Reimer v. Kuki'o Golf And Beach Club, Inc. et al

Filing 221

ORDER DENYING PLAINTIFF'S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR FEES AND COSTS, FILED ON JULY 2, 2014; AND ADOPTING THE FINDINGS AND RECOMMENDATION re 217 Findings and Recommendations. Signed by JUDGE LESLIE E. KOBAYASHI on 08/29/2014. -- Reimer's Motion for Attorneys Fees and Costs, filed May 9, 2014, is therefore GRANTED IN PART AND DENIED IN PART. The Fee Motion is GRANTED ins ofar as this Court AWARDS Reimer $1,471.60 in attorneys' fees and $9,833.15 in costs, for a total award of $11,304.75. The Fee Motion is DENIED in all other respects. This Court ORDERS Kuki'o to pay the award to Reimer, thro ugh his counsel, by no later than October 30, 2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JEFFREY REIMER, an
individual,

)
)
)
Plaintiff,
)
)
vs.
)
)
KUKI’O GOLF AND BEACH CLUB,
)
INC., a Hawaii corporation;
)
MELANIE AIONA, an individual; )
DOES 1-10; and ROE
)
CORPORATIONS 1-10,
)
)
Defendants.
)
_____________________________ )

CIVIL 12-00408 LEK-BMK

ORDER DENYING PLAINTIFF’S OBJECTIONS TO
THE FINDINGS AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART PLAINTIFF’S MOTION FOR FEES AND COSTS, FILED
ON JULY 2, 2014; AND ADOPTING THE FINDINGS AND RECOMMENDATION
On July 2, 2014, the magistrate judge filed his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff’s Motion for Fees and Costs (“F&R”).

[Dkt. no. 217.]

Plaintiff Jeffrey Reimer (“Reimer”) filed his objections to the
F&R (“Objections”) on July 16, 2014.

[Dkt. no. 219.]

Defendant

Kuki`o Golf & Beach Club, Inc. (“Kuki`o”) filed its response to
Reimer’s Objections (“Response”) on July 18, 2014.
220.]

[Dkt. no.

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(e) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

Objections, the Response, and the relevant legal authority, the

Objections are HEREBY DENIED and the F&R is HEREBY ADOPTED, for
the reasons set forth below.
BACKGROUND
The basis of this action is set forth in this Court’s
February 7, 2013 Order Granting in Part and Denying in Part
Plaintiff’s Motion for Summary Judgment (“2/7/13 Order”):1
Reimer filed his Complaint in the instant
case on July 19, 2012. In the Complaint, Reimer
alleges that he and his wife are members at the
Kuki`o Golf and Beach Club [(“the Club”)] on the
island of Hawai`i. A number of years ago, Reimer
suffered a severe closed head injury and, as a
result, suffers from Traumatic Brain Injury
(“TBI”). Because of Reimer’s TBI, he “is prone to
make off-hand comments.” [Compl. at ¶¶ 7, 9-11.]
On January 13, 2012, Reimer made such a
comment when engaging in a conversation with his
therapist, Ms. Hoyle, at the Club. Defendant
Aiona overheard the comment and complained to the
Club’s management that Reimer had “verbally
assaulted her . . . , even though Reimer never
talked to, or engaged in a conversation with
[her.]” [Id. at ¶ 29.] Reimer alleges that
Defendant Aiona has “unreasonable and unjustified
sensitivities to statements she overhears from
Club members and guests” as a result of her
previous involvement in a 2010 employment
discrimination arbitration (the “Van Calcar
Arbitration”). [Id. at ¶ 31.]
2013 WL 504866, at *1 (some alterations in 2/7/13 Order).

On

January 15, 2012, as a result of Aiona’s complaint, Kuki`o
suspended Reimer’s Club membership.

Reimer responded to the

suspension letter by apologizing and clarifying that the comment

1

The 2/7/13 Order is also available at 2013 WL 504866.
2

was the result of his TBI and was not directed at Aiona.

He also

requested a formal hearing pursuant to the Club’s governing
documents.

The Complaint alleged that the suspension violated

the Club’s bylaws, which provide that a member’s Club privileges
must continue during the pendency of an investigation.

The Club,

however, did not schedule a formal hearing regarding the
suspension and did not reinstate his membership privileges.

Id.

(citing Compl. at ¶¶ 32-34, 36-39).
The Complaint alleged the following claims: violation
of the Americans with Disabilities Act (“ADA”) (Count I); breach
of contract (Count II); breach of the covenant of good faith and
fair dealing (Count III); defamation (Count IV); intentional
misrepresentation (Count V); negligent misrepresentation (Count
VI); negligent hiring and retention (Count VII); negligent
supervision (Count VIII); negligence (Count IX); and declaratory
relief (Count X).

Based on the dispute resolution provision in

the Club’s bylaws, this Court “sever[ed] Counts IV, V, VI, VII,
VIII, and the portions of Count IX claiming negligence against
Defendant Aiona and against the Club in connection with its
handling of the Van Calcar Arbitration settlement, and direct[ed]
the parties to submit these claims to mediation, and, if
necessary, arbitration.”

Id. at *7.

In the April 11, 2013 Order Granting Defendants’ Motion
for Partial Summary Judgment (“4/11/13 Order”), this Court

3

granted summary judgment in favor of Defendants as to Count I.
[Dkt. no. 53.2]
On April 14, 2014, this Court approved the parties’
stipulation to: dismiss Counts IV, V, VI, VII, and VIII; dismiss
certain portions of Count IX; dismiss Defendant Melanie Aiona’s
(“Aiona”) Counterclaim; and cancel the arbitration.
163.]

[Dkt. no.

Thus, the only claims that proceeded to trial were claims

against Kuki`o - Count II, Count III, and the portion of Count IX
based on the suspension and disciplinary matter.3
The jury trial began on April 15, 2014 with jury
selection and opening statements.
on April 16, 17, 18, and 23.

The parties presented evidence

The evidence presented at trial was

consistent with the allegations in the Complaint, except that
Kuki`o presented testimony challenging Reimer’s evidence that the
comment he made was the result of his TBI, as well as testimony
that the comment was in fact directed at Aiona.

There was also

evidence that Kuki`o reinstated Reimer’s Club privileges in a
letter dated March 23, 2012, but Reimer never went back to the
Club because he believed that the reinstatement was conditional.
He testified that he could not comply with the conditions because
of his TBI.

2

The 4/11/13 Order is also available at 2013 WL 1501522.

3

When necessary, this Court will refer to Kuki`o and Aiona
collectively as “Defendants.”
4

The parties presented closing arguments and the jury
began deliberations on April 24, and the jury returned its
verdict on April 25.
Counts II and III.

The jury found in favor of Reimer as to
As to Count IX, the jury found that Kuki`o

was negligent, but it also found that Reimer was negligent, and
it found that Kuki`o and Reimer were each fifty percent
negligent.
188).]

[Special Verdict Form Part 1, filed 4/25/14 (dkt. no.

The jury found that Reimer’s damages for Counts II and

III were $7,163.93,4 but it reduced his damages by $1,297.54
because he failed to reasonably mitigate his damages.
also found that Reimer had no damages for Count IX.

The jury
[Special

Verdict Form Part 2, filed 4/25/14 (dkt. no. 189).]
On April 30, 2014, the Clerk of Court entered final
judgment in favor of Reimer in the amount of $5,866.39.

[Dkt.

no. 191.]
On May 9, 2014, Reimer filed his Motion for Attorneys’
Fees and Costs (“Fee Motion”).

[Dkt. no. 201.]

Reimer seeks

$503,459.75 in attorneys’ fees and $103,180.73 in costs.

The

majority of Reimer’s request for costs, $92,703.85 incurred by
the Gunderson Law Firm, is presented in the form of a Bill of
Costs.

[Fee Motion, Aff. of Catherine A. Reichenberg, Esq.

4

Kuki`o presented evidence that this amount represented the
portion of Reimer’s annual Club membership fee attributable to
the period from the suspension on January 15, 2012 to
reinstatement on March 23, 2012.
5

(“Reichenberg Aff.”), Exh. 5 (“Gunderson Bill of Costs”).]

In

the F&R, the magistrate judge recommends that this Court award
Reimer $1,471.60 in attorneys’ fees and $9,833.15 in costs.

[F&R

at 1, 18.]
In the Objections, Reimer raises a general challenge to
the F&R as a whole, and he raises three specific objections to
the recommended award of costs.
STANDARD
This Court reviews a magistrate judge’s findings and
recommendations under the following standard:
When a party objects to a magistrate judge’s
findings or recommendations, the district court
must review de novo those portions to which the
objections are made and “may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also United States v.
Raddatz, 447 U.S. 667, 673 (1980); United States
v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and
recommendations de novo if objection is made, but
not otherwise.”).
Under a de novo standard, this Court reviews
“the matter anew, the same as if it had not been
heard before, and as if no decision previously had
been rendered.” Freeman v. DirecTV, Inc., 457
F.3d 1001, 1004 (9th Cir. 2006); United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The
district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at
its own independent conclusion about those
portions of the magistrate judge’s findings or
recommendation to which a party objects. United
States v. Remsing, 874 F.2d 614, 616 (9th Cir.
1989).

6

PJY Enters., LLC v. Kaneshiro, Civil No. 12–00577 LEK–KSC, 2014
WL 3778554, at *2 (D. Hawai`i July 31, 2014) (alteration in PJY)
(citation omitted).
DISCUSSION
I.

Scope of Review
In the Objections, Reimer first argues that he is

entitled to all of the fees and costs that he requests in his Fee
Motion.

He therefore objects to the F&R in its entirety.

[Objections at 2.]

Reimer, however, only raised specific

objections regarding: the witness fees for Wade Smith, M.D., and
Jay Schroeder, M.D.; counsel’s in-house copying costs; and the
copying costs for Dr. Smith’s and Dr. Schroeder’s medical
records, which were made available to each of the doctors for use
during his testimony.

Reimer states that he raises these

specific objections “without waiving any of his arguments.”
[Id.]
The Ninth Circuit has recognized that a district court
is only required to review the portions of the magistrate judge’s
findings and recommendations that are objected to.

Reyna–Tapia,

328 F.3d at 1121 (9th Cir. 2003) (stating that § 636(b)(1)(C)
“makes it clear that the district judge must review the
magistrate judge’s findings and recommendations de novo if
objection is made, but not otherwise”).

Further, Local Rule 74.2

requires that a party’s objections to the magistrate judge’s

7

findings and recommendation “specifically identify the portions
of the order, findings, or recommendations to which objection is
made and the basis for such objections.”

(Emphases added.)

Reimer failed to raise a specific objection to any portion of the
F&R other than the three types of costs described above.

Based

on the applicable legal authority, this Court finds that Reimer
waived all other objections to the F&R.

Thus, the scope of this

Order is limited to those three types of costs.
As to the aspects of the F&R that Reimer did not object
to, this Court ADOPTS those portions of the F&R as the order of
this Court.
II.

Witness Fees
The F&R states:
Reimbursement of costs for a litigant’s
witnesses is expressly limited by 28 U.S.C. § 1821
to $40 per day and reasonable travel expenses “at
the most economical rate reasonably available” on
a common carrier. 28 U.S.C. §§ 1821(b),
(c)(1); see also Crawford fitting [sic] Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987)
(holding courts may not tax [a] litigant’s expert
witness costs in excess of limit set by 28 U.S.C.
§ 1821(b)). Reimer’s request for $7,150 for five
days of attendance at trial and deposition by
Kelly Hoyle and Wade Smith, M.D. is clearly in
excess of amount allowed by section 1821(b).
Reimbursement for these witnesses’ attendance
should be limited to $200 ($40 per day for five
days).

[F&R at 12-13.]

In the Objections, Reimer argues that: “It is

unclear whether or not the Magistrate intended the ‘$200 ($40 per
day for five days)’ to apply to each witness that Plaintiff
8

called that was not also called by Defendant Kuki`o.”
[Objections at 2.]

Reimer assumes that the magistrate judge

awarded the $200 in witness fees for Kelly Hoyle, and Reimer
argues that he is also entitled to $200.00 for Dr. Smith and
$200.00 for Dr. Schroeder.

[Id. at 2-3.]

Reimer’s Fee Motion, however, only requests witness
fees for four days for Ms. Hoyle and for one day for Dr. Smith.
It does not request witness fees for Dr. Schroeder.
Bill of Costs at 2.5]

[Gunderson

Thus, this Court finds that Reimer is only

entitled to $40.00 in witness fees for Dr. Smith, and he is not
entitled to any witness fees for Dr. Schroeder.

This Court

DENIES Reimer’s Objections as to his argument that the magistrate
judge should have awarded $200.00 in witness fees for Dr.
Schroeder and $200.00 in witness fees for Dr. Smith.
In addition, this Court notes that Ms. Hoyle testified
on April 16, 2014.

Based on the invoices provided for her travel

expenses, she was only on Oahu for trial from April 15, 2014 to
April 16, 2014.

[Reichenberg Aff., Exh. 3 at 26, 42, 46.]

This

Court therefore FINDS that Reimer is only entitled to two days of

5

In addition to the costs reflected in the Gunderson Bill
of Costs, the Fee Motion also seeks $10,476.88 in costs incurred
by Hosoda & Morikone, LLC (“H&M”). This includes $260.79 in
witness and mileage fees. [Fee Motion, Decl. of Lyle S. Hosoda
(“Hosoda Decl.”) at ¶ 11.] The amount, however, did not include
a request for Dr. Schroeder. [Hosoda Decl., Exh. 8.] The
magistrate judge found that Reimer is entitled to the $260.79 in
witness and mileage fees. [F&R at 17.]
9

witness fees, i.e. $80.00, for Ms. Hoyle.

This Court, however,

declines to adjust the award recommended in the F&R.
III. In-House Photocopying Costs
The F&R states:
Reimer seeks $1,431.50 for “in house
printing” of 4090 pages of letters, pleadings, and
other miscellaneous documents at the Gundersen
[sic] Firm. 28 U.S.C. § 1920(4) provides that
“fees for exemplification and the costs of making
copies of any materials where the copies are
necessarily obtained for use in the case,” are
reimbursable costs. Pursuant to LR 54.2(f)(4),
the cost of copies “necessarily obtained for use
in a case,” but not “for the use and/or
convenience of the party seeking recovery and its
counsel” is compensable. LR 54.2(4) also requires
that the party seeking costs describe “the
documents copied, the number of pages, the cost
per page, and the use of or intended purpose for
the items copied.” Reimer fails to show that the
Gundersen [sic] Firm’s “in house” printing costs
were for items that were utilized for more than
the “use and convenience” of counsel and their
client. See Griffin v. JTSI, Inc., Civ. No. 08242 ACK-BMK, 2009 WL 5126335 (D. Haw. Dec. 28,
2009) (unreported) (holding that the mere
recitation the costs were necessarily incurred did
not satisfy the requirements of LR 54.2(F)(4).
Additionally, Reimer’s request lacks the
specificity and support required by LR 54.2(4).
Accordingly, reimbursement for the Gundersen [sic]
Firms copying costs should be denied.
[F&R at 10-11.]
In the Objections, Reimer argues that he has presented
sufficient evidence that the copies were necessarily obtained for
use in the case.

[Objections at 3 (citing Reply in Supp. of Fee

Motion, filed 5/29/14 (dkt. no. 212) (“Fee Reply”), at 8; Fee
Reply, Decl. of Catherine A. Reichenberg, Esq. (“Reichenberg
10

Reply Decl.”)).]

According to the Fee Reply, the $1,431.50 “was

for 4,090 copies at the rate of $.35 for sending copies of
letters and pleadings to opposing counsel and/or for the Court,
making copies of documents for depositions, making copies of
documents for trial preparation of witnesses and exhibit
binders.”

[Reichenberg Reply Decl. at ¶ 3.]
First, Local Rule 54.2(f)(4) states that “the practice

of this court is to allow taxation of copies at $.15 per page or
the actual cost charged by commercial copiers, provided such
charges are reasonable.”

(Emphasis added.)

The requested rate

reflected in the Gunderson Bill of Costs exceeds the rate allowed
under the Local Rule.

Further, Ms. Reichenberg’s cursory

explanation of the type of documents copied in general and the
uses of those copies is not sufficient to comply with Local Rule
54.2(f)(4).

Counsel must state, for each document copied: a

description of the document; the number of pages in the document;
and the intended use of the copies made.

General descriptions of

the types of copies made over the duration of the entire
litigation do not suffice.

This Court agrees with the magistrate

judge’s analysis of Reimer’s request for the in-house copying
costs incurred by the Gunderson Law Firm, and this Court finds
that Reimer failed to establish that he is entitled to an award
of those costs.

11

Reimer’s Objections are DENIED as to the in-house
copying costs incurred by the Gunderson Law Firm.
IV.

Copying Costs for Medical Records Used at Trial
Finally, Reimer argues that the magistrate judge erred

in finding that he is not entitled to an award of the costs
incurred to copy the medical records that Dr. Smith and
Dr. Schroeder had available to them during their trial testimony.
Reimer argues that those copies were necessarily obtained for use
in the case because both testified by video-conference.
[Objections at 3.]

This request is not discussed in the F&R, and

it is not clear whether the request is included in the Fee Motion
at all.
The fact that Reimer raises a separate objection for
this expense from his objection to the Gunderson Law Firm’s inhouse copying costs suggests that the copying of the medical
records was done by a commercial copying service.

However, the

Gunderson Bill of Costs and the Gunderson Law Firm’s Summary of
Costs Incurred, [Reichenberg Aff., Exh. 4,] only reflects the inhouse copying costs.

They do not contain a request for

commercial copying costs.

Reimer requested $473.84 in copying

costs for H&M, and the magistrate judge found that Reimer is
entitled to that amount.

[Hosoda Decl., Exh. 8 at 6; F&R at 17.]

Thus, there is no request for, or documentation of, the costs
that Reimer’s counsel incurred for the copying of the medical

12

records used during Dr. Smith’s and Dr. Schroeder’s testimony.
Reimer has failed to establish that he is entitled to an award
of those costs under Local Rule 54.2(f)(4).
Reimer’s Objections are therefore DENIED as to the
costs for the copying of Dr. Smith’s and Dr. Schroeder’s medical
records used at trial.
CONCLUSION
On the basis of the foregoing, Reimer’s objections to
the magistrate judge’s July 2, 2014 Findings and Recommendation
to Grant in Part and Deny in Part Plaintiff’s Motion for Fees and
Costs are HEREBY DENIED, and the magistrate judge’s F&R is HEREBY
ADOPTED.
Reimer’s Motion for Attorneys’ Fees and Costs, filed
May 9, 2014, is therefore GRANTED IN PART AND DENIED IN PART.
The Fee Motion is GRANTED insofar as this Court AWARDS Reimer
$1,471.60 in attorneys’ fees and $9,833.15 in costs, for a total
award of $11,304.75.
respects.

The Fee Motion is DENIED in all other

This Court ORDERS Kuki`o to pay the award to Reimer,

through his counsel, by no later than October 30, 2014.
IT IS SO ORDERED.

13

DATED AT HONOLULU, HAWAII, August 29, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JEFFREY REIMER VS. KUKI`O GOLF & BEACH CLUB, INC., ET AL; CIVIL
12-00408 LEK-BMK; ORDER DENYING PLAINTIFF’S OBJECTIONS TO THE
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION FOR FEES AND COSTS, FILED ON JULY 2, 2014; AND
ADOPTING THE FINDINGS AND RECOMMENDATION

14