Spirit of Aloha Temple et al v. County of Maui et al

Filing 453

ORDER ADOPTING (1) Findings and Recommendation To Grant In Part and Deny In Part Plaintiff Spirit of Aloha Temple's Motion For Review of Taxable Costs and (2) Findings and Recommendation To Deny Defendant The County Of Maui's Motion For Att orney's Fees and Non-Taxable Costs re 428 429 .After reviewing de novo the portions of the F&Rs objected to, and after reviewing the remainder of the F&Rs for clear error, the court adopts the F&Rs regarding the County's Bill of Costs and motion for attorney's fees. Costs of$16,458.95 are taxed against Spirit of Aloha Temple. The County's motion for fees is denied. Signed by JUDGE SUSAN OKI MOLLWAY on 3/11/2020. (cib) Modified on 3/12/2020

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SPIRIT OF ALOHA TEMPLE AND
FREDRICK R. HONIG,

)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
Defendant,
)
)
)
______________________________ )

CIVIL NO. 14-00535 SOM/WRP
ORDER ADOPTING (1) FINDINGS
AND RECOMMENDATION TO GRANT
IN PART AND DENY IN PART
PLAINTIFF SPIRIT OF ALOHA
TEMPLE’S MOTION FOR REVIEW OF
TAXABLE COSTS AND
(2) FINDINGS AND
RECOMMENDATION TO DENY
DEFENDANT THE COUNTY OF
MAUI’S MOTION FOR ATTORNEY’S
FEES AND NON-TAXABLE COSTS

ORDER ADOPTING (1) FINDINGS AND RECOMMENDATION TO GRANT
IN PART AND DENY IN PART PLAINTIFF SPIRIT OF ALOHA TEMPLE'S
MOTION FOR REVIEW OF TAXABLE COSTS AND
(2) FINDINGS AND RECOMMENDATION TO DENY DEFENDANT THE COUNTY OF
MAUI'S MOTION FOR ATTORNEY'S FEES AND NON-TAXABLE COSTS
I.

INTRODUCTION.
Before the court are objections to (1) Findings and

Recommendation to Grant in Part and Deny in Part Plaintiff Spirit
of Aloha Temple’s Motion for Review of Taxable Costs, ECF No.
428, and (2) Findings and Recommendation to Deny Defendant the
County of Maui’s Motion for Attorney’s Fees and Non-taxable
Costs, ECF No. 429 (“F&Rs”).

After reviewing de novo the matters

objected to, and after examining the entire record for clear
error, the court adopts the F&Rs.
II.

BACKGROUND.
Plaintiffs Spirit of Aloha Temple and Fredrick R. Honig

sued Defendant County of Maui for having allegedly discriminated
against them on the basis of religion by failing to grant them a

permit they said nonreligious assemblies or institutions had
received.

After numerous motions, the matter went to trial

before a jury with respect to Count IV, which asserted that the
County had deprived Spirit of Aloha Temple of the right to freely
exercise its religion.

Count IV specifically asserted that the

County had imposed or implemented “a land use regulation in a
manner that treat[ed] a religious assembly or institution on less
than equal terms with a nonreligious assembly or institution,” in
violation of 42 U.S.C. § 2000cc(b)(1).

On July 26, 2019, just

days before trial began on August 6, 2019, Plaintiffs abandoned
their money damage claim for relief asserted in Count IV.

See

ECF No. 288, PageID # 5939 (“Plaintiffs waive their claims for
damages.”).

They sought only to stop the alleged discrimination.

On August 23, 2019, the jury returned a verdict in
favor of the County of Maui, finding that Spirit of Aloha Temple
had not been treated less favorably than similarly situated
nonreligious assemblies or institutions.
Judgment was entered the same day.

See ECF No. 392.

See ECF No. 393.

On August 26, 2019, this court amended its local rules,
effective September 1, 2019.

The newly adopted local rules

state, “The Local Rules govern all actions and proceedings in the
Court pending on or commenced after September 1, 2019.
justice so requires, a judge may order that an action or

When

2

proceeding pending before the court prior to that date be
governed by the prior rules or practice of the court.”
On September 6, 2019, the County of Maui filed a Bill
of Costs and a Motion for Attorney’s Fees.

See ECF Nos. 396 and

397.
On September 9, 2019, this court issued a minute order,
warning the County that the fees motion appeared to violate the
new local rules.

The court allowed the County to withdraw its

fees motion and to refile it so long as it complied with the
applicable time limits.

See ECF No. 398.

The County may have

concluded that it had complied with the new local rules with
respect to the Bill of Costs, as the court’s minute order was
silent on the Bill of Costs.
On September 25, 2019, the Clerk of Court taxed costs
in favor of the County in the amount of $17,755.72.

See ECF No.

404.
On October 1, 2019, Plaintiffs filed a Motion to Review
Taxation of Costs.

See ECF No. 405.

On October 11, 2019, the County of Maui filed another
Motion for Attorney’s Fees.

See ECF No. 410.

On December 6, 2019, the Magistrate Judge issued his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff Spirit of Aloha Temple’s Motion for Review of Taxable
Costs.

See ECF No. 428.

3

On December 13, 2019, the Magistrate Judge issued his
Findings and Recommendation to Deny Defendant the County of
Maui’s Motion for Attorney’s Fees and Non-taxable Costs.

See ECF

No. 429.
III.

STANDARD.
A district judge reviews de novo those portions of a

magistrate judge’s findings and recommendation to which an
objection is made and may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the magistrate
judge.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Local Rule

74.1; Kealoha v. Totto, 2017 WL 1839280, *2 (D. Haw. May 8,
2017); Paco v. Meyers, 2013 WL 6843057, *1 (D. Haw. Dec. 26,
2013).

In other words, a district judge “review[s] the matter

anew, the same as if it had not been heard before, and as if no
decision previously had been rendered.”

Freeman v. DirectTV,

Inc., 457 F.3d 1001, 1005 (9th Cir. 2006).
The district judge may accept those portions of the
findings and recommendation that are not objected to if the
district judge is satisfied that there is no clear error on the
face of the record.

United States v. Bright, 2009 WL 5064355, *3

(D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122,
1127 (D. Haw. 2003).

The district judge may receive further

evidence or recommit the matter to the magistrate judge with
instructions.

28 U.S.C. § 636(b)(1).
4

While the district judge

must arrive at independent conclusions about those portions of
the magistrate judge’s report to which objections are made, a de
novo hearing is not required.

United States v. Remsing, 874 F.2d

614, 617 (9th Cir. 1989); Kealoha, 2017 WL 1839280, *2.
IV.

ANALYSIS.
This judge adopts the thorough and well-reasoned F&Rs

as this judge’s own orders.
A.

Bill of Costs.

On December 6, 2019, the Magistrate Judge issued his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff Spirit of Aloha Temple’s Motion for Review of Taxable
Costs, recommending that the court tax costs of $16,458.95.
ECF No. 428.

See

Spirit of Aloha Temple objected to parts of this

F&R.
1.

The County of Maui Did Not Waive Costs.

Citing Local Rule 54.1(a) (effective Sept. 1, 2019),
Spirit of Aloha Temple argues that the County of Maui failed to
comply with Local Rule 54.1 (governing Bills of Costs) and that
the alleged noncompliance should “be deemed a waiver of costs.”
The local rule in issue became effective in the days between when
Judgment was entered on August 23, 2019, and the Bill of Costs
were submitted on September 6, 2019.

This court declines to deem

any noncompliance a waiver, especially given the court’s silence
with respect to the Bill of Costs when the court warned the
5

County about noncompliance with respect to the attorney’s fees
motion.
Spirit of Aloha Temple argues that the County waived
costs because the Bill of Costs did not set forth the grounds and
authorities supporting the request, merely stating, “The costs
requested are allowed under 28 U.S.C. §§ 1920-1925 and Local Rule
54.2(f) of the United States District Court for the District of
Hawaii.

In accordance with the Federal and Local Rules, County

Defendant, as the prevailing party, respectfully requests this
Court to grant the attached bill of costs.”
PageID # 7337.

ECF No. 396-2,

The Magistrate Judge correctly noted, “While the

memorandum and affidavit should reflect more work in advance and
offer more substance, the County’s Bill of Costs and supporting
invoices, vouchers and other documents are very detailed and
provide ample information about the costs to be taxed.”

ECF

No. 428, PageID # 8714.
For example, the Itemization of Bill of Costs, ECF No.
396-1, provides a detailed explanation of the date of the cost,
the payee, a description, and the amount paid.

It also

references an exhibit with a corresponding receipt.

It is not

difficult to determine whether any such costs are taxable
pursuant to 28 U.S.C. §§ 1920-1925.

This detail makes this case

distinguishable from Rodriguez v. General Dynamics Armament &
Technical Products, Inc., 775 F. Supp. 2d 1217, 1219 (D. Haw.

6

2011), in which this court declined to tax costs when no
memorandum and only a brief affidavit supporting a bill of costs
was submitted.

Accordingly, this court agrees with the F&R that,

under the circumstances, no waiver occurred here.
Plaintiffs next argue that the County waived taxable
costs by failing to conduct a proper meet-and-confer.
this court is unpersuaded.

Again,

Any prejudice arising from an

insufficient meet-and-confer has been cured by the meet-andconfer that occurred after the F&R on costs was filed.
No. 452.

See ECF

Additionally, there is no requirement that an opposing

party receive the entire bill of costs prior to a meet-andconfer.

The requirement that parties meet and confer before

filing a document is supposed to streamline or avoid the filing
of the documents if parties can agree about certain issues.
Expenses can be avoided if parties communicate about issues and
determine what is in controversy before any party drafts a
document.
2.

Deposition Costs.

Taxable costs include fees for “transcripts necessarily
obtained for use in the case.”

28 U.S.C. § 1920(2).

Local Rule

54.1(f)(2) explains, “A deposition need not be introduced in
evidence or used at trial, so long as, at the time it was taken,
it could reasonably be expected that the deposition would be used
for trial preparation, rather than mere discovery.”

7

Plaintiffs unconvincingly object to costs being taxed
for the depositions of John Rapacz, Will Spence, and Wayne
Hedani.

As the Magistrate Judge noted, each of these individuals

was named as a witness on Plaintiffs’ witness list.
No. 263.

See ECF

While Plaintiffs correctly note that Plaintiffs

identified these individuals as witnesses right before trial,
their potential roles at trial were not unexpected, and the
County reasonably expected the depositions to be used for trial
preparation at the time they were conducted.

See Local Rule

54.1(f)(2).
John Rapacz was the director of the Maui County Zoning
Administration and Enforcement Division, William Spece was the
Director of the Maui Planning Department, and Wayne Hedani was a
former member of the Maui Planning Commission.
PageID #s 5599-5600.

See ECF No. 263,

Given Spirit of Aloha Temple’s claim that

it had suffered religious discrimination when it did not get a
permit, it was reasonable to expect these individuals to play a
role at trial.

Plaintiffs themselves thought so, having noticed

the deposition of Hedani in July 2017, see ECF No. 138, and of
Rapacz in February 2018, see ECF No. 171-4.

William Spence

approved the Maui Planning Department’s Report to the Maui
Planning Commission regarding Plaintiffs’ State Land Use
Commission Special Use Permit application, see ECF No. 180-3,
which was also reasonably expected to be at issue at trial.

8

While Rapacz, Spence, and Hedani were County employees, that does
not necessarily mean that their depositions could not reasonably
have been used by the County for trial preparation.

Any party

might want to review its own representatives’ deposition
testimony to prepare those representatives for trial.
Spirit of Aloha Temple next objects to the “duplicate”
costs of stenographic and videotaped depositions of Plaintiff
Fredrick Honig and his sister, Meenakshi Angel Honig, who were
both important witnesses at trial.

However, Local Rule

54.1(f)(2) provides, “The cost of a stenographic and/or video
original and one copy of any deposition transcript necessarily
obtained for use in the case is allowable.”

Thus, both are

taxable.
3.

Trial Transcripts.

Costs may be taxed for “Fees for printed or
electronically recorded transcripts necessarily obtained for use
in the case.”

28 U.S.C. § 1920(2).

Such costs include the

partial trial transcripts requested by the County.

See ECF

No. 396-4.
4.

Copying Costs.

Costs may be taxed for “Fees for exemplification and
the costs of making copies of any materials where the copies are
necessarily obtained for use in the case.”

28 U.S.C. § 1920(4).

Comparing this case to General Dynamics, Plaintiffs argue that

9

copying costs should be disallowed.
different from General Dynamics.

But this case is very

In that case, the court was

presented with a bill of costs for copying more than 100,000
pages and a declaration that simply stated that the copying was
for trial exhibits.

775 F. Supp. 2d at 1220.

In this case, the

declaration supporting the request details the number of pages
and describes each exhibit (and the number of copies submitted to
the court).

See ECF No. 396-27.

The total of $1,165.50 for

copies necessarily obtained for use in the case is reasonable
under the circumstances.
Upon de novo review of the portions of the F&R Spirit
of Aloha Temple objected to, the court adopts the Magistrate
Judge’s F&R and taxes costs in the amount of $16,458.95.
B.

Attorney’s Fees.

On December 13, 2019, the Magistrate Judge issued his
Findings and Recommendation to Deny Defendant the County of
Maui’s Motions for Attorney’s Fees and Non-taxable Costs.
ECF No. 429.

See

On December 27, 2019, the County objected to this

F&R.
In its objection, the County argues that it is entitled
to fees under 42 U.S.C. § 1988, which provides:
In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982,
1983, 1985, and 1986 of this title, title IX
of Public Law 92-318, the Religious Freedom
Restoration Act of 1993, the Religious Land
Use and Institutionalized Persons Act of
10

2000, title VI of the Civil Rights Act of
1964, or section 12361 of Title 34, the
court, in its discretion, may allow the
prevailing party, other than the United
States, a reasonable attorney's fee as part
of the costs, except that in any action
brought against a judicial officer for an act
or omission taken in such officer's judicial
capacity such officer shall not be held
liable for any costs, including attorney's
fees, unless such action was clearly in
excess of such officer's jurisdiction.
The Ninth Circuit has explained that “A defendant may recover
§ 1988 attorney fees only if ‘the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.’”

Saman v. Robbins, 173 F.3d

1150, 1157 (9th Cir. 1999) (quoting Hughes v. Rowe, 449 U.S. 5,
14 (1980)).

That is, courts are allowed to award fees to

prevailing defendants only “in exceptional circumstances,” and
even then, only for fees attributable exclusively to a
plaintiff’s frivolous claims.

Harris v. Maricopa Cty. Superior

Court, 631 F.3d 963, 971 (9th Cir. 2011).
Reviewing the matter de novo, this court cannot say
that any of Plaintiffs’ claims were frivolous, unreasonable, or
without foundation.

Plaintiffs’ claims went through several

rounds of summary judgment motions.

Ultimately, only a single

claim was tried and this court determined that sufficient
evidence supported it to send the claim to the jury.

The court

therefore adopts the Magistrate Judge’s F&R and denies the
County’s motion for fees.
11

V.

CONCLUSION.
After reviewing de novo the portions of the F&Rs

objected to, and after reviewing the remainder of the F&Rs for
clear error, the court adopts the F&Rs regarding the County’s
Bill of Costs and motion for attorney’s fees.

Costs of

$16,458.95 are taxed against Spirit of Aloha Temple.

The

County’s motion for fees is denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 11, 2020.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spirit of Aloha Temple, et al. v. County of Maui, Civil No. 14-00535 SOM/WRP; ORDER
ADOPTING (1) FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF
SPIRIT OF ALOHA TEMPLE’S MOTION FOR REVIEW OF TAXABLE COSTS AND (2) FINDINGS AND
RECOMMENDATION TO DENY DEFENDANT THE COUNTY OF MAUI’S MOTION FOR ATTORNEY’S FEES AND
NON-TAXABLE COSTS

12