Bruser v. Bank of Hawaii

Filing 281

ORDER REGARDING PLAINTIFFS/COUNTERCLAIM DEFENDANTS' RESPONSE TO ORDER TO SHOW CAUSE re 267 , 269 , 271 - Signed by JUDGE LESLIE E. KOBAYASHI on 1/29/2020. On the basis of the foregoing, the Brusers have no t shown cause as to why they should not be held in contempt. Therefore, the Brusers are HEREBY HELD in civil contempt and ORDERED to pay sanctions representing BOH's reasonable attorney's fees and costs incurred: 1) to oppose the Brusers& #039; Motion for Stay and Reconsideration; and 2) in the proceedings following the entry of the OSC. BOH is AWARDED $9,676.44 in attorney's fees and $91.41 in costs, for a total award of $9,767.85. The Brusers are ORDERED to pay $9,767.85 to BOH, through BOH's counsel, by February 13, 2020 . (emt, )

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

MICHAEL DAVID BRUSER, TRUSTEES
UNDER THAT CERTAIN UNRECORDED
REVOCABLE LIVING TRUST AGREEMENT
DATED JULY 11, 1988, AS AMENDED,
DOING BUSINESS AS DISCOVERY BAY
CENTER; AND LYNN BRUSER,
TRUSTEES UNDER THAT CERTAIN
UNRECORDED REVOCABLE LIVING
TRUST AGREEMENT DATED JULY 11,
1988, AS AMENDED, DOING BUSINESS
AS DISCOVERY BAY CENTER;
Plaintiffs,
vs.
BANK OF HAWAII, A HAWAII
CORPORATION, AS TRUSTEE, AS
SUCCESSOR BY MERGER WITH
HAWAIIAN TRUST COMPANY, LIMITED,
A FORMER HAWAII CORPORATION AND
AS SUCCESSOR TRUSTEE UNDER THAT
CERTAIN TRUST AGREEMENT DATED
JUNE 6, 1974;
Defendant.
________________________________
vs.
JULIE G. HENDERSON, as Trustee
of the Julie G. Henderson
Irrevocable Trust, and as
Trustee of the Jean K. Gowans
Irrevocable Trust, and as
Trustee of the Louis L. Gowans,
Jr. Irrevocable Trust; RICHARD
L. GOWANS, as Trustee of the
Richard L. Gowans Irrevocable
Trust; KEVIN I. YOKOHAMA;
ASSOCIATION OF APARTMENT OWNERS

CIV. NO. 14-00387 LEK-WRP

DISCOVERY BAY; SUSAN SHEETZ; and
PATRICIA SHEETZ BOW,
Intervening Defendants.
________________________________
BANK OF HAWAII, a Hawaii
corporation, as Trustee, as
successor by merger with
Hawaiian Trust Company, Limited,
a former Hawaii corporation and
as successor Trustee under that
certain Trust Agreement dated
June 6, 1974,
Counterclaim Plaintiff,
vs.
MICHAEL DAVID BRUSER and LYNN
BRUSER, Trustees under that
certain unrecorded Revocable
Living Trust Agreement dated
July 11, 1988, as amended, doing
business as Discovery Bay
Center,
Counterclaim Defendants.

ORDER REGARDING PLAINTIFFS/COUNTERCLAIM
DEFENDANTS’ RESPONSE TO ORDER TO SHOW CAUSE
On August 8, 2019, this Court issued its Order Denying
Plaintiffs’ Objections and Adopting the Magistrate Judge’s
Findings and Recommendation to Grant Defendant’s Motion for
Order to Show Cause and to Deny Plaintiffs’ Counter Motion.
(“OSC”).

1

[Dkt. no. 259.1]

On August 28, 2019,

The OSC is also available at 2019 WL 3754571.
2

Plaintiffs/Counterclaim Defendants Michael David Bruser and Lynn
Bruser, Trustees under that certain unrecorded Revocable Living
Trust Agreement dated July 11, 1988, as amended, doing business
as Discovery Bay Center (“the Brusers”), filed their response to
the OSC (“Response”).

[Dkt. no. 260.]

On September 4, 2019, a

hearing was held on the OSC, and continued to September 20,
2019, at which this Court held the Brusers in contempt, directed
Defendant/Counterclaim Plaintiff Bank of Hawaii, as Trustee
(“BOH”), to file two declarations for attorney’s fees, and gave
the Brusers time to object to both declarations.

[Minutes,

filed 9/4/19 (dkt. no. 261); Minutes, filed 9/20/19 (dkt.
no. 264).]
On October 4, 2019, BOH filed its Declaration of
Counsel in Support of Award of Attorney’s Fees and Costs (“BOH’s
First Declaration”), and, on October 18, 2019, its Declaration
of Counsel in Support of Further Award of Attorney’s Fees and
Costs (“BOH’s Second Declaration”).2

[Dkt. nos. 267, 271.]

On

October 10, 2019, the Brusers filed their objection to BOH’s
First Declaration (“Brusers’ First Objection”), and on
October 25, 2019, their objection to BOH’s Second Declaration
(“Brusers’ Second Objection”).

[Dkt. nos. 269, 276.]

2

On

BOH’s First Declaration and BOH’s Second Declaration are
referred to collectively as “BOH’s Declarations.”
3

October 25, 2019 and November 8, 2019, BOH filed its replies to
the Brusers’ objections.

[Dkt. nos. 275, 278.]

For the reasons

set forth below, the Brusers are held in civil contempt and
sanctioned in the amount of $9,767.85, representing BOH’s
reasonable attorney’s fees and costs.
BACKGROUND
The factual and procedural background of this matter
is summarized in the OSC, and the May 2, 2019 Findings and
Recommendation to Grant Defendant’s Motion for Order to Show
Cause and to Deny Plaintiffs’ Counter Motion (“F&R”).
no. 253.3]

[Dkt.

Therefore, only relevant facts will be discussed

here.
I.

The Brusers’ Response to the Order to Show Cause
In their Response, the Brusers argue they did not

intentionally violate this Court’s February 13, 2019 Order
(“Receivership Order”), [dkt. no. 243,4] which required them to

3

The F&R is also available at 2019 WL 2194857. The F&R
addressed: BOH’s Motion for Order to Show Cause Why Plaintiffs
Should Not Be Held in Contempt for Failing to Comply with
Receivership Order (“Contempt Motion”); [filed 3/26/19 (dkt.
no. 244);] and the Brusers’ Counter-Motion for a Stay of All
District Court Proceedings, or in the Alternative for the
Removal of the Present Temporary Receiver (“Motion for Stay and
Reconsideration”), which they filed with their memorandum in
opposition to the Contempt Motion, [filed 4/16/19 (dkt.
no. 250)].
4

The Receivership Order was entered pursuant to the Court’s
February 7, 2019 Amended Order (1) Granting
(. . . continued)
4

turn over books and records to the temporary receiver.
[Response at 3.]

Instead, they argue their good faith attempts

to do so failed due to the actions of the receiver.

See id. at

5 (stating Michael Bruser would testify that the receiver
“ignored Mr. Bruser’s invitation to meet with him and receive
the books and records”).
II.

Post-Hearing Filings
BOH’s First Declaration, submitted in accordance with

this Court’s instructions, requests $4,621.00 in attorney’s
fees, plus Hawai`i General Excise Tax (“GET”).
Decl. at ¶ 9, Exh. A (billing log).]

[BOH’s First

In response, the Brusers

argue: 1) this Court misinterpreted a decision of the state
probate court; [Brusers’ First Objection at 4-5;] 2) the
monetary award is $137,434.00, representing the trustee’s fees
for a limited period of time, and no amount has been awarded for
any trustee’s fees outside that limited period of time; [id. at
5-6;] 3) BOH refused to accept payment or security in
satisfaction of the Brusers’ obligation; [id. at 6-7;] 4) on
September 23, 2019, the Brusers paid BOH $308,203.65, rendering

Defendant/Counterclaim Plaintiff Bank of Hawaii’s Motion for
Appointment of Temporary Receiver and (2) Granting in Part and
Denying in Part Intervenor Defendant/Counterclaim Plaintiff
Association of Apartment Owners of Discovery Bay’s Substantive
Joinder (“2/7/19 Order”), [dkt. no. 242,] which is also
available at 2019 WL 497615.
(. . . continued)
5

the appointment of the receiver moot; [id. at 7-8;] 5) this
Court’s finding of contempt is contrary to the Court’s previous
rulings; [id. at 8;] and 6) BOH’s fee declaration was
substantively and procedurally flawed, [id. at 8-9].5
BOH’s Second Declaration, submitted in accordance with
this Court’s instructions, requests an additional $4,690 in
attorney’s fees, plus GET, and $91.41 in costs.

[BOH’s Second

Decl. at ¶ 10; id., Exhs. A (billing log), B (invoice supporting
request for costs).]

In response, the Brusers object to the

format and procedure followed by BOH, and to a number of billing
items, including, inter alia, alleged clerical work and block
billing entries.

[Brusers’ Second Objection at 3-5.]

The

Brusers also argue the Hawai`i Supreme Court recently held that
the probate court did not find the Brusers to be liable for the
trustee’s fees.

[Id. at 7.]
STANDARD

Civil contempt sanctions are driven by two independent
purposes: “to coerce the defendant into compliance with the
court’s order, and to compensate the complainant for losses
sustained.”

Whittaker Corp. v. Execuair Corp., 953 F.2d 510,

517 (9th Cir. 1992) (some citations omitted) (citing United

5

The final argument presented in the Brusers’ First
Objection has not been discussed here because it is not relevant
to the instant contempt proceedings, and has been otherwise
addressed. See Order, filed 10/28/19 (dkt. no. 277).
6

States v. United Mine Workers of Am., 330 U.S. 258, 303-04, 67
S. Ct. 677, 701-02 (1947)).

This district court has stated:

The party claiming civil contempt must
demonstrate a violation of the court’s order by
clear and convincing evidence. [In re Dual–Deck
Video Cassette Recorder Antitrust Litig., 10 F.3d
693, 695 (9th Cir. 1993).] Accordingly, the
moving party must establish that “(1) that [the
alleged contemnor] violated the court order,
(2) beyond substantial compliance, (3) not based
on a good faith and reasonable interpretation of
the order, (4) by clear and convincing evidence.”
United States v. Bright, 596 F.3d 683, 694 (9th
Cir. 2010) (quoting Labor/Cmty. Strategy Ctr. v.
L.A. County Metro. Trans. Auth., 564 F.3d 1115,
1123 (9th Cir. 2009)); see also F.T.C. v.
Affordable Media, 179 F.3d 1228, 1239 (9th Cir.
1999) (“The standard for finding a party in civil
contempt is well settled: The moving party has
the burden of showing by clear and convincing
evidence that the contemnors violated a specific
and definite order of the court.”).
If the moving party meets this initial fourpart test, the burden then shifts to the alleged
contemnor to demonstrate why it was unable to
comply. Affordable Media, LLC, 179 F.3d at 1239;
Stone v. City & Cnty. of San Francisco, 968 F.2d
850, 856 n. 9 (9th Cir. 1992). In other words,
the accused party must “show [that it] took every
reasonable step to comply.” Stone, 968 F.2d at
856 n.9 (citation omitted). To assess whether an
alleged contemnor has taken “every reasonable
step” to comply with the terms of a court order,
the court can consider a variety of factors,
including, for example, whether the contemnor has
a history of noncompliance, and whether the
contemnor failed to comply despite the pendency
of a contempt motion. See Stone, 968 F.2d at
857.
Frankl v. HTH Corp., 832 F. Supp. 2d 1179, 1186-87 (D. Hawai`i
2011) (some alterations in Frankl).

7

DISCUSSION
In the OSC, this Court affirmed and adopted the
portions of the F&R wherein the magistrate judge found that:
1) The Brusers failed to comply with the Receivership Order; and
2) The Brusers had not demonstrated that they had taken
reasonable steps to comply with the Receivership Order.
2019 WL 3754571, at *7.

OSC,

Therefore, the burden was shifted to

the alleged contemnors, the Brusers.

The only remaining

question is whether the Brusers have shown that they have taken
every reasonable step to comply with the Receivership Order
during, but not limited to, the time period following entry of
the OSC.
I.

The Brusers’ Contempt Objections
The Brusers assert the following objections to a

finding of contempt.
A.

Objections Regarding State Court Proceedings
The Brusers argue this Court “has erroneously assumed

that the Brusers are contractually liable for the Trustee’s Fee
as determined in amount by the Hawaii Probate Court having
jurisdiction over trusts also.”
4.]

[Brusers’ First Objection at

Similarly, in their second response, the Brusers also argue

a recent Hawai`i Supreme Court decision – In re Trust Agreement
Dated June 6, 1974, 145 Hawai`i 300, 302, 452 P.3d 297, 299
(2019), recon. denied, SCWC-15-0000632, 2019 WL 6040796
8

(Nov. 14, 2019) - clarifies that the probate court did not hold
the Brusers liable for the trustee’s fees.

[Brusers’ Second

Objection at 7.]
First, the jurisdictional distinction between the
probate court and this district court has been previously
explained and will not be repeated in full here.

See order

granting BOH’s motion for partial summary judgment (“Partial
Summary Judgment Order”), filed 7/21/15 (dkt. no. 88), at 12
n.15; id. at 16.6

Certain issues, including but not limited to

the amount and reasonableness of the Trustee’s Fees, were
decided in probate court while the issue of the Brusers’
liability was decided by this Court.

See Tr. Agreement Dated

June 6, 1974, 145 Hawai`i at 310, 452 P.3d at 307 (acknowledging
that the probate court did not rule on the issue of the Brusers’
liability for trustee’s fees specifically because the matter was
being litigated in this district court).

This Court limited its

ruling to find only that a document central to the litigation
“requires the Brusers to pay all fees under the Trustee
Agreement and that one such fee is the Trustee Fee.”
Summary Judgment Order, 2015 WL 4469850 at *5.

Partial

Therefore, the

Brusers’ liability for the trustee’s fees is not currently at
issue.

6

The Partial Summary Judgment Order is also available at
2015 WL 4469850.
9

Second, the argument presented by the Brusers
regarding the probate court litigation does not address the
issues raised in the OSC, specifically whether the Brusers took
reasonable steps in good faith to comply with the Receivership
Order.

See Brusers’ First Objection at 4-5.

Therefore, the

Brusers’ argument is rejected.
B.

General Objections
The Brusers argue this Court awarded only $137,434.007

and no additional amount for continuing trustee’s fees to BOH.
[Id. at 5.]

To the extent the Brusers are objecting to the

amount owed to BOH including interest, this argument is rejected
because it does not address the Brusers’ good faith or
reasonable steps to comply with the Receivership Order.
Furthermore, the Brusers’ previous filings indicate their
understanding that interest has increased the amount of the
subject judgment to at least $308,203.65.

See Response at 4

(acknowledging that the full amount of the subject judgment
amounts to $308,203.65.)

Finally, the Brusers have not provided

any authority to support the proposition that interest should
not apply.

To the extent the Brusers are objecting to an award

7

Judgment was entered in favor of BOH, in the amount of
$137,434.50. [Judgment in a Civil Case (“Judgment”), filed
6/28/16 (dkt. no. 193), at 2.] The Judgement was affirmed on
appeal. Bruser v. Bank of Hawaii, No. 16-16354, 2020 WL 242565
(9th Cir. Jan. 16, 2020).]
10

of additional judgment principal, the argument is denied because
no such award has been entered.

Therefore, the Brusers’

objection is denied.
The Brusers argue “the Trustee has refused to accept
security for payment or even immediate payment.”
First Objection at 6.]

[Brusers’

However, the Brusers’ failure to turn

over funds to BOH was one of the findings made in the 2/7/19
Order, and thereafter incorporated into the Receivership Order.
See 2/7/19 Order, 2019 WL 497615 at *5 (“The Brusers do not
dispute that they have not made payments.”).

An alleged

contemnor may not use the contempt proceeding as a platform for
reconsideration of the “‘legal or factual basis of the order
alleged to have been disobeyed.’”

United States v. Ayers, 166

F.3d 991, 995 (9th Cir. 1999) (quoting United States v.
Rylander, 460 U.S. 752, 756–57, 103 S. Ct. 1548 (1983)).
Therefore, the Brusers may not use this contempt proceeding to
relitigate the findings of previous orders.

Also, because this

argument is limited to factual allegations regarding the
Brusers’ attempts to pay BOH directly and does not address any
reasonable steps taken to comply with the Receivership Order, it
does not address the issues raised in the OSC and is therefore
rejected.
Next, the Brusers argue the temporary receivership has
been terminated, or is moot, because they have made payment to
11

BOH in the amount of $308,203.65, in alleged full satisfaction
of the judgment.

[Brusers’ First Objection at 7-8.]

To the

extent that the Brusers are attempting to relitigate the need
for a temporary receiver, because the issue was previously
decided in Court’s 2/7/19 Order and Receivership Order, it is an
inappropriate use of the contempt proceedings.
F.3d at 995.

See Ayers, 166

To the extent that this argument has been

presented for any other purpose, it does not relate to the
Brusers’ good faith and reasonable attempts to turn over books
and records to the temporary receiver.

Therefore, this argument

is rejected.
The Brusers also object to a finding of contempt
because this Court “specifically held that the Brusers were nice
people and that it would not hold the Brusers in civil contempt
if they immediately turned over the books and records to [BOH’s
counsel, Johnathan Bolton, Esq.], which they did.”
First Objection at 8 (emphasis in original).]

[Brusers’

However, “‘[a]

court has wide latitude in determining whether there has been
contemptuous defiance of its order.’”

Frankl, 832 F. Supp. 2d

at 1187 (some citations omitted) (quoting Gifford v. Heckler,
741 F.2d 263, 266 (9th Cir. 1984)).
Here, the Judgment awarded BOH, inter alia,
$137,434.50 representing “the difference between what the
Brusers owed and what they paid between October 2014 and
12

December 2015, including the applicable GET.”

[Judgment at 2.]

The Brusers refused to pay the Judgment to BOH for the following
two years and seven months, and without a stay of execution or
supersedeas bond in place, this Court appointed a receiver to
execute the judgment.

See 2/7/19 Order at *6 (stating that the

Brusers “failed to satisfy the amounts owed under the Judgment”
and that appointment of a receiver was an appropriate remedy).
Six months later, the Brusers still had not complied with either
the Judgment or the 2/7/19 Order/Receivership Order, resulting
in the entry of the OSC in August 2019.

Similarly, at the time

of the first contempt hearing on September 4, 2019, the Brusers
still had not complied with the Judgment or the 2/7/19
Order/Receivership Order.

At the September 20, 2019 contempt

hearing, the Brusers’ bad faith disobedience of a lawful order
was demonstrated when the Brusers’ counsel suggested that,
instead of the Brusers turning over the books and records as
required by the 2/7/19 Order, the receiver was “welcome to come
to [the facility housing the records in question] and look at
whatever he wants to look at.”

[Trans. of 9/20/19 hrg. on

contempt (“9/20/19 Hrg. Trans.”), filed 9/30/19 (dkt. no. 266),
at 13.]
By the September 20, 2019 contempt hearing, BOH had
been forced to expend considerable resources filing motions and
briefs and making appearances in pursuit of a judgment entered
13

more than three years earlier.

BOH’s injury was a direct result

of the Brusers’ bad faith defiance of this Court’s Judgment and
2/7/19 Order, and the Brusers have not shown any reasonable
steps they have taken in an effort to comply.

For these

reasons, the Brusers’ objection is denied and the Brusers are
held in civil contempt.
II.

Sanctions
Having found the Brusers to be in civil contempt, the

Court turns to the issue of what sanctions are necessary to
fulfill the guiding purpose of civil contempt.

“Unlike the

punitive nature of criminal [contempt] sanctions, civil
[contempt] sanctions are wholly remedial.”
F.2d at 517 (citation omitted).

Whittaker Corp., 953

The United States Supreme Court

has “long recognized a common-law exception to the general
‘American rule’ against fee-shifting — an exception, inherent in
the power of the courts that applies for willful disobedience of
a court order or when the losing party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.”

Octane

Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 557
(2014) (brackets, citation, and some quotation marks omitted).
Here, civil contempt sanctions are warranted to compensate BOH
for the expenses it incurred: 1) to oppose the Brusers’ Motion
for Stay and Reconsideration; and 2) in the proceedings
following the entry of the OSC.

The Brusers are therefore
14

ordered to pay the reasonable attorney’s fees and costs that BOH
incurred in connection with items 1 and 2.

These sanctions are

sufficient to fulfill the remedial purpose of civil contempt and
will compensate BOH for the losses sustained due to the Brusers’
willful disobedience of the Judgment and the 2/7/19 Order.
The determination of the amount of reasonable
attorneys’ fees is typically a two-step process:
“When calculating the amount of attorney
fees to be awarded in a litigation, the district
court applies the lodestar method, multiplying
the number of hours reasonably expended by a
reasonable hourly rate.” Ryan v. Editions Ltd.
W., Inc., 786 F.3d 754, 763 (9th Cir. 2015)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433,
103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). The
court must also decide whether to adjust the
lodestar amount based on an evaluation of the
factors articulated in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975),
which have not already been subsumed in the
lodestar calculation. Fischer v. SJB-P.D., Inc.,
214 F.3d 1115, 1119 (9th Cir. 2000) (citation
omitted).
The Kerr factors are as follows:
(1) the time and labor required, (2) the
novelty and difficulty of the questions
involved, (3) the skill requisite to perform
the legal service properly, (4) the
preclusion of other employment by the
attorney due to acceptance of the case,
(5) the customary fee, (6) whether the fee
is fixed or contingent, (7) time limitations
imposed by the client or the circumstances,
(8) the amount involved and the results
obtained, (9) the experience, reputation,
and ability of the attorneys, (10) the
“undesirability” of the case, (11) the
nature and length of the professional
15

relationship with the client, and (12)
awards in similar cases.
Kerr, 526 F.2d at 70. Factors one through five
have been subsumed in the lodestar calculation.
Morales v. City of San Rafael, 96 F.3d 359, 364
n.9 (9th Cir. 1996). Once calculated, the
“lodestar” is presumptively reasonable.
Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 483 U.S. 711, 728, 107 S. Ct.
3078, 97 L. Ed. 2d 585 (1987); see also Fischer,
214 F.3d at 1119 n.4 (stating that the lodestar
figure should only be adjusted in rare and
exceptional cases).
Bodyguard Prods., Inc. v. Doe 1, CIVIL NO. 18-00276 JAO-RLP,
2019 WL 826447, at *4–5 (D. Hawai`i Feb. 21, 2019),
reconsideration denied, 2019 WL 1083764 (Mar. 7, 2019).
BOH requests the following amounts associated with
either the Motion for Stay and Reconsideration or the post-OSC
proceedings:
Attorney
Johnathan Bolton
Vincent Piekarski
Christopher St. Sure

Rate
$350
$420
$260

Hours
23.78
0.5
3.1
Total
4.712% GET
GRAND TOTAL

Subtotal
$8,295.00
$ 210.00
$ 806.00
$9,311.00
$ 438.73
$9,749.73

[BOH’s First Decl., Exh. A; BOH’s Second Decl., Exh. A]
The Brusers have made a number of general objections
to BOH’s requests, as well as objections to specific items
within BOH’s Declarations.

8

Mr. Bolton did not bill for 1.1 hours of logged time.
[BOH’s First Decl., Exh. A.]
16

A.

General Objections
The Brusers object to both of BOH’s Declarations,

arguing “no attempt was made to first meet and confer and no
consultation statement thus filed pursuant to Local Rule 65.3.”
[Brusers’ First Objection at 8-9; Brusers’ Second Objection
at 3.]

This objection has been construed as an objection

pursuant to Local Rule 54.2 of the Local Rules of Practice for
the United States District Court for the District of Hawaii.
BOH’s Declarations are in compliance with this Court’s
September 20, 2019 directive to BOH’s counsel to file a
declaration for the calculation of attorney’s fees.

Therefore,

this argument is rejected.
The Brusers also argue BOH should not be awarded the
attorney’s fees reflected in BOH’s First Declaration because the
majority of the descriptions of the work performed are vague.
[Brusers’ First Objection at 9.]

This argument is rejected

because the entries in Exhibit A to BOH’s First Declaration are
sufficiently detailed to permit this Court to determine whether
they were reasonably expended in connection with either the
Motion for Stay and Reconsideration or the post-OSC proceedings.
B.

Specific Objections to the Hours Expended
The Court next turns to the specific objections the

Brusers raise, arguing that various time entries in BOH’s
Declarations do not reflect time necessarily expended.
17

1.

Clerical or Ministerial Tasks

The Brusers object to entries in BOH’s Second
Declaration, Exhibit A, regarding September 20, 2019 (second),
and September 23, 2019, on the ground that they reflect clerical
work.

[Brusers’ Second Objection at 4.]

“Clerical or

ministerial costs are part of an attorney’s overhead and are
reflected in the charged hourly rate.”

Jeremiah B. v. Dep’t of

Educ., Civil No. 09–00262 DAE–LEK, 2010 WL 346454, at *5 (D.
Hawai`i Jan. 29, 2010) (citing Sheffer v. Experian Info.
Solutions, Inc., 290 F. Supp. 2d 538, 549 (E.D. Pa. 2003)),
adopted 2010 WL 675698 (Feb. 22, 2010).
The following is a list of tasks previously
deemed clerical or ministerial in this district
and therefore deemed non-compensable: reviewing
Court-generated notices; scheduling dates and
deadlines; calendaring dates and deadlines;
notifying a client of dates and deadlines;
preparing documents for filing with the Court;
filing documents with the Court; informing a
client that a document has been filed; personally
delivering documents; bates stamping and other
labeling of documents; maintaining and pulling
files; copying, printing, and scanning documents;
receiving, downloading, and emailing documents;
and communicating with Court staff.
Liberty Mut. Ins. Co. v. Sumo-Nan LLC, CIVIL NO. 14-00520 DKWKSC, 2017 WL 810277, at *12 (D. Hawai`i Mar. 1, 2017) (citations
omitted).

BOH requests 0.2 hours of attorney’s fees for

“[r]eview Court’s electronic order” on September 23, 2019.
[BOH’s Second Decl., Exh. A.]

“Communications with the court

18

and reviewing notices regarding hearings and deadlines are
clerical and not compensable.”

Liberty Mut., 2017 WL 810277 at

*12 (citation and quotation marks omitted).

This billing entry

is for a review of a Court-generated notice.

However, BOH did

not include any information to identify the document, therefore
the Court is not able to discern the document to which this
billing entry refers.

A similar fee request description is

found on September 20, 2019 (second).
Exh. A.

See BOH’s Second Decl.,

Between those two dates, the Court only generated one

docket entry.

See Minutes, filed 9/23/19 (dkt. no. 264).

One

of the two entries is thus prohibited as clerical, duplicative,
or indiscernible.

Therefore, the hours requested by Mr. Bolton

will be reduced by 0.2 hours.
clerical.

The remaining entries are not

Therefore, the Brusers’ objections are otherwise

rejected.
2.

Unproductive Work

The Brusers object to the entries on BOH’s Second
Declaration, Exhibit A, representing September 4, 2019,
August 20, 2019 (fourth and fifth),9 and September 23, 2019
(first and second) on the ground that those entries constitute
unproductive work.

[Brusers’ Second Objection at 4.]

9

“Counsel

Because there are no entries for August 20, 2019 in
Exhibit A, the Brusers’ objection is construed as an objection
to the fourth and fifth entries for September 20, 2019.
19

for the prevailing party should make a good-faith effort to
exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee
submission.”

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

Because none of the entries identified by the Brusers constitute
unnecessary or unproductive work,

the Brusers’ objections as to

these entries are rejected.
3.

Internal Communication

The Brusers object to the following entries on BOH’s
Second Declaration, Exhibit A, on the grounds that they are
internal communication: August 19, 2019; August 28, 2019;
August 29, 2019 (both); September 4, 2019; September 5, 2019
(first and second); September 8, 2019; September 16, 2019
(first); September 20, 2019 (first, third, and fifth);
September 23, 2019 (first and second); and September 26, 2019
(first).

[Brusers’ Second Objection at 4-5.]

On this issue,

this district court has stated:
The Court does not permit more than one
attorney to bill for attending: (1) a meeting
between co-counsel; (2) a client meeting; or
(3) a meeting with opposing counsel. Sheehan v.
Centex Homes, 853 F. Supp. 2d 1031, 1039 (D. Haw.
2011). The duplicative entries for client and
co-counsel meetings, settlement conferences, and
strategy meetings between co-counsel are not the
types of events for which duplicative billing is
permitted. See, e.g., Robinson v. Plourde, 717
F. Supp. 2d 1092, 1099 (D. Haw. 2010) (noting
20

that two professionals cannot bill for attending
the same meeting and “when a party’s counsel meet
with one other, the Court deducts the duplicative
time billed.”). “In such a situation, the Court
typically deducts the time spent by the lowestbilling attorney.” Seven Signatures Gen. P’ship
v. Irongate Azrep BW LLC, 871 F. Supp. 2d 1040,
1055 (D. Haw. 2012).
Liberty Mut., 2017 WL 810277, at *12 (emphasis added).

However,

“[t]he Court recognizes that litigation often requires the
participation of multiple attorneys.”
omitted).

Id. at *13 (citation

None of the entries cited by the Brusers constitute

unnecessary, duplicative, or excessive communication because
Mr. Bolton was the only attorney who billed time on those dates.
Furthermore, the case cited by the Brusers, Massachusetts
Department of Public Health v. School Committee of Tweksbury,
does not support any reduction in BOH’s fee request.

See 841 F.

Supp. 449, 459 (D. Mass. 1993) (“I find that holding conferences
to discuss this case was consistent with the demands of
reasonably diligent and reasonably competent representation.

It

is not unreasonable for attorneys to consult one another about
strategy or law, or meet in person to develop guidelines about
work to be performed.”).

Therefore, the internal communication

objections are denied.
4.

Invisible Work

The Brusers object to the following entries on the
grounds that they represent “invisible work”: August 8, 2019;

21

August 9, 2019; August 19, 2019; August 28, 2019 (both);
September 4, 2019 (both); September 5, 2019 (first);
September 8, 2019; September 16, 2019 (first and second);
September 20, 2019 (all); September 23, 2019 (all);
September 26, 2019 (both).

[Brusers’ Second Objection at 5.]

The Brusers cite Lockary v. Kayfez, arguing that it was not
permissible for BOH to “charge for work claimed to have been
performed that is not directly reflected in filed papers in the
court’s file. . . .”

[Id. (citing Lockary v. Kayfetz, 974 F.2d

1166, 1177 (9th Cir. 1992)).10]

However, this is a

mischaracterization of the rule in Lockary.

There, the Ninth

Circuit held that it was improper for the magistrate judge to
add an additional sum, which was not “directly reflected in or
inferable from” the filed papers.

Lockary, 974 F.2d at 1177.

In contrast, the rule proposed by the Brusers is that all
chargeable time must be directly reflected in the party’s
filings.

Because the Brusers have not cited any relevant

authority, and because the work the Brusers identify in this
objection was reasonable and necessary, the Brusers’ “invisible
work” objection is denied.

10

Lockary was superseded on other grounds by Fed. R. Civ.
P. 11 (1993). Margolis v. Ryan, 140 F.3d 850, 854-55 (9th Cir.
1998)
22

5.

Block Billing

The Brusers object to the following entries on the
ground that they constitute block billing: August 9, 2019;
September 4, 2019 (first); and September 26, 2019 (first).
[Brusers’ Second Objection at 5-6.]

Block billing occurs when

entries do not specify the amount of time spent per task.
District courts have the authority to reduce hours that are
billed in block format because such a billing style makes it
difficult for courts to ascertain how much time counsel expended
on specified tasks.

Welch v. Metro. Life Ins. Co., 480 F.3d

942, 948 (9th Cir. 2007).

None of the entries cited by the

Brusers constitute impermissible block billing, as the time
spent is sufficiently documented.

Although both the August 9,

2019 entry and the first September 26, 2019 entry refer to
correspondence and a telephone conference, the combination of
the two tasks did not constitute improper block billing because,
in each instance, the correspondence and the telephone
conference were about the same subject.

Therefore, the Brusers’

block-billing objections are rejected.
6.

Summary

In light of the Brusers’ objections, Mr. Bolton’s
request for attorney’s fees will be reduced by 0.2 hours.
According to BOH’s First Declaration, Exhibit A, and
BOH’s Second Declaration, Exhibit A, and reduced as explained
23

supra, Section II.B.1, Mr. Bolton spent 23.5 hours working on
this case, Mr. Piekarski spent 0.5 hours, and Mr. St. Sure spent
3.1 hours.

[BOH’s First Decl., Exh. A; BOH’s Second Decl.,

Exh. A.]
This Court finds that all of the time that Mr. Bolton
(as reduced by 0.2 hours from the initial request pursuant to
the Brusers’ objection), Mr. Piekarski, and Mr. St. Sure spent
during the relevant period was reasonably and necessarily
incurred as a result of the Brusers’ failure to comply with the
2/7/19 Order.

Thus, this Court FINDS that Mr. Bolton’s time of

23.5 hours, Mr. Piekarski’s time of 0.5 hours, and Mr. St.
Sure’s time of 3.1 hours are reasonable.
B.

Reasonable Hourly Rate
In determining the reasonableness of an hourly
rate, the experience, skill, and reputation of
the attorney requesting fees are taken into
account. 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. Id.; Gates v. Deukmejian, 987 F.2d
1392, 1405 (9th Cir. 1992) as amended on denial
of reh’g, (1993) (noting that the rate awarded
should reflect “the rates of attorneys practicing
in the forum district”). 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. Jordan v. Multnomah
County, 815 F.2d 1258, 1263 (9th Cir. 1987).

24

State Farm Fire & Cas. Co. v. Hanohano, Civil No. 14-00532
SOM/KJM, 2016 WL 2984682, at *3 (D. Hawai`i Apr. 29, 2016),
adopted by 2016 WL 2885874 (May 17, 2016).
BOH asserts that: $350 is a reasonable hourly rate for
Mr. Bolton; [BOH’s First Decl. at ¶¶ 6, 8;] $420 is a reasonable
hourly rate for Mr. Piekarski; [id. at ¶¶ 5, 8;] and $260 is a
reasonable hourly rate for Mr. St. Sure, [id. at ¶¶ 7-8].

BOH

states that Mr. Bolton is a partner at the law firm of Goodsill
Anderson Quinn & Stifel, a Limited Liability Law Partnership
(“Goodsill”), and has nineteen years of experience as an
attorney.

[Id. at ¶ 6.]

Mr. Piekarski joined Goodsill in 1982

and has been a partner for over thirty years.

[Id. at ¶ 5.]

Mr. St. Sure is an associate at Goodsill, and he graduated law
school in 2013.

[Id. at ¶ 7.]

The Brusers do not contest the requested hourly rates.
A district court may rely on “its own familiarity with the legal
market” when determining the reasonableness of an attorney’s
hourly rate.
2011).

Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.

Based on this Court’s knowledge of the prevailing rates

in the legal community for work in similar cases, this Court
FINDS that the hourly rates for Mr. Bolton, Mr. Piekarski, and
Mr. St. Sure are manifestly reasonable.

See, e.g., Liberty

Mut., 2017 WL 810277, at *10 & n.10 (finding the requested $400

25

hourly rate to be reasonable for an attorney admitted to the New
York bar in 1983 and the Hawai`i bar in 1988).
C.

Total Fee Amount
As previously stated, the lodestar is calculated by

multiplying the number of hours worked for each attorney by his
reasonable hourly rate.

Ryan, 786 F.3d at 763.

Here, the Court

finds that the following represents the reasonable attorney’s
fees incurred in connection with the Motion for Stay and
Reconsideration and the post-OSC proceedings:
Attorney
Johnthan Bolton
Vincent Piekarski
Christopher St. Sure

Rate
$350
$420
$260

Hours
23.5
0.5
3.1
Total
4.712% GET
GRAND TOTAL

Subtotal
$8,225.00
$ 210.00
$ 806.00
$9,241.00
$ 435.44
$9,676.44

The Court has considered the Kerr factors that have not been
subsumed in the lodestar analysis and finds that an adjustment
is not warranted.

Therefore, BOH is entitled to an award of

$9,676.44 in attorney’s fees reasonably incurred in connection
with the Motion for Stay and Reconsideration and the post-OSC
proceedings.

To the extent that BOH seeks attorney’s fees in

excess of $9,676.44, its request is denied.
D.

Costs
The imposition of litigation costs, along with

attorney’s fees, is a permissible civil contempt sanction
provided the sanction is compensatory rather than punitive.
26

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186
(2017).

Therefore, the costs imposed “may go no further than to

redress the wronged party for losses sustained.”

Id. (citation

and internal quotation marks omitted).
Here, BOH requests costs in the amount of $91.41,
representing the cost of procuring the transcript of the
September 20, 2019 hearing.
Exh. B.]

[BOH’s Second Declaration at ¶ 9,

Because this cost was incurred due to the misconduct

at issue, and because the Brusers have not challenged this
request, BOH is awarded $91.41 in costs as part of the contempt
sanction.
CONCLUSION
On the basis of the foregoing, the Brusers have not
shown cause as to why they should not be held in contempt.
Therefore, the Brusers are HEREBY HELD in civil contempt and
ORDERED to pay sanctions representing BOH’s reasonable
attorney’s fees and costs incurred: 1) to oppose the Brusers’
Motion for Stay and Reconsideration; and 2) in the proceedings
following the entry of the OSC.

BOH is AWARDED $9,676.44 in

attorney’s fees and $91.41 in costs, for a total award of
$9,767.85.

The Brusers are ORDERED to pay $9,767.85 to BOH,

through BOH’s counsel, by February 13, 2020.

27

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, January 29, 2020.

MICHAEL DAVID BRUSER, ET AL. VS. BANK OF HAWAI`I, ETC.; CV 1400387 LEK-WRP; ORDER REGARDING PLAINTIFFS/COUNTERCLAIM
DEFENDANTS' RESPONSE TO ORDER TO SHOW CAUSE

28