Bridge Aina Le'a, LLC v. Hawaii, State of , Land Use Commission et al

Filing 438

ORDER Modifying and Adopting As Modified The Magistrate Judge's Finding and Recommendations Regarding Attorneys' Fees and Costs re 428 . "The court adopts the F&R with modified reasoning on the issue of the LUC's sovereign immunity. The LUC waived its sovereign immunity with respect to attorneys' fees, but Bridge has not demonstrated that it is entitled to attorneys' fees. The court awards Bridge $15,085.51 in costs." Signed by JUDGE SUSAN OKI MOLLWAY on 12/20/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
STATE OF HAWAII LAND USE
)
COMMISSION; VLADIMIR P.
)
DEVENS, in his individual and )
official capacity; KYLE
)
CHOCK, in his individual and
)
official capacity; THOMAS
)
CONTRADES, in his individual
)
and official capacity; LISA
M. JUDGE, in her individual
)
and official capacity;
)
NORMAND R. LEZY, in his
)
individual and official
)
capacity; NICHOLAS W. TEVES,
)
JR., in his individual and
)
official capacity; RONALD I.
HELLER, in his individual and )
official capacity; DUANE
)
KANUHA, in his official
)
capacity; CHARLES JENCKS, in
)
his official capacity; JOHN
)
DOES 1-10; JANE DOES 1-10;
)
DOE PARTNERSHIPS 1-10; DOE
)
CORPORATIONS 1-10; DOE
ENTITIES 2-10; and DOE
)
GOVERNMENTAL UNITS 1-10,
)
)
Defendants.
)
_____________________________ )
BRIDGE AINA LE‘A, LLC,

Civ. No. 11-00414 SOM-KJM
ORDER MODIFYING AND ADOPTING
AS MODIFIED THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS REGARDING
ATTORNEYS’ FEES AND COSTS

ORDER MODIFYING AND ADOPTING AS MODIFIED THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS REGARDING ATTORNEYS’ FEES AND COSTS
I.

INTRODUCTION.
Plaintiff Bridge Aina L e‘a (“Bridge”) and Defendant

State of Hawaii Land Use Commission (the “LUC”) have filed

separate objections to the Magistrate Judge’s Findings &
Recommendations (“F&R”) to grant in part and deny in part
Plaintiff Bridge’s Motion for Attorneys’ Fees and Costs.

See

ECF Nos. 428, 429, 431.
In the F&R, the Magistrate Judge recommended that this
court deny Bridge any attorneys’ fee award because Bridge is not
entitled to fees under the private attorney general doctrine,
and because the LUC’s sovereign immunity bars any award of
attorneys’ fees.

The Magistrate Judge also recommended that

Bridge be awarded $15,085.51 of its requested costs, including
$1,429.10 in copying costs.
Bridge objects to the denial of its request for
attorneys’ fees and argues that it is entitled to the remainder
of its requested costs.

The LUC objects to the award of copying

costs, arguing that it should be limited to $725.15.
Having reviewed the F&R in light of the parties’
objections, this court concludes that the LUC’s waiver of
Eleventh Amendment sovereign immunity extends to attorneys’ fees
and that therefore this court has jurisdiction over Bridge’s
request.

However, the court agrees with the Magistrate Judge

that Bridge does not meet the requirements for recovery under
the private attorney general doctrine.

The court also adopts

the Magistrate Judge’s recommendation that Bridge be awarded
$15,085.51 in costs.
2

The court therefore adopts the F&R with modified
reasoning on whether the LUC’s sovereign immunity bars an award
of attorneys’ fees.

The court denies Bridge’s request for

attorneys’ fees and awards Bridge $15,085.51 in costs.

Pursuant

to Local Rule 7.2(d), the court finds this matter suitable for
disposition without a hearing.
II.

BACKGROUND.
The factual and procedural background of this case has

been discussed at length in the court’s previous orders.
e.g., ECF Nos. 131, 283, 318, 404.

See,

For the purposes of this

order, the court adopts the F&R’s background section, finding
that it sets forth the relevant facts and noting that neither
party raised any objections related to that section.
No. 428, PageID #s 11303-06.

See ECF

Because the parties and the court

are familiar with the background of this case, this court
describes only those events relevant to the F&R and to Bridge’s
Motion.
This case arises out of a decision by the LUC to
reclassify a parcel of land owned by Bridge from urban use to
agricultural use.

See ECF No. 1.

Bridge filed a Complaint in

state court, asserting eleven counts against the LUC and some of
its commissioners for violations under the United States
Constitution, the Hawaii constitution, and various Hawaii laws.
See ECF No. 1-2.

The Complaint was then removed to this court
3

based on federal question jurisdiction.

See ECF No. 1.

The

case was stayed for several years pending the resolution of
related state-court proceedings.

See ECF No. 48.

Following the completion of the state-court
proceedings and this court’s partial grant of the LUC’s motion
for summary judgment, Bridge had two takings claims that were
tried to a jury.

See ECF No. 131, PageID # 3112.

On March 23,

2018, the jury found in favor of Bridge, concluding that the
LUC’s decision to reclassify the land constituted a taking under
both the Lucas and Penn Central analyses.
373.

See ECF Nos. 372,

On March 30, 2018, the court awarded Bridge $1 in nominal

damages. 1

See ECF No. 375.

on April 13, 2018. 2

Bridge then filed the present Motion

ECF No. 384.

The F&R was filed on August 31, 2018, and both parties
filed their objections shortly thereafter.
431.

ECF Nos. 428, 429,

This court requested supplemental briefs on the scope of

the LUC’s sovereign immunity in federal court, and the parties
filed their supplemental briefs on December 3, 2018.

ECF Nos.

434, 436, 437.

1

In pretrial proceedings, this court struck one of Bridge’s
expert witnesses and limited another. Bridge was left without
the just compensation evidence it had hoped to present.
2

On April 20, 2018, the LUC filed a “Motion for Judgment as a
Matter of Law or, in the Alternative, for a New Trial,” which
this court denied on June 27, 2018. ECF Nos. 385, 404.
4

III.

STANDARD OF REVIEW.
Congress has empowered magistrate judges, upon

referral of dispositive pretrial motions by district judges, to
conduct hearings and issue findings and recommendations
regarding dispositive pretrial motions.

See 28 U.S.C.

§ 636(b)(1)(B); see also Fed. R. Civ. P. 72(b) (promulgating
rule).

The Federal Rules of Civil Procedure permit a district

judge to similarly refer a post-judgment motion for attorneys’
fees “as if it were a dispositive pretrial matter,” see Fed. R.
Civ. P. 54(d)(2)(D), and such motions are customarily referred
to magistrate judges in this district under Local Rule 54.3(h).
A district judge reviews a magistrate judge’s findings
and recommendations prior to ruling on the motion, and may
accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.
72(b).

Fed. R. Civ. P.

If a party timely objects to portions of the findings

and recommendations, the district judge reviews those portions
of the findings and recommendations de novo.
72(b)(3); Local Rule 74.2.

Fed. R. Civ. P.

The district judge may consider the

record developed before the magistrate judge.

Local Rule 74.2.

The district judge also has discretion to receive further
evidence.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Local Rule 74.2; see also United States v. Raddatz, 447 U.S.
667, 676 (1980) (explaining that a district judge has wide
5

discretion in deciding whether to allow new evidence).

The de

novo standard requires the district court to consider a matter
anew and arrive at its own independent conclusions, but a de
novo hearing is not ordinarily required.

See United States v.

Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v.
Boulware, 350 F. Supp. 2d 837, 841 (D. Haw. 2004); Local Rule
74.2.
The district judge may accept the portions of the
findings and recommendations to which the parties have not
objected as long as it is satisfied that there is no clear error
on the face of the record.

See United States v. Bright, Civ.

No. 07–00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23,
2009); Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw.
2003); Fed. R. Civ. P. 72(b) advisory committee’s note.
IV.

ANALYSIS.
Bridge objects to the portions of the F&R that

recommended denial of its request for an award of attorneys’
fees, totaling $662,227,03, and to the portions recommending
denial of $47,724.55 of its requested costs.

See ECF No. 429.

The LUC filed cross-objections, arguing that the Magistrate
Judge’s recommended award of $1,429.10 in copying costs should
be reduced to $725.15.

See ECF No. 431.

Having performed a de novo review of the portions of
the F&R to which the parties objected, the court adopts the
6

Magistrate Judge’s recommendations to deny Bridge’s request for
attorneys’ fees and to award Bridge $15,085.51 in costs.
However, as an initial matter, the court modifies the Magistrate
Judge’s reasoning with respect to whether the LUC’s sovereign
immunity bars an award of attorneys’ fees.
A.

This Court Is Not Barred from Awarding Attorneys’
Fees to Bridge Because the LUC Waived Its
Sovereign Immunity by Removing the Case.

Bridge objects to the Magistrate Judge’s conclusion
that the LUC’s sovereign immunity bars an award of attorneys’
fees.

See ECF No. 429, Page ID # 11347; ECF No. 428, PageID

# 11324.

The Magistrate Judge based its conclusion on the LUC’s

statement in a motion in limine that “removal to this Court
‘waived Eleventh Amendment immunity but not any other aspect of
sovereign immunity.’”

ECF No. 428, PageID # 11325 (quoting ECF

No. 191-1, PageID # 4609).

This court concludes that the LUC’s

waiver of Eleventh Amendment immunity extends to attorneys’ fees
and that the LUC’s sovereign immunity is not a jurisdictional
bar to an award of attorneys’ fees by this court.
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”
XI.

U.S. Const. amend.

Under the Eleventh Amendment, a state is immune from
7

lawsuits for monetary damages or other retrospective relief
brought in federal court by its own citizens or citizens of
other states.

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437

(2004); Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 105-06
(1984).

Federal court actions against agencies or

instrumentalities of a state, such as the LUC, are also barred
by the Eleventh Amendment.

Sato v. Orange Cty. Dep't of Educ.,

861 F.3d 923, 928 (9th Cir. 2017); Blount v. Sacramento Cty.
Superior Court, 559 F. App’x 623, 623 (9th Cir. 2014).

Eleventh

Amendment immunity does not apply if Congress exercises its
power under the Fourteenth Amendment to override Eleventh
Amendment immunity, or if a state consents to federal suit.

See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-68 (1989);
Pennhurst, 465 U.S. at 99.
States have Eleventh Amendment immunity to takings
claims seeking just compensation, meaning that federal courts
lack jurisdiction over such claims.

See Seven Up Pete Venture

v. Schweitzer, 523 F.3d 948, 954 (9th Cir. 2008) (holding that
“the constitutionally grounded self-executing nature of the
Takings Clause does not alter the conventional application of
the Eleventh Amendment”); see also City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 710 (1999) (“As its name

8

suggests, . . . just compensation is, like ordinary money
damages, a compensatory remedy.”).
However, sovereign immunity is “quasi-jurisdictional
in nature,” meaning that it may be waived.

See In re

Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002) (citing Hill v.
Blind Indus. & Servs., 179 F.3d 754, 760 (9th Cir. 1999),
amended by 201 F.3d 1186 (9th Cir. 2000)).

A state may waive

Eleventh Amendment immunity by voluntarily invoking federal
jurisdiction or by engaging in “conduct that is incompatible
with an intent to preserve that immunity.”
F.3d at 758.

See id.; Hill, 179

A state’s removal of a case to federal court

signals the state’s voluntary invocation of federal jurisdiction
for that case, whether the case involves state law claims,
federal law claims, or both.

See Lapides v. Bd. of Regents of

Univ. Sys. of Ga., 535 U.S. 613, 624 (2002) (“[R]emoval is a
form of voluntary invocation of a federal court’s jurisdiction
sufficient to waive the State’s otherwise valid objection to
litigation of a matter (here of state law) in a federal
forum.”); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004)
(“[T]he rule in Lapides applies to federal claims as well as to
state claims and to claims asserted after removal as well as to
those asserted before removal.”).
Thus, when the LUC removed this case to this court, it
voluntarily invoked federal jurisdiction and waived its Eleventh
9

Amendment immunity with respect to Bridge’s state and federal
claims.

The LUC conceded this waiver early in the case.

See

ECF No. 37, PageID # 327 (stating in the LUC’s reply to Bridge’s
motion to dismiss, “Defendants do not dispute they waived the
protections of the Eleventh Amendment by removing to this
court.”).

Additionally, the LUC’s behavior during trial

proceedings was consistent with waiver; it never raised a
sovereign immunity defense and did not argue that this court
lacked jurisdiction to award money damages against it.
appears to concede as much.

The LUC

See ECF No. 37, PageID # 327

(“Defendants do not dispute they waived the protections of the
Eleventh Amendment by removing to this court.”).
Despite its waiver of Eleventh Amendment immunity, the
LUC now argues that its sovereign immunity bars this court from
awarding attorneys’ fees.

See ECF No. 399, PageID # 9551.

The

LUC appears to argue that its sovereign immunity in federal
court is broader than the Eleventh Amendment and bars an award
of attorneys’ fees.

It is true that “the sovereign immunity of

the States neither derives from, nor is limited by, the terms of
the Eleventh Amendment.”
(1999).

Alden v. Maine, 527 U.S. 706, 713

Thus, states have sovereign immunity from suit in their

own courts, in addition to federal courts.

See id.

However,

this court is unaware of case law holding that, if a state
waives Eleventh Amendment immunity and submits to the
10

jurisdiction of a federal court, the state retains some
additional sovereign immunity preventing the federal court from
awarding attorneys’ fees if the state is on the losing end of
the litigation.
Such a rule would give states an unfair tactical
advantage in federal court.

“In large part the rule governing

voluntary invocations of federal jurisdiction has rested upon
the problems of inconsistency and unfairness that a contrary
rule of law would create.”

Lapides, 535 U.S. at 622-23 (“And

that determination reflects a belief that neither those who
wrote the Eleventh Amendment nor the States themselves (insofar
as they authorize litigation in federal courts) would intend to
create that unfairness.” (internal citation omitted)).
Inconsistency and unfairness would certainly result if a state
could actively litigate a matter in federal court and then
invoke sovereign immunity post-trial.

See Embury, 361 F.3d at

566 (“[A]llowing the reassertion of Eleventh Amendment immunity,
after the State had litigated extensively in federal court but
began to anticipate an unfavorable outcome, would waste the time
and money of the litigants and the resources of the courts.”).
While this court understands that the LUC is saying that it
waived only Eleventh Amendment immunity but retains some other
aspect of sovereign immunity that bars a fee award, the problem

11

is that the LUC cannot actually point to an operable immunity
source that applies here.
A more sensible understanding of the scope of
sovereign immunity in federal court is that once a state
voluntarily submits to federal jurisdiction, it cannot then pick
and choose the stages of federal litigation in which it will
participate.

“Allowing a State to waive immunity to remove a

case to federal court, then ‘unwaive’ it to assert that the
federal court could not act, would create a new definition of
chutzpah.”

Id.
To be clear, the court is not saying that a waiver of

Eleventh Amendment immunity via removal necessarily means that a
state will pay attorneys’ fees.

Rather, it means that the court

may exercise jurisdiction to award attorneys’ fees provided the
plaintiff proves that it is entitled to such an award (which, as
discussed below, Bridge has not proven here).

Nor is this court

saying that Eleventh Amendment immunity is the only kind of
sovereign immunity the LUC enjoys.

What the court is saying is

that, whatever other forms of sovereign immunity are available,
the LUC does not show that any such form has relevance here.
The court is unpersuaded by the LUC’s argument that
the LUC is immune from an award of attorneys’ fees under Hawaii
law, and that this court, in its exercise of supplemental
jurisdiction over the state law claims, is therefore prevented
12

from awarding attorneys’ fees.

See ECF No. 436; see also ECF

No. 399, PageID #s 9550-53.
The most striking thing about the LUC’s argument is
that it purports to rely on state law as determinative of this
court’s jurisdiction.
federal and state law.

This case included claims under both
With respect to the takings claims that

were tried, this court instructed the jury on the takings clause
of the Fifth Amendment to the United States Constitution.
ECF No. 372, PageID # 7450.

See

The elements of takings claims

under federal and Hawaii law are the same.

The LUC advances no

reason that state law should govern this court’s jurisdiction
over the awardability of attorneys’ fees when the LUC has
conceded that a monetary award of nominal damages may be
assessed against it on underlying federal and state claims.

The

LUC notably had no objection to that award of nominal damages
against it on the federal and state takings claims.
Moreover, it is unclear that the LUC’s sovereign
immunity would bar an award of attorneys’ fees even under Hawaii
law with respect to the state claims.

In its supplemental

brief, the LUC asserts that “Hawai‘i courts have definitively
stated that the State is immune from an award of attorneys’ fees
under the private-attorney-general doctrine.”
PageID #s 11373.

ECF No. 436,

The LUC then does not itself cite supporting

Hawaii case law, instead referring to the Magistrate Judge’s
13

sovereign immunity analysis in the F&R.

See id. at 11380

(citing ECF No. 428, PageID #s 11324-30).
Hawaii law is like federal law in that a state is
immune from lawsuits for money damages unless the state consents
to suit.

See Bush v. Watson, 81 Haw. 474, 481, 918 P.2d 1130,

1137 (1996) (“[T]he sovereign State is immune from suit for
money damages, except where there has been a clear
relinquishment of immunity and the State has consented to be
sued.” (citations and internal quotation marks omitted)).
Hawaii courts have “recognized that ‘an award of costs and fees
to a prevailing party is inherently in the nature of a damage
award.’”

Kaleikini v. Yoshioka, 129 Haw. 454, 467, 304 P.3d

252, 265 (2013) (quoting Sierra Club v. Dep’t of Transp. of
Haw., 120 Haw. 181, 226, 202 P.3d 1226, 1271 (2009)).

It would

follow that, by litigating Bridge’s state law claims for money
damages on the merits, the LUC consented to suit with respect to
those claims and opened itself up to an award of attorneys’ fees
against it if Bridge prevailed and proved entitlement to fees.
In its opposition brief to Bridge’s Motion, the LUC
cites two Hawaii cases in support of its argument that a
separate waiver of sovereign immunity with respect to attorneys’
fees is required: Kaleikini v. Yoshioka, 129 Haw. 454, 304 P.3d
252 (2013), and Nelson v. Hawaiian Homes Commission, 130 Haw.
162, 307 P.3d 142, 148 (2013).

ECF No. 399, PageID # 399.
14

In

both cases, the Hawaii Supreme Court held that sovereign
immunity barred an award of attorneys’ fees against the state
because the state had not explicitly waived its immunity.

See

Kaleikini, 129 Haw. at 467-69, 304 P.3d at 265-67; Nelson, 130
Haw. at 168-73, 307 P.3d at 148-53.

But Kaleikini and Nelson

are distinguishable from this case.
In those cases, the plaintiffs sought injunctions
and/or declaratory relief, not money damages or other
retrospective relief that would be barred by sovereign immunity.
See Kaleikini, 129 Haw. at 458, 304 P.3d at 256 (explaining that
the plaintiff brought suit seeking an injunction); Nelson, 130
Haw. at 168, 307 P.3d at 148

(“[S]overeign immunity did not bar

the Plaintiffs’ underlying claims, which were for declaratory
and injunctive relief . . . , and not damages.”).

The LUC is

similarly not disputing that injunctive and declaratory relief
may be awarded against it.
Sovereign immunity became an issue in Kaleikini and
Nelson only when the plaintiffs prevailed and sought attorneys’
fees.

By contrast, Bridge from the start sought just

compensation.

Whether Bridge could recover money damages was

not litigated, given the LUC’s removal of this case and consent
to suit for such damages.

See Figueroa v. States, 61 Haw. 369,

381, 604 P.2d 1198, 1205 (1979) (“It is well established that
the State as sovereign is immune from suit except as it consents
15

to be sued.”).

The LUC presents no case suggesting that, if a

state consents to a suit seeking money damages and waives
sovereign immunity early in the proceedings, it can later invoke
sovereign immunity solely with respect to attorneys’ fees.
The LUC has not asked this court to treat the federal
and state law claims differently, whether for the purposes of
sovereign immunity or otherwise.

During trial, the LUC never

raised a sovereign immunity defense with respect to the state
law claims, never asked for different presentations of evidence
under state and federal law, and never asked for separate jury
instructions under state and federal law.

The court sees no

reason to now treat the claims differently with respect to its
jurisdiction to award attorneys’ fees.
Bridge responds by arguing that, with respect to both
state and federal takings claims, the LUC lacks sovereign
immunity “with regard to successful regulatory takings claims”
in light of “the self-executing and uniquely remedial natures of
the takings clauses found in both the U.S. and Hawaii
constitutions.”

ECF No. 429, PageID # 11347.

Bridge appears to

argue that a statutory waiver of sovereign immunity is not
required because no statute is required for the enforcement of
the Fifth Amendment of the United States Constitution and
Article I, Section 20 of the Hawaii constitution.
1, PageID #s 9105-9.
16

ECF No. 384-

This argument confuses two questions: (1) whether a
statute is required for the enforcement of a constitutional
provision, and (2) whether a state has waived sovereign immunity
through passage of a statute that indicates its consent to suit.
Not only are these questions distinct, they do not address
whether the LUC’s waiver of sovereign immunity via removal to
this court extends to an award of attorneys’ fees.

In any

event, this court need not delve into the issue of whether a
statute is or is not required.

This court concludes that there

is no basis for treating its jurisdiction over an attorneys’
fees motion differently from its unchallenged jurisdiction over
a just compensation award.
against a state.

Both involve monetary awards sought

If immunity as to one was indisputably waived,

that waiver cannot be withdrawn as to the other after judgment
is entered.
B.

Bridge Is Not Entitled to Attorneys’ Fees Under
the Private Attorney General Doctrine.

Having concluded that there is no jurisdictional bar
to an attorneys’ fee award, this court turns to whether to order
such an award.

The long-standing rule in federal courts is that

“absent an express statutory command, attorney’s fees will not
be awarded in civil cases.”

Home Sav. Bank, F.S.B. by

Resolution Tr. Corp. v. Gillam, 952 F.2d 1152, 1162 (9th Cir.
1991) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

17

421 U.S. 240, 262 (1975)); see also Donovan v. Burlington N.,
Inc., 781 F.2d 680, 682 (9th Cir. 1986) (“In this country, ‘the
prevailing litigant is ordinarily not entitled to collect a
reasonable attorneys’ fee from the loser.’” (quoting Alyeska,
421 U.S. at 247)).

Bridge acknowledges that there is no federal

statute allowing for an award of attorneys’ fees in takings
cases.

See ECF No. 384-1, PageID # 9114 (stating that there

“appears to be no statutory provision that explicitly provides
for an award of attorneys’ fees to the plaintiff, such as
Bridge, who successfully proves that the State committed an
unconstitutional taking”).
Bridge therefore seeks attorneys’ fees pursuant to the
private attorney general doctrine, which is a common law
doctrine under Hawaii state law.

See ECF No. 384.

In relying

on this state doctrine, it is not clear whether Bridge is
seeking fees relating to claims it brought under only the Hawaii
constitution, or also under the federal Constitution.

This

court exercised supplemental jurisdiction over the state claims.
So long as “state law does not run counter to a valid federal
statute or rule of court, and usually it will not, state law
denying the right to attorney’s fees or giving a right thereto,
which reflects a substantial policy of the state, should be
followed.”

Alyeska, 421 U.S. at 259 n.31 (quoting 6 Moore’s

Federal Practice § 54.77[2] (2d ed. 1974)).
18

Federal common law

does not recognize the private attorney general doctrine, but
there is no conflicting federal statute or rule of court.

See

id. at 241.
Two things are worth noting about whether the private
attorney general doctrine provides a means for Bridge to obtain
an attorneys’ fee award.

First, under the circumstances of this

case, this court is treating the applicability of that doctrine
as a matter going to the merits of Bridge’s attorneys’ fee
claim, not to this court’s jurisdiction to address those merits.
Second, if the private attorney general doctrine is the source
of any claim to attorneys’ fees, it likely applies, as a
doctrine under state law, only to state claims on which Bridge
prevailed.
this point.

As noted earlier, Bridge’s motion is ambiguous on
In its moving papers, Bridge refers to the takings

clauses under the federal and state constitutions.

No party has

identified any takings matter that would have been handled
differently depending on whether the federal or state
constitution was at issue, so the distinction appears to have no
effect on the amount of fees or costs claimed.

But, as a legal

proposition, Bridge cites no authority for a fee award under
state law for a victory under federal law.

This court therefore

examines the private attorney general doctrine as applicable to
Bridge’s state claims.

19

Under Hawaii law, the private attorney general
doctrine “is an equitable rule that allows courts in their
discretion to award attorneys’ fees to plaintiffs who have
‘vindicated important public rights.’”

In re Water Use Permit

Applications, 96 Haw. 27, 32, 25 P.3d 802, 804 (2001) (“Waiahole
II”) (quoting Arnold v. Dep’t of Health Servs., 775 P.2d 521,
537 (Ariz. 1989)).

Courts applying the private attorney general

doctrine consider three “prongs”: “(1) the strength or societal
importance of the public policy vindicated by the litigation,
(2) the necessity for private enforcement and the magnitude of
the resultant burden on the plaintiff, [and] (3) the number of
people standing to benefit from the decision.”

Id. (quoting

Serrano v. Priest, 569 P.2d 1303, 1314 (Cal. 1977)).
The court adopts the F&R’s analysis of the private
attorney general doctrine.

Bridge does not satisfy any of the

three prongs and is therefore not entitled to attorneys’ fees
under the private attorney general doctrine.

See Goo v.

Arakawa, 132 Haw. 304, 318, 321 P.3d 655, 669 (2014) (“All three
prongs must be satisfied by the party seeking attorneys’
fees.”).
1.

Prong One: Vindication of a Public
Policy of Strong or Societal Importance.

A public policy of strong or societal importance is
vindicated when a case involves “constitutional rights of

20

profound significance” and when “all of the citizens of the
state, present and future, [stand] to benefit from the
decision.”

Waiahole II, 96 Haw. at 31, 25 P.3d at 806.
In its Motion, Bridge argues that it satisfies the

first prong because “[t]he litigation, and the results achieved,
will serve as a benchmark for land use regulation and
constitutional protection of rights of private property
ownership.”

ECF No. 384-1; PageID # 9101.

Bridge further

argues that “[t]his action established that, in administering
its duties under HRS Chapter 205, the State should--and indeed,
must--give consideration to an affected landowner’s
constitutional rights, something that the State previously
refused to do.”

ECF No. 402, PageID # 9639.

As detailed in the F&R, the Hawaii Supreme Court has
addressed whether the plaintiffs met the first prong in three
other cases, none of which supports Bridge’s argument that the
present case involves a matter of public policy.

First, in

Sierra Club v. Department of Transportation of State of Hawai‘i,
the Hawaii Supreme Court examined whether an environmental
assessment was needed before the development of the Hawaii
Superferry, an inter-island ferry service.

See 120 Haw. 181,

186-87, 202 P.3d 1226, 1231-32 (2009) (“Superferry II”).

The

first prong was satisfied because the case “establish[ed] the
principle of procedural standing in environmental law in Hawai‘i
21

and clarif[ied] the importance of addressing the secondary
impacts of a project in the environmental review process
pursuant to HRS chapter 343.”

Id. at 220, 202 P.3d at 1265.

Second, in In re Honolulu Construction and Draying
Company, the litigation focused on Irwin Park, a public park in
Honolulu.
II”).

See 130 Haw. 306, 310 P.3d 301 (2013) (“Irwin Park

At issue was whether the court should expunge deed

restrictions requiring that the park be preserved as a public
park.

See id. at 310-11, 310 P.3d at 305-06.

The significant

public concern satisfying the first prong was “the preservation
of public parks and historic sites in the State.”

Id. at 314,

310 P.3d at 309 (citing HRS § 6E-1) (“The Constitution of the
State of Hawai‘i recognizes the value of conserving and
developing the historic and cultural property within the state
for the public good.”).
Finally, Kaleikini v. Yoshioka concerned the Honolulu
High-Capacity Transit Corridor Project, a planned 20-mile rail
project, and whether an archaeological inventory survey was
required to identify historic properties and burial sites in the
project area.

See 129 Haw. 454, 458, 304 P.3d 252, 256 (2013).

The Hawaii Supreme Court held that the first prong was met
because the case “was responsible for clarifying the principle
of procedural standing in historic preservation law in Hawai‘i,
and clarifying the importance of addressing impacts on historic
22

properties prior to approval and commencement of projects that
are subject to the provisions of HRS chapter 6E.”

Id. at 463-

64, 304 P.3d at 261-62.
Bridge argues that the first prong is satisfied
because it prevailed on a constitutional matter involving a
state entity’s regulation of land.

Yet Superferry II, Irwin

Park II, and Kaleikini make clear that the first prong requires
the protection of a public good, such as protection of the
environment, public spaces, or historic sites.

By contrast,

Bridge litigated this case not to protect a public good but to
recover damages for itself.

See Maunalua Bay Beach Ohana 28 v.

State, No. 28175, 2010 WL 2329366, at *13 (Haw. June 9, 2010)
(“The very nature of a takings claim[] protects the interest of
the private party or parties from whom the State has taken
property.”).

As stated in the F&R, Bridge “has not vindicated

an important public right in this case; rather, Plaintiff has
vindicated an important private right.”

ECF No. 428, PageID

# 11311.
Characterizing the Magistrate Judge’s “interpretation
of the first prong of the doctrine” as “too restrictive,” Bridge
says that to deny it “fees would be an overly-formalistic
application of what it means to vindicate an important public
policy.”

ECF No. 429, PageID # 11343 (quoting Irwin Park II,

130 Haw. at 315, 310 P.3d at 310).
23

Bridge provides no further

argument on this objection and does not cite any case law
holding that vindication of a private property right meets the
first prong.
Bridge quotes Irwin Park II out of context.

One of

the issues in Irwin Park II was whether the lower court’s ruling
was sufficiently connected to the public policy at issue--i.e.,
the future of a public park--such that the policy could be
considered “vindicated” by the litigation.

The Hawaii

Intermediate Court of Appeals (“ICA”) held that the ruling was
“only tangential to the ultimate disposition and future use of
Irwin Park,” but the Hawaii Supreme Court disagreed and called
the ICA’s interpretation “too restrictive” and “overlyformalistic.”

See 130 Haw. at 315, 310 P.3d at 310.

The Hawaii

Supreme Court held that the first prong “requires that the
litigation have vindicated a public policy, but does not require
that the public policy be the subject of the litigation itself.”
Id.

The Hawaii Supreme Court clarified that “an organization

may seek to vindicate public policy through litigation on
discrete issues, so long as the resolution of the litigation in
favor of the organization vindicates a public policy goal, and
that policy satisfies the first prong of the test.”

Id.

Nothing in the portion of Irwin Park II quoted by Bridge
suggests that this case involves an important public policy or
that the Magistrate Judge’s analysis is incorrect.
24

No matter

how one defines the subject of this lawsuit, its resolution
vindicates Bridge, not a public policy goal.
Bridge fails to satisfy the first prong because this
case did not vindicate a public policy of strong or societal
importance.
2.

Prong Two: Necessity for Private
Enforcement and the Magnitude of the Burden
on Bridge.

Underlying Hawaii’s adoption of the private attorney
general doctrine is the recognition that “citizens in great
numbers and across a broad spectrum have interests in common”
and that these interests, “while of enormous significance to the
society as a whole, do not involve the fortunes of a single
individual to the extent necessary to encourage their private
vindication in the courts.”

Irwin Park II, 130 Haw. at 315, 310

P.3d at 310 (quoting at Waiahole II, 96 Haw. at 30, 25 P.3d at
802).

In other words, lawsuits vindicating interests of great

societal significance might never be brought because any
individual stake in the case might be insufficient to justify
the costs of litigation.

The private attorney general doctrine

is intended to offset the burdens of litigation and encourage
citizens to litigate these important common interests.

This

background clarifies why the second prong considers the
“necessity for private enforcement” and the “magnitude of the

25

resultant burden on the plaintiff.”

Waiahole II, 96 Haw. at 32,

25 P.3d at 804.
Bridge argues that it satisfies the second prong
because it “alone bore a heavy burden that spanned years, in an
action that the State--in recognition of the high stakes that
the litigation presented--hotly contested and vigorously
litigated every step of the way, through proceedings on the
docket, then in circuit court, then in state and federal
appellate courts, and finally in this Court.”

ECF No. 384-1,

PageID # 9102.
As the Magistrate Judge correctly concluded, the
second prong requires more.

To satisfy the second prong, the

plaintiff must be the sole plaintiff “representing the public
interest” or “advocating the public interest.”
II, 130 Haw. at 316, 310 P.3d at 311.

See Irwin Park

For example, in

Superferry II, the second prong was met because “it was
necessary for the plaintiff to bring the action to enforce the
duties owed by [the] Department of Transportation . . . to the
public under the Hawai‘i Constitution.”

Id. (summarizing the

holding of Superferry II, 120 Haw. at 220, 202 P.3d at 1265)
(emphases added).

In contrast, in Waiahole II, the Hawaii

Supreme Court held that the plaintiff did not satisfy the second
prong because it “‘represented one of many competing public and
private interests in an adversarial proceeding,’ and thus was
26

not the sole representative challenging an established
governmental policy.”

Id. at 315-16 (summarizing the holding of

Waiahole II, 96 Haw. at 31-32, 25 P.3d at 806-07).
This case “involve[d] the fortunes of a single
individual”--Bridge.
P.3d at 311.

See Irwin Park II, 130 Haw. at 316, 310

As discussed above, the private attorney general

doctrine is not intended to encourage an individual to vindicate
private rights in court.

The F&R correctly states, “Bridge

owned the property; thus, Bridge alone enjoys any pecuniary
benefit from the litigation.”

ECF No. 428, PageID # 11319

(citing Hi-Tech Rockfall Const., Inc. v. Cty. of Maui, No. CV
08-00081 DAE-LEK, 2009 WL 529096, at *19 (D. Haw. Feb. 26, 2009)
(finding that the plaintiff could not meet the second prong of
the PAG test because “Plaintiff is the only person standing to
benefit from a decision on its remaining claims”).

With respect

to Bridge’s burden, the court can certainly attest to the
lengthy and litigious nature of the proceedings, but that alone
is insufficient to satisfy the second prong.
Bridge also argues that the F&R “would impose a new
hurdle for plaintiffs who vindicate [public] policies . . . and
would disincentivize--or prevent--plaintiffs from bringing
actions that vindicate such policies.”
# 11345.

ECF No. 429, PageID

Bridge references the Magistrate Judge’s

“acknowledgment that ‘Hawai‘i’s private attorney general
27

doctrine does not prohibit plaintiffs from gaining a personal
benefit.’”

Id. (quoting ECF No. 428, PageID # 11315).

Bridge’s

argument misses the point; Bridge is not a plaintiff who
vindicated a public policy.

This case involved Bridge’s private

property interests, not interests of “enormous significance to
the society as a whole.”

Irwin Park II, 130 Haw. at 315, 310

P.3d at 310.
As a result, Bridge fails to satisfy the second prong.
3.

Prong Three: Number of People Standing to
Benefit from Bridge’s Win.

As summarized in the F&R, “the Hawai‘i Supreme Court
has found that the third prong of the private attorney general
doctrine was satisfied in cases (1) in which ‘all citizens of
the state, present and future, stood to benefit from the
decision’; (2) with ‘general precedential value’ on a
government’s obligation as to public parks and historic
preservation; and (3) in which society as a whole would have
benefited.”

ECF No. 428, PageID # 11321 (citing Waiahole II, 96

Haw. at 31, 25 P.3d at 806; Irwin Park II, 130 Haw. at 319, 310
P.3d at 314; Superferry II, 120 Haw. at 221, 202 P.3d at 1266);
see also Nelson v. Hawaiian Homes Comm’n, 130 Haw. 162, 307 P.3d
142, 148 (2013) (finding the third prong satisfied when the
decision benefited the Hawaiian Home Lands trust, and

28

“stewardship of Hawaiian Home Lands was an obligation taken on
by the State as a condition for admission into the union”).
Bridge argues that this case will have “value to
society as whole” because it (1) “cleared the way for
development of the Property, which will provide, among other
things, housing and jobs to the public”; (2) “revitalized and
affirmed constitutional protections, in a case that will have
precedential value for the public good”; and (3) “helped bring
clarity to the LUC’s duties under Haw. Rev. Stat. Chapter 205,
and helped ensure that the LUC will perform those duties as
written and in accordance with the public’s countervailing
constitutional rights.”

ECF No. 384-1, PageID #s 9103-04.

Bridge’s arguments are unavailing.

Bridge’s assertion

that development of its property will benefit the public is
speculative.

Moreover, this case did not involve any public

good, but rather a piece of privately owned, privately operated
property.

The jury concluded only that Bridge “proved by a

preponderance of the evidence that a taking occurred.”
374, PageID # 7470.

ECF No.

The jury verdict did not obligate Bridge to

use the property for any public purpose.

Nor did it establish

any “generally applicable law” regarding issues that are “for
the public good” or “in the public interest.”

See Kaleikini,

129 Haw. at 466, 304 P.3d at 264 (quoting Superferry II, 120
Haw. at 221, 202 P.3d at 806; HRS § 6E-1) (finding that the
29

third prong was satisfied when the Hawaii Supreme Court’s
opinion on appeal established law “regarding standing to enforce
historic preservation laws”).
In fact, the litigation that allowed development of
the property was the administrative appeal that resulted in the
Hawaii Supreme Court’s decision that the LUC had wrongly changed
the land classification.

The present case did not decide

whether development could proceed.

This court waited for the

Hawaii Supreme Court’s ruling before tackling certain issues.
Nor does this court agree with Bridge that the third
prong is affected by this court’s order denying LUC’s “Motion
for Judgment as a Matter of Law, or in the Alternative, for a
New Trial.”

Bridge argues that the order “will almost certainly

provide courts within this district and the State of Hawaii (and
elsewhere) with valuable guidance as to the complex
constitutional issues that this action raised.”
PageID # 11346.

ECF No. 429,

Regardless of whether that order is helpful to

courts addressing issues similar to those raised in LUC’s
motion, the order does not support Bridge’s claim that the
litigation is of value to all citizens of the State of Hawaii.
The crux of Bridge’s argument is that its claim
involved conduct by a state entity charged with regulating land.
But a case involving the rights of one citizen does not
necessarily satisfy the third prong.
30

There must be some

connection to a public good or public interest.

As aptly stated

by the Magistrate Judge, “If this Court were to accept Bridge’s
arguments regarding the reasons for its entitlement to
attorneys’ fees in this case, every case involving a taking
would be entitled to attorneys’ fees under the private attorney
general doctrine.”

ECF No. 428, PageID # 11323.

Bridge asserts that the Magistrate Judge misapplied
the relevant Hawaii case law.

ECF No. 429, PageID # 11346

(“[U]nder the very same cases that the Magistrate found
‘instructive,” . . . Bridge satisfied prong three of the
[private attorney general test].”

ECF No. 429, PageID # 11346.

This conclusory statement, presented without argument or
reference to specific cases, is without merit.
The Magistrate Judge correctly concluded that Bridge
was not entitled to attorneys’ fees pursuant to Hawaii’s private
attorney general doctrine.
C.

Bridge Is Entitled to $15,085.51 in Costs.

The Federal Rules of Civil Procedure provide, “Unless
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

Local Rule 54.2(a) (“Costs shall be taxed as provided in Fed. R.
Civ. P. 54(d)(1).”).

Under the Local Rules of the District of

31

Hawaii, “[c]osts are taxed in conformity with 28 U.S.C. §§ 1821,
1920-1925, and other applicable statutes.”

Local Rule 54.2(f).

As the prevailing party, Bridge requested $62,810.06
in costs as follows:
Service

Cost

Deposition services

$13,656.41

Outside printing and copies

$7,251.15

Mediation services

$5,785.33

Travel expenditures

$2,459.40

Process servers

$1,656.54

Filing fees

$519.00

Witness and mileage fees

$512.00

Courier services

$79.18

Experts services

$30,891.05

Total

$62,810.06

ECF No. 384-1, PageID # 9129.
In its Motion, Bridge argues that, under 28 U.S.C.
§ 1920(2)-(4), “deposition services” and “outside printing and
copies” could be taxed as costs.

Id. at 9130.

Bridge concedes

that the remaining categories do not fall under § 1920, but says
they concern nontaxable expenses that should be awarded as part
of its attorneys’ fees award.

See id. at 9131-32.

32

Because Bridge is not entitled to an award of
attorneys’ fees, the Magistrate Judge found only the § 1920
categories compensable.

ECF No. 428, PageID # 11331.

The

Magistrate Judge determined that $13,656.41 in deposition costs,
unopposed by the LUC, were reasonable.

Id. at 11336.

However,

the Magistrate Judge found reasonable only $1,429.10 of the
requested $7,251.15 in copying costs.
A party seeking copying costs under § 1920(4) must
show that the copies were “necessarily obtained for use in the
case.”

In re Online DVD-Rental Antitrust Litig., 779 F.3d 914,

928 (9th Cir. 2015).

To make such a showing, the party must

provide some detail regarding the use of the documents copied.
See Local Rule 54.2(f) (“The cost of copies necessarily obtained
for use in the case is taxable provided the party seeking
recovery submits an affidavit describing the documents copied,
the number of pages copied, the cost per page, and the use of or
intended purpose of the items copied.”); see also Online DVDRental Antitrust Litig., 779 F.3d at 928 (“‘Document production’
and other similarly generic statements on the invoices are
unhelpful in determining whether [copying costs under § 1920(4)]
are taxable.” (quoting In re Ricoh Co., Ltd. Patent Litig., 661
F.3d 1361, 1368 (Fed. Cir. 2011))).
For $1,429.10 of the copying costs, the Magistrate
Judge was able to discern from the invoices and Bridge’s
33

description that those copies were for Bridge’s trial exhibits
and Ninth Circuit briefs.

ECF No. 428, PageID # 11333.

For the

remaining costs, Bridge included no description of the use of
the copies in the litigation, so the Magistrate Judge declined
to award those copying costs.
The F&R therefore recommended that this court grant
Bridge an award of $13,656.41 in deposition costs and $1,429.10
in copying costs, for a total of $15,085.51.

Id. at 11336.

Both Bridge and the LUC object to the F&R’s analysis of copying
costs. 3

The court agrees with the Magistrate Judge and adopts

the F&R’s recommendation in this regard.
1.

Bridge’s Objection: Entitlement to an
Additional $5,510.26 in Copying Costs.

Bridge argues that the Magistrate Judge could have
determined that $5.510.26 worth of additional copies were
necessarily obtained for the litigation.
# 11349.

ECF No. 429, PageID

Bridge focuses on a Honolulu Copy invoice totaling

$5,510.26 dated March 5, 2018.
No. 384-11, PageID # 9228.

ECF No. 429, PageID # 11349; ECF

Bridge argues that the Magistrate

Judge could have determined that these copies were used for
trial exhibits because the date of the Honolulu Copy invoice was
close in time to two invoices that the Magistrate Judge deemed
3

Bridge also argues that nontaxable expenses should be awarded
as part of its attorneys’ fees award. ECF No. 429, PageID
#s 11350-51. This court’s conclusion that Bridge is not
entitled to attorneys’ fees renders this objection unpersuasive.
34

compensable: one dated March 2, 2018, and another dated March
12, 2018.

See id.

Bridge also argues that the LUC’s opposition

brief and Bridge’s reply brief indicated that Bridge’s copying
costs were for trial exhibits.

See id. 4

Bridge’s argument is unconvincing.

The court can

determine that the March 2 and March 12 invoices were for
exhibits by looking at Bridge’s Motion and its exhibits.
Bridge’s description for the March 2 invoice was “Photocopies of
Exhbits [sic] 2001 to 2083,” and the March 12 invoice states
that the copies were for “Exhibit 037.”
# 9208; ECF No. 384-11, PageID # 9229.

ECF No. 348-9, PageID
By contrast, the

Honolulu Copy invoice dated March 5 provides no description for
the use of the copies, and Bridge provides none in its Motion.
See ECF Nos. 348-9, 349-11.

Further, neither the LUC’s

opposition brief nor Bridge’s reply brief mentions the $5,510.26
in copying costs; both make general arguments with respect to
Bridge’s use of trial exhibits.

See ECF Nos. 399, 402.

It was Bridge’s responsibility to clearly set forth
what copies were made and for what purpose.
4

Bridge wrongly

Bridge states that “[t]he State recognized that the subject
invoice for $5,510.26 was for copying exhibits that Bridge
intended for use at trial, and the State vehemently opposed
their award.” ECF No. 429, PageID # 11349 (citing ECF No. 399,
PageID #s 9559-60). Bridge overstates the LUC’s opposition
brief. The LUC never mentioned the $5,510.26 invoice, but
rather argued that the court “should not award $7,251.15 in
copying costs” because Bridge’s “exhibits were unnecessary.”
ECF No. 399, PageID # 9559.
35

suggests that the court must infer compensability by comparing
separate invoices, or by extrapolating from general references
made in other briefs.

The Magistrate Judge correctly determined

that Bridge is not entitled to an additional $5,510.26 in
copying costs because Bridge did not demonstrate that such costs
were necessarily obtained for use in the case.
2.

LUC’s Objection: Unreasonableness of Copying
Costs.

The LUC objects to the F&R’s recommendation regarding
copying costs because “[t]he Magistrate Judge failed to give
weight to the [LUC’s] argument that plaintiff’s copying costs
should be reduced based upon plaintiff’s unreasonably excessive
naming of exhibits.”

ECF No. 431, PageID # 11359.

The LUC

argues that Bridge “was needlessly naming hundreds of
unnecessary trial exhibits totaling thousands of pages” and that
this court “should award no more than $725.15,” which is ten
percent of Bridge’s requested amount.

Id. at 11359-60.

The LUC offers no way to determine which of Bridge’s
trial exhibits were necessary and which were “needlessly
nam[ed].”

Moreover, $725.15 is an arbitrary amount; the LUC

offers no support for limiting any award to ten percent of
Bridge’s requested copying costs.

This court saw the high

number of unused exhibits at trial, but the court has no basis
for saying that a prudent attorney should have known that

36

numerous exhibits would not be needed during trial proceedings,
which always include uncertainties.

The check on any attorney

is the risk of not prevailing at trial and therefore of not
recovering costs.

In the context of this case, the court

declines to evaluate Bridge’s trial preparation in the manner
proposed by LUC and adopts the Magistrate Judge’s recommendation
with respect to this argument by the LUC.
Bridge is awarded $15,085.51 in costs pursuant to 28
U.S.C. § 1920(2)-(4).
V.

CONCLUSION.
The court adopts the F&R with modified reasoning on

the issue of the LUC’s sovereign immunity.

The LUC waived its

sovereign immunity with respect to attorneys’ fees, but Bridge
has not demonstrated that it is entitled to attorneys’ fees.
The court awards Bridge $15,085.51 in costs.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 20, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Bridge Aina Le‘a, LLC v. Hawaii Land Use Comm’n et al., Civ. No.
11-00414 SOM-KJM; ORDER MODIFYING AND ADOPTING AS MODIFIED THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS REGARDING
ATTORNEYS’ FEES AND COSTS.
37