Kauhako v. State of Hawaii Board of Education Department Of Education et al
ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DENY THIRD-PARTY DEFENDANT RUSTON TOM'S MOTION FOR ATTORNEYS' FEES re 243 Findings and Recommendations. Signed by JUDGE DERRICK K. WATSON on 12/21/2016. (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).
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I
ANGELICA J. KAUHAKO, individually CIVIL NO. 13-00567 DKW-KJM
and as parent and next friend of her minor
child, MARIANA DOE,
ORDER ADOPTING FINDINGS
AND RECOMMENDATION TO
DEFENDANT RUSTON TOM’S
MOTION FOR ATTORNEYS’
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, et al.,
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, et al.,
ORDER ADOPTING FINDINGS AND RECOMMENDATION
TO DENY THIRD-PARTY DEFENDANT
RUSTON TOM’S MOTION FOR ATTORNEYS’ FEES
Following a nine-day trial, the jury returned a verdict against the State of
Hawaii Board of Education Department of Education (“State”) and Kristin
Lindquist on Angelica Kauhako and her daughter Mariana’s negligence-based
claims arising out of an alleged sexual assault against Mariana by another student
at Waianae High School, Third-Party Defendant Ruston Tom. The jury also
returned a verdict in favor of Tom on the State’s third-party claim against him for
contribution. Following the favorable verdict, Tom sought attorneys’ fees against
the State as the prevailing party under statutory fee shifting provisions.
Tom objects to the Magistrate Judge’s October 28, 2016 Findings and
Recommendation (F&R), denying his post-trial motion for attorneys’ fees and
costs.1 Because Tom is not entitled to attorneys’ fees under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415, or Hawaii Revised
Statutes (“HRS”) § 607-14.5, and there is no other basis under which to award
fees, the Court ADOPTS the conclusions of the F&R and overrules Tom’s
The Court finds this matter suitable for disposition without a hearing pursuant to Local Rule
Claims, Third-Party Claims, And Trial
Claims and Third-Party Claims
On September 6, 2013, Kauhako filed a Complaint against the State;
Lindquist, Mariana’s Special Education teacher; and Nelson Shigeta, Principal of
Waianae High School (collectively, the “State Defendants”), alleging that Tom
sexually assaulted Mariana in a school bathroom during school hours. The
Complaint asserted the following claims: (1) violation of Title IX, 20 U.S.C.
§ 1681(a), based on student-on-student sexual harassment (Count I); (2) a 42
U.S.C. § 1983 claim for violation of the Fourteenth Amendment and Title IX
(Count II); (3) premises liability (Count III); (4) sexual assault and battery (Count
IV); (5) negligent supervision of students (Count V); (6) negligent hiring, training,
and/or supervision of school staff (Count VI); (7) negligence (Count VII); (8) gross
negligence (Count VIII); (9) willful and wanton conduct/reckless disregard (Count
IX); (10) intentional infliction of severe emotional distress (“IIED”) (Count X);
(11) negligent infliction of emotional distress (“NIED”) (Count XI); (12) and a
respondeat superior claim against the State (Count XII). See Dkt. No. 1-1.
On November 7, 2013, the State Defendants filed a First Amended ThirdParty Complaint against Tom, seeking contribution and indemnification in the
event that that they were found liable to Kauhako for any injuries or damages. See
Dkt. No. 11. Tom’s Motion to Strike or Dismiss the Third-Party Complaint was
denied in a July 11, 2014 order. See Dkt. No. 29.
Trial And Verdict
Trial commenced on April 18, 2016. As a result of rulings on several
dispositive motions, see Dkt. Nos. 45 and 83, the following claims remained for
trial against the State and Lindquist: (1) violation of Title IX (Count I);
(2) negligent supervision of students (Count V); (3) negligence (Count VII);
(4) gross negligence (Count VIII); (5) IIED (Count X); and (6) NIED (Count XI).
During the course of trial, the Court denied Tom’s motion for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(a). See Dkt. Nos.
185 and 191. Tom’s Rule 50(a) Motion asserted, in part:
that any arguable third party claims against Ruston are not
based upon federal statutes that automatically confer
jurisdiction upon the federal district court since Ruston,
himself, has no liabilities under Title IX or under the
Individuals with Disabilities in Education Act [“IDEA”].
Perhaps he could have been sued by the Plaintiff for negligent
or intentional torts under Hawaii State law, but the Plaintiff has
chosen not to pursue any such claims against Ruston.
Accordingly, this Court’s jurisdiction arises – if at all – under
28 U.S.C. 1367(a), the statute that allows this Court to exercise
its “supplemental jurisdiction” under certain clearly defined
circumstances or, alternatively to decline jurisdiction for
reasons set forth in Section 1367(c). In their Third-Party
Complaint against Ruston the Defendants made no allegations
pertaining to jurisdiction and to this date never have articulated
any basis or justification for this Court to hear their claims
against Ruston Tom.
Dkt. No. 185 at 4-5.
The jury returned its verdict on May 2, 2016, finding the State and Lindquist
liable for negligence, negligent supervision, and NIED. The jury awarded
Kauhako general damages in the amount of $157,500, and awarded Mariana
$630,000 in general damages, $2,825 for past medical expenses and $20,000 for
future medical expenses. The jury also apportioned fault between the Defendants,
finding the State 95 percent and Lindquist 5 percent liable, respectively. See Dkt.
No. 204. The jury’s verdict included a determination that Kauhako failed to prove
by clear and convincing evidence that Lindquist was motivated by malice. As a
result, post-trial, the Court ruled as a matter of law that Lindquist was entitled to a
qualified privilege under state law, and, without objection, dismissed the three
negligence-based claims against her with prejudice. See Dkt. No. 207.
Magistrate Judge’s F&R
On May 26, 2016, Tom filed a Motion for Attorneys’ Fees pursuant to Local
Rule 54.3, seeking his fees as the prevailing party under (1) the IDEA, and
(2) HRS § 607-14.5. Dkt. No. 211. In the October 20, 2016 F&R, the Magistrate
Judge found that Tom is not entitled to fees under either provision.
The Magistrate Judge first addressed Tom’s asserted grounds for fees under
the IDEA, including that: (1) the State breached its obligations to protect special
education students Mariana and Tom; (2) the breach resulted in the events at issue
in the civil action, and (3) Tom is a prevailing party. F&R at 5-7. The F&R
reviewed the procedural history of the litigation, detailing the claims brought by
Kauhako against the State Defendants and by the State Defendants against Tom,
and then explaining that none of claims were brought under the IDEA.
Plaintiff’s allegations against the State BOE and Lindquist did
not include claims that Defendants violated the IDEA. Rather,
Plaintiff proceeded to trial against the State BOE under Title
IX and sought relief against both the State BOE and Lindquist
for negligence-based and emotional distress tort claims. As
the State BOE notes, “nowhere in Plaintiff’s First Amended
Complaint was there any reference to the IDEA nor [we]re
any claims made pursuant to the IDEA. Moreover, [Tom], as
a Third-Party Defendant, was defending a contribution claim
contained in the Third-Party Complaint. Defending himself
against the contribution claim has nothing to do with” the
F&R at 6 (citation omitted).
The Magistrate Judge concluded that because the claims at issue were not
brought under the IDEA, Tom is not entitled to fees under the IDEA as a
prevailing party. F&R at 6-8.
HRS § 607-14.5
The F&R next addressed Tom’s contention that he is entitled to fees under
HRS § 607-14.5 because the third-party claims were frivolous. The Magistrate
Judge reviewed the relevant history of the third-party claims, noting that the
district court denied Tom’s Motion to Strike or Dismiss the Third-Party Complaint
and denied his Rule 50(a) Motion for Judgment as a Matter of law. F&R at 10.
The F&R noted the absence of any finding of frivolousness by the district court,
and the Magistrate Judge independently determined that the third-party claims fell
short of the standard for bad faith or frivolousness. F&R at 11-12. The Magistrate
Judge accordingly recommended that fees be denied under HRS § 607-14.5.
STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or recommendations,
the district court must review de novo those portions to which the objections are
made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also
United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and recommendations de novo if objection is made,
but not otherwise.”).
Under a de novo standard, this Court reviews “the matter anew, the same as
if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); see
also United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district
court need not hold a de novo hearing. However, it is the Court’s obligation to
arrive at its own independent conclusion about those portions of the magistrate
judge’s findings or recommendation to which a party objects. United States v.
Remsing, 874 F.2d 614, 616 (9th Cir. 1989). The district judge may accept the
portions of the findings and recommendation to which the parties have not
objected as long as it is satisfied that there is no clear error on the face of the
record. See United States v. Bright, 2009 WL 5064355, at *3 (D. Haw. Dec. 23,
2009); Fed. R. Civ. P. 72(b) advisory committee’s note.
Tom Is Not Entitled To Fees Under The IDEA
“The IDEA is a comprehensive educational scheme, conferring on disabled
students a substantive right to public education and providing financial assistance
to enable states to meet their educational needs.” Hoeft ex rel. Hoeft v. Tucson
Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v. Doe, 484
U.S. 305, 310 (1988)). It ensures that “all children with disabilities have available
to them a free appropriate public education [(“FAPE”)] that emphasizes special
education and related services designed to meet their unique needs and prepare
them for further education, employment, and independent living[.]” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA provides, in pertinent part, “In any action or
proceeding brought under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs . . . to a prevailing party who is the
parent of a child with a disability[.]” 20 U.S.C. § 1415(i)(3)(B)(i)(I).
As explained concisely in the F&R, this civil action was not brought under
the IDEA, and accordingly, the Court has no authority to award fees to any party
under the statute. Tom himself acknowledges that the F&R correctly “points out
that the Plaintiff did not specifically cite the [IDEA] as a basis for her claims.”
Objections at 3. Because none of the claims were brought under the IDEA, and
only a party who prevails under an “action or proceeding brought under this
section ” is entitled to fees, Tom is not entitled to fees under the statute.
Tom’s generalized arguments that the State breached unspecified duties
under the IDEA to supervise special education students Tom and Mariana do not
bring any of Kauhako’s claims or the State Defendants’ third-party claims within
the ambit of the IDEA. The federal IDEA sets out a detailed statutory scheme that
requires exhaustion of administrative remedies, see 20 U.S.C. § 1415(b), and
permits appellate review by the court rather than a trial by jury. See 20 U.S.C.
§ 1415(i)(2)(C).2 Tom does not detail which of the IDEA’s statutory provisions
The Ninth Circuit provides the following overview of the statutory scheme:
The IDEA seeks “to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes
special education and related services designed to meet their unique
needs and prepare them for employment and independent living.” 20
U.S.C. § 1400(d)(1)(A). To implement the IDEA, schools must prepare
a written Individualized Education Program (“IEP”) for each disabled
child. 20 U.S.C. § 1414(d); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d
1467, 1469 (9th Cir. 1993). “[T]he IEP sets out the child’s present
educational performance, establishes annual and short-term objectives
for improvements in that performance, and describes the specially
designed instruction and services that will enable each child to meet
were violated by the State Defendants here or how they “violated their duties under
the IDEA” to Tom or Mariana. Tom cannot now recharacterize Kauhako’s claims
or the State Defendants’ third-party claim for contribution as claims “brought
under” the IDEA – they were not.
The Court concludes that Tom is not entitled to attorneys’ fees pursuant to
the IDEA under the circumstances presented, and accordingly overrules Tom’s
Objections and adopts the F&R on this point.
Tom Is Not Entitled To Fees Under HRS § 607-14.5
Tom also objects to the Magistrate Judge’s finding that the third-party
claims were not frivolous for purposes of HRS § 607-14.5. In support of this
argument, he posits that “[e]ven in the absence of any specific precedent we think
this Court should award fees and costs to this prevailing third-party defendant
because the failure to do so will simply reward the state defendants for bringing
these objectives.” Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98
L.Ed.2d 686 (1988). The statute guarantees parents of disabled children
an opportunity to participate in the identification, evaluation, and
placement process. 20 U.S.C. §§ 1414(d)(1)(B)(i), 1415(b)(1). Parents
who object to their child’s “identification, evaluation, or educational
placement,” or have a complaint regarding the provision of a free
appropriate public education for their child, can file an administrative
complaint and are entitled to an impartial due process hearing. Id.
§§ 1415(b)(6), (f)(1); Ojai, 4 F.3d at 1469. At the due process hearing,
parents have a right to be accompanied and advised by counsel, present
evidence, and confront, cross-examine, and compel the attendance of
witnesses. 20 U.S.C. § 1414(h). Parents aggrieved by a hearing
officer’s findings and decision can file a civil action in either federal or
state court. Id. § 1415(i)(2).
P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1167 (9th Cir. 2007).
claims that should never have been pursued in the first place.” Objections at 5.
The Court declines to award fees under Tom’s proposed standard.
The Magistrate Judge recommended denying Tom’s request for fees under
HRS § 607-14.5, which authorizes fees and costs in cases involving frivolous
claims, as follows:
(a) In any civil action in this State where a party seeks money
damages or injunctive relief, or both, against another party, and
the case is subsequently decided, the court may, as it deems
just, assess against either party, whether or not the party was a
prevailing party, and enter as part of its order, for which
execution may issue, a reasonable sum for attorneys’ fees and
costs, in an amount to be determined by the court upon a
specific finding that all or a portion of the party’s claim or
defense was frivolous as provided in subsection (b).
(b) In determining the award of attorneys’ fees and costs and
the amounts to be awarded, the court must find in writing that
all or a portion of the claims or defenses made by the party are
frivolous and are not reasonably supported by the facts and the
law in the civil action. In determining whether claims or
defenses are frivolous, the court may consider whether the party
alleging that the claims or defenses are frivolous had submitted
to the party asserting the claims or defenses a request for their
withdrawal as provided in subsection (c). If the court
determines that only a portion of the claims or defenses made
by the party are frivolous, the court shall determine a
reasonable sum for attorneys’ fees and costs in relation to the
frivolous claims or defenses.
HRS § 607-14.5.
A “frivolous” claim is one that is “‘so manifestly and palpably without
merit, so as to indicate bad faith on the pleader’s part such that argument to the
court was not required.’” Canalez v. Bob’s Appliance Serv. Ctr., Inc., 89 Hawai‘i
292, 300, 972 P.2d 297, 303 (1999) (quoting Coll v. McCarthy, 72 Hawai‘i 20, 29,
804 P.2d 881, 887 (1991)). The Magistrate Judge accurately noted that the Court
made no specific finding, in writing or otherwise, that the third-party claims were
frivolous. Indeed, the Court denied Tom’s motion to dismiss and Rule 50(a)
motion on the third-party claims, evincing sufficient questions going to the merits
– and correspondingly a lack of frivolousness – to allow the claims to reach the
jury. Although the jury found that Tom was not liable to the State Defendants for
contribution, he failed to establish during the course of trial – and now post-trial –
that the third-party claims were so manifestly and palpably without merit so as to
indicate bad faith on the part of the State Defendants. Consequently, Tom is not
entitled to attorneys’ fees under HRS § 607-14.5.
Upon de novo review of the F&R, and based on its own review and
familiarity with this case, the Court overrules Tom’s Objections and adopts the
F&R’s recommendation to deny the request for attorneys’ fees and costs under
HRS § 607-14.5.
For the foregoing reasons, the Court ADOPTS the Findings and
Recommendation to Deny Third-Party Defendant Tom’s Motion for Attorneys’
IT IS SO ORDERED.
DATED: December 21, 2016 at Honolulu, Hawai‘i.
Kauhako v. State of Hawaii, et al.; Civ. No. 13-00567 DKW-KJM; ORDER
ADOPTING FINDINGS AND RECOMMENDATION TO DENY THIRDPARTY DEFENDANT RUSTON TOM’S MOTION FOR ATTORNEYS’
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