Ke Kailani Partners, LLC v. Ke Kailani Development LLC et al
Filing
50
ORDER DENYING KE KAILANI DEVELOPMENT LLC AND MICHAEL J. FUCHS' OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S ATTORNEYS' FEES AND COSTS AND ORDER ADOPTING THE FINDING S AND RECOMMENDATION re 43 ; re 44 . Signed by JUDGE LESLIE E. KOBAYASHI on 02/28/2014. -- the Court HEREBY DENIES KKD's Objections, filed January 2, 2014, and ADOPTS the magistrate judge;s Findings and Recommendatio n to Grant in Part and Deny in Part Plaintiff's Attorneys Fees and Costs. (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
)
)
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Plaintiff,
)
)
vs.
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KE KAILANI DEVELOPMENT, LLC, )
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a Hawaii limited liability
)
company; MICHAEL J. FUCHS,
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Individually; DIRECTOR OF
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FINANCE, REAL PROPERTY
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DIVISION, COUNTY OF HAWAII;
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KE KAILANI COMMUNITY
ASSOCIATION; THE ASSOCIATION )
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OF VILLA OWNERS OF KE
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KAILANI; MAUNA LANI RESORT
ASSOCIATION; JOHN DOES 1-50; )
)
JANE DOES 1-50, DOE
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PARTNERSHIPS 1-50; DOE
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CORPORATIONS 1-50; DOE
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LIMITED LIABILITY COMPANIES
1-50; DOE ENTITIES 1-50; AND )
DOE GOVERNMENTAL UNITS 1-50, )
)
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Defendants.
_____________________________ )
KE KAILANI PARTNERS, LLC,
CIVIL 13-00347 LEK-BMK
ORDER DENYING KE KAILANI DEVELOPMENT LLC AND MICHAEL J. FUCHS’
OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
TO GRANT IN PART AND DENY IN PART PLAINTIFF’S ATTORNEYS’ FEES AND
COSTS AND ORDER ADOPTING THE FINDINGS AND RECOMMENDATION
On December 18, 2013, the magistrate judge filed his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff’s Attorneys’ Fees and Costs (“F&R”).
[Dkt. no. 43.]
On January 2, 2014, Defendants Ke Kailani Development LLC and
Michael J. Fuchs (collectively, “KKD”) filed their objections to
the F&R (“Objections”).
[Dkt. no. 44.]
On January 21, 2014,
Plaintiff Ke Kailani Partners, LLC (“KKP” or “Plaintiff”) filed
its response to KKD’s Objections (“Response”), and on February 7,
2014, KKD filed its reply to the Response (“Reply”).
46, 47.]
[Dkt. nos.
The Court finds this matter suitable for disposition
without a hearing pursuant to Rules LR7.2(e) and LR74.2 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, supporting and opposing
documents, and the relevant legal authority, KKD’s Objections are
HEREBY DENIED, and the magistrate judge’s F&R is HEREBY ADOPTED
for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s October 24, 2013 Order Granting
Plaintiff’s Motion for Remand (“10/24/13 Order”).
23.1]
[Dkt. no.
In the 10/24/13 Order, this Court concluded that, inter
alia, it lacked subject matter jurisdiction over the instant
action.
2013 WL 5773118, at *5.
The Court therefore granted
Plaintiff’s Motion for Remand, filed July 30, 2013, [dkt. no. 5,]
and, finding that KKD “lacked an objectively reasonable basis for
seeking removal[,]” granted Plaintiff’s request for attorneys’
fees and costs.
1
Id. at *7.2
The Court directed Plaintiff to
The 10/24/13 Order is available at 2013 WL 5773118.
2
Upon KKD’s motion for reconsideration, [filed 11/7/13
(dkt. no. 27),] on November 27, 2013, this Court concluded that,
(continued...)
2
“file documentation supporting its request for attorneys’ fees
and costs with the magistrate judge[.]”
I.
Id.
Fee Submission and F&R
Plaintiff submitted documentation supporting its
requested award on November 11, 2013, including for work: (1)
briefing the remand motion; (2) briefing a motion for Rule 11
sanctions alleging KKD had improper purposes in removing the case
to this Court (“Rule 11 Motion”); [dkt. no. 18;3] and (3)
preparing the fees and costs submission, totaling an award of
$34,826.12.
[Dkt. no. 28.]
In the F&R, the magistrate judge concluded that the
“form and content of [Plaintiff’s] submission [was] generally
acceptable.”
[F&R at 6.]
However, he reduced the recommended
award for three reasons, all asserted by KKD.
First, he
concluded that recovery for the Rule 11 Motion was improper
since, under 28 U.S.C. § 1447(c), the fee was not “incurred as a
result of the removal[.]”
[Id. at 8-9.]
Second, while finding
that the other attorneys’ rates were reasonable, the magistrate
agreed with KKD that the hourly rate of a student associate
2
(...continued)
pursuant to 28 U.S.C. § 1447, its remand order could not be
appealed since the Court lacked subject matter jurisdiction, and
reconsideration of fees was not ripe since the Court had not yet
issued an order as to the amount of the award (“Reconsideration
Order”). [Dkt. no. 37 (available at 2013 WL 6210606).]
3
The magistrate judge issued an order terminating the
sanctions motion on October 24, 2013. [Dkt. no. 25.]
3
should be reduced because it was not commensurate with the
prevailing rates in the community and prior fee awards in this
district.
[Id. at 11.]
Third, he reduced the total time billed
by Plaintiff’s attorneys by twenty-five percent since he found
that the itemized request was “excessive.”
[Id. at 12.]
Thus
the magistrate judge recommended a fee and cost award of
$17,475.89.
II.
[Id. at 13.]
Objections
KKD first argues that the Court’s order, which found
that KKD had no objectively reasonable basis for removal, is
“highly unfair.”
[Objections at 6.]
This is not actually an
objection to the F&R, but rather an objection to the award ruling
in the Court’s 10/24/13 Order.
KKD acknowledges this, but argues
that “in the interests of judicial economy” the Court should
consider its motion for reconsideration of the fee award now with
its Objections.
[Id. at 6.]
The other two objections focus on the form of
Plaintiff’s fee submission.
KKD argues that Plaintiff
disregarded Local Rule 54.3(a), which requires a statement of
consultation between the parties before a fee submission, and
Local Rule 54.3(d)(1), which specifies that the fee submission be
divided by litigation phases.
[Id. at 7-10.]
In the F&R, the
magistrate judge expressly found that the submission was not
“covered by Local Rule 54.3” and reasoned that, under the
4
circumstances, enforcing the formatting requirement would be
“nonsensical,” since the work all dealt with a single litigation
phase, and consultation was not required because the award was
court-ordered.
[F&R at 6.]
Finally, KKD takes this opportunity to argue that the
attorneys’ fees and costs issue should be stayed until KKD’s
appeal of the 10/24/13 Order to the Ninth Circuit Court of
Appeals is decided, since an award by this Court could conflict
with a contrary appellate decision regarding remand.
[Objections
at 9.]
In its Response, Plaintiff argues that KKD’s request
for reconsideration of the fee award is not yet ripe.
It quotes
the Reconsideration Order on this point:
Thus, KKD’s Motion for reconsideration of the award for
attorneys’ fees and costs is HEREBY DENIED WITHOUT
PREJUDICE. KKD may re-file a motion for
reconsideration of the Court’s award of attorneys’ fees
and costs after it issues an order as to the amount of
the award.
[Response at 2 (quoting Reconsideration Order, 2013 WL 6210606,
at *3).]
KKD acknowledges this point as well, quoting the same
language from the 10/24/13 Order.
[Objections at 6.]
Further,
Plaintiff argues it did not need to comply with Local Rule 54.3,
that consultation would have been futile, and that its fee
submission by task was sufficient.
[Response at 3-4.]
does not address KKD’s argument for a stay.
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Plaintiff
In its Reply, KKD does not address Plaintiff’s
arguments, but rather repeats its own and argues that it is
ironic that Plaintiff accuses KKD of violating the removal rules
while at the same time violating “virtually all of the rules of
this Court governing fee and cost applications[.]”
[Reply at 4.]
KKD also argues at length that Plaintiff was wrong to ask the
Court to deny KKD’s stay when in fact Plaintiff did not mention
the stay in its Response at all.
[Id. at 5-7.]
DISCUSSION
Any party may file objections to a magistrate judge’s
findings and recommendation regarding a case dispositive matter.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); Local Rule LR74.2.
A post- judgment motion for attorneys’ fees is treated “‘as if it
were a dispositive pretrial matter[.]’”
See JJCO, Inc. v. Isuzu
Motors Am., Inc., CIV 08-00419 SOM/LEK, 2010 WL 4272980, at *2
(D. Hawai`I Oct. 21, 2010) (quoting Fed. R. Civ. P. 54(d)(2)(D)).
A judge of the court shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made.
A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made
by the magistrate judge. . . .
§ 636(b)(1).
Pursuant to Local Rule 74.2, the objecting party
must “specifically identify the portions of the order, findings,
or recommendations to which objection is made and the basis for
such objections.”
6
Plaintiff is correct that KKD’s motion to reconsider
the grant of the fees and costs award is not yet ripe.
at 1-2.]
[Response
The Court’s Reconsideration Order clearly stated that
KKD could “re-file a motion for reconsideration of the Court’s
award of attorneys’ fees and costs after it issues an order as to
the amount of the award.”
added).
2013 WL 6210606, at *3 (emphasis
Thus, reconsideration of the award now is contrary to
this Court’s order and to the Local Rules.
See Local Rule LR74.2
(requiring that objections be to specific portions of the
magistrate’s findings).
Further, by ruling now, this Court would
preclude Plaintiff from fully opposing the motion for
reconsideration, since Plaintiff correctly did not substantively
oppose reconsideration in its Response.
Similarly, the Court rejects KKD’s apparent attempt at
a second reconsideration of its denial of KKD’s stay pending
appeal.
That too is an improper objection, since it was not
decided by the magistrate, and the Court has already twice
rejected the stay.
See 10/24/13 Order, 2013 WL 5773118, at *6;
Reconsideration Order, 2013 WL 6210606, at *2-3.
Regarding the properly raised objections, the Court
rejects KKD’s objections to Plaintiff’s fees and costs
submission.
Local Rule 54.3, titled “Motions For Attorneys’ Fees
And Related Non-taxable Expenses,” does not apply to courtordered submissions.
For example, Rule 54.3(b)(1) states in
7
pertinent part:
The court will not consider a motion for attorneys’
fees and related non-taxable expenses until moving
counsel advises the court in writing that, after
consultation, or good faith efforts to consult, the
parties are unable to reach an agreement with regard to
the fee award or that the moving counsel has made a
good faith effort, but has been unable, to arrange such
a conference. . . .
(Emphases added.)
The procedure was created for efficiency, to
avoid unnecessary motions for attorneys’ fees, so it has no
applicability here.
[F&R at 6 (quoting Botelho v. Hawaii, CV 06-
00096 DAE-BMK, 2009 WL 1838336 (D. Haw. June 18, 2009)).]
In any
event, as Plaintiff argued and the magistrate judge agreed,
consultation here would be unnecessary and futile.
[Response at
3; F&R at 6.]
Likewise, formatting the fees and costs submission
according to litigation phases is not required by the Local Rule
and makes little sense under the circumstances.
[F&R at 6.]
The
magistrate judge understood Plaintiff’s submission, and made
reasonable adjustments where necessary.
The Court therefore
DENIES KKD’s Objections to the F&R.
CONCLUSION
On the basis of the foregoing, the Court HEREBY DENIES
KKD’s Objections, filed January 2, 2014, and ADOPTS the
magistrate judge’s Findings and Recommendation to Grant in Part
and Deny in Part Plaintiff’s Attorneys’ Fees and Costs.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 28, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
KE KAILANI PARTNERS, LLC VS. KE KAILANI DEVELOPMENT, LLC, ET AL;
CIVIL 13-00347 LEK-BMK; ORDER DENYING KE KAILANI DEVELOPMENT LLC
AND MICHAEL J. FUCHS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S ATTORNEYS’ FEES AND COSTS AND ORDER ADOPTING THE
FINDINGS AND RECOMMENDATION
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