Frost-Tsuji Architects v. Highway Inn, Inc. et al

Filing 472

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART DEFENDANTS' MOTIONS FOR ATTORNEY'S FEES AND COSTS re 462 , 463 , 464 , 465 - Signed by JUDGE SUSAN OKI MOLLWAY on 3/30/2016. "Having reviewed the portions of the F & R objected to, the court adopts the F & R in its entirety. Bargreen Ellingson is awarded $23,678.00 in attorney's fees and $355.97 in costs, for a total award of $24,03 3.97; J. Kadowaki is awarded $135,004.70 in attorney's fees and $4,827.30 in costs, for a total award of $139,832.00; Highway Inn and Ho'ola Mau are awarded $209,660.64 in attorney's fees and $ 4,914.33 in costs, for a total award of $214,574.97; and Highway Inn, on behalf of Bryce Uyehara and Iwamoto and Associates, is awarded $68,885.31 in attorney's fees and $1,204.31 in costs, for a total award of $70,0 89.62." (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). 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
FROST-TSUJI ARCHITECTS,
Plaintiff,
vs.
HIGHWAY INN, INC.; HO‘OLA
MAU, LLC; BRYCE UYEHARA,
A.I.A., INCORPORATED; J.
KADOWAKI, INC.; FESTIVAL
MANAGEMENT CORPORATION; et
al.,
Defendants.

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CIVIL NO. 13-00496 SOM/BMK
ORDER ADOPTING THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT IN
PART DEFENDANTS’ MOTIONS FOR
ATTORNEY’S FEES AND COSTS

ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT IN PART DEFENDANTS’ MOTIONS FOR
ATTORNEY’S FEES AND COSTS
I.

INTRODUCTION.
Before the court are objections filed by Plaintiff

Frost-Tsuji, Defendant J. Kadowaki, Inc., and Defendants Highway
Inn, Inc., and Ho’ola Mau, LLC (collectively “Highway Inn”) to
the Magistrate Judge’s Findings & Recommendation to Grant in Part
Defendants’ Motions for Attorney’s Fees and Costs (“F & R”).
The F & R recommends the award of $24,033.97 in
attorney’s fees and costs to Defendant Bargreen Ellingson of
Hawaii, Inc., $139,832.00 in fees and costs to J. Kadowaki,
$214,574.97 in fees and costs to Highway Inn, and $70,089.62 in
fees and costs to Highway Inn on behalf of Defendants Bryce
Uyehara, A.I.A., and Iwamoto and Associates, LLC.

The awards are

for (1) Defendants’ work on Frost-Tsuji’s claim for copyright

infringement (Count IV) after this court granted summary judgment
in Defendants’ favor on Count IV on August 26, 2014, and (2)
Defendants’ work on Frost-Tsuji’s claim that Defendants
improperly removed copyright management information (“CMI”).
Frost-Tsuji objects to the portion of the F & R
recommending an award to Defendants of their fees and costs for
discovery-related work after August 26, 2014.

Frost-Tsuji also

challenges the Magistrate Judge’s finding that Frost-Tsuji’s
motions for reconsideration on the copyright claims were
“objectively unreasonable.”
Highway Inn challenges the Magistrate Judge’s finding
and recommendation to reduce the reasonable hourly rate of its
counsel, Harvey Lung, from $450.00 to $300.00.
J. Kadowaki objects to the Magistrate Judge’s finding
and recommendation to award it only sixty billable hours for its
work on its attorney’s fees motion.
After reviewing the various objections and the F & R,
this court adopts the F & R in its entirety.
Pursuant to Local Rule 7.2(d), the court finds this
matter suitable for disposition without a hearing.
II.

FACTUAL BACKGROUND.
Because the parties and the court are familiar with the

facts and procedural background of this case, this court
addresses only those events relevant to the F & R.
2

Additional

background facts are contained in this court’s Order Adopting in
Part and Rejecting in Part the Magistrate Judge’s Findings and
Recommendations that Defendants’ Motion for Attorney’s Fees and
Costs Be Denied, filed September 23, 2015 (“September 2015
Order”).

See ECF No. 451.
On April 29, 2015, Bargreen Ellingson, Highway Inn, and

J. Kadowaki filed separate motions for attorney’s fees and costs
as to Frost-Tsuji’s copyright infringement claim and its CMI
claim (collectively “copyright claims”).

Bargreen Ellingson

seeks $84,744.66 in fees, plus $355.97 in costs, ECF No. 419;
Highway Inn seeks $438,440.03 in fees, plus $9,083.11 in costs,
ECF No. 420; and J. Kadowaki seeks $275,356.25 in fees, GET in
the amount of $12,974.79, and $9,809.68 in costs, ECF No. 421.
The motions were referred to the Magistrate Judge, who
made findings and recommended that Defendants’ motions for
attorney’s fees and costs be denied.
8410.

The movants objected.

See ECF No. 437, PageID #

See ECF Nos. 439, 441, 443.

On September 23, 2015, this court issued an order
adopting in part and rejecting in part the Magistrate Judge’s
July 2015 F & R (“September 2015 Order”).

See ECF No. 451.

Applying the factors set forth in Fogerty v. Fantasy, Inc., 510
U.S. 517, 533 (1994), this court determined that Defendants were
entitled to an award of reasonable attorney’s fees and costs for
(1) their work on the copyright infringement claim after the

3

order of August 24, 2014, granting partial summary judgment in
Defendants’ favor; and (2) their work relating to Frost-Tsuji’s
CMI claim.

See ECF No. 451, PageID #s 8622-23.

The court

referred the motion to the Magistrate Judge for a determination
of the amounts to be awarded to each Defendant.

See id., PageID

# 8624.
On February 1, 2016, the Magistrate Judge issued his F
& R, recommending that Defendants’ motions for attorney’s fees
and costs be granted in part in the following amounts:
$24,033.97 in attorney’s fees and costs to Bargreen Ellingson,
$139,832.00 in fees and costs to J. Kadowaki, $214,574.97 in fees
and costs to Highway Inn, and $70,089.62 in fees and costs to
Highway Inn on behalf of Bryce Uyehara and Iwamoto and
Associates.

See ECF No. 462, PageID #s 9474-75.

Frost-Tsuji, Highway Inn, and J. Kadowaki filed the
present objections.
III.

See ECF Nos. 463, 464, 465.

STANDARD OF REVIEW.
Congress has empowered magistrate judges, upon referral

of dispositive pretrial motions by district judges, to conduct
hearings and issue findings and recommendations regarding
dispositive pretrial motions.

See 28 U.S.C. § 636(b)(1)(B); see

also Fed. R. Civ. P. 72(b) (promulgating rule).

The Federal

Rules of Civil Procedure permit a district judge to similarly
refer a post-judgment motion for attorney’s fees “as if it were a

4

dispositive pretrial matter,” see Fed. R. Civ. P. 54(d)(2)(D),
and such motions are customarily referred to magistrate judges in
this district, see Local Rule 54.3(h).
A district judge reviews a magistrate judge’s findings
and recommendation prior to ruling on the motion, and may accept,
reject, or modify, in whole or in part, the findings and
recommendation made by the magistrate judge.
72(b).

Fed. R. Civ. P.

If a party timely objects to portions of the findings and

recommendation, the district judge reviews those portions of the
findings and recommendation de novo.
Local Rule 74.2.

Fed. R. Civ. P. 72(b)(3);

The district judge may consider the record

developed before the magistrate judge.

Local Rule 74.2.

The

district judge also has discretion to receive further evidence.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Rule 74.2;
see also United States v. Raddatz, 447 U.S. 667, 676 (1980)
(district judge has wide discretion in deciding whether to allow
new evidence).

The de novo standard requires the district court

to consider a matter anew and arrive at its own independent
conclusions, but a de novo hearing is not ordinarily required.
United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989);
United States v. Boulware, 350 F.Supp.2d 837, 841 (D. Haw. 2004);
Local Rule 74.2.
The district judge may accept the portions of the
findings and recommendation to which the parties have not

5

objected as long as it is satisfied that there is no clear error
on the face of the record.

See United States v. Bright, Civ. No.

07–00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009);
Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003); Fed.
R. Civ. P. 72(b) advisory committee’s note.
The court determines that a hearing on this matter is
neither necessary nor appropriate.
IV.

See Local Rule 7.2(d).

ANALYSIS.
A.

Frost-Tsuji’s Objections.
1.

Defendants’ Discovery-related Work After
August 26, 2014.

Frost-Tsuji objects to the Magistrate Judge’s
recommendation to award Defendants their fees and costs for
discovery-related tasks after August 26, 2014, the date of the
order granting partial summary judgment.

See ECF No. 463, PageID

# 9478.
Frost-Tsuji’s first contention is that the Magistrate
Judge’s recommended award of fees exceeds the scope of this
court’s September 2015 Order.

See id., PageID # 9481.

The Magistrate Judge correctly construed this court’s
September 2015 Order as awarding Defendants their reasonable
attorney’s fees for discovery-related work after August 26, 2014,
on the copyright infringement claim and CMI claim.

See ECF No.

451.
Frost-Tsuji next argues that the September 2015 Order
6

should not have awarded such fees because “[l]egal work performed
after November 7, 2014, could only be based on [Highway Inn’s]
Counterclaim and [Frost-Tsuji’s] contract and unjust enrichment
claims, as [Frost-Tsuji’s] copyright claims were no longer
pending at that time.”

See ECF No. 463, PageID # 9481.

The record contradicts Frost-Tsuji’s assertion.

After

all, it was only after November 7, 2014, that Frost-Tsuji brought
two motions for reconsideration on its copyright infringement
claim, and a motion for reconsideration on its CMI claim.
ECF Nos. 232, 354, 391.

See

It was also after November 7, 2014, that

Frost-Tsuji took substantial discovery that it used as
evidentiary support for its second motion for reconsideration
regarding its copyright infringement claim.

The second motion

for reconsideration acknowledged this, stating, “The basis for
this Second Motion for Reconsideration is new information
obtained through depositions taken in December 2014 and
subpoenaed documents, which Frost-Tsuji did not have when it
filed its Motion for Partial Summary Judgment and first Motion
for Reconsideration.”

See ECF No. 391-1, PageID # 6173.

Indeed, Frost-Tsuji took five depositions after
November 7, 2014, and relied on those depositions in asking this
court to vacate its grant of summary judgment on the copyright
infringement claim in favor of Defendants.

The new evidence of

copyright infringement included the deposition of Monica Toguchi,

7

taken on December 11, 2014, ECF No. 391-4; the deposition of
Stanley Sato, taken on December 18, 2014, ECF No. 391-7; the
deposition of Bryce Uyehara, taken on December 15, 2014, ECF No.
391-8; the deposition of Richard Herbert Elkins, taken on
December 3,2014, ECF No. 391-9; and a continuation of the
deposition of Russell Ryan, taken on December 12, 2014, ECF No.
391-11.
Additionally, Frost-Tsuji’s second motion for
reconsideration attached exhibits of e-mails from its counsel,
dated December 29, 2014, and December 22, 2014.
391-10.

See ECF No.

These e-mails detail certain of Frost-Tsuji’s requests

for further discovery from Defendants after November 7, 2014, as
to the copyright infringement claim.
Clearly, this and other discovery-related work
pertained to Frost-Tsuji’s copyright claims, and occurred during
the time period in which Frost-Tsuji now claims that all of its
and Defendants’ legal work could only have been directed to
claims relating to issues other than copyright infringement.
That Frost-Tsuji took extensive discovery after the summary
judgment motions were adjudicated to gather further evidence in
support of its copyright claims was noted in the September 2015
Order, upon which the Magistrate Judge based his F & R.

See ECF

No. 451, PageID # 8618 (citing ECF Nos. 308; 331; 333-335; 372;
391-4, -7, -8, -9, and -11).

8

The September 2015 Order also noted, however, that
Defendants were forced to spend substantial amounts of time and
money because Frost-Tsuji not only brought objectively
unreasonable motions for reconsideration, but also engaged in
extensive discovery that it failed to justify in its motions for
reconsideration.

See ECF No. 451.

As counsel for Frost-Tsuji

should have been aware, “To support a motion for reconsideration
based upon newly discovered evidence, the movant is obliged to
show not only that the evidence was newly discovered or unknown,
but also that it could not with reasonable diligence have
discovered and produced such evidence at the hearing.”

Oyama v.

Univ. of Haw., Civ. No. 12–00137, 2013 WL 3296567 (D. Haw. June
28, 2013); accord Hagan v. U.S. Nat’l Bank, 2014 WL 5465321 (D.
Haw. Oct. 27, 2014).

Because Frost-Tsuji did not demonstrate

that it acted with reasonable diligence in obtaining this new
evidence, this court denied the motion for reconsideration.

See

ECF No. 395, PageID # 6335.
For these and other reasons, all of which are detailed
in the September 2015 Order, this court decided that Defendants
were entitled to their reasonable attorney’s fees and costs for
discovery-related work on the CMI claim, and on the copyright
infringement claim after August 26, 2014.

See id.

This court

thus rejects Frost-Tsuji’s argument that Defendants’ legal work
after August 26, 2014, did not relate to these copyright claims,

9

or that an award of fees and costs to Defendants for their
discovery-related work on these claims exceeds the scope of the
September 2015 Order.
Alternatively, Frost-Tsuji contends that Defendants are
not entitled to fees and costs for discovery taken after November
7, 2014, because Frost-Tsuji also sought to use this discovery
for its unjust enrichment and breach of contract claims, as well
as its defense to Highway Inn’s Amended Counterclaim.
No. 463, PageID # 9479.

See ECF

In other words, Frost-Tsuji is arguing

that Defendants are not entitled to an award of fees under the
Copyright Act or Digital Millennium Copyright Act for discoveryrelated work because Frost-Tsuji also sought the discovery for
noncopyright claims.

See id.

This argument is unpersuasive.

In determining whether

to award attorney’s fees here, the precise question this court
must decide is whether the work performed by the prevailing
party, not the losing party, is related to a compensable claim
under the Copyright Act or DMCA.

Cf. Entm’t Research Group, Inc.

v. Genesis Creative Group, Inc., 122 F.3d 1211, 1230 (9th Cir.
1997) (“It is well-established law that a party entitled to
attorney’s fees as a prevailing party on a particular claim, but
not on other claims in the same lawsuit, can only recover
attorney’s fees incurred in defending against that one claim or
any ‘related claims.’” (citing Hensley v. Eckerhart, 461 U.S.

10

424, 434-35 (1983), Ackerman v. Western Elec. Co., Inc., 860 F.2d
1514, 1520 (9th Cir. 1988)).

Whether or not Frost-Tsuji used the

same discovery for a noncompensable claim is of no matter to
determining whether Defendants used the discovery in the service
of defending against Frost-Tsuji’s copyright claims and therefore
can claim attorney’s fees and costs for such work.

The statutory

language for the fees provisions in the Copyright Act (17 U.S.C.
§ 505) or DMCA (17 U.S.C. § 1203(b)) gives no hint that this
court should rule otherwise, and Frost-Tsuji fails to provide any
authority in support of its argument.

See 17 U.S.C. § 505; 17

U.S.C. § 1203(b).
Frost-Tsuji may also be arguing that Defendants are not
entitled to attorney’s fees and costs for work that serves both
copyright and noncopyright claims.

Again, however, Frost-Tsuji

fails to provide authority to support this proposition.

Under

the Copyright Act, a prevailing party may be awarded attorney’s
fees for “hybrid” work that serves both compensable and
noncompensable claims.

See Fantasy, Inc. v. Fogerty, 94 F.3d

553, 561 (9th Cir. 1996) (affirming district court order that
awarded attorney’s fees and costs for “hybrid” entries for work
that served both compensable and noncompensable claims).

Cf.

Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d
1291, 1313 (9th Cir. 1982), cert. denied, 459 U.S. 1009 (1982)
(holding to extent that fees related to both compensable claims

11

and other claims, prevailing party may recover fees in full);
Marion v. Barrier, 694 F.2d 229, 232 (11th Cir. 1982) (per
curiam) (affirming an award of attorneys’ fees by acknowledging
that “where evidence gathered in preparing an unsuccessful issue
may also have been relevant to the successful claim, compensation
should be provided for the time spent gathering that evidence”).
To the extent Defendants used discovery for the copyright claims,
as well as for other claims such as Frost-Tsuji’s breach of
contract and unjust enrichment claims, Defendants are entitled to
collect reasonable attorney’s fees and costs for this “hybrid”
work.

If Frost-Tsuji could show that certain entries by

Defendants were entirely unrelated to Frost-Tsuji’s copyright
claims, then Defendants would not be entitled to an award for
that work.

But Frost-Tsuji makes no effort to identify specific

billing entries that are unconnected to compensable copyright
claims.
This court adopts the Magistrate Judge’s findings and
recommendation to award Defendants attorney’s fees for discoveryrelated work after August 26, 2014, relating to the copyright
claims, even if that work also relates to other claims.
2.

Objective Unreasonableness of Frost-Tsuji’s
Motions for Reconsideration.

Frost-Tsuji argues that the Magistrate Judge erred in
finding that Frost-Tsuji’s motions for reconsideration were
objectively unreasonable.

ECF No. 463, PageID # 9476.
12

The Magistrate Judge never made such a finding in his F
& R.

Rather, this court, in its September 2015 Order, found that

Frost-Tsuji’s CMI claim and successive motions for
reconsideration on the copyright infringement claim were
“objectively unreasonable” under Fogerty.

ECF No. 451, PageID #s

8613-17.
Frost-Tsuji, in seeking to have this court reconsider
its prior ruling as to objective unreasonableness in the
September 2015 Order, is again attempting to relitigate the law
of the case, despite having been warned on several occasions by
this court to “refrain from rearguing matters that are no longer
relevant based on the law of the case.”

See ECF No. 292, PageID

# 4567; ECF No. 451, PageID # 8616.
In any event, Frost-Tsuji fails to show that
reconsideration is warranted.

The “law of the case” doctrine

generally precludes a court from reconsidering an issue that has
already been decided by the same court or by a higher court in
the identical case.

Rebel Oil Co. v. Atlantic Richfield Co., 146

F.3d 1088, 1093 (9th Cir. 1998). For the doctrine to apply, the
issue in question must have been decided explicitly or by
necessary implication in the previous disposition.

Grounds

justifying departure from the law of the case include
substantially different evidence, a change in controlling
authority, and the need to correct a clearly erroneous decision

13

that would work a manifest injustice.

See United States v.

Alexander, 106 F.3d 874, 876 (9th Cir. 1997).

“Failure to apply

the doctrine of the law of the case absent one of the requisite
conditions constitutes an abuse of discretion.”

Id. (citing

Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993), cert. denied,
508 U.S. 951 (1993)).

Frost-Tsuji does not identify any

substantially different evidence, a change in controlling
authority, or the need to correct a clearly erroneous decision
that would work a manifest injustice.

Frost-Tsuji therefore

fails to show that this court should depart from its earlier
finding of objective unreasonableness.
Indeed, Frost-Tsuji’s arguments regarding objective
unreasonableness not only ignore the standard for overturning the
law of the case, they even ignore the standard for objective
unreasonableness set forth in Fogerty.
As noted in the September 2015 Order, “A claim is
objectively unreasonable where the party advancing it ‘should
have known from the outset that its chances of success in this
case were slim to none.’”

Perfect 10, Inc. v. Giganews, Inc.,

No. CV 11-07098-AB SHX, 2015 WL 1746484, at *11 (C.D. Cal. Mar.
24, 2015) (quoting SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709
F.3d 1273, 1280 (9th Cir. 2013).

Courts assess the objective

reasonableness of a copyright litigant’s claims “both in the
factual and in the legal components of the case.”

14

Fogerty, 510

U.S. at 534 n.19 (internal quotes omitted).
A claim that is not “objectively unreasonable” at the
outset can become so if the litigant continues to pursue it when
the litigant knew or should have known that the chance of success
was slim to none.

See Allen v. Ghoulish Gallery, No. CIV.

06CV371 NLS, 2008 WL 474394, at *7 (S.D. Cal. Feb. 19, 2008)
(holding claim “objectively unreasonable” when plaintiff
maintained claim without identifying or producing any evidence of
actual copyright in discovery, and produced only minimal evidence
of it at trial).
Frost-Tsuji says that its first motion for
reconsideration of the copyright infringement claim was not
objectively unreasonable because it was based on the court’s
failure to consider the Gagnon test for intent.
PageID # 9482.

ECF No. 463,

Even so, the motion was denied because the

arguments raised in it not only were unsupported by the record,
but also contradicted admissions previously made by Frost-Tsuji.
ECF No. 320, PageID # 5333.

To make matters worse, Frost-Tsuji’s

motion included arguments that it had clearly waived in the
underlying motion, see id., PageID # 5338, and “new evidence”
that it had in its possession at the time of the underlying
motions.

Frost-Tsuji provided no explanation as to why such

evidence was submitted for the first time on reconsideration.
Id., PageID #s 5334, 5342.

Given all of these problems,

15

Frost-Tsuji should have known that the motion for reconsideration
that it filed with regard to the copyright infringement claim was
highly unlikely to succeed.
The same holds true for Frost-Tsuji’s second motion for
reconsideration.

This motion was based on evidence belatedly

sought by Frost-Tsuji after the first motion for reconsideration
was denied.

ECF No. 463, PageID # 9482.

In the order denying

this motion, the court explained the fatal flaws in Frost-Tsuji’s
approach:
Frost-Tsuji now claims to have discovered new
evidence that raises factual issues that
should have precluded summary judgment with
respect to Count IV. But Frost-Tsuji does
not demonstrate that it acted with reasonable
diligence in obtaining this new evidence. To
the contrary, the record indicates that it
was only after it lost cross-motions for
summary judgment with respect to the
copyright infringement claim asserted in
Count IV that Frost-Tsuji sought the
discovery it says led to the new evidence.
This court expended substantial effort in
drafting its orders of August 26 and October
27, 2014. What Frost-Tsuji would have this
court do is accept that the court wasted its
time relying on the then-existing record,
excuse a party’s belated discovery efforts,
and revisit issues whenever a party feels
ready to supplement the record. The court
denies Frost-Tsuji’s Second Motion for
Reconsideration.
ECF No. 394, PageID # 6335.

As noted in the September 2015

Order, Frost-Tsuji, being represented by sophisticated counsel,
again should have known that this motion for reconsideration on
the copyright infringement claim was unlikely to succeed and
16

would create unnecessary expense for all the parties.
Frost-Tsuji argues that its motion for reconsideration
on the CMI claim was not objectively unreasonable because it was
based on new evidence that was not previously unavailable.
ECF No. 463, PageID # 9482.

See

However, Frost-Tsuji’s motion for

reconsideration on the CMI claim was objectively unreasonable for
two reasons.

First, the motion for reconsideration was denied

because Frost-Tsuji still had not submitted evidence to establish
that Defendants removed Frost-Tsuji’s copyright management
information.

ECF No. 394, PageID # 6328.

Second, Frost-Tsuji

made no attempt to demonstrate that it could establish the other
elements of its CMI claim.

Id., PageID # 6332 (“even if a

copyright management removal claim does not require that
information be removed from an original work, Frost-Tsuji makes
no attempt to demonstrate that it can satisfy the other elements
of such a claim on this motion”).

Whether intentionally or

inadvertently, Frost-Tsuji’s motion failed to take into account
the court’s earlier ruling that Defendants had a nonexclusive
implied license to use Frost-Tsuji’s plans.

In other words, even

if one or more Defendants had removed Frost-Tsuji’s copyright
management information, no Defendant could be said to have
removed copyright management information knowing or having
reasonable grounds to know that that removal would induce,
enable, facilitate, or conceal an infringement of federal

17

copyright laws.

Id.

It was objectively unreasonable for

Frost-Tsuji to attempt to prevail on its motion for
reconsideration by simply disagreeing with or disregarding this
court’s prior rulings on the copyright infringement claim.

See

White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006)
(“Mere disagreement with a previous order is an insufficient
basis for reconsideration.”).
Frost-Tsuji makes no attempt to show that, even if this
court were to reconsider the objective unreasonableness factor,
the balance of the other Fogerty factors should not still weigh
in favor of an award of fees and costs to Defendants.

Under

Fogerty, not all factors must be met to support an award of
attorney’s fees.

Fogerty, 94 F.3d at 558.

These factors are

merely guideposts for the court in exercising its “equitable
discretion,” and “courts are not limited to considering them.”
Id.

Thus, the Fogerty test does not say that if the party

opposing the award of fees disproves a single element such as
objective unreasonableness, that party will successfully defeat a
request for attorney’s fees.

For this court to depart from its

prior ruling that Defendants are entitled to attorney’s fees,
Frost-Tsuji would have to show that the balance of Fogerty
factors weighed against an award of attorney’s fees.

Frost-Tsuji

makes no such showing.
This court is unpersuaded by Frost-Tsuji’s arguments

18

regarding objective unreasonableness.
B.

Highway Inn’s Objections.

Highway Inn raises only one challenge to the Magistrate
Judge’s F & R.

According to Highway Inn, the Magistrate Judge

erred in recommending that the hourly rate for its counsel,
Harvey Lung, be reduced from $450.00 to $300.00 per hour.

See

ECF No. 464, PageID # 9497.
In determining the reasonableness of an hourly rate,
the experience, skill, and reputation of the attorney requesting
fees are taken into account.

See Webb v. Ada County, 285 F.3d

829, 840 & n.6 (9th Cir. 2002).

The reasonable hourly rate

should reflect the prevailing market rates in the community.

See

id.; Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as
amended on denial of reh’g, (1993) (noting that rate awarded
should reflect “the rates of attorneys practicing in the forum
district”); see also Chun v. Bd. of Trustees of Employees’ Ret.
Sys. of State of Hawaii, 106 Haw. 416, 435, 106 P.3d 339, 358
(2005) (listing “the customary charges of the Bar for similar
services” as factor that may be considered).

It is the burden of

the fee applicant to produce satisfactory evidence, in addition
to an affidavit from the fee applicant, demonstrating that the
requested hourly rate reflects prevailing community rates for
similar services.

See Jordan v. Multnomah County, 815 F.2d 1258,

1263 (9th Cir. 1987).

19

A review of recent cases from this jurisdiction sheds
light on the prevailing reasonable hourly rates for comparable
attorneys in the community.
In Olson v. Lui, No. CIV. 10-00691 ACK, 2012 WL
3686682, at *4 (D. Haw. Aug. 27, 2012), aff’d sub nom., Olson v.
Han Kamakani Phua, 584 Fed. Appx. 435 (9th Cir. 2014), the court
applied the hourly rate of $450.00 to Paul Alston, noting that he
had been a trial lawyer for more than forty years, had an AV
rating from Martindale–Hubbell, had been named a “Best Lawyer” in
seven categories, and also had been awarded the title of “Hawaii
Lawyer of the Year” in relevant practice areas by Best Lawyers in
America on two occasions.

Highway Inn argues that the $450.00

rate should also be applied to Mr. Lung.
However, in several other cases, this court and other
judges in the district declined to apply that hourly rate to Mr.
Alston.

See Au v. Funding Group, Inc., 933 F. Supp. 2d 1264,

1274–75 (D. Haw. 2013); Eggs ‘N Things Int’l Holdings PTE, Ltd.
v. ENT Holdings LLC., Civil No. 11–00626 LEK–KSC, 2012 WL
1231962, at *2 (D. Haw. Mar. 20, 2012), adopted by Eggs ‘N Things
Int’l Holdings Pte, Ltd. v. ENT Holdings LLC., Civil No. 11–00626
LEK–KSC, 2012 WL 1231992 (D. Haw. Apr. 11, 2012).

In Au and the

Eggs ‘N Things cases, the court approved a rate of $395.00 per
hour for Mr. Alston.
In Pasion v. County of Kauai, No. CV 13-00676 ACK-RLP,

20

2014 WL 1764920, at *3 (D. Haw. Apr. 29, 2014), Mark J. Bennett,
a former attorney general for the State of Hawaii with over
thirty-three years of experience and numerous awards and
recognitions, requested $450.00 per hour, which the court found
excessive.

Bennett was instead awarded $385.00 per hour for his

services.

Id.
In Seven Signatures General Partnership v. Irongate

Azrep BW LLC, 871 F. Supp. 2d 1040, 1053-54 (D. Haw. 2012),
Irongate requested $500.00 per hour for the work performed by
Terrence O’Toole, who at the time had over thirty-five years of
experience.
Mr. O’Toole.

The court approved a rate of $350.00 per hour for
Id.

In Yonemoto v. Department of Veterans Affairs, 2012 WL
1989818, *6 (D. Haw. June 1, 2012), the court approved a rate of
$300.00 per hour for Eric Seitz, an attorney with more than
thirty years of experience.

Likewise, in Dimitrion v. Morgan

Stanley Home Loans, 2014 WL 4639130, *4, (D. Haw. Sept. 16,
2014), the court approved of a rate of $300.00 per hour for Simon
Klevansky, an attorney with 37 years of experience, who
specialized in the relevant practice area of bankruptcy law.
During the period for which Highway Inn is requesting
fees, Mr. Lung had approximately thirty-three to thirty-four
years of experience.

See ECF Nos. 455-1, 455-6.

In Highway

Inn’s Objection to the Magistrate Judge’s F & R, Highway Inn

21

claims, based on Mr. Lung’s attached declaration, that Mr. Lung
has thirty-five years of commercial litigation experience.
ECF No. 464, PageID # 9500.

See

The declaration does not actually

provide evidence to confirm this contention.

See ECF No. 466.

In his declaration of October 20, 2015, Mr. Lung states that he
was admitted to practice in Hawaii in 1981 and that he has
practiced law in Hawaii for over thirty-three years.
455-1, PageID # 8821.

ECF No.

Based on this declaration, the court

determines that Mr. Lung had approximately thirty-three to
thirty-four years of experience from September, 2014, to October,
2015, the period for which Highway Inn seeks compensation for Mr.
Lung’s work.
Mr. Lung’s 2016 declaration also provides evidence of
his reputation and skill in certain areas.
PageID # 9528.

See ECF No. 466,

The declaration states that Mr. Lung was selected

as one of the “Best Lawyers in Hawaii” by Honolulu magazine from
2008 to 2016 in the areas of Commercial Litigation, Construction
Law, and Litigation–Construction and Mediation.

He was also

named “Lawyer of the Year” in Construction Litigation in 2014 by
Honolulu Magazine.

See ECF No. 466, PageID # 9528.

His name is

in the name of his law firm, and he very clearly is a wellregarded and experienced litigator.
However, while Mr. Lung may be entitled to an hourly
rate higher than $300.00 in a case involving those areas of law

22

in which he has demonstrated significant experience and
expertise, the claims for which Highway Inn is entitled to Mr.
Lung’s reasonable attorney’s fees concern copyright law.

Nothing

in the record suggests that Mr. Lung has copyright expertise
comparable to his considerable expertise in areas such as
construction law or mediation.

See, e.g., Chudacoff v. Univ.

Med. Ctr., 954 F. Supp. 2d 1065, 1089 (D. Nev. 2013) (reducing
requested hourly rate because fees were awarded for claims that
did not involve counsel’s area of expertise).

Nor does Highway

Inn offer evidence that Mr. Lung’s litigating of the copyright
issues called upon the depth of general commercial litigation
expertise he has acquired over decades of experience.

Moreover,

the rate of $300.00 appears appropriate when placed next to the
rates of other counsel in this case, many of whom also have many
years of practice.
Based on this court’s knowledge of the community’s
prevailing rates, the hourly rates generally granted by the
court, the court’s familiarity with this case, and defense
counsel’s submissions, this court agrees with the Magistrate
Judge that the requested rate of $450.00 per hour for Mr. Lung is
not warranted here and that a rate of $300.00 per hour for Mr.
Lung is reasonable, given the nature of the claims and the

23

prevailing rates for comparable attorneys in the community.1
C.

J. Kadowaki’s Objections.

J. Kadowaki raises a single objection the Magistrate
Judge’s F & R.

J. Kadowaki requested 246.576 hours in fees for

its work on its attorney’s fees motion, but the Magistrate Judge
found and recommended that J. Kadowaki was only entitled to
collect sixty hours, or less than 25%, of its requested amount,
for the motion.

See ECF No. 465, PageID # 9513.

J. Kadowaki contends that the Magistrate Judge ignored
controlling Ninth Circuit precedent that, “By and large, the
[district] court should defer to the winning lawyer’s
professional judgment as to how much time he [or she] was
required to spend on the case.”

See ECF No. 465, PageID # 9514

(citing Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763-64 (9th
Cir. 2015), cert. denied sub nom., Editions Ltd. W., Inc. v.

1

Besides noting again that this court could conceivably
approve a different rate in a different kind of case, this court
makes it clear that the court’s award based on a reduced hourly
rate (whether for Mr. Lung or any other attorney discussed in
this order) does not necessarily amount to a conclusion that an
attorney has overcharged a client. The considerations affecting
the court’s determination certainly overlap, but are not all
identical to, a client’s considerations. For example, the
court’s determination is retrospective, while a client agrees to
a fee schedule before knowing how a case will turn out, or
whether the case will evolve in such a way that makes greater use
of counsel’s areas of expertise. It is also important to note
that the court’s determination is specific to certain types of
claims and may not reflect the attorney’s value with regard to
other claims and the management of the rest of the case, whereas
the hourly rate agreed to by the client is not always specific to
particular types of claims.
24

Ryan, 136 S.Ct. 267 (U.S. Oct. 5, 2015), Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).
Critical to the Ninth Circuit’s reasoning, however, was
the fact that both Ryan and Moreno involved contingency-fee
cases.

See Ryan, 2016 WL 233093, at *6 (arguing that multiplier

of fees award was “necessary to compensate [plaintiff’s counsel]
for the risk he ran of nonpayment in this contingency case”);
Moreno, 534 F.3d at 1112.

The Ninth Circuit in Moreno justified

this deference to counsel in a contingency-fee case by noting:
lawyers are not likely to spend unnecessary
time on contingency fee cases in the hope of
inflating their fees. The payoff is too
uncertain, as to both the result and the
amount of the fee. It would therefore be the
highly atypical civil rights case where
plaintiff’s lawyer engages in churning. By
and large, the court should defer to the
winning lawyer’s professional judgment as to
how much time he was required to spend on the
case; after all, he won, and might not have,
had he been more of a slacker.
534 F.3d at 1112.

There is no dispute that counsel for J.

Kadowaki did not take the case on a contingency-fee basis.

The

rationale in Ryan and Moreno for deferring to the winning
lawyer’s professional judgment regarding the time required on a
project therefore does not apply here.
J. Kadowaki also contends that the Magistrate Judge
ignored controlling Ninth Circuit precedent on attorney’s fees
awards in copyright infringement cases when he “fail[ed] to
provide any explanation [for his reduction of the fees] other
25

than his simple statement that he believed the hours on the JKI’s
Motions for Award of Attorneys’ Fees and Costs was ‘excessive.’”
See id., PageID #s 9514-15; see also id., PageID #s 9511-15
(citing Ryan, 786 F.3d at 763-64, Moreno, 534 F.3d at 1112, and
Inhale, Inc. v. Starbuzz Tobacco, Inc., No. 2:11-cv-03838-ODW
(FFMx), 2015 WL 1470796, at *2 (C.D. Cal. Mar. 31, 2015)).
J. Kadowaki mischaracterizes the Magistrate Judge’s F &
R, apparently in an attempt to draw a parallel between the
analysis in the F & R and the analysis by the district court that
the Ninth Circuit found wanting in Moreno.

In Moreno, the Ninth

Circuit vacated the district court’s fees award because “the
district court did not explain the necessity or degree of the
cut, other than to say that the amount of time plaintiff’s
counsel spent was ‘excessive.’”

534 F.3d at 1113.

It is clear

from a review of the F & R that the Magistrate Judge here
provided a much more in-depth explanation for the recommendation
to reduce J. Kadowaki’s fees than simply saying that the fees
were “excessive.”

The Magistrate Judge explained:

[J. Kadowaki] requests reimbursement for
159.426 hours of its Counsel Lyle M. Ishida’s
time, and 87.15 hours of its Legal Assistant
Jeannine Kamai’s time for work done in
connection with this filing. This would
amount to nearly $50,000 in fees for a
single motion. The Court observes that the
party requesting fees bears the burden of
proving that the requested fees were
reasonably and necessarily incurred. [Tirona
v. State Farm Mut. Auto. Ins. Co., 821
F. Supp. 632, 636 (D. Haw. 1993)]. The Court
26

finds that [J. Kadowaki] has not demonstrated
that expending nearly 250 hours to put
together a single filing was reasonable and
necessary. Instead, the Court finds that
considering the nature and circumstances
presented by this case, [J. Kadowaki’s]
request is grossly excessive and too much
time is being claimed by counsel for
preparation of [J. Kadowaki’s] fee motion.
It is the Court’s conclusion that this motion
could reasonably have been prepared by a
reasonably competent lawyer in 40 billable
hours. The Court is tasked with guarding
against awarding fees and costs which are
excessive, and has discretion to “trim the
fat” from, or otherwise reduce, the number of
hours spent on a case. Parr v. Kalani Corp.,
Civ. No. 11-00514 ACK-BMK, 2012 WL 1424538,
at *4 (D. Haw. Apr. 3, 2012). Therefore, the
Court recommends that the time spent on this
filing be reduced as follows: Lyle Ishida’s
time to be reduced by 119.426 hours to
reflect 40 hours spent on this filing, and
Jeannine Kamai’s time to be reduced by 67.15
hours to reflect 20 hours spent on this
filing. The Court is familiar with the
amount of time it generally takes counsel to
prepare a Motion for Attorneys’ Fees, and
considering the nature of this case and the
details of the fee request pending before the
Court, the Court finds that this reduction is
reasonable and appropriate under the
circumstances.
ECF No. 462, PageID #s 9446-48.
This court finds that the explanation provided by the
Magistrate Judge satisfies the requirements in Moreno.

In

Moreno, the Ninth Circuit instructed, “[I]f the court believes
the overall award is too high, it needs to say so and explain
why, rather than making summary cuts in various components of the
award.”

534 F.3d at 1113.

The Ninth Circuit added that the

27

court should also identify the degree of excessiveness.

Id.

Here, the Magistrate Judge explained that the request was too
high considering it was for a single attorney’s fees motion, and
pointed out that his finding was also based on J. Kadowaki’s
failure to justify the additional time spent beyond what is
normal for such a motion.

Furthermore, the Magistrate Judge

heeded the instruction in Moreno by stating the degree of
excessiveness.

The Magistrate Judge decided, based on his

understanding of the circumstances of this case, his familiarity
with the briefing and evidence, and his extensive experience with
adjudicating motions for attorney’s fees, that the amount
requested for J. Kadowaki’s counsel was excessive by 119.426
hours, and the amount requested by the legal assistant was
excessive by 67.15 hours.
J. Kadowaki suggests that the Magistrate Judge’s
explanation for the reduced award is inadequate because “[n]o
specific rejection of time entries or line items was explained.”
ECF No. 465, PageID # 9513.

As a practical matter, however, this

approach does not make sense, given that the Magistrate Judge’s
rationale for denying the requested total amount was that it is
unreasonably high for the type of motion under the circumstances.
Were the Magistrate Judge denying specific time entries because
they were unrelated to the claim, vague, or duplicative, a lineby-line analysis of the disputed entries would be appropriate.

28

However, because the Magistrate Judge’s reduction was not
targeting specific time entries, but rather the overall amount
requested, this court concludes that his decision not to engage
in a line-by-line analysis was wholly appropriate under the
circumstances.

None of the Ninth Circuit case law cited by J.

Kadowaki, whether Moreno, Inhale, or Ryan, requires a line-byline denial of time entries when the basis for reducing the award
is that the request is excessive for the particular type of legal
work.
J. Kadowaki’s reliance on Inhale and Ryan also does not
persuade this court to modify the F & R.

Both cases are

inapposite in that they specifically address a district court’s
explanation for “across-the-board” cuts in attorney’s fees.
In Ryan, the Ninth Circuit vacated the district court’s
across-the-board twenty-percent reduction of pretrial and trial
phase attorney’s fees because the district court “provided no
explanation for the determination that twenty percent was the
appropriate amount to deduct, and failed to account for the fact
that many of the entries in Ryan’s billing log were not billed in
block format.”

786 F.3d at 765.

In Inhale, which is not binding precedent on this
court, the district court noted,
When faced with a “massive fee application,”
the Court may make “across-the-board
percentage cuts” instead of making an
hour-by-hour analysis. The Court may make a
29

small across-the-board reduction, no greater
than 10 percent, based on its exercise of
discretion and without a more specific
explanation. Nonetheless, a clear and
concise explanation is required if the
reduction is greater than 10 percent.
2015 WL 1470796, at *2.
The recommended cuts in J. Kadowaki’s fees relate to a
single motion.

More importantly, the Magistrate Judge adequately

explained the recommended cuts.

See ECF No. 462, PageID #s 9446-

48.
J. Kadowaki argues that Local Rule 54.3 required the
Magistrate Judge to provide a more detailed explanation for his
reduction of the requested fees.

See ECF No. 465, PageID # 9514

(“Here, where the Magistrate Judge ‘trimmed’ more than 75% of
JKI’s requested hours, a more substantial explanation for its
reduction is required.

What was required under L.R. 54.3 was a

detailed explanation of the tasks and entries the court felt were
not justified by JKI in researching, preparing, presenting and
substantiating the information requested by the Court rules.”).
Although Local Rule 54.3 requires “adequate” descriptions for
work performed, it imposes those requirements on the parties
moving for fees, not the judges adjudicating the fees motion.
See Local Rule 54.3.

This argument is unpersuasive.

J. Kadowaki also contends that the Magistrate Judge
undervalued the amount of work required for its motion for
attorney’s fees.

See ECF No. 465, PageID #s 9515-17.
30

J. Kadowaki’s bills regarding the motion have been
submitted as Exhibit M-2 to ECF No. 454.

See ECF No. 454-2.

In adjudicating motions for attorney’s fees, this court need not
conduct a “mini-trial” with respect to the parties’
disagreements.

See Mendoza v. Brewster Sch. Dist. No. 111, 469

F. Supp. 2d 905, 920 (E.D. Wash. 2006) (citing Hensley, 461 U.S.
at 437).
Having examined J. Kadowaki’s timesheets with regard to
its attorney’s fees motion, see ECF No. 454-2, PageID #s 8741-49,
this court agrees with the Magistrate Judge’s judgment that
$50,000 in fees and nearly 250 hours spent for a single
attorney’s fees motion is grossly excessive, see ECF No. 462,
PageID # 9447.
Although J. Kadowaki says the motion required more work
because J. Kadowaki knew it would be vigorously opposed, it does
not provide sufficient detail as to why 246.576 hours of work was
necessary for the motion.

Nor does J. Kadowaki explain why its

attorney needed over forty hours just to research the standard
for the award of attorney’s fees for actions under the Copyright
Act or the DCMA, see ECF No. 454-2, PageID #s 8741-49, or
approximately 35 hours just to draft the initial memorandum.
id., PageID #s 8741-46.

See

In comparison, J. Kadowaki only took 6.3

hours to draft its reply memorandum.

See id., PageID # 8747.

Without such explanations, the court cannot determine that the

31

time expended was reasonable.

The reduction in J. Kadowaki’s

fees recommended by the Magistrate Judge is adequately explained.
With respect to legal assistant hours on the motion for
attorney’s fees, this court agrees with the Magistrate Judge that
they, too, were excessive.

A review of the time entries reveals

that a majority of the legal assistant’s time was spent preparing
the exhibits in support of J. Kadowaki’s motion for attorney’s
fees.

See id., PageID #s 8741-46.

Nearly seventy of those hours

are accounted for by the time entry, “draft/prepare back-up
materials for motion for attorneys fees/costs.”
#s 8741-46.

See id., PageID

The court recognizes that it likely took the legal

assistant a substantial amount of time to prepare certain
exhibits, particularly those detailing the receipts related to J.
Kadowaki’s costs and listing the relevant attorney time entries
for the motion.

But the court finds, after having reviewed all

of the exhibits prepared by the legal assistant, that it should
not have taken nearly ninety hours to gather and prepare these
exhibits.

See id.
Like the Magistrate Judge, this court is familiar with

both the facts and circumstances of the case, and in particular,
J. Kadowaki’s motion for attorney’s fees.

The court also has

substantial experience with the amount of work it requires to
research and draft such a motion, and prepare the exhibits in
support of the motion.

This court agrees with and adopts the

32

Magistrate Judge’s recommendation to award reasonable attorney’s
fees to J. Kadowaki in the amount of forty hours for its counsel,
Mr. Ishida, and twenty hours for his legal assistant, Ms. Kamai.
V.

CONCLUSION.
Having reviewed the portions of the F & R objected to,

the court adopts the F & R in its entirety.
Bargreen Ellingson is awarded $23,678.00 in attorney’s
fees and $355.97 in costs, for a total award of $24,033.97; J.
Kadowaki is awarded $135,004.70 in attorney’s fees and $4,827.30
in costs, for a total award of $139,832.00; Highway Inn and
Ho‘ola Mau are awarded $209,660.64 in attorney’s fees and
$4,914.33 in costs, for a total award of $214,574.97; and Highway
Inn, on behalf of Bryce Uyehara and Iwamoto and Associates, is
awarded $68,885.31 in attorney’s fees and $1,204.31 in costs, for
a total award of $70,089.62.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 30, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496 SOM/BMK; ORDER
ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT IN PART
DEFENDANTS’ MOTIONS FOR ATTORNEY’S FEES AND COSTS

33