P.-K. et al v. Department of Education, State of Hawai'i

Filing 550

ORDER Adopting In Part and Modifying In Part Magistrate Judge Findings and Recommendation re 543 . This court adopts the F&R in part and modifies it in part. The court awards Plaintiffs a total of $75,000 in interim fees and GET and authori zes the Settlement Administrator to disburse those funds from the $250,000 set aside in the settlement agreement for attorneys' fees. The court adopts the F&R to the extent it recommends denial of the remainder of the motion for fees, without prejudice to any future fee award, including for the same period covered by the motion (but without duplicating the award made here). Signed by JUDGE SUSAN OKI MOLLWAY on 12/16/2019. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
E.R.K, through his legal
guardian, R.K., et al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 10-00436 SOM/RT
ORDER ADOPTING IN PART AND
MODIFYING IN PART MAGISTRATE
JUDGE FINDINGS AND
RECOMMENDATION

ORDER ADOPTING IN PART AND MODIFYING IN PART
MAGISTRATE JUDGE FINDINGS AND RECOMMENDATION
I.

INTRODUCTION.
This certified class action, originally filed in 2010,

concerns whether the State of Hawaii Department of Education
(“DOE”) wrongfully denied services under the Individuals with
Disabilities Education Act (“IDEA”) to individuals that the DOE
viewed as having “aged out” of being eligible to receive
services.

This matter was settled, with the DOE agreeing to

deposit $8,750,000.00 into an interest bearing bank account
(“Services Fund”) and to pay class counsel $1,500,000 in
attorneys fees and costs.

See ECF No. 480-3.

The settlement

agreement provided that “an additional $250,000.00 may be awarded
to Class Counsel out of the [S]ervices [F]und upon application to
and approval by the court.”

Id.

Plaintiffs now seek an interim award of $152,404.13 in
fees including the general excise tax out of the Services Fund.

See ECF No. 532.

The DOE did not oppose the motion.

On November

26, 2019, the Magistrate Judge issued his Findings and
Recommendation to Deny Without Prejudice Plaintiff Class’s
Application for Interim Attorneys’ Fees (“F&R”).
543.

See ECF No.

The Magistrate Judge reasoned that Plaintiffs had not

established that they had met and conferred before filing the
motion, as required by Local Rule 54.2.

The Magistrate Judge

also declined to review Plaintiffs’ attorneys’ fees requests on a
piecemeal basis, noting that “judicial economy and the
administration of justice will be best served by addressing
Plaintiffs’ fee requests at the conclusion of this action.”

See

ECF No. 543.
Plaintiffs have objected to the F&R.

After reviewing

Plaintiffs’ fee request de novo, this court adopts the F&R in
part and modifies it in part.
II.

STANDARD OF REVIEW.
A district judge reviews de novo those portions of a

magistrate judge’s findings and recommendation to which an
objection is made and may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the magistrate
judge.
74.2.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Local Rule
Kealoha v. Totto, 2017 WL 1839280, *2 (D. Haw. May 8,

2017); Paco v. Meyers, 2013 WL 6843057, *1 (D. Haw. Dec. 26,
2013).

In other words, a district judge “review[s] the matter
2

anew, the same as if it had not been heard before, and as if no
decision previously had been rendered.”

Freeman v. DirectTV,

Inc., 457 F.3d 1001, 1005 (9th Cir. 2006).

While the district

judge must arrive at independent conclusions about those portions
of the magistrate judge’s report to which objections are made, a
de novo hearing is not required.

United States v. Remsing, 874

F.2d 614, 617 (9th Cir. 1989); Kealoha, 2017 WL 1839280, *2;
Local Rule 74.2.
The district judge may accept those portions of the
findings and recommendation that are not objected to if the
district judge is satisfied that there is no clear error on the
face of the record.

United States v. Bright, 2009 WL 5064355, *3

(D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122,
1127 (D. Haw. 2003).
III.

ANALYSIS.
In seeking attorneys’ fees, Plaintiffs argue that the

settlement agreement does not require them to meet and confer
with opposing counsel before filing a fee application.
Plaintiffs are ignoring this court’s order of March 1, 2016, in
which this court stated that Plaintiffs “should limit any request
to reasonable attorneys’ fees incurred and must meet and confer
with the DOE to explore settlement of the fees.

This court hopes

[Plaintiffs] will exclude from any future motion instances of
‘overzealous and overreaching’ work.”
3

ECF No. 345, PageID # 6347

(emphasis added).

This court clearly requires Plaintiffs to meet

and confer with the DOE before filing any motion for fees or
costs and to attempt to work out issues and problems with fee
requests.

The Magistrate Judge correctly recommended denial of

the motion based on Plaintiffs’ failure to establish that they
had met and conferred.
This court disagrees with Plaintiffs’ contention that
the DOE “has no voice” in whether Plaintiffs are entitled to fees
under the settlement agreement.

Admittedly, the settlement

agreement does not provide for the exact procedure to be used
when Plaintiffs seek any portion of the $250,000 in fees provided
for in the settlement agreement, and the DOE filed no opposition
to the motion, having agreed that $250,000 in additional fees may
be paid.

But this court has never modified the meet-and-confer

requirement expressly noted in its order of March 1, 2016. If the
parties must meet and confer, it stands to reason that both sides
may be heard as to a fee request.
Plaintiffs argue that denying an interim fee award
creates an inappropriate financial burden on class counsel.
Plaintiffs’ failure to meet and confer is Plaintiffs’ own fault.
Additionally, this court has already awarded Plaintiffs
significant fees in this case.

See ECF No. 345 (Mar. 1, 2016)

(awarding $100,000.00 in fees); ECF Nos. 491-92 (Dec. 27, 2017)

4

(awarding $1,570,650.00 in fees and GET); ECF No. 510 (Nov. 8,
2018) (awarding $35,032.45 in post-settlement fees).
Plaintiffs also argue that they have proven their
entitlement to fees, stating:

Plaintiffs documented reasonable hourly rates
and expenditures of time. See Ex. 2.
Furthermore, Plaintiffs’ first interim fee
application for $35,032.45 (ECF No. 509),
which included the same attorneys and hourly rates, was granted by
(ret.) (ECF No. 510).
ECF No. 549, PageID # 7643.

However, Magistrate Judge Chang

stated that “the Court did not make any ruling with regards to
any hourly rate.”

See ECF No. 514.

Plaintiffs ignore this court’s guidance in its order of
March 1, 2016.

In that order, this court expressed concern about

whether “the fees requested in the present motion may not reflect
reasonable time spent on matters at reasonable hourly rates.”
ECF No. 345, PageID # 6347.

According to class counsel, the

attorneys’ rates are reasonable and reflect the going rate in the
community, but Plaintiffs provide no actual reference to rates
that have been approved by this court for this community.
This court previously warned class counsel that the
court was likely to “cut time for clerical or ministerial tasks
performed by attorneys.”

Id., PageID # 6348.

Plaintiffs

nevertheless request fees for what may be such tasks (although
Plaintiffs may have an explanation as to why that is not so).
See, e.g., ECF No. 532-2, PageID #7557 (“Emails with R. Roylo re
5

delivery of $1.5m check for deposit in Trust Fund”; “Accept
delivery of $1.5m check from DOE and arrange for deposit to
Service Fund at BOH”).
This court also warned that “a motion for attorneys’
fees should not include duplicative fees.

The court does not

generally permit more than one attorney to bill for attending:
(1) a meeting between co-counsel; (2) a client meeting; or (3) a
meeting with opposing counsel.”

ECF No. 345, PageID # 6348.

Plaintiffs nevertheless submit fee requests that are possibly
duplicative (again, Plaintiffs may be able to justify these
charges).

See, e.g., ECF No. 532-2, PageID #7557 (July 26, 2018,

entries by JAAH (“Team meeting re affidavits, disbursements) and
by MEMI (“Meet with M. Sisiam and J. Ahu to evaluate data, devise
approches to data management, and discuss procedures to be
developed for recommending services and Trust disbursements for
approval to Settlement Administrator Duffy.”).
This court adopts the F&R in part and modifies it in
part without holding a hearing.

See Local Rule 7.2(d).

This

court adopts the F&R to the extent that it recommends denial of
the fee request based on Plaintiffs’ failure to meet and confer
regarding that request and to the extent that the F&R declines to
examine attorneys’ fees requests on a piecemeal basis.

While

this court could simply deny the request for fees, the court, in
the interest of judicial economy and of recognizing that interim

6

fee awards are desirable in civil rights cases such as this,
approves a total disbursement of $75,000 in fees and GET from the
$250,000 set aside for that purpose.

It does not appear that

there will be any dispute that Plaintiffs have reasonably
incurred at least that amount in fees and GET.

In approving such

fees, this court declines to examine every bill or to do the
lodestar calculation with respect to this motion.

This fee award

is not tied to specific work by specific individuals at specific
rates.

Any future fee requests with respect to the period

covered by the present motion (July 3, 2018, to June 30, 2019)
must comply with this court’s orders and guidance, setting forth
reasonable fees for the period, but ultimately deducting $75,000
from any amount requested for the period.
IV.

CONCLUSION.
This court adopts the F&R in part and modifies it in

part.

The court awards Plaintiffs a total of $75,000 in interim

fees and GET and authorizes the Settlement Administrator to
disburse those funds from the $250,000 set aside in the
settlement agreement for attorneys’ fees.

The court adopts the

F&R to the extent it recommends denial of the remainder of the
motion for fees, without prejudice to any future fee award,
including for the same period covered by the motion (but without
duplicating the award made here).

7

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 16, 2019.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436 SOM/RT; ORDER
ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE FINDINGS AND RECOMMENDATION

8