Ogeone v. United States of America

Filing 218

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR AN AWARD OF ATTORNEYS' FEES re 213 , 217 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/4/2015. "Def endant is entitled to an award of $362.50 in attorneys' fees pursuant to section 607-14 of Hawaii Revised Statutes, and this court adopts the F&R." (emt, )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). Galina Ogeone served by first class mail at the address of record on May 4, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,

)
)
Plaintiff,
)
)
vs.
)
)
W. RUTH YANG,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 13-00166 SOM/RLP
ORDER ADOPTING THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT
DEFENDANT’S MOTION FOR AN
AWARD OF ATTORNEYS’ FEES

ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
TO GRANT DEFENDANT’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES
I.

INTRODUCTION.
Plaintiff Galina Ogeone objects to the Magistrate

Judge’s Findings and Recommendation to Grant Defendant’s Motion
for an Award of Attorneys’ Fees, Pursuant to the Judgment Filed
February 25, 2015, Docket No. 194 (“F&R”).

The court adopts the

F&R.
II.

FACTUAL BACKGROUND.
On February 24, 2015, trial was held on Ogeone’s claim

that Defendant W. Ruth Yang breached an agreement to refund
payments made by Ogeone in connection with certain dental work.
Ogeone contended that she paid Defendant $3,450 for bridge and
crown dental work, but was refunded only $2,000.

See ECF No. 56,

PageID # 470.
The jury determined that Ogeone had failed to show by a
preponderance of the evidence that she paid Defendant more than
$2,000, the amount she was refunded, for bridge and crown dental

work.

Judgment was entered in favor of Defendant on February 25,

2015.

See ECF No. 194.
On March 9, 2015, Defendant filed a motion for an award

of attorneys’ fees pursuant to section 607-14 of Hawaii Revised
Statutes.

See ECF No. 198.
Magistrate Judge Richard L. Puglisi filed his F&R on

April 7, 2015, recommending that Defendant’s motion be granted.
See ECF No. 213.
On April 24, 2015, Ogeone filed objections to the F&R.
See ECF No. 217.
III.

STANDARD.
The court reviews de novo those portions of a

Magistrate Judge’s findings and recommendation to which an
objection is made.
Local Rule 74.2.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
The district court may accept those portions of

the findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the record.
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
IV.

ANALYSIS.
This court agrees with the Magistrate Judge that

Defendant is entitled to an award of $362.50 in attorneys’ fees
pursuant to section 607-14 of Hawaii Revised Statutes.
Section 607-14 provides that “[i]n all the courts, in
all actions in the nature of assumpsit . . .

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there shall be

taxed as attorneys’ fees, to be paid by the losing party and to
be included in the sum for which execution may issue, a fee that
the court determines to be reasonable.”

Attorneys’ fees awarded

pursuant to section 607-14 shall not exceed twenty-five percent
of “the amount sued for if the defendant obtains judgment.”
A.

Action in the Nature of Assumpsit.

The court agrees with the Magistrate Judge that this
action, involving a breach of contract claim, is in the nature of
assumpsit.

See Kona Enterprises, Inc. v. Estate of Bishop, 229

F.3d 877, 884 (9th Cir. 2000) (“It is well settled under Hawai'i
law that an action in the nature of assumpsit includes all
possible contract claims.” (internal quotation marks omitted)).
B.

Prevailing Party Status.

As a result of the jury verdict and judgment in her
favor, Defendant was the prevailing party for the purposes of
section 607-14.

See Wong v. Takeuchi, 88 Haw. 46, 49, 961 P.2d

611, 614 (1998) (“Usually the litigant in whose favor judgment is
rendered is the prevailing party.” (internal quotation marks
omitted)).
C.

Twenty-Five Percent Limitation.

Defendant may not obtain more than twenty-five percent
of the amount sued for in attorneys’ fees pursuant to section
607-14.

Defendant seeks $362.50, which is twenty-five percent of

$1,450, the amount Ogeone sued for.
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D.

Reasonableness of Attorneys’ Fees.

Hawaii courts calculate the reasonableness of
attorneys’ fees based on a method that is nearly identical to the
traditional “lodestar” calculation set forth in Hensley v.
Eckerhart, 461 U.S. 424 (1983).

See DFS Grp. L.P. v. Paiea

Properties, 110 Haw. 217, 222, 131 P.3d 500, 505 (2006).

Under

the lodestar method, the court must determine a reasonable fee by
multiplying the number of hours reasonably expended by a
reasonable hourly rate.

See id. at 222–23, 131 P.3d at 505–06.

The court may also consider other factors, including the novelty
and difficulty of the questions involved and the customary
charges of the bar for similar services.

See Chun v. Bd. of Trs.

of Emps. Ret. Sys. of State of Haw., 106 Haw. 416, 435, 106 P.3d
339, 358 (2005).
The court finds that defense counsel’s hourly rate of
$350 is reasonable based on the prevailing rates in the community
for similar services performed by attorneys of comparable
experience, skill, and reputation.
Defense counsel does not provide the number of hours
expended in the litigation of this case, but he does state that
Defendant incurred attorneys’ fees far in excess of the amount
sought.

See ECF No. 198-2, PageID # 1473.

Given that defense

counsel’s representation of Defendant at trial on February 24,
2015, was a reasonable expenditure of time that resulted in

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charges far exceeding the $362.50 sought here, id., awarding
Defendant $362.50 in attorneys’ fees, which covers little more
than an hour’s worth of work by Defense counsel, is reasonable.
Ogeone has not challenged the accuracy or reasonableness of
defense counsel’s charges.
E.

Ogeone’s Objections.

In opposition to Defendant’s motion for an award of
attorneys’ fees, Ogeone asserts that: (1) Defendant failed to
file a settlement offer or set an acceptance deadline prior to
trial, and (2) the substitution of W. Ruth Yang for the United
States as Defendant violated federal law.
PageID # 492.

See ECF No. 204,

Neither of these arguments is persuasive.

As the Magistrate Judge noted, Ogeone’s first argument
appears to reference Rule 68 of the Federal Rules of Civil
Procedure, which has no bearing on Defendant’s request for
attorneys’ fees pursuant to section 607-14 of Hawaii Revised
Statutes.
Ogeone’s second argument, objecting to the substitution
of Dr. Yang for the United States, similarly fails to address
Defendant’s motion for attorneys’ fees.

Even if such an argument

were relevant, it would not be successful because, contrary to
Ogeone’s contention, the substitution Ogeone complains of did not
violate federal law.

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In her objections to the F&R,1 Ogeone argues that this
court lacks subject matter jurisdiction because removal of this
action was improper and substitution was illegal.
217, PageID # 1585.

See ECF No.

argument in the past.

Ogeone has unsuccessfully raised these
The court rejects Ogeone’s arguments once

again.
V.

CONCLUSION.
Defendant is entitled to an award of $362.50 in

attorneys’ fees pursuant to section 607-14 of Hawaii Revised
Statutes, and this court adopts the F&R.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 4, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Ogeone v. Yang; Civil No. 13-00166 SOM/RLP; ORDER ADOPTING THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT’S MOTION FOR AN AWARD
OF ATTORNEYS’ FEES

1

Defendant contends that Ogeone’s objections to the F&R
were untimely. See ECF No. 216, PageID # 1577. The court
disagrees. Local Rule 74.2 permits a party to object to a
magistrate judge’s findings and recommendation within fourteen
days after being served with a copy of the magistrate judge’s
findings and recommendation. Local Rule 6.1, governing the
computation of time, refers to Rule 6 of the Federal Rules of
Civil Procedure, which provides for the addition of three days
after the period that would otherwise apply when a person is
served by mail. See Fed. R. Civ. P. 6(d). Ogeone’s objections
to the F&R were therefore due seventeen days from the filing on
April 7, 2015. Her objections, filed on April 24, 2015, were
timely.
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