Vital Pharmaceuticals, Inc.v. Monster Energy Company ( 2021 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 19-60809-CIV-ALTMAN/Hunt VITAL PHARMACEUTICALS, INC., d/b/a VPX Sports, a Florida Corporation, Plaintiff/Counterclaim-Defendant, v. MONSTER ENERGY COMPANY, a Delaware corporation, and REIGN BEVERAGE COMPANY, LLC, a Delaware limited liability company, Defendants/Counterclaimants. ____________________________________ MONSTER ENERGY COMPANY, a Delaware corporation, and REIGN BEVERAGE COMPANY, LLC, a Delaware limited liability company, Crossclaimants, v. JHO INTELLECTUAL PROPERTY HOLDINGS, LLC, a Florida limited liability company, Crossclaim-Defendant. ____________________________________/ ORDER Magistrate Judge Patrick M. Hunt has submitted a Report and Recommendation (“R&R”) [ECF No. 452], in which he suggests that the Court grant the Motion for Bill of Costs (the “Motion”) [ECF No. 442] filed by the Defendants/Counterclaimants Monster Energy Company and Reign Beverage Company, LLC (the “Defendants”). More specifically, Magistrate Judge Hunt found that the Defendants are entitled to recover $58,000 in taxable litigation costs for various transcript and witness fees because the Court entered final judgment in the Defendants’ favor. See R&R at 2 (“Defendants seek to recover $58,000 in litigation costs, which result in from fees for trial transcripts, hearing transcripts, deposition transcripts, and fees associated with their witnesses. Defendants claim that they are entitled to recover costs because the Court entered final judgment in their favor.”); see also id. at 5 (“The undersigned recommends that the Motion be granted. Defendants should recover taxable costs of $58,000.”) (cleaned up). The Plaintiff “[did] not oppose the costs sought.” Id. at 2. In his R&R, Magistrate Judge Hunt warned the parties as follows: Within fourteen days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).” Id. at 5. Neither party objected to the R&R, and 14 days have passed. See generally Docket. When a magistrate judge’s “disposition” has been properly objected to, district courts must review that disposition de novo. See FED. R. CIV. P. 72(b)(3). But, when no party has timely objected, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id., advisory committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged that Congress intended to require de novo review only where objections have been properly filed—and not, as here, when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). In any event, the “[f]ailure to object to the magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)). “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts ¢ Elec. Motors, Inc. v. Sterling Elec, Inc, 866 F.2d 228, 233 (7th Cir. 1988). After reviewing the R&R, the Motion, the record, and the governing law, we find no clear error on the face of the R&R. Accordingly, we hereby ORDER AND ADJUDGE as follows: 1. The R&R [ECF No. 452] is ACCEPTED and ADOPTED. 2. The Defendants’ Motion for Bill of Costs [ECF No. 442] is GRANTED. DONE AND ORDERED in Fort Lauderdale, Florida, this 17th day of December 2021. Ce UNITED STATES DISTRICT JUDGE cc: counsel of record