Suero-Algarin v. Hima San Pablo Caguas et al
Filing
364
OPINION and ORDER denying 363 Motion for Reconsideration. Signed by Judge Silvia L. Carreno-Coll on 7/13/2021. (MCV)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
JOSÉ SUERO-ALGARÍN
Plaintiff,
CIV. NO.: 14-1508 (SCC)
v.
HIMA SAN PABLO CAGUAS, ET
AL.
Defendants.
OPINION AND ORDER
Pending before the Court is co-defendant Centro Medico del
Turabo, Inc. d/b/a HIMA San Pablo Caguas’, (hereinafter “defendant
HIMA” or “HIMA”), Motion for Reconsideration of Clerk’s Taxation of
Costs. See Docket 363. The case docket does not contain and opposition
or response. For the reasons set forth below, HIMA’s motion for
reconsideration is denied.
I. Introduction
On May 27, 2020, plaintiff Jose Suero-Algarín (hereinafter “plaintiff
Suero-Algarín”) filed before the Court a Bill of Costs. See Docket No. 308.
Defendant HIMA filed a Response in Opposition thereto. See Docket No.
347. On November 23, 2020, the Court referred the costs to the Clerk of
SUERO-ALGARÍN v. HIMA SAN PABLO
CAGUAS, ET AL.
Page 2
Court in accordance with Fed. R. Civ. P. 54(d)(1) and Local Rule 54(b). See
Docket No. 351 at p. 8. 1. On March 10, 2021, the Clerk of the Court taxed
costs in the amount of $7,661.83 on behalf of plaintiff Jose Suero-Algarín.
See Docket No. 362.
On March 24, 2020, defendant HIMA filed this motion seeking
judicial review of the Clerk’s Taxation of Costs. See Docket No. 363.
II. Standard
The prevailing party in a federal civil action is entitled to costs,
except in cases in which either a federal rule or statute otherwise provides,
or in cases where the district court otherwise directs. Fed. R. Civ. P.
54(d)(1); District Court of Puerto Rico Local Rule 54(a). Costs, other than
attorneys’ fees, shall be charged by the Clerk of Court. Id. On motion
served within the next 7 days, the district court may review the Clerk of
Court’s decision. Id.
III. Analysis
Rule 54(d)(1) provides that “[o]n motion served within the next 7 days,
the court may review the clerk’s action.” Fed. R. Civ. P. 54(d)(1). Defendant
HIMA’s Motion for Reconsideration of Clerk’s Taxation of Costs was filed
1
Opinion and Order issued on November 23, 2020, where the Court denied plaintiff Suero-Algarín’s request for
attorney fees, and costs were referred to the Clerk of Court.
SUERO-ALGARÍN v. HIMA SAN PABLO
CAGUAS, ET AL.
Page 3
14 days after receiving notice that the Clerk had awarded costs. Thus,
HIMA’s challenge is untimely by 7 days. However, even exercising the
Court’s discretion to consider untimely objections2, HIMA’s petition
fails.
HIMA raises the following arguments in support of its request for
reconsideration:
1. Waiver of payment of costs by settling Defendants;
2. Prevailing party may only recover costs once;
3. Failure to apportion allowable costs;
4. Adjust taxable fees pursuant to the 10% liability;
assessment apportioned by the jury;
5. Costs and fees which are not taxable.
See Docket No. 363, pp. 2-10.
2
Rule 54(d)(1)’s seven-day limitation period is not jurisdictional, and courts may, in their discretion, consider
untimely objections. See 10 Moore’s Federal Practice, § 54.100[3].
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CAGUAS, ET AL.
Page 4
A. Waiver of Payment of Costs by Settling Defendants/
Prevailing Party May Only Recover Costs Once.
Defendant HIMA argues that the Clerk failed to consider possible
waiver of recovery and/or payment of costs in the confidential
settlement agreement between plaintiff Suero-Algarín and codefendants Turabo Vascular Group, PSC, and Dr. Luis Aponte. See
Docket No. 363 at. P. 2. HIMA further argues that failing to consider
the possible waiver of recovery and/or costs, violates the precept that
the prevailing party may recover only one satisfaction of costs,
irrespective of whether the costs are apportioned or awarded jointly or
severally. Id. HIMA also avers that “pursuant to the motion filed by
SIMED at Docket Number 353 3, litigation costs have already been paid
on behalf of settling Defendants to the tune of $6,390.57.” Id at p. 5.
HIMA requests that the amount of $6,390.57 be deducted from any
costs to be taxed. Id. at p. 6.
On December 2, 2020, Atty. Anselmo Irizarry-Irizarry, as an officer of the Court, filed a Special Appearance
and Motion Requesting Leave to File Sealed Documents, to clarify (or notify) that as part of the settlement
amount, Dr. Aponte’s insurance carrier, SIMED, made a payment to Plaintiff in accordance with the
Confidential Partial Settlement Agreement and in the discharge of SIMED’s obligation towards its insured, to
wit, “such amount includes $XX,XXX.XX corresponding to insurance coverage and $6, 390.57 of insurance
incidental cove rage for litigation costs pursuant to USDC Docket 183, both to which are to be disbursed by
SIMED. See Docket No. 353 at p. 2.
3
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CAGUAS, ET AL.
Page 5
We disagree. In the Opinion and Order issued on November 23, 2020,
the Court acknowledged that co-defendants Turabo Vascular Group, PSC
(“TVG”), and Dr. Luis Aponte entered into a confidential settlement
agreement with Plaintiff Suero-Algarín. See Docket 351 at p. 7, n. 34. The
Court indicated that it had previously “specified that no allocations
regarding costs or attorney’s fees are found therein.” See Docket No. 344.” 5
Id. The Court also clarified that “in the confidential settlement agreement,
Plaintiff Suero-Algarín released TVG and Dr. Luis Aponte from paying
costs and attorney’s fees in connection with this case.” Id.
The record also reflects, that the Confidential Partial Settlement
Agreement and General Release (“Agreement” 6) filed before the Court on
January 7, 2021, establishes the total sum of $ XX as the “Settlement
Amount” to be paid in the manner therein specified “by some of the
Released Persons as compensation for all of Plaintiffs’ damages on account
of personal, physical injuries or sickness within the meaning of 104(a)(2) of
the Internal Revenue Code of 1986, as amended, and Section 1031.01(b)(3) of
the Internal Revenue Code for a New Puerto Rico, as amended, arising out
4
This case involved four Co-defendants: (1) Turabo Vascular Group, PSC (“TVG”); (2) Dr. Luis Aponte; (3)
HIMA; and (4) Dr. Ricardo Roca.” See Docket No. 351 at p. 7 note 3.
5 Order issued on October 13, 2020, ruling that “Defendant HIMA will not be privy to the confidential
settlement agreement between plaintiff and co-defendants since there is no allocation of costs in said
agreement.”
6“‘Agreement’ shall mean this ‘Confidential Settlement Agreement and General Release’ and any exhibits
thereto.” See Docket No. 359 Exhibit 1 at p. 4.
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CAGUAS, ET AL.
Page 6
of the alleged faulty and negligent acts or omissions of the Released
Persons.” See Docket No. 359, Exhibit 1, pp. 2,3. By “Released Persons” the
Agreement means “co-defendants Dr. Luis Aponte, his wife and conjugal
partnership formed between them, his insurance company SIMED, and
Turabo Vascular Group PSC, affiliates and subsidiary companies, their
respective predecessors, successors, affiliates, joint ventures, insurance
carriers, shareholders, members, partners, directors, officers, attorneys or
legal representatives, successors and assigns.” Id. at p. 2. The Agreement
also establishes that Plaintiff releases the “Released Persons” from “any and
all claims that have been or may be filed by, or any judgment that have been
entered or may be entered in favor of, any person against the Released
Person as a result of any future claim, cross claim, third party complaint,
contingency claim, contribution or leveling … claim by any of the
codefendants in the Lawsuit or any other person.” Id. p. 3. Furthermore, it
specifies that all claims “shall also mean to include all litigation costs,
expenses and attorneys’ fees of the Plaintiffs.” Id. Therefore, the Agreement
is clear that plaintiff Suero-Algarín released co-defendants TVG and Dr. Luis
Aponte from paying costs in connection with this case.
In addition, the Confidential Settlement Agreement specifies that the
settlement amount was to be paid directly to plaintiff through his attorneys
and indicated the amounts to be disbursed by the Released Persons. Id.,
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CAGUAS, ET AL.
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Exhibit 1 p. 6. Among the amounts to be disbursed, the Agreement indicates
that “such amount includes $10,000.00 corresponding to Insurance policy
coverage and $6,390.57 of insurance incidental coverage for litigation costs
pursuant to USDC Docket 183, both which are to be disbursed by SIMED.”
Id. Therefore, SIMED payments to Plaintiff Suero-Algarín were made in
accordance with the Agreement and in the discharge of SIMED’s obligation
towards its insured. As such, the amount $6,390.57 disbursed by SIMED, for
insurance incidental coverage for litigation costs, was part of the “Settlement
Amount” agreed and not an allocation of costs pursuant to Fed.R.Civ.P.54.
The record does not support defendant HIMA’s arguments of waiver of
recovery and/or payment of costs. It follows, that HIMA’s claims as to this
matter lack merit.
B. Failure to Apportion Allowable Costs
Defendant HIMA avers that any award of costs should be apportioned in
the same percentages of liability as allocated by the jury in a verdict See
Docket No. 363 at p. 2. HIMA argues that the Clerk’s taxation of costs failed
to “consider any apportionment of costs, particularly since the jury allocated
90% of liability against the physician Defendants and Turabo Vascular
Group, PSC, and only 10% against HIMA”.
SUERO-ALGARÍN v. HIMA SAN PABLO
CAGUAS, ET AL.
Page 8
We disagree. Joint and several liability for costs is the general rule unless
equity otherwise dictates. See In re Paoli R. Yard PCB Litig., 221 F3d. 449 (3d
Cir. 2000). Imposing only individual liability is inconsistent with the
presumption embodied in Rule 54(d) of the Federal Rules of Civil
Procedure that a prevailing party is entitled to recover all of its costs. See
Blake v. J.C. Penney Co.., Inc., 894 F. 2d 274, 281 (8th Cir. 1990). The parties
could allocate the risks of costs among themselves, or any party satisfying
a judgment could seek contribution from the others. See Prestidge v.
Prestidge, 810 F. 2d 159, 162 (8th Cir. 1987) (citing Thorsen v. Poe, 123 Ark. 77,
184 S.W. 427, 428 (1916) (“[W]here several parties are equally liable for the
same debt, or bound to the discharge of an obligation, and one is compound
to pay or satisfy the whole of it, he may have contribution against the others
to obtain payment for their respective shares.”).
In the instant case, HIMA’s Response in Opposition to Plaintiff’s
Bill of Costs did not present any relevant factor that could have been given
consideration by the Clerk to apportion costs among defendants. Likewise,
HIMA’s Motion for Reconsideration of Clerk’s Taxation of Costs, fails to
present any evidence that would support for the Court’s concession of
apportioning costs. In the absence of strong considerations, it would be
inequitable to place the risk of non-collection for the prevailing party.
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CAGUAS, ET AL.
Page 9
Therefore, defendant HIMA’s arguments pertaining to the failure
to apportion allowable costs lack merit.
C. Taxable Costs and Fees
Defendant HIMA requests the Court to eliminate certain amounts in
costs and fees which are not taxable regarding fees for witnesses; fees
for copies and exemplifications; and fees for copies. After reviewing
HIMA’s arguments, we support the Clerk’s reasoning for taxing the
amounts contested.7
IV. CONCLUSION
For the reasons stated, the Court DENIES defendant HIMA’ s Motion
for Reconsideration of Clerk’s Taxation of Costs.
IT IS SO ORDERED.
At San Juan, Puerto Rico, on this 13th day of July 2021.
S/SILVIA CARRENO-COLL
UNITED STATES DISTRICT COURT JUDGE
7
It most be noted that plaintiff’s request for allocation of costs at Docket No. 308 was for $22,216.32. Therefore,
it must be concluded that the Clerk of Court eliminated all amounts that were not taxable.
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