Florida Bar Number 0966843

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

I CERTIFY the foregoing was filed electronically on 6/27/11 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

John W. Jolly, Jr.

Jolly & Peterson, P.A.

Post Office Box 37400

Tallahassee, FL 32315

s/James Cook____________________

JAMES V. COOK

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