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

Filing 683

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT COUNTY OF MAUI'S BILL OF COSTS re 681 . After reviewing de novo the portions of the F&R objected to, and after reviewing the remainder of the F&R for clear error, the court adopts the F&R regarding the county's Bill of Costs. Costs of $2,109.79 (2023 Costs) and $16,458.35 (2020 Costs) are taxed against Spirit of Aloha Temple. The total amount taxed is $18,568.14 ($2,109.79 + $16,458.35).Signed by JUDGE SUSAN OKI MOLLWAY on 3/8/2024. (cib)

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 FINDINGS AND
RECOMMENDATION TO GRANT IN
PART AND DENY IN PART
DEFENDANT COUNTY OF MAUI’S
BILL OF COSTS

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART DEFENDANT COUNTY OF MAUI’S BILL OF COSTS
I.

INTRODUCTION.
Before the court are Plaintiffs’ objections to

Magistrate Judge Wes Reber Porter’s Findings and Recommendation
to Grant in Part and Deny in Part Defendant County of Maui’s Bill
of Costs, ECF No. 681 (“F&R”).

After reviewing de novo the

matters objected to, and after examining the entire record for
clear error, the court adopts the F&R, modifying it in part to
account for a $0.60 arithmetic error, and awards $18,568.14 in
costs.
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.

Many of the counts were

originally adjudicated by motion in favor of the county.

See ECF

Nos. 109 (declining to exercise supplemental jurisdiction with
respect to Count X (appeal from an order of the Maui Planning
Commission)), 239 (granting summary judgment in favor of the
county with respect to the prior restraint claim asserted in
Count V and ruling that only factual challenges were asserted in
the other counts), and 277 (ruling that all other claims were
barred by collateral estoppel with the exception of the equal
terms claim asserted in Count IV under the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”)).1

Count IV

went to trial before a jury, which returned a verdict on that
count in favor of the county.
entered the same day.

See ECF No. 392.

Judgment was

See ECF No. 393.

On March 12, 2020, the court awarded the county
$16,458.95 in taxable costs (“2020 Costs”).

See ECF No. 453.

A

separate judgment with respect to the 2020 Costs was entered on
April 6, 2020.

See ECF No. 454.

On appeal, the Ninth Circuit reversed the court’s
collateral estoppel ruling in favor of the county and vacated the
award of costs because the county was no longer the prevailing
party.

Plaintiffs did not appeal the jury verdict with respect

to Count IV.

See ECF No. 461.

On remand, the court again granted summary judgment in
favor of the county with respect to Count V.
1

The court also

No Count III was asserted in Plaintiffs’ Complaint.
2

determined that the complete denial of a permit to Plaintiffs
failed strict scrutiny.

However, the merits of the claims for

which strict scrutiny applied were not decided via motion.
ECF Nos. 498, 540, and 596.
nine days.

See

A second jury trial was held over

The jury returned a verdict in favor of the county,

determining: 1) that the county had not substantially burdened
Plaintiffs’ exercise of religion in violation of RLUIPA
(Count I); 2) that the county had not violated the free exercise
of religion clauses of the United States and Hawaii constitutions
(Counts VI and VIII); 3) that the county had not violated
RLUIPA’s nondiscrimination provision (Count II); and 4) that the
county had not violated the equal protection clauses of the
United States and Hawaii constitutions (Counts VII and IX).
ECF Nos. 639 and 640.

See

On October 12, 2023, judgment was again

entered in favor of the county.

See ECF No. 641.

On October 26, 2023, the county filed its Bill of
Costs.

See ECF No. 642.

On November 6, 2023, Magistrate Judge

Porter denied the Bill of Costs without prejudice because the
county had failed to include a representation that the parties
had met and conferred in an effort to resolve disputes and
because it was not properly supported by a memorandum supporting
its requests.

The court granted leave to the county to refile

its Bill of Costs no later than November 20, 2023, provided that

3

it had meaningfully conferred with Plaintiffs and properly
supported its requests.

See ECF No. 650.

On November 20, 2023, the county refiled its Bill of
Costs.

See ECF Nos. 657-59.

The county asked the court to

reinstate the $16,458.95 in costs taxed in March 2020 and sought
$13,188.07 in new costs.

See ECF No. 657, PageID # 16443.

The

county later reduced its request for new costs to $4,778.68 by
withdrawing its requests relating to: 1) copies of October 2023
trial transcripts ($7,538.17); and 2) witness travel costs
($871.22).

See ECF No. 670, PageID # 16677.
On November 27, 2023, Plaintiffs objected to the

county’s Bill of Costs.

See ECF No. 665.

Plaintiffs did not

object to any of the 2020 Costs requested by the county.

With

respect to the 2023 costs, Plaintiffs objected to $944.90 for
copying costs, $497.40 for admitted trial exhibits, $299.81 for
additional pleadings, $367.78 for shipping costs, and for more
than one copy of deposition transcripts.
#s 16662, 16664.

See id., PageID

Plaintiffs also objected to witness fees for

Marilyn Niwao (who was ultimately excluded from being a witness
after testifying for a short time) and to an award of more than
$40 per day with respect to Mr. Spence and Mr. Hidani.
PageID #s 16665-66.
costs.

See id.,

Plaintiffs also objected to counsel’s travel

See id., PageID # 16666.

4

On February 1, 2024, Magistrate Judge Porter issued
Findings and Recommendation to Grant in Part and Deny in Part
Defendant County of Maui’s Bill of Costs (“F&R”).
681.

See ECF No.

The F&R determined that “Plaintiffs do not contest that

Defendant is the prevailing party in this action.”
# 18162.

Id., PageID

Because “Plaintiffs d[id] not dispute that this Court

should reaffirm the taxation of costs following the first trial”,
the F&R recommended reaffirming the previous 2020 Costs award of
$16,458.95.

See id., PageID # 18172.

With respect to costs incurred after remand, the F&R
recommended awarding $394.76 in costs for the videotaped
deposition of Plaintiff Fredrick R. Honig used at trial.
id., PageID # 18163.

See

The F&R recommended awarding $497.40 for

copies of admitted trial exhibits.

See id., PageID #s 18164-65.

The F&R recommended awarding $178.59 for Marilyn Niwao’s airfare
because she did testify at trial.

See id., PageID # 18168.

The

F&R recommended awarding $337.50 and $247.50 for Spence’s and
Hidani’s “subsistence allowance,” which was less than the per
diem rate for Honolulu in October 2023, rejecting Plaintiffs’
contention that they should only be allowed $40 for witness fees.
See id., PageID # 18169.

Because of the parties’ agreement, the

F&R recommended awarding costs of $871.22 for Spence’s and
Hidani’s travel, accommodation, and transportation, awarding
costs of $435.17 for their ground transportation, and awarding
5

costs of $18.87 for their mileage costs.
# 18171.

See id., PageID

Finally, the F&R recommended rejecting Plaintiffs’

request to stay the award of costs pending Plaintiffs’ appeal.
See id., PageID # 18173.
On February 15, 2024, Plaintiffs objected to the F&R.
See ECF No. 682.

Plaintiffs argued that the county failed to

satisfy the meet and confer requirements.

If the court reaches

the merits, “Plaintiffs do not object to the Magistrate [Judge’s]
specific recommendations” with respect to the 2023 Costs, but
contend that the final award with respect to costs should be
postponed pending their appeal.

See ECF No. 682, PageID # 18181.

Although Plaintiffs failed to notify the magistrate judge of any
objection to the renewed request for 2020 Costs, they now object
to this district judge, contending that the court should reduce
the 2020 Costs with respect to 1) deposition transcripts of the
county’s own employees; 2) daily transcripts; and 3) excessive
copying costs.
III.

See id.

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,
6

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).

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&R as

this judge’s own order.
A.

The County Satisfied its Meet and Confer
Obligations.

Plaintiffs argue that the county waived its right to
taxable costs by failing to comply with its meet and confer

7

obligations under Local Rule 54.1.

Under Local Rule 54.1(c), a

bill of costs must be accompanied by an affidavit (or
declaration) containing “a representation that counsel met and
conferred in an effort to resolve any disputes about the claimed
costs and the results of such a conference, or explain why the
conference was not held.”

Under Local Rule 54.1(a), “[n]on-

compliance with any provision in LR54.1 shall be deemed a waiver
of costs.”
Along with the second Bill of Costs filed on November
20, 2024, counsel for the county submitted an affidavit
indicating: 1) that with respect to the original bill of costs
submitted in October 2023, he sent Plaintiffs’ counsel the
request and was told that Plaintiffs’ counsel would get back to
him; 2) that Plaintiffs’ counsel did not get back to him prior to
the court’s denial of those costs without prejudice; 3) that on
November 8, 2023, counsel for the county and for Plaintiffs met
and conferred via a conference call with respect to the requested
taxable costs and that Plaintiffs’ counsel refused to agree to
any of the requested costs; and 4) that Plaintiffs’ refusal was
based on a belief that no costs may be taxed before the
disposition of their appeal.

See ECF No. 657, PageID #s 16452-

54.
Given the county’s attempt to meet and confer with
Plaintiffs with respect to taxable costs, the county has

8

sufficiently satisfied its obligations under Local Rule 54.1.
Plaintiffs’ alleged refusal to meaningfully participate in the
meet and confer process should not prejudice the county.
Instead, the court determines that the county has “explained why”
the meet and confer did not meaningfully occur.

Accordingly, the

court declines to rule that the lack of a meaningful meet and
confer equates to a waiver of the county’s taxable costs.
B.

The Court Declines to Stay Taxation of Costs
Pending Appeal.

Plaintiffs seek a stay with respect to taxation of
costs in the name of judicial economy.

Plaintiffs claim that, if

they are successful on appeal, any order with respect to taxation
of costs will be vacated.
stay.

The court declines to impose such a

If Plaintiffs would like to stay taxable costs, they may

post a bond for the full amount of those costs or file a
stipulation to that effect.
C.

See ECF No. 681, PageID # 18173 n.5.

2023 Costs.

The court adopts the F&R’s recommendation with respect
to the 2023 Costs, which Plaintiffs do not object to on the
merits.

See ECF No. 682, PageID # 18181.

The court therefore

orders that the following costs be taxed against Plaintiffs:
$497.40 for copies of admitted trial exhibits; $394.76 for
depositions; and $1,217.63 for witness fees.
$2,109.79.

9

These costs total

D.

2020 Costs.

The court also adopts (with one small modification) the
F&R’s recommendation with respect to the 2020 Costs.

The

November 2023 Bill of Costs had asked this court to reaffirm
those previously taxed costs of $16,458.95.
PageID # 16443.

See ECF No. 657,

When Plaintiffs objected to the magistrate judge

with respect to the November 2023 Bill of Costs, Plaintiffs did
not object to the previously taxed costs of $16,458.95.
No. 665.

See ECF

Thus, the F&R stated, “Plaintiffs do not dispute that

this Court should reaffirm the taxation of costs following the
first trial.

Therefore, the Court recommends reaffirming the

previous taxation of costs in the amount of $16,458.95 as noted
in the April 6, 2020 Judgment.”

ECF No. 681, PageID # 18172.

After the magistrate judge issued his F&R, Plaintiffs
for the first time challenged the November 2023 Bill of Costs’
request for the previously taxed costs totaling $16,458.95.
Plaintiffs’ failure to timely object to these costs before the
magistrate judge operates as a waiver with respect to those
costs.

See Walker v. California, 200 F.3d 624, 626 (9th Cir.

1999) (ruling that a party’s failure to timely object to a cost
award waived the party’s right to challenge the cost award).
Ninth Circuit has explained in the context of appeals made to
appellate courts:
Generally, we will not consider an issue
raised for the first time on appeal.
10

The

Whittaker Corp. v. Execuair Corp., 953 F.2d
510, 515 (9th Cir. 1992). We have recognized
only three exceptions to this general rule:
(1) when review is necessary in an
exceptional case to prevent a miscarriage of
justice or to preserve the integrity of the
judicial process; (2) when a new issue arises
due to a change in law while the appeal is
pending; (3) when the issue presented is
purely one of law and either does not depend
on the factual record developed in the trial
court, or the pertinent record has been fully
developed. Bolker v. C.I.R., 760 F.2d 1039,
1042 (9th Cir. 1985). If one of these
exceptions applies, we have the discretion to
consider the issue. Id.
Duggan v. Hobbs, 99 F.3d 307, 313 (9th Cir. 1996).

Plaintiffs

provide no justification for this court to consider an objection
they failed to raise before the magistrate judge.
This court rules that Plaintiffs’ failure to timely
object with respect to the $16,458.95 in requested costs means
that they cannot now object to those costs when objecting to the
F&R.

This court’s de novo review of matters objected to does not

mean that Plaintiffs need not litigate matters at all before the
magistrate judge.

To hold otherwise would allow parties to

completely skip litigating matters before a magistrate judge.
The court therefore adopts the F&R’s recommendation that
$16,458.95 be awarded with respect to the 2020 Costs, but
modifies the amount to $16,458.35 to account for a one-page error
with respect to copying costs.
Even if the court considered Plaintiffs’ objections
with respect to the 2020 Costs, the court would tax those costs.
11

1.

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.”

Plaintiffs

object to the costs of deposition transcripts for the county’s
own employees, Scott English, John Rapacz, Will Spence, Wayne
Hedani, and Marilyn Niwao.

But the original F&R with respect to

the 2020 Costs (ECF No. 428), which this court adopted (ECF No.
453), did not include taxation of the deposition costs with
respect to Scott English and Marilyn Niwao.

See ECF No. 428,

PageID # 8716 (“the Court finds that the costs for the remaining
two depositions should be deducted from the taxable costs: Ms.
Niwao for 247.97 and Mr. English for $107.13.” (footnotes
omitted)).
This court has already rejected Plaintiffs’ objections
with respect to the taxation of costs for copies of the
depositions of John Rapacz, Will Spence, and Wayne Hedani.
ECF No. 453, PageID #s 11100-01.
deposed by Plaintiffs.

Each of these individuals was

See ECF Nos. 138 (Hedani Notice of

Depo.); 171-4 (Rapacz Notice of Depo.); 185-5 (Spence Depe.
transcript); 357-1 (Rapacz Depo. transcript).

12

See

Moreover,

Plaintiffs read portions of Rapacz’s deposition into evidence on
Day 7 of the second trial.

See ECF No. 677, PageID # 17812.

Each of these individuals was also named as a witness on
Plaintiffs’ witness list.

See ECF No. 263.

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 would be used in 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 Spence 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.
While Rapacz, Spence, and Hedani were county employees, that does
13

not necessarily mean that their depositions, which were taken by
Plaintiffs, 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.
2.

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).

This court has already ruled

that such costs include the partial trial transcripts requested
by the county.

See ECF Nos. 453, PageID # 11102.

Plaintiffs do

not detail which trial transcripts were not “necessarily obtained
for use in the case.”

It appears that the county ordered

“Partial Transcripts of Jury Trial Days 1, 2, 3 Morning Session,
3 Afternoon Session, 4, 5, Testimony of Fredrick R. Honig.”

ECF

No. 396-4 ($3,180.47 bill); ECF No. 396-1, PageID # 7332
(itemizing costs of $3,180.47 for trial transcripts of Plaintiff
Fredrick R. Honig).

Given the nature of Plaintiff Fredrick R.

Honig’s testimony in the first trial, which this court recalls,
the court determines that the county necessarily obtained the
transcripts of his trial testimony for use in the case.

The

county clearly used those transcript when preparing its closing.
See, e.g., ECF No. 420, PageID #s 8266-68, 8270-71, 8274
(describing Honig’s testimony).

14

3.

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
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.

The

Declaration of Melissa Stoppiello details the copying costs at
$0.15 per page, totaling $1,165.50.

See ECF No. 396-27.

While

Plaintiffs object to copying costs of $1,299.30, the 2020 F&R
only recommended awarding $1,165.50 in copying costs.

See ECF

No. 453, PageID # 11103.
Moreover, while Plaintiffs object to the taxation of
costs for thousands of pages of documents that were not admitted
at trial, it does not appear that the county sought taxation of
such costs.

Instead, it appears that the county sought to tax
15

costs for four copies of exhibits (original and one each for the
judge, law clerk, and Plaintiffs’ counsel) that were actually
admitted at trial (891 pages at $0.15 per page (times 4 copies)
for a total of $534.60 for trial exhibits for Defendants’
Exhibits Nos. 11-15 (38 pages), 17 (38 pages), 21-25 (117 pages),
27-30 (634 pages), 51 (3 pages), 93-97 (5 pages), 103-111 (48
pages), and 115 (8 pages)).

It appears that the county requested

copying costs for four copies of 892 pages, rather than 891
pages.

The court therefore deducts $0.60 (4 x $0.15) from the

requested costs for the missing page and awards a total of
$1,164.90.
V.

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

objected to, and after reviewing the remainder of the F&R for
clear error, the court adopts the F&R regarding the county’s Bill
of Costs.

Costs of $2,109.79 (2023 Costs) and $16,458.35

(2020 Costs) are taxed against Spirit of Aloha Temple.

The total

amount taxed is $18,568.14 ($2,109.79 + $16,458.35).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 8, 2024.
/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

16