Barnes v. Sea Hawaii Rafting, LLC et al

Filing 883

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION AS TO ATTORNEY'S FEES AND COSTS TO BE AWARDED IN CONNECTION WITH THE ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF BARNES'S MOTION FOR SANCTIONS (ECF NO. 871) - Signed by JUDGE ALAN C. KAY on 9/28/2021. COURT'S CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail on September 29, 2021 to the addresses of record listed on the (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF) (jni)

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

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Civ. No. 13-0002 ACK-WRP

ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION AS TO ATTORNEY’S FEES AND COSTS TO BE AWARDED IN
CONNECTION WITH THE ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF BARNES’S MOTION FOR SANCTIONS (ECF NO. 871)
On August 25, 2021, Magistrate Judge Porter
issued his Findings and Recommendation as to Attorney’s
Fees and Costs to be Awarded in Connection with the Order
Granting in Part and Denying in Part Plaintiff Barnes’s
Motion for Sanctions, ECF No. 871, recommending that the
district court award $7,425.00 in attorney’s fees to
Plaintiff’s counsel.

On September 5, 2021, Defendants

filed an objection, ECF No. 873, asserting that (1)
attorney’s fees should not be charged because Plaintiff
Barnes has not actually incurred attorney’s fees, and (2)
that if attorney’s fees are authorized, they should be on
the same conditions as the prior sanctions order.
1

Fourteen days have elapsed since Defendants filed
their objection, and Plaintiff has not filed a response.
LR 74.1.
The Magistrate Judge found that even though
Plaintiff’s counsel had not been paid any attorney’s fees,
he should be entitled to an award of attorney’s fees as
sanctions because they “meet the applicable test:

They

would not have been incurred except for the misconduct,”
citing Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.
1178, 1188 (2017).

The Court notes that in Goodyear, the

United States Supreme Court stated:
That means, pretty much by definition, that the
court can shift only those attorney’s fees incurred
because of the misconduct at issue. . . . Hence the
need for a court, when using its inherent
sanctioning authority (and civil procedures) to
establish a causal link-between the litigant’s
misbehavior and legal fees paid by the opposing
party.
Id. at 1186.

However, in Goodyear, the Haegers had

actually paid attorney’s fees and the lower court in
imposing sanctions against Goodyear had awarded the Haegers
the entire sum they had spent in legal fees; and thus the
Supreme Court focused on whether the Haegers should only
have been able to recover the portion of their fees that
they would not have paid but for Goodyear’s misconduct.
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Other courts have clarified the pro bono sanction question,
including the United States Court of Appeals for the Second
Circuit.
The Second Circuit addressed the issue by ruling
that neither the pro bono nature of the plaintiff’s
attorney arrangement nor a settlement agreement wherein the
wronged party agreed not to accept any fees was a barrier
to a sanction of attorney’s fees pursuant to a district
court’s inherent powers.

Liebowitz v. Bandshell Artist

Mgmt., 6 F.4th 267, 286 (2d Cir. 2021).
The Magistrate Judge also found that Defendants
had not presented any legal support for their request that
the fees award should be subject to the same payment
conditions that were offered by Plaintiff as to the prior
awarded fees.
Accordingly, the Court concurs with both
conclusions of the Magistrate Judge and ADOPTS his
recommendation.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai`i, September 28, 2021

________________________________
Alan C. Kay
Sr. United States District Judge
3

Barnes v. Sea Hawaii Rafting, LLC, et al., Civ. No. 13-00002-ACK-WRP, Order
Adopting Magistrate Judge’s Findings and Recommendation as to Attorney’s Fees
and Costs to be Awarded in Connection with the Order Granting in Part and
Denying in Part Plaintiff Barnes’s Motion for Sanctions (ECF No. 871)

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