Ochello v. State Farm Fire & Casualty Co.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN V. OCHELLO, 	)
)
Plaintiff, 	)
)
v. 	) 	CIVIL ACT. NO. 1:22-cv-413-TFM-N
)
STATE FARM FIRE & CASUALTY 	)
CO., 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Motion to Alter, Amend or Vacate Order Dated March 20,
2025, Pursuant to F.R.C.P. Rule 59 (Doc. 95, filed April 17, 2025) in which Plaintiff John V.
Ochello moves the Court to alter, amend, and/or vacate its March 20, 2025 Memorandum Opinion
and Order in which the Court granted Defendant State Farm Fire & Casualty Co.’s motion for
summary judgment as to Plaintiff’s claims of breach of contract and bad faith. Having considered
the motion, response, and relevant law, the Court finds the motion is due to be DENIED.
Also, pending before the Court is State Farm’s Motion to Retax Costs (Doc. 93, filed April
17, 2025) in which Defendant State Farm Fire & Casualty Co. moves the Court, pursuant to 28
U.S.C. § 1920, Fed. R. Civ. P. 54(d)(1), and S.D. Ala. CivLR 54.1 and Standing Order No. 13, tax
and retax against Plaintiff John V. Ochello costs in the amount of $2,323.40. Having considered
the motion, response, reply, and relevant law, the Court finds the motion is due to be GRANTED
in part, DENIED in part, and MOOT in part.
I. 	JURISDICTION AND VENUE
The Court has subject matter jurisdiction over the claims in this action pursuant to 28
U.S.C. § 1332 (diversity of citizenship). The Court has personal jurisdiction over the claims in
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this action because the events that gave rise to this action occurred within this district. See Consol.
Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291-92 (11th Cir. 2000) (“Specific jurisdiction arises
out of a party’s activities in the forum that are related to the cause of action alleged in the
complaint. . . . General personal jurisdiction, on the other hand, arises from a defendant’s contacts
with the forum that are unrelated to the cause of action being litigated. 	The due process
requirements for general personal jurisdiction are more stringent than for specific personal
jurisdiction, and require a showing of continuous and systematic general business contacts between
the defendant and the forum state.”). 	Venue is proper in this Court pursuant to 28 U.S.C. §
1391(b)(2) because a substantial part of the events that gave rise to the claims in this matter
occurred in this judicial district.
No party disputes or debates the Court’s jurisdiction or venue, and the Court finds adequate
support for both.
II. 	BACKGROUND
The factual and procedural background of this matter was most recently detailed in the
Court’s March 20, 2025 Memorandum Opinion and Order. Doc. 89. The Court will update the
procedural background to reflect what has occurred in this matter since then.
On March 20, 2025, the Court entered a Memorandum Opinion and Order in which it
detailed its reasoning for its March 11, 2025 Order that granted Defendant State Farm Fire &
Casualty Co.’s (“State Farm” or “Defendant”) motions for summary judgment (Docs. 69, 73) and
dismissed with prejudice Plaintiff John V. Ochello’s state-law claims of breach of contract and
bad faith failure to pay and investigate. 	Id. 	On the same date, the Court entered a judgment,
pursuant to Fed. R. Civ. P. 58, in accordance with its March 11, 2025 Order. Doc. 90.
On March 28, 2025, Defendant filed its bill of costs, which included costs for fees of the
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Clerk and fees for printed or electronically recorded transcripts necessarily obtained for use in the
case that are authorized to be taxed as costs, pursuant to 28 U.S.C. § 1920. Doc. 91. The Clerk of
Court (“the Clerk”) taxed costs against Plaintiff in the amount of $402.00, the filing fee that
Defendant paid to the Clerk to remove this matter. Doc. 92; see Doc. 91. The Clerk did not tax
costs against Plaintiff for the remaining amount requested for certain deposition transcript fees that
were incurred: (1) $1,921.40 for the transcript of State Farm Team Manager B.J. Sumner’s
deposition; (2) $736.75 for the transcript of Plaintiff’s first deposition; and (3) $889.85 for the
transcript of Plaintiff’s second deposition. See Docs. 91, 92.
On April 17, 2025, Defendant filed the instant motion to retax costs in which it requests
the same costs that it requested in its bill of costs, including the filing fee that Defendant paid to
the Clerk to remove this matter that the Clerk taxed as costs against Plaintiff. Compare Doc. 91
with Doc. 93; see Doc. 92. The Court ordered Plaintiff to file any response to the motion by May
1, 2025, and Plaintiff filed a motion to disallow/strike in lieu of a mere response. 	Doc. 99. 	In
Plaintiff’s motion to disallow/strike, Plaintiff moves the Court enter an order that either disallows
or dismisses the motion to retax costs, which the Court construes as his response to the motion to
retax costs. Defendant filed a response to the motion to disallow/strike. Doc. 100.
Also on April 17, 2025, Plaintiff filed the instant motion to alter, amend, or vacate in which
he requests, pursuant to Fed. R. Civ. P. 59, the Court reinstate this matter and allow his breach of
contract and outrage claims to proceed. Doc. 95. The Court ordered Defendant to file any response
to the motion by May 2, 2025 (Doc. 96), and Defendant timely filed its response in opposition
(Doc. 97).
The Court finds oral argument is unnecessary for the pending motions-(1) the motion to
retax costs and (2) the motion to alter, amend, or vacate-and therefore, they are ripe for review.
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III. 	DISCUSSION AND ANALYSIS
The Court will, first, address the motion to alter, amend, or vacate, then the motion to retax
costs.
A. 	Motion to Alter, Amend, or Vacate
Plaintiff argues his testimony, as a lay witness, of what he observed of his home before and
after Hurricane Sally is admissible to prove the foundation damage to the home was not caused by
subsidence. Doc. 95.
In response, Defendant argues Plaintiff failed to submit expert testimony that supported his
assertion that the foundation damage to the home was caused by wind and not by subsidence,
which was the opinion of Defendant’s expert, and fails to support his argument that lay witness
testimony was sufficient to prove causation. Doc. 97 at 2-3. Defendant argues, even if lay witness
testimony could be used to prove causation in this matter, Plaintiff failed to submit either lay or
expert testimony that supported his foundation damage assertion. 	Id. at 3. 	Finally, Defendant
argues Plaintiff also failed to submit admissible evidence of the scope or costs of repair for the
foundation damage to the home, and therefore, could not prove a necessary element of his breach-
of-contract claim-damages. Id. at 3-4.
“The only grounds for granting [a Fed. R. Civ. P. 59] motion are newly-discovered
evidence or manifest errors of law or fact.” United States v. Marion, 562 F.3d 1330, 1335 (11th
Cir. 2009) (per curiam) (quoting Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per
curiam), cert. denied, 552 U.S. 1040, 128 S. Ct. 660, 169 L. Ed. 2d 511 (2007)). “[A] Rule 59(e)
motion [cannot be used] to relitigate old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment.” Arthur, 500 F.3d at 1343 (quoting Michael Linet,
Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)).
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Ultimately, a review of Plaintiff’s motion for reconsideration shows Plaintiff presents the
same arguments as those that he raised in his response to the underlying motion for summary
judgment. Again, Plaintiff does not cite to relevant law to support his assertion that lay witness
testimony is sufficient to prove the cause of the foundation damage in this matter. Further, Plaintiff
does not distinguish the case that the Court cited in its Memorandum Opinion and Order to support
its conclusion that expert testimony was necessary to prove causation, Nix v. State Farm Fire &
Casualty Co., 444 App’x 388 (11th Cir. 2011), in which the testimony of the proffered lay
witnesses was found to be inadmissible because neither witnessed the damage nor had personal
knowledge about the construction of the damaged area. Finally, Plaintiff does not explain how a
jury could determine unpaid damages to support his claims when he did not timely submit evidence
of such. See Jerkins v. Lincoln Elec. Co., 103 So. 3d 1, 10 (Ala. 2011) (“The award of damages
cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to
show, to the required degree, the amount of damages allegedly suffered.” (quoting Johnson v.
Harrison, 404 SO. 2d 337, 340 (Ala. 1981)).
Plaintiff has neither provided newly-discovered evidence nor presented a manifest error of
law or fact that would entitle him to relief pursuant to Fed. R. Civ. P. 59, and therefore, the motion
to alter, amend, or vacate is due to be DENIED.
B. 	Motion to Retax Costs
Fed. R. Civ. P. 54(d)(1) states “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.”
FED. R. CIV. P. 54(d)(1); see also Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co.,
254 F.3d 987, 1013 (11th Cir. 2001) (citing EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir.
2000)) (“[A] prevailing party is entitled to an award of costs.”). However, “[f]ee applicants bear
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the burden of providing sufficient detail in their records to explain and support their requests for
fees and costs.” Lee v. Krystal Co., 918 F. Supp. 2d 1261, 1275 (S.D. Ala. 2013) (quoting Andrade
v. Aerotek, Inc., 852 F. Supp. 2d 637, 645 (D. Md. 2012)). “There is no question that a party in
whose favor the district court granted summary judgment is a prevailing party for purposes of
[Fed. R. Civ. P] 54(d)(1).” 	Henderson v. Franklin, 782 F. App’x 866, 874 (11th Cir. 2019)
(internal quotations and modifications omitted) (quoting Head v. Medford, 62 F.3d 351, 355 (11th
Cir. 1995)).1
The costs that a prevailing litigant is entitled to under Fed. R. Civ. P. 54(d) are enumerated
in 28 U.S.C. §§ 1821 and 1920. 	The sections that are at issue in this matter include those
enumerated in 28 U.S.C. § 1920 (1) and (2).
Section 1920 states “a judge or clerk of any court of the United States may tax as costs the
following: 	. . . (1) Fees of the clerk and marshal [and] (2) Fees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920 (1) and (2).
As an initial matter, Defendant claims costs for fees of the Clerk in the amount of $402.00,
which was the filing fee paid to the Clerk to remove this matter. Doc. 93 at 4, 6. The Clerk already
taxed this amount against Plaintiff after Defendant filed its original bill of costs, and Defendant
does not challenge the action of the Clerk or explain why the Court should reconsider such. Docs.
91, 92. Therefore, Defendant’s instant request to tax against Plaintiff the amount of its filing fee
to remove this matter, $402.00, is MOOT.
Defendant also claims costs for printed or electronically recorded transcripts necessarily
1 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014); see also Henry v. Comm'r
of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal
Appendix are cited as persuasive authority.”).
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obtained for use in the case in the amount of $1,921.40, which includes the deposition transcripts
of B.J. Sumner (“Sumner”), a State Farm Team Manager ($294.80), and Plaintiff ($1,626.60).
Doc. 93 at 4, 6-7, 9-11.
“[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), aff'd, 991 F.2d 751 (Fed. Cir. 1993). 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.’”
Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981) (quoting
§ 1920(2)).
U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620-21 (11th Cir. 2000).
Defendant argues the deposition transcript for Sumner, a Fed. R. Civ. P. 30(b)(6)
representative for State Farm, “affirmed multiple aspects of [the] State Farm Claim File” and the
testimony was necessary for Defendant to prepare for its motion for summary judgment and to
anticipate Plaintiff’s arguments in regard to his bad-faith claim. Doc. 93 at 2. Defendant argues
both the deposition transcript for Sumner and Plaintiff were obtained for use in, and were
reasonably necessary to defend, this matter. Id.
In response, Plaintiff argues Defendant’s motion to retax costs is untimely, pursuant to Fed.
R. Civ. P. 54(d)(1), and is not supported or accompanied by a verified affidavit as required by 28
U.S.C. § 1924. Doc. 99 at 1-2.
As to timeliness, Fed. R. Civ. P. 54(d)(1) states “The clerk may tax costs on 14 days’ notice.
On motion served within the next 7 days, the court may review the clerk’s action.” Fed. R. Civ.
P. 54(d)(1) is not explicit as to the time for the Court to consider a prevailing party’s bill of costs.
However, the Local Rules states “[n]o later than fourteen (14) days after entry of judgment, a party
seeking costs must file a verified bill of costs, using forms available from the Clerk” and “[a] party
may move for review of the Clerk’s decision taxing costs pursuant to Fed. R. Civ. P. 54(d) no later
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than seven (7) days after taxation.” S.D. ALA. CIVLR 54(a)(1) and (b). Here, Defendant timely
filed its bill of costs on March 28, 2025, eight (8) days after judgment pursuant to Fed. R. Civ. P.
58 was entered in this matter. 	See Docs. 90, 91. 	The Clerk taxed costs against Plaintiff in the
amount of $402.00, the amount of the filing fee to remove this matter that Defendant claimed, and
two (2) days later, Defendants timely filed its motion to retax costs, which included the same
claimed costs as the original bill of costs. Compare Doc. 91 with Doc. 93. The Court considers
the motion to retax costs a motion to review the Clerk’s decision, which is timely.
As to whether Defendant appropriately supported its request for costs with an affidavit, 28
U.S.C. § 1924 requires:
Before any bill of costs is taxed, the party claiming any item of cost or disbursement
shall attach thereto an affidavit, made by himself or by his duly authorized attorney
or agent having knowledge of the facts, that such item is correct and has been
necessarily incurred in the case and that the services for which fees have been
charged were actually and necessarily performed.
Defendant’s bill of costs was filed on the Court’s form and includes the following declaration: “I
declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred
in this action and that the services for which fees have been charged were actually and necessarily
performed.” 	Doc. 93 at 4. 	Defendant’s counsel signed the declaration. 	Id. 	The declaration
substantially complies with 28 U.S.C. § 1746, which reads:
Wherever, under any law of the United States or under any rule, regulation, order,
or requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in writing of the person making the same
(other than a deposition, or an oath of office, or an oath required to be taken before
a specified official other than a notary public, such matter may, with like force and
effect, be supported, evidenced, established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such person which is subscribed
by him, as true under penalty of perjury, and dated, in substantially the following
form:
. . .
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(2) 	If 	executed 	within 	the 	United 	States, 	its 	territories, 	possessions, 	or
commonwealths: 	“I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)”.
28 U.S.C. § 1746.
Since the motion to retax costs is timely and conforms with the requirements of 28 U.S.C.
§ 1924, the Court will consider the costs that Defendant requests.
As to the cost for Sumner’s deposition transcript, the deposition was neither cited nor
referenced in either of Defendant’s motions for summary judgment, but his affidavit was. 	See
Docs. 70-1, 70-4. 	Defendant even states Sumner’s deposition was used only to prepare for the
motions for summary judgment, and deposition costs incurred “to aid in thorough preparation” are
not recoverable. W&O, Inc., 213 F.3d at 620 (quoting Goodwall Cost. Co., 824 F. Supp. at 1066).
Therefore, the request to tax the cost for Sumner’s deposition transcript is DENIED
As to the cost for Plaintiff’s deposition transcripts, those deposition were cited and
referenced in Defendant’s motions for summary judgment and, therefore, were necessarily
obtained for use in the case and the costs for which are recoverable. Therefore, the request to tax
the cost for Plaintiff’s deposition transcripts is GRANTED.
IV. 	CONCLUSION
Based on the foregoing analysis, the motion to alter, amend, or vacate (Doc. 95) is
DENIED, and the motion to retax costs (Doc. 93) GRANTED in part, DENIED in part, and
MOOT in part. The motion to retax costs is GRANTED as to Defendant’s request to tax the cost
for Plaintiff’s deposition transcript, MOOT as to its request to retax the cost to remove this matter,
and DENIED as to its request to tax the cost for B.J. Sumner’s deposition transcript. Costs are
taxed against Plaintiff John V. Ochello, and awarded in favor of Defendant State Farm Fire &
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Casualty Co. in the amount of $2,028.60, which is comprised of (1) $402.00, the fee that Defendant
State Farm Fire & Casualty Co. paid to the Clerk of Court to remove this matter and was previously
taxed as costs by the Clerk of Court; (2) $736.75, the cost for Plaintiff John V. Ochello’s initial
deposition transcript; and (3) $889.85, the cost for Plaintiff John V. Ochello’s reconvened
deposition transcript.
DONE and ORDERED this 15th day of May 2025.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
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