Berry v. Deutsche Bank National Trust Company et al

Filing 44

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S OBJECTION TO THE SUPPLEMENT TO THE AMENDED FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS BRIAN VICTOR BERRY AND DONNA DARLENE BERRY'S MOTION TO ENFORCE SETTLEMENT AGREEMENT; ADOPTING THE AMENDED FINDINGS AND RECOMMENDATION; AND ADOPTING THE SUPPLEMENT TO THE AMENDED FINDINGS AND RECOMMENDATION, AS MODIFIED 36 , 41 , 42 - Signed by JUDGE LESLIE E. KOBAYASHI on 11/24/2014. "Plaintiffs' Motion t o Enforce Settlement Agreement, filed September 3, 2014, is therefore GRANTED as follows: 1. The Court ORDERS Defendant to pay the required conveyance tax, provide a yellow-paper conveyance tax certificate with original signatures, provide th e appropriate powers of attorney, and record a valid limited warranty deed in the Land Court transferring title of the subject property to Plaintiffs no later than five days after the filing of this Order. 2. Plaintiffs' request for at torneys' fees and expenses incurred in bringing the Motion to Enforce is GRANTED, and this Court awards Plaintiffs $11,689.52 in attorneys' fees and $39.79 in expenses, for a total award of $11,729.31. This Court ORDERS De fendant to pay $11,729.31 to Plaintiffs, through Plaintiffs' counsel, by January 8, 2015." (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
BRIAN VICTOR BERRY and DONNA
DARLENE BERRY,

)
)
)
)
Plaintiffs,
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
)
COMPANY, ETC., ET AL.,
)
)
Defendants.
_____________________________ )

CIVIL 13-00704 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S OBJECTION
TO THE SUPPLEMENT TO THE AMENDED FINDINGS AND RECOMMENDATION
TO GRANT PLAINTIFFS BRIAN VICTOR BERRY AND DONNA DARLENE BERRY’S
MOTION TO ENFORCE SETTLEMENT AGREEMENT; ADOPTING THE AMENDED
FINDINGS AND RECOMMENDATION; AND ADOPTING THE SUPPLEMENT
TO THE AMENDED FINDINGS AND RECOMMENDATION, AS MODIFIED
On October 3, 2014, the magistrate judge filed his
Amended Findings and Recommendation to Grant Plaintiffs
Brian Victor Berry and Donna Darlene Berry’s Motion to Enforce
Settlement Agreement (“Amended F&R”).1

[Dkt. no. 36.]

On

October 16, 2014, the magistrate judge issued a supplement to the
Amended F&R (“Supplemental F&R”).

[Dkt. no. 41.]

Defendant

Deutsche Bank National Trust Company, a national banking
association (“Defendant”), filed its objections to the
Supplemental F&R (“Objections”) on October 30, 2014.
42.]

[Dkt. no.

Plaintiffs Brian Victor Berry and Donna Darlene Berry

1

The magistrate judge filed the original version of the F&R
on September 26, 2014 (“F&R”). [Dkt. no. 35.] He filed the
Amended F&R to correct a typographical error.

(“Plaintiffs”) filed their response to the Objections
(“Response”) on November 13, 2014.

[Dkt. no. 43.]

The Court

finds this matter suitable for disposition without a hearing
pursuant to Rule LR7.2(e) 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, the

Response, and the relevant legal authority, and for the reasons
set forth below, the Objections are HEREBY GRANTED IN PART AND
DENIED IN PART, the Amended F&R is HEREBY ADOPTED, and the
Supplemental F&R is HEREBY ADOPTED, AS MODIFIED.
BACKGROUND
Plaintiffs filed this action on December 19, 2013.

The

factual background in this case is set forth in the Amended F&R.
[Amended F&R at 2-4.2]

This Court will only discuss the events

that are relevant to the Objections.
On September 3, 2014, Plaintiffs filed their Motion to
Enforce Settlement Agreement (“Motion to Enforce”).
22.]

[Dkt. no.

This Court referred the Motion to Enforce to the magistrate

judge.

The magistrate judge held a hearing on the Motion to

Enforce on September 26, 2014, [dkt. no. 34 (Minutes),] and
issued the F&R later that day.

2

Neither Plaintiffs nor Defendant filed an objection to the
Amended F&R. Defendant has only objected to the Supplemental
F&R. See Objections at 2.
2

The magistrate judge recommended that this Court grant
the Motion to Enforce and award Plaintiffs their attorneys’ fees
and expenses incurred in bringing the Motion to Enforce.
[Amended F&R at 8-9.]

The magistrate judge directed Plaintiffs

to file a declaration regarding the amount of their expenses and
gave Defendant leave to file an optional response.

[Id. at 9.]

Plaintiffs filed their Supplemental Memorandum in
Support of Request for Award of Attorneys’ Fees and Costs (“Fee
Memorandum”) on October 3, 2014.

[Dkt. no. 37.]

Plaintiffs

request an award of $15,249.96 in attorneys’ fees and $39.79 in
expenses, for a total award of $15,289.75.
1.]

[Fee Memorandum at

Defendant filed its opposition to the Fee Memorandum (“Fee

Opposition”) on October 9, 2014, and Plaintiffs filed their reply
(“Fee Reply”) on October 13, 2014.

[Dkt. nos. 38, 39.]

In the Supplemental F&R, the magistrate judge
summarized the fee request as follows:
HOURS
ATTORNEY
Ted N. Pettit, Esq.
7.0
Dana R. Lyons, Esq.
47.7
Stephanie J. Yoder, paralegal 0.5
Hawaii General Excise Tax
TOTAL

RATE
$400
$245
$155
4.71%

[Supplemental F&R at 2 (citation omitted).]

TOTAL
$ 2,800.00
$11,686.50
$
77.50
$
685.96
$15,249.96

The magistrate judge

found that “the following hourly rates are reasonable: $325 for
Mr. Pettit, $190 for Mr. Lyons, and $85 for Ms. Yoder,” and that
all of “the time requested was reasonably incurred in enforcing
the Settlement Agreement.”

[Id. at 3.]
3

The magistrate judge therefore recommended the
following award of attorneys’ fees:
ATTORNEY
HOURS
Ted N. Pettit, Esq.
7.0
Dana R. Lyons, Esq.
47.7
Stephanie J. Yoder, paralegal 0.5
Hawaii General Excise Tax
TOTAL

RATE
$325
$190
$85
4.71%[3]

TOTAL
$ 2,275.00
$ 9,063.00
$
42.50
$
536.25
$11,916.75

He also found that Plaintiffs’ request for $39.79 in

[Id.]

copying costs was reasonable.

[Id. at 4.]

Thus, he recommended

an award of attorneys’ fees of $11,916.75 and an award of
expenses of $39.79, for a total award of $11,956.54.

[Id.]

In the instant Objections, Defendant states that it
does not object to the recommended hourly rates, but it argues
that the number of hours reflected in the recommended award is
unreasonable.

[Objections at 2.]
STANDARD

This Court reviews a magistrate judge’s findings and
recommendations under the following standard:
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
3

Although the magistrate judge’s table includes 4.71% in
general excise tax, it appears that he used the 4.712% rate. The
omission of the “2” may have been a typographical error.
4

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); 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).
PJY Enters., LLC v. Kaneshiro, Civil No. 12–00577 LEK–KSC, 2014
WL 3778554, at *2 (D. Hawai`i July 31, 2014) (alteration in PJY)
(some citations omitted).
DISCUSSION
I.

Uncontested Findings and Recommendations
As noted, supra, neither Plaintiffs nor Defendants

filed a timely objection to the Amended F&R.

This Court

therefore ADOPTS the Amended F&R.
In the Objections, Defendant does not contest either
the magistrate judge’s findings regarding the reasonable hourly
rates for Plaintiffs’ counsel or the finding that the requested
copying costs are reasonable.

This Court also notes that

Plaintiffs did not file a timely objection to the magistrate
judge’s reduction in counsel’s hourly rates.

This Court

therefore ADOPTS the magistrate judge’s findings regarding the
5

reasonable hourly rates and the finding that the request for
copying costs was reasonable.
II.

Determination of Attorneys’ Fee Award
This Court agrees with the magistrate judge that:

“Reasonable attorneys’ fees are generally based on the
traditional ‘lodestar’ calculation, which multiplies ‘the number
of hours reasonably expended on the litigation’ by ‘a
reasonable hourly rate.’”

[Supplemental F&R at 2 (quoting

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).]

This Court

also agrees that, in determining the number of hours reasonably
expended,
the Court must determine if the fees requested
are reasonably necessary to achieve the results
obtained. See Tirona v. State Farm Mut. Auto.
Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993)
(citations omitted). A court must guard against
awarding fees which are excessive, duplicative, or
unnecessary. See id. at 637 (citing INVST Fin.
Grp. v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th
Cir. 1987)).
[Id. at 3.]
In the Objections, Defendant argues that the requested
hours should be reduced because “Plaintiffs’ counsel: (1) billed
excessive and unnecessary time preparing legal briefs and
motions; (2) billed for clerical tasks in violation of the Local
Rules; and (3) failed to adequately describe activities in their
billing entries.”

[Objections at 4.]

6

A.

Insufficient Descriptions
This Court will first address Defendant’s argument that

Plaintiffs’ counsel failed to provide sufficient description of
the work performed.

Local Rule 54.3(d)(2) states:

The party seeking an award of fees must describe
adequately the services rendered, so that the
reasonableness of the requested fees can be
evaluated. In describing such services, counsel
should be sensitive to matters giving rise to
attorney-client privilege and attorney work
product doctrine, but must nevertheless furnish an
adequate non-privileged description of the
services in question. If the time descriptions
are incomplete, or if such descriptions fail to
describe adequately the services rendered, the
court may reduce the award accordingly. For
example, time entries for telephone conferences
must include an identification of all participants
and the reason for the call; entries for legal
research must include an identification of the
specific issue researched and, if possible, should
identify the pleading or document for which the
research was necessary; entries describing the
preparation of pleadings and other papers must
include an identification of the pleading or other
document prepared and the activities associated
with such preparation.
(Emphasis added.)
Defendant argues that Plaintiffs’ counsel failed to
identify the pleadings associated with many of the time entries
for legal research, and therefore “any fees for this research
should be disallowed because it is difficult to discern whether
it is related to the Motion to Enforce Settlement.”
at 9.]

[Objections

Plaintiffs’ Fee Memorandum, however, also contains a

declaration of counsel which confirms that the 55.2 hours
7

reflected in the Fee Memorandum are for “tasks performed related
to the Motion [to Enforce].”

[Fee Mem., Decl. of Dana R. Lyons

(“Lyons Decl.”) at ¶¶ 5, 15, 15.a.]
Reviewing Plaintiffs’ Fee Memorandum as a whole, this
Court finds that Plaintiffs adequately described “the services
rendered, so that the reasonableness of the requested fees can be
evaluated.”

See Local Rule LR54.3(d)(2).

This Court therefore

DENIES Defendant’s Objections as to the sufficiency of the task
descriptions.
B.

Clerical Tasks
Defendant next argues that Plaintiffs’ counsel

improperly included time spent on clerical tasks in the request
for attorneys’ fees.

This district court has stated:

Clerical or ministerial tasks are not compensable
because such tasks are part of an attorney’s
overhead and are reflected in the charged hourly
rate. HRPT Props. Trust v. Lingle, 775 F. Supp.
2d 1225, 1241 (D. Haw. 2011). Examples of
clerical work include: filing court documents or
confirming that court documents have been filed;
organizing and maintaining files and binders for
intra-office use; delivering or transmitting
documents; preparing memoranda for office files;
bates stamping or other labeling of documents;
organizing documents for production; coordinating
service of documents; and formatting or printing
documents; reviewing court-generated notices;
notifying clients of court hearings;
communications with court staff; scheduling; and
corresponding regarding deadlines. See id.; Ko
Olina Dev., LLC v. Centex Homes, Civ. No. 09–00272
DAE–LEK, 2011 WL 1235548, at *12 (D. Haw.
Mar. 29, 2011).
Pasion v. Cnty. of Kauai, No. CV 13–00676 ACK–RLP, 2014 WL
8

1764920, at *4 (D. Hawai`i Apr. 29, 2014).
Mr. Lyons’s 0.3-hour entry on September 2, 2014
regarding a telephone conference between the magistrate judge’s
courtroom manager and Defendant’s counsel, and Mr. Pettit’s 0.2hour entry on September 2, 2014 regarding emails to the “court
clerk, [Lyons Decl., Exh. A at 2-3 (capitalization omitted),] are
“communications with court staff” and are therefore noncompensable clerical work.

This Court finds that these hours

should be deducted from their time.
In addition, Mr. Lyons’s 0.5-hour entry on
September 18, 2014 includes “retrieve important cases and
statutes,” and his 1.5-hour entry on September 25, 2014 includes
“retrieve and analyze title and conveyance documents.”
(capitalization omitted).]

[Id. at 7

The mere retrieval of documents is a

non-compensable clerical task, but these entries also included
other tasks that were compensable.

This Court will therefore

deduct 0.5 hours from Mr. Lyons’s time to account for the
retrieval of documents.
Defendants also object to: Mr. Lyons’s time reviewing
and preparing exhibits attached to filings related to the Motion
to Enforce; Mr. Lyons’s time reviewing a minute order granting
Plaintiffs’ motion to file the Settlement Agreement under seal;
and Mr. Pettit’s time instructing his secretary about the filing
of the reply in support of the Motion to Enforce.

9

[Objections at

8.]

This Court rejects these arguments because: the process of

selecting which exhibits to attach to a court filing is more than
merely “formatting or printing documents,” as Defendant contends;
see id.; reasonable time reviewing a court order granting a
motion is compensable, and the 0.1 hours that Mr. Lyons spent
reviewing the minute order was reasonable; and reasonable time
instructing his secretary about the filing of the reply was
appropriate in this case because it was filed contemporaneously
with a document filed under seal; see dkt. nos. 30, 32.
Defendant’s Objections regarding improper billing of
clerical tasks are therefore GRANTED IN PART AND DENIED IN PART.
This Court GRANTS the Objections insofar as it will reduce
Mr. Pettit’s time by 0.2 hours and Mr. Lyons’s time by 0.8 hours.
C.

Excessive Time
Defendant’s final argument is that the amount of time

Plaintiffs’ counsel spent on various stages of the Motion to
Enforce was excessive.

[Objections at 5-7.]

This Court has

reviewed Plaintiffs’ hours - after the reductions for noncompensable clerical tasks - and finds that they are within the
range of amounts of time considered reasonably necessary to
perform the necessary legal tasks in this case.

This Court also

notes that, based on the magistrate judge’s description of the
events relevant to the Motion to Enforce, Defendant’s own actions
contributed to the complexity of this matter.

10

This Court therefore DENIES Defendant’s Objections as
to the claim of excessive hours expended.
D.

Summary
Defendants Objections are GRANTED IN PART AND DENIED IN

PART.

This Court MODIFIES the Supplemental F&R insofar as this

Court AWARDS Plaintiffs their reasonable attorneys’ fees as
follows:
ATTORNEY
HOURS
Ted N. Pettit, Esq.
6.8
Dana R. Lyons, Esq.
46.9
Stephanie J. Yoder, paralegal 0.5

RATE
$325
$190
$85
Subtotal
4.71% tax
TOTAL

TOTAL
$ 2,210.00
$ 8,911.00
$
42.50
$11,163.50
$
526.02
$11,689.52

This Court ADOPTS the Supplemental F&R in all other respects.
CONCLUSION
On the basis of the foregoing, Defendant’s objections
to the magistrate judge’s October 16, 2014 Supplement to the
Amended Findings and Recommendation to Grant Plaintiffs Brian
Victor Berry and Donna Darlene Berry’s Motion to Enforce
Settlement Agreement, which Defendant filed on October 30, 2014,
are HEREBY GRANTED IN PART AND DENIED IN PART.

The magistrate

judge’s Amended Findings and Recommendation to Grant Plaintiffs
Brian Victor Berry and Donna Darlene Berry’s Motion to Enforce
Settlement Agreement, filed October 3, 2014, is HEREBY ADOPTED,
and the Supplemental to the Amended Findings and Recommendation
to Grant Plaintiffs Brian Victor Berry and Donna Darlene Berry’s
11

Motion to Enforce Settlement Agreement, filed October 16, 2014,
is HEREBY ADOPTED AS MODIFIED.
Plaintiffs’ Motion to Enforce Settlement Agreement,
filed September 3, 2014, is therefore GRANTED as follows:
1.

The Court ORDERS Defendant to pay the required

conveyance tax, provide a yellow-paper conveyance tax certificate
with original signatures, provide the appropriate powers of
attorney, and record a valid limited warranty deed in the Land
Court transferring title of the subject property to Plaintiffs no
later than five days after the filing of this Order.
2.

Plaintiffs’ request for attorneys’ fees and expenses

incurred in bringing the Motion to Enforce is GRANTED, and this
Court awards Plaintiffs $11,689.52 in attorneys’ fees and $39.79
in expenses, for a total award of $11,729.31.

This Court ORDERS

Defendant to pay $11,729.31 to Plaintiffs, through Plaintiffs’
counsel, by January 8, 2015.
IT IS SO ORDERED.

12

DATED AT HONOLULU, HAWAII, November 24, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

BRIAN VICTOR BERRY, ET AL. VS. DEUTSCHE BANK NATIONAL TRUST
COMPANY, ET AL; CIVIL 13-00704 LEK-RLP; ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT’S OBJECTIONS TO THE SUPPLEMENT TO
THE AMENDED FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS BRIAN
VICTOR BERRY AND DONNA DARLENE BERRY’S MOTION TO ENFORCE
SETTLEMENT AGREEMENT; ADOPTING THE AMENDED FINDINGS AND
RECOMMENDATION; AND ADOPTING THE SUPPLEMENT TO THE AMENDED
FINDINGS AND RECOMMENDATION, AS MODIFIED

13