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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PROPHET PAULCIN,

Plaintiff,

v.

DUANE SPEARS, et al.,

Defendants.

CASE NO. 4:10-cv-483-RH

PLAINTIFF’S OBJECTION TO DEFENDANTS’ MOTION FOR COSTS 

AND REQUEST FOR STAY OF RULING ON COSTS

COMES NOW Plaintiff, PROPHET PAULCIN, by and through the undersigned attorney, and submits this objection to Defendants’ Bill of Costs for $1,999.05. 

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

are not recoverable under 28 U.S.C. §1920. Correct costs would be $494.60. Further, 

because this case may be appealed to the Eleventh Circuit, Plaintiff requests that the 

court delay ruling on this issue until final resolution of the case.

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:

(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;

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(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. Summons and Subpoena Costs

Defendant submitted $160.00 in its bill of costs for summons and subpoena 

costs. The subpoena costs were for three witnesses, John Summerhill, Donald 

Curlee, and Corey Griffin (for service at two different addresses). Three of the 

Defendants were dismissed from the case prior to the time of the trial. Of the 

remaining Defendants, two were found liable and one, Nurse Jennifer Larkin, was 

granted qualified immunity by the Court. The testimony of the three witnesses had 

no relationship to facts bearing on the liability of Defendant Larkin or underlying 

qualified immunity. Therefore, Defendants are not entitled to tax any of the costs 

for service of these trial witnesses.

B. Necessary Transcripts

Defendant submitted $543.00 in its bill of costs for deposition transcripts. 

Whether 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. 

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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 party's transcription costs 

must be reasonably necessary to litigation of case. In re Williams Securities 

Litigation-WCG Subclass, 558 F.3d 1144 (Cir. 10 Okla. 2009).

Certainly $494.60 for the transcript of the deposition of the Plaintiff would be 

taxable since the transcript was used in Defendants’ Motion for Summary 

Judgment. However, Defendants have sought to bill for deposition costs for 

witness Rose as well. At the time of the Rose deposition, four of the Defendants 

had been granted summary judgment. Of the other three, the Court entered 

judgment against two and as to the third, Nurse Jennifer Larkin, the deposition of 

witness Larry Rose had nothing to do with the facts underlying the grant of 

qualified immunity to her. The applicable statute refers to the cost of “the 

stenographic transcript necessarily obtained for use in the case.” (Emphasis added). In 

United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963), the court recognized the 

question to be “[W]hether in the particular circumstances of a specific case, there 

is a reasonable need that counsel have a copy” of the deposition. Id at 840. Morris 

v. Carnathan, 63 F.R.D. 374, 379 (N.D. Miss. 1974). Thus $43.50 should be deducted 

from the taxable costs. Since there is no basis for taxing costs for postage for the 

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transcripts, the postage charge of $4.95 should also be deducted.

C. Witness compensation

Defendants seek to tax costs of $1,250.00 for witness fees for three trial 

witnesses. The costs include a $40 per-diem for four days of attendance for each 

of three witnesses – Corey Griffin, John Summerhill, and Donald Curlee. Each of 

these witnesses testified briefly in the Defendants’ case and were briefly crossexamined. Defendants had the discretion to bring the witnesses either on the third 

or fourth day. There was no reason for the witnesses to attend for four days or to 

receive a $40 per-diem for the four days. Thus, $120 for each witness was spent 

unnecessarily and should not be taxed.

More importantly, four of the Defendants were dismissed from the case prior 

to the time of the trial. Of the remaining three Defendants, two were found liable 

and one, Nurse Jennifer Larkin, was granted qualified immunity by the Court. The 

testimony of the three witnesses had no relationship to any facts bearing on the 

liability of Defendant Larkin or underlying qualified immunity. Therefore, 

Defendants are not entitled to tax any of the costs for these witnesses.

D. Copy costs

Defendants have billed $46.05 for copies. However neither the motion nor the 

list of documents indicate why the copies – which include notices of appearance 

and answers to the complaint and other documents filed in the case – had to be 

reproduced in the course of litigation.

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E. Ruling should be delayed

Plaintiff plans to appeal this judgment. A Motion to Alter or Amend 

Judgment will be filed shortly. The Court has discretion to defer a ruling on the 

taxation of costs until after a final disposition of the case. 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 Plaintiffs prevailed on their appeal.

F. Conclusion

For the reasons above, Defendant’s bill of costs of $1,999.05 should be 

reduced by $1,504.45, leaving $494.60. However, Plaintiff asks the Court to defer its 

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

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 V. Cook_________

JAMES V. COOK

Florida Bar Number 0966843

Law Office of James Cook

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

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I CERTIFY the foregoing was filed electronically on 12/26/11 and that the person 

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

Mark Hiers

Office of the Attorney General

PL 01 The Capitol

Tallahassee, Florida 32311

Lance Neff

Office of the Attorney General

PL 01 The Capitol

Tallahassee, Florida 32311

s/James V. Cook_________________

JAMES V. COOK

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