FELIX v. KEY LARGO MANAGEMENT CORP. ( 2021 )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA KEY WEST DIVISION Case Number: 19-10067-CIV-MARTINEZ/OTAZO-REYES SOBNER FELIX, Plaintiff, v. KEY LARGO MANAGEMENT CORP, Defendant. _________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION THIS MATTER was referred to the Honorable Alicia M. Otazo-Reyes, United States Magistrate Judge, for a Report and Recommendation on Defendant Key Largo Management Corp.’s Amended Motion to Tax Costs (“Amended Motion”). (ECF No. 80). Magistrate Judge Otazo-Reyes filed a Report and Recommendation recommending that the Amended Motion be granted in part and denied in part, and that Defendant be awarded $4,238.43 in taxable costs. (ECF No. 87). Plaintiff timely filed objections to the report and recommendation. (ECF No. 88). The Court has conducted a de novo review of the entire file and record. Plaintiff first objects to the report and recommendation because he argues that Defendant waived its right to recover costs by failing to confer with him prior to filing his first motion to tax costs pursuant to Local Rule 7.3. While it is true that Defendant failed to initially confer with Plaintiff, (see ECF No. 75), it later filed the instant Amended Motion containing a certificate of conferral. Plaintiff argues that Defendant’s failure to comply with the local rules cannot be cured by filing an amended motion. Judge Otazo-Reyes addressed this same argument in her report and recommendation, finding that “Plaintiff has not shown that he was prejudiced by such initial non- compliance.” (ECF No. 87, at 3). Plaintiff objects to Judge Otazo-Reyes’s finding arguing that the report and recommendation does not cite to any case “indicating that disregard of the rules was permissible in the absence of prejudice.” (ECF No. 88, at 2). However, Plaintiff himself does not cite to any authority supporting his argument that failure to confer cannot be cured by later conferring and filing an amended motion. Nor does Plaintiff argue that the failure to initially confer “could have obviated or narrowed the issues raised in the parties’ papers, thereby conserving the time and effort of the parties and the Court[.]” See Nanotech Ent., Inc. v. R&T Sports Mktg., Inc., No. 14-61608- CIV, 2014 WL 12611203, at *3 (S.D. Fla. Sept. 24, 2014). The Court is by no means undermining the importance of compliance with the Local Rules. Yet, in this case, Plaintiff’s initial non- compliance does not warrant denial of the requested relief, especially where the non-compliance was later timely cured. Finally, Plaintiff asks the Court to defer ruling on the Amended Motion pending appeal. “It is well settled in this circuit that costs may be taxed after a notice of appeal has been filed.” Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 64 (11th Cir. 1982) (citing Baum v. United States, 432 F.2d 85 (5th Cir. 1970); United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)). (“As the Advisory Committee’s Note to Rule 54 explains—albeit in the context of costs owing to attorney’s fees— ‘[i]f an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing ... a new period for filing after the appeal has been resolved.’”). “[S]everal district courts in the Eleventh Circuit have declined to stay ruling on a bill of costs pending appeal, finding no valid reason for postponing the decision of taxable costs.” Lavora v. NCL (Bahamas) Ltd., No. 15-24285-CIV, 2017 WL 5308511, at *3 (S.D. Fla. Feb. 24, 2017), report and recommendation adopted, 2017 WL 5448151 (S.D. Fla. March 28, 2017). The Court finds that the circumstances here do not support reserving ruling on the Amended Motion pending appeal. Accordingly, it is ADJUDGED that United States Magistrate Judge Otazo-Reyes’s Report and Recommendation, (ECF No. 87), is AFFIRMED and ADOPTED. Accordingly, it is: ADJUDGED that Defendant Key Largo Management Corp.’s Amended Motion to Tax Costs, (ECF No. 80), is GRANTED in part and DENIED in part. Defendant shall be awarded $4,238.43 in taxable costs. DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of July, 2021. ce JOSEJE. MARTINEZ UNIJYED STATES DISTRICT J E Copies provided to: Magistrate Judge Otazo-Reyes All Counsel of Record