             Case: 18-15092   Date Filed: 01/03/2020   Page: 1 of 6


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-15092
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 0:17-cv-61508-RLR



JUAN CARLOS SALVADOR,

                                                             Plaintiff-Appellant,


                                    versus


BRICO, LLC, et al.

                                                          Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                              (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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