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Morello v. Amco Insurance Co.

United States District Court, N.D. California

October 6, 2014

GEORGE MORELLO, Plaintiff,
v.
AMCO INSURANCE COMPANY, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO RE-TAX COSTS Re: Dkt. No. 139

WILLIAM H. ORRICK, Jr., District Judge.

INTRODUCTION

Plaintiff George Morello appeals from the clerk's taxation of costs on the grounds that the clerk allowed defendant AMCO to recover costs associated with depositions that were not necessary to the case. Morello's motion is GRANTED IN PART and DENIED IN PART. The depositions at issue were related to Morello's underlying claim for insurance bad faith and the costs associated with those depositions are recoverable. However, AMCO noticed and served subpoenas for two depositions which were apparently not necessary. The costs associated with those two depositions are not recoverable. $339.85 in costs are STRUCK from the costs taxed by the clerk.

DISCUSSION

Morello, who is quadriplegic, was hit by a drunk driver while crossing a street in his wheelchair. He filed an underinsured motorist claim with his insurance company, AMCO, and subsequently filed this action alleging that AMCO handled Morello's claim in bad faith because it unreasonably determined that any future medical care he required was due to his pre-existing quadriplegia, rather than the accident. I granted AMCO's motion for summary judgment on May 29, 2014. Dkt. No. 129.

AMCO filed a bill of costs on June 9, 2014. Dkt. No. 131. On June 26, 2014, the clerk taxed costs in the amount of $23, 074.97.[1] Dkt. No. 136. Morello now moves to stay the bill of costs while his appeal of the summary judgment is pending. In the event that I do not stay the bill of costs, Morello moves to strike $7, 776.52 from the bill of costs for costs related to depositions which Morello claims were not necessary.

I. MORELLO'S APPEAL OF THE SUMMARY JUDGMENT ORDER IS NOT GROUNDS TO STAY THE BILL OF COSTS

Morello argues that the bill of costs is premature because he is appealing the underlying order granting AMCO summary judgment.[2] In support, Morello cites Federal Rule of Appellate Procedure 39(a)(1)(2)(3)(4) which provides that costs are allowed once an appeal is resolved.

Morello's argument is misplaced. FRAP 39 governs costs on appeal; it has no bearing on costs taxed by the district court. Courts routinely tax costs incurred at the district court level while appeals are pending. See, e.g., Henderson v. Alexander & Baldwin, Inc., 2008 WL 2588712, *3 (D. Haw. June 30, 2008) ("The Court finds that an award of attorneys' fees and the taxation of costs would not be premature [while the appeal is pending]"). Morello's motion to stay the bill of costs is DENIED.

II. AMCO WAS PROPERLY AWARDED COSTS RELATED TO DEPOSITIONS OF MORELLO'S MEDICAL PROVIDERS

Federal Rule of Civil Procedure 54(d)(1) provides, in relevant part, that "costs-other than attorney's fees-should be allowed to the prevailing party." Morello moves to strike $7, 776.52 from the bill of costs for transcripts, service, and witness fees for nine noticed depositions, some of which were taken off calendar by AMCO. For the reasons stated below, Morello's motion is GRANTED IN PART and DENIED IN PART.[3]

A. Deposition transcripts

Morello seeks to strike $5, 329.00 in costs for transcripts from the depositions of Doctors Aftonomos, Hong, Waters, Rosenberg, Passeri, and Mr. David Marino.[4] Dkt. No. 139 at 8. Morello argues that these depositions were not necessary because (i) Morello's claims were based on AMCO's alleged bad faith investigation of his insurance claim, not the diagnosis and treatment of Morello and his injuries and (ii) none of the testimony from those depositions was used in AMCO's motion for summary judgment or its opposition to Morello's motion for summary judgment.

I disagree. Local Civil Rule 54-3(c)(1) provides that "[t]he cost of an original and one copy of any deposition (including videotaped depositions) taken for any purpose in connection with the case is allowable." Doctors Aftonomos, Hong, Waters, Rosenberg, and Passeri treated Morello while Morello's underinsured motorist claim was pending. Dkt. No. 143 at 8, Cohen Decl. ΒΆ 2. Mr. Marino provided in-home health care assistance to Morello before and after Morello was hit by the drunk driver. Id. Morello's medical condition, both before and after the accident, was unquestionably relevant to AMCO's handling of Morello's underinsured motorist claim, particularly given that AMCO rejected Morello's claim on the grounds that any future medical care which Morello required was ...


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