Barnes v. Sea Hawaii Rafting, LLC et al

Filing 835

ORDER ADOPTING THE MAGISTRATE JUDGE'S SECOND AMENDED FINDINGS AND RECOMMENDATION AS TO ATTORNEY'S FEES AND COSTS TO BE AWARDED IN CONNECTION WITH THE ENHANCED SANCTIONS ORDER (ECF NO. 834) - Signed by JUDGE ALAN C. KAY on 4/21/2021. IT IS HEREBY ORDERED AND ADJUDGED that, pursuant to Title 28, United States Code, Section 636(b)(1)(C) and Local Rule 74.1, the Second Amended Findings and Recommendations (ECF No. 834) are adopted as the opinion and order of this Court.COURT'S CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail on April 22, 2021 to the addresses of record listed on the Notice of Electronic Filing (NEF)(jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
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CHAD BARRY BARNES,
Plaintiff,
v.
SEA HAWAII RAFTING, LLC,
et al.,
Defendants.

Civ. No. 13-0002 ACK-WRP

ORDER ADOPTING THE MAGISTRATE JUDGE’S SECOND AMENDED FINDINGS
AND RECOMMENDATION AS TO ATTORNEY’S FEES AND COSTS TO BE AWARDED
IN CONNECTION WITH THE ENHANCED SANCTIONS ORDER (ECF NO. 834)
On
Imposing

March

Enhanced

2,

2020, this

Sanctions,

ECF

Court
No.

issued the

657,

which

Order

imposed

sanctions on Defendant AOE and Defendant Henry related to
their wrongful transfer of the commercial-use permit.
forth

in

that

and other

sanctions

were

imposed

subsequent

pursuant

to

As set

orders, the

enhanced

the

inherent

Court’s

authority and are meant to compensate Plaintiff Barnes for
his

losses

stemming

from

the

sanctioned

deprived him of access to a valuable asset.
657, 740, 776.

conduct,

which

See ECF Nos.

As part of the sanctions the Court found that

Plaintiff was entitled to recover related attorney’s fees and
costs from Defendants stemming from the sanctioned conduct.
See id.
1

Accordingly, Plaintiff on November 13, 2020, filed
a Motion for Award of Attorney’s Fees and Costs, ECF No. 797,
which Defendants then opposed, ECF No. 801.

The Magistrate

Judge issued a Findings and Recommendation (the “Initial
F&R”), ECF No. 804, on November 25, 2020, calculating and
awarding certain attorney’s fees and costs.

That same day,

Plaintiff filed a motion for “partial modification” of the
Initial F&R (the “Modification Motion”), ECF No. 805.

In it,

Plaintiff significantly reduced the amount of fees requested
and asked the Magistrate Judge to impose certain terms:

that

the funds be paid to the Legal Aid Society of Hawaii in
Defendant Henry’s name, that no interest be awarded against
Defendants, that Plaintiff be paid what he is owed before any
payment is made to Legal Aid, that Defendants be given as
long as possible to pay but should pay at least 10% per year
beginning after the last appeal has been exhausted, and that
the award be “precatory.”

ECF No. 805.

Defendants filed a

response to the Modification Motion objecting to certain
portions of the fee calculation, but otherwise not objecting
to the additional conditions surrounding the payment.

ECF

No. 814.
The Magistrate Judge then filed an Amended F&R on
January 7, 2021, recalculating the fees based on Plaintiff’s
2

Modification

Motion

and

allowing

conditions sought by Plaintiff.

for

the

other

ECF No. 823.

payment

Thereafter,

this Court—in an abundance of caution—issued a minute order
remanding the matter to the Magistrate Judge to ensure that
the fees were calculated pursuant to the proper standards set
forth in Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.
1178, 197 L. Ed. 2d 585 (2017), which requires under the facts
of

that

case

that

sanctions

imposed

based

on

a

court’s

inherent authority must be compensatory such that the wronged
party may recover “only the portion of his fees that he would
not have paid but for the misconduct.”

See ECF No. 830

(quoting Goodyear, 137 S. Ct. at 1186, 197 L. Ed. 2d 585).
In particular, the Court questioned the payment arrangement
between Plaintiff Barnes and his attorney.

The Magistrate

Judge directed additional briefing, ECF No. 831, which both
parties submitted, ECF Nos. 832 & 833.
The Magistrate Judge issued the Second Amended F&R,
ECF No. 834, on April 2, 2021, which analyzes the fees and
costs based on the Goodyear standards.

Id.

Amended

facto

F&R

makes

a

finding

of

a

“de

The Second
pro

bono”

arrangement between Plaintiff Barnes and his attorney and
concludes

that

the

attorney’s

fees

3

are

recoverable

as

sanctions even though they were not actually paid by Plaintiff
Barnes.

Id. at 15-16 (collecting cases).
Accordingly,

the

Magistrate

Judge

finds

and

recommends that this Court award $16,410.00 in attorney’s
fees and $540.02 in costs as sanctioned fees, and that the
amount

“be

paid

to

the

Legal

Aid

Society

of

Hawaii

in

Defendant Henry’s name, that no interest be awarded against
Defendant Henry, that Plaintiff be paid what he is owed before
any payment is made to the Legal Aid Society of Hawaii, that
Defendant Henry be given as long as possible to pay but should
pay at least 10% per year starting after the last appeal has
been

exhausted,

enforcement.”

and

that

Id. at 17.

the

award

be

without

legal

Neither party filed any objection

to the Second Amended F&R.
Where no objections are filed in response to a
Magistrate Judge’s findings and recommendations, the district
judge need not conduct a de novo review.

See United States

v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(explaining

that

court

must

review de

novo magistrate’s

findings and recommendations if objection is made, “but not
otherwise”); see also 28 U.S.C. § 636(b)(1) (“[T]he court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
4

which objection is made.”).

In the Court’s view there could

be differing reasonable applications of Goodyear and the
factors for determining a reasonable hourly rate in these
circumstances, and thus the Court finds that there is no
“clear error on the

face of the

record.”

See Advisory

Committee Notes, Fed. R. Civ. P. 72(b) (advising that “[w]hen
no timely objection is filed,” the district court review the
magistrate’s findings and recommendations for “clear error on
the face of the record”).
Accordingly, in these unique circumstances, the
Second Amended Findings and Recommendation having been filed
and served on all parties on April 2, 2021, and no objections
having been filed,
IT IS HEREBY ORDERED AND ADJUDGED that, pursuant to
Title 28, United States Code, Section 636(b)(1)(C) and Local
Rule 74.1, the Second Amended Findings and Recommendations (ECF
No. 834) are adopted as the opinion and order of this Court.

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IT IS SO ORDERED.
DATED:

Honolulu, Hawai`i, April 21, 2021

________________________________
Alan C. Kay
Sr. United States District Judge

Barnes v. Sea Hawaii Rafting, LLC, et al., Civ. No. 13-00002-ACK-WRP, Order
Adopting Magistrate Judge’s Second Amended Findings and Recommendation as to
Attorney’s Fees and Costs to be Awarded in Connection with the Enhanced
Sanctions Order (ECF No. 834)

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