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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15092
Non-Argument Calendar
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D.C. Docket No. 0:17-cv-61508-RLR
JUAN CARLOS SALVADOR,
Plaintiff-Appellant,
versus
BRICO, LLC, et al.
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 3, 2020)
Before JORDAN, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Juan Salvador appeals the district court’s denial in part of deposition costs
following settlement in Salvador’s underlying Fair Labor Standards Act (“FLSA”)
action against his former employer, appellee Brico, LLC (hereinafter, “Brico”).
Following the $6,142.14 settlement, the district court entered an order denying
Salvador’s request to be reimbursed for the costs of nine depositions
(approximately $2,500) and granting all other requested costs without comment
($1,148). Salvador subsequently moved for reconsideration of the district court’s
order. The district court reconsidered its prior order and granted it in part,
awarding costs as to one of the witnesses’ deposition, reasoning that it was the only
deposition taken for the purpose of summary judgment, but denied again the other
deposition costs. Salvador timely appealed.
On appeal, Salvador contends that the district court abused its discretion in
determining that certain depositions Salavador conducted were not necessarily
obtained for use in the case—thus, the court did not tax Brico for the costs of those
depositions. Upon a review of Salvador’s brief, 1 the record, and the district court’s
orders, we affirm.
1
We note that Brico did not file a brief in this case. See 11th Cir. R. 42-2(f) (“When an
appellee fails to file a brief by the due date. . . the appeal will be submitted to the court for
decision without further delay.”).
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I. STANDARD OF REVIEW
We review taxation of deposition costs for abuse of discretion. U.S.
E.E.O.C. v. W&O, Inc.,
213 F.3d 600, 621 (11th Cir. 2000). “The question of
whether the costs for a deposition are taxable depends on the factual question of
whether the deposition was wholly or partially ‘necessarily obtained for use in the
case.’”
Id. at 620-21 (citing Newman v. A.E. Staley Mfg. Co.,
648 F.2d 330, 337
(5th Cir. Unit B 1981)).
“An abuse of discretion occurs if the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination, or bases an
award [or a denial] upon findings of fact that are clearly erroneous.” United States
v. Shaygan,
652 F.3d 1297, 1310 (11th Cir. 2011)
“[W]here the trial court denies the prevailing party its costs, the court must
give a reason for its denial of costs so that the appellate court may have some basis
upon which to determine if the trial court acted within its discretionary power.”
Head v. Medford,
62 F.3d 351, 354 (11th Cir. 1995) (quoting Gilchrist v. Bolger,
733 F.2d 1551, 1557 (11th Cir. 1984)) (emphasis in original).
II. DISCUSSION
Federal Rule of Civil Procedure Rule 54(d)(1) establishes that “costs—other
than attorney’s fees—should be allowed to the prevailing party” unless “. . . a court
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order provides otherwise.” Taxation of deposition transcripts costs is authorized
by
28 U.S.C. § 1920(2). 2
However, simply because taxation of deposition transcript costs is
authorized does not mean that taxation of such costs is automatic. In W&O, this
court refused to impose a blanket rule that taxation of deposition costs is warranted
solely because the deponent was on the losing party’s witness list. See W&O, 213
F.3d at 621. Rather, the choice whether to award taxation of deposition costs is
left to the district court’s discretion. Id. (“[d]epositions for these witnesses may be
taxable, in the discretion of the district court.”) (emphasis added).
Salvador argues that the district court committed reversible error by not
taxing the deposition costs of nine witnesses who were listed on Brico’s initial
disclosure list. Salvador asserts that Brico’s mere inclusion of those witnesses on
the trial witness list made their depositions “necessary” and thus the costs
recoverable.
The district court disagreed. After approving the settlement, which, in part,
stated that “[Salvador’s] counsel’s attorney’s fees and costs [will be] determined
by the [c]ourt,” the district court found that
[Salvador] has not shown that the deposition transcripts were
necessary [sic] obtained for use in this case. . . . The facts in this case
2
“A judge or clerk of any court of the United States may tax as costs . . . [f]ees for
printed or electronically recorded transcripts necessarily obtained for use in the case.”
28 U.S.C.
§ 1920(2).
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were, for the most part, undisputed. The parameters of Plaintiff’s job
were known to all parties. The parties’ disagreement in this case was
focused on a legal question—whether Plaintiff was exempt from the
[FLSA].
In the subsequent order denying Salvador’s motion for reconsideration, the
court further explained its rationale:
When the Court compares the amount at issue in this case
[approximately $6,000] with the amount of litigation costs generated
by Plaintiff [approximately $45,000],3 and when the Court considers
the history of counsel’s litigation conduct, together with the reality
that this case was, ultimately, decided through the Court’s legal ruling
on FLSA exemptions, the Court concludes that [those deposition
costs] were not incurred for the purpose of summary judgment or
trial—with one exception.4
(emphasis added).
Although Salvador has made various arguments quarrelling with the district
court’s reasoning, he has not presented a compelling claim showing an abuse of
discretion. Here, in their settlement, the parties agreed that “[Salvador’s] counsel’s
attorney’s fees and costs [will be] determined by the [c]ourt.” The court, in its
initial order, provided a clear rationale to deny costs by determining that the nine
depositions were not “necessarily obtained” because the “facts in this case were,
3
Salvador’s motion for attorney’s fees (approximately $45,000) is currently pending
before the district court and is not at issue in this appeal. The district court stayed that matter
pending the outcome of the appeal.
4
In looking to see whether any of the nine depositions were incurred for the purpose of
summary judgment or trial—and finding that, indeed, one of the depositions was taken for the
purpose of summary judgment, thus taxation was warranted—the district court engaged in
precisely the analysis and framework espoused by this court in W&O to determine if a deposition
was “wholly or partially ‘necessarily obtained for use in the case.’” 213 F.3d at 621.
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for the most part, undisputed.” The court, in its subsequent order, further reasoned
that the attorneys’ unprofessionalism, historical litigation conduct, and current
“vexatious” litigation—combined with the proportionality of costs compared to the
amount at issue—weighed against awarding the deposition costs and supported the
finding that “[Salvador’s deposition] costs were not incurred for the purpose of
summary judgment or trial.”
The district court’s findings are not clearly erroneous as they are supported
by the record. Thus, the district court acted properly in exercising its discretion to
deny taxation of deposition costs when it determined that because the depositions
were not incurred for use in summary judgment or trial they were not necessarily
obtained for use in the case. See W&O, 213 F.3d at 621. The court further acted
properly, as required, by explaining its rationale for denying in part the requested
deposition costs. See Medford,
62 F.3d at 354. Although Salvador disagrees with
the district court’s factual finding that the depositions in question were not
necessarily obtained for use in this case, he has failed to show that this factual
finding was clearly erroneous. Accordingly, the district court did not abuse its
discretion in denying, in part, the motion for costs. We affirm.
AFFIRMED
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