McElroy v. McBarnet

Filing 170

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO DISMISS SECOND AMENDED COMPLAINT FILED OCTOBER 13, 2017 re 159 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 04/05/2018. Plaintif f Ronald Hale McElroy's Motion to Dismiss Second Amended Complaint Filed October 13, 2017 is HEREBY GRANTED IN PART AND DENIED IN PART. Plaintiff's Motion is GRANTED insofar as the Court CONCLUDES dismissal without prejudice pursuant to Rul e 41(a)(2) is appropriate. Plaintiff's Motion is DENIED insofar as dismissal pursuant to Rule 41(a)(2) is CONDITIONED on Plaintiff's payment of Motion Defendants' reasonable attorneys' fees of $1,361.26 by May 30, 2018.Bec ause the Court's approval of Plaintiff's request for dismissal is conditional, Plaintiff must be given the opportunity to consider whether he wishes to accede to the conditions. Plaintiff is DIRECTED to file a notice by May 3, 2018, stating whether he agrees to pay Motion Defendants, through their counsel, $1,361.26 by May 30, 2018. If Plaintiff does not timely file such a notice, the Court will dismiss the action with prejudice. (eps, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants served on 04/06/2018 by First Class Mail to: William L. Mohica and Mary A. Mohica; 86 Nakeke Pl.; Wahiawa, HI 96786 the address of record listed on the Notice of Electronic Filing (NEF) (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONALD HALE MCELROY,

)
)
Plaintiff,
)
)
vs.
)
)
LOGAN MCBARNET; ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL 17-00009 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT FILED OCTOBER 13, 2017
On October 13, 2017, Plaintiff Ronald Hale McElroy
(“Plaintiff”) filed his Motion to Dismiss Second Amended
Complaint Filed October 13, 2017 (“Motion”).

[Dkt. no. 159.]

Defendants Logan Mcbarnet, Terry T. Mcbarnet, as Trustee under
That Certain Unrecorded Revocable Trust of Terry T. Mcbarnet
Dated November 7, 2008, J. Mikael Brommels, Trustee of the
J. Mikael Brommels Living Trust Dated April 22, 2010,
Gary Heller, George Hlavenka, Catherine Hlavenka, Jesse Jacob
Brown, Kim Martin Brown, Ioan Martin, Jerzy Marie Kokurewicz,
Amita Holcomb Schmidt, Leo Francis Arensberg, Betty Jane Galase
Arensberg, Charles F. Krimm, Tamara M. Krimm, Thomas G. Rusnak,
Shannon T. Rusnak, and Ilana Kananipiliokalani D`enbeau Waxman
(collectively, “Motion Defendants”) filed their memorandum in
opposition on December 29, 2017, and Plaintiff filed his reply on
January 5, 2018.

[Dkt. nos. 165, 168.]

Defendants County of

Maui and Alexander & Baldwin, LLC filed statements of no position

on, respectively, December 28 and 29, 2017.
166.]

[Dkt. nos. 164,

This matter came on for hearing on January 22, 2018.

Plaintiff’s Motion is hereby granted in part and denied in part
for the reasons set forth below.
BACKGROUND
Plaintiff originally filed his Complaint on January 10,
2017, and filed his First Amended Complaint on February 1, 2017.
[Dkt. nos. 1, 16.]

Plaintiff sought declaratory and injunctive

relief relating to a land dispute.

On August 21, 2017,

Plaintiff’s First Amended Complaint was dismissed in its
entirety.

[Order Granting in Part and Denying in Part

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint
[Dkt 16] Filed February 1, 2017 (“8/21/17 Order”), dkt.
no. 154.1]

The background of this matter is fully set forth in

the 8/21/17 Order.

In pertinent part, the 8/21/17 Order stated:

Plaintiff has named Maui County as a party to this
suit, but not the State of Hawai`i or the relevant
state agency. At the hearing on the Motion, Maui
County represented that it does not have
responsibility for the road at issue in the
instant matter – that it is not a county road. In
short, it is possible that Plaintiff has not sued
the proper party in this matter, and has therefore
not stated a claim upon which relief can be
granted.
2017 WL 8316933, at *5 (citing Fed. R. Civ. P. 12(b)(6)).

1

The 8/21/17 Order is available at 2017 WL 8316933.
2

Plaintiff then filed a motion for clarification of the
8/21/17 Order.

[Motion for Clarification of the Court’s Order

Granting in Part and Denying in Part Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint [ECF 16] Filed February 1,
2017 (“Clarification Motion”), filed 9/19/17 (dkt. no. 155).]
The Clarification Motion sought a ruling that the 8/21/17 Order
“will not prejudice McElroy’s right to file a Complaint in the
Second Circuit Court; [and] that dismissals of claims in the
Amended Complaint with prejudice shall have no res judicata or
collateral estoppel effect on McElroy’s claims in the Second
Circuit Court.”

[Id. at 8.]

This Court denied Plaintiff’s

Clarification Motion on September 29, 2017 (“9/29/17 Order”).
[Order Denying Plaintiff’s Motion for Clarification, dkt. no.
157.]

The 9/29/17 Order stated the Clarification Motion was

“puzzling” and sought an improper “advisory ruling [because] this
Court cannot predict in a vacuum what may happen in the state
court case which Plaintiff apparently intends to file.”

[Id. at

4.]
On October 13, 2017, Plaintiff filed his Second Amended
Complaint.

[Dkt. no. 158.]

On the same day, Plaintiff filed the

instant Motion seeking voluntary dismissal of the Second Amended
Complaint under Fed. R. Civ. P. 41(a)(2).
voluntary dismissal is appropriate.

The parties agree

The parties disagree as to

whether conditions should be imposed on granting voluntary

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dismissal.

Motion Defendants argue voluntary dismissal should be

conditioned on Plaintiff’s reimbursement of their attorneys’ fees
relating to the Rule 26(f) conference; the scheduling conference;
legal research relating to diversity jurisdiction; the motion to
dismiss the First Amended Complaint; the Clarification Motion;
and the instant Motion.
STANDARD
This district court has stated:
District courts have broad discretion to impose an
award of attorneys’ fees as a condition for
dismissing an action without prejudice. See Fed.
R. Civ. P. 41(a)(2) (providing that “an action may
be dismissed at the plaintiff’s request only by
court order, on terms that the court considers
proper”); see also Smith v. Lenches, 263 F.3d 972,
978 (9th Cir. 2001) (reviewing district court’s
decision regarding an award of attorneys’ fees and
costs relating to federal law suit voluntarily
dismissed for abuse of discretion); Westlands
Water Dist. v. United States, 100 F.3d 94, 96 (9th
Cir. 1996) (remanding for determination whether
fees and costs should be imposed as a condition of
dismissal without prejudice, and noting that
pursuant to Rule 41(a)(2) the court may impose
“any terms and conditions [it] deems proper” when
granting voluntary dismissal).
Legacy Mortg., Inc. v. Title Guar. Escrow Servs., Inc., Civ. No.
11-00767 JMS-KSC, 2013 WL 1991563, at *2 (D. Hawai`i May 10,
2013).

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DISCUSSION
I.

Recoverable Tasks
Rule 41(a)(2) allows a plaintiff to obtain a dismissal

“by court order, on terms that the court considers proper.”

A

plaintiff may also obtain a voluntary dismissal “without a court
order by filing a stipulation of dismissal signed by all parties
who have appeared.”

Rule 41(a)(1)(ii).

At the January 22, 2018,

hearing, Motion Defendants represented through counsel that they
would have agreed to a stipulation for dismissal without
prejudice, if asked.

Plaintiff represented through counsel that

he did not seek agreement of the parties for a stipulation of
dismissal because he believed filing the Second Amended Complaint
was necessary.
Filing the Second Amended Complaint was not necessary.
Neither was it necessary for Plaintiff to file the Clarification
Motion nor the instant Motion.

Motion Defendants would not have

incurred attorneys’ fees related to Plaintiff’s unnecessary
filings if Plaintiff had instead sought a stipulation of
dismissal.

Therefore, an appropriate condition of granting

voluntary dismissal pursuant to the instant Motion is Plaintiff’s
payment of the reasonable attorneys’ fees Motion Defendants
incurred related to the Clarification Motion and to the instant
Motion.

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Plaintiff contends attorneys’ fees may not be awarded
for work performed after a plaintiff files a motion to dismiss.
Not so.

The Ninth Circuit “encourages the use of discretion in

determining whether an award of fees should include work that may
not have been necessary.”

Legacy Mortgag., 2013 WL 1991563, at

*2 (citing Westlands, 100 F.3d at 98).

Under the circumstances

of this case, an award is appropriate for Motion Defendants’ fees
incurred after the filing of Plaintiff’s motion to dismiss
because those fees were incurred “responding to Plaintiff’s
motions and not in connection with any later-filed dispositive
motion of [their] own.”

See id.; see also Westlands, 100 F.3 at

98 (fee award not appropriate where, after motion for voluntary
dismissal was filed, defendants filed a motion for summary
judgment (citing Conafay v. Wyeth Labs., 841 F.2d 417, 420 (D.C.
Cir. 1988)).
The Court declines to award any fees apart from those
incurred relating to the instant Motion or the Clarification
Motion.

In the course of the federal litigation, Motion

Defendants have “have gained detailed insight and knowledge of
precise legal and factual issues that may arise in the future —
work product that can certainly be useful” in the state court
litigation.

See Akina v. Hawaii, Civ. No. 15-00322 JMS-RLP, 2016

WL 7031285, at *3 (D. Hawai`i Nov. 30, 2016) (citing Westlands,
100 F.3d at 97 (“[D]efendants should only be awarded attorney

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fees [under Rule 41] for work which cannot be used in any future
litigation of these claims.”) (citations omitted); Koch v.
Hankins, 8 F.3d 650, 652 (9th Cir. 1993) (“Only those costs
incurred for the preparation of work product rendered useless by
the dismissal should be awarded as a condition of the voluntary
dismissal.”)).

Therefore, appropriate conditions of voluntary

dismissal in this case do not include reimbursement of Motion
Defendants’ attorneys’ fees relating to the Rule 26(f)
conference, scheduling conference, motion to dismiss First
Amended Complaint, and legal research.
II.

Determination of Attorneys’ Fees Award
This district court has stated:
Under federal law, reasonable attorneys’ fees
are generally based on the traditional lodestar
calculation set forth in Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). In determining the
reasonable hourly rate, some of the relevant
factors to consider include the level of skill
required, time limitations, the amount involved in
the litigation, the attorney’s reputation and
experience, the quality of the representation, the
attorney’s success or failure in the outcome, and
the undesirability of the case. See Chalmers v.
City of Los Angeles, 796 F.2d 1205, 1213 (9th Cir.
1986).
. . . [I]t is well-established that a
reasonable hourly rate should reflect the
“prevailing market rates in the relevant
community,” Gonzalez v. City of Maywood, 729 F.3d
1196, 1205 (9th Cir. 2013), which generally “is
the forum in which the district court sits.”
Prison Legal News v. Schwarzenegger, 608 F.3d 446,
454 (9th Cir. 2010). “Importantly, the fee
applicant has the burden of producing
‘satisfactory evidence’ that the rates he requests
7

meet these standards.” Gonzalez, 729 F.3d at 1206
(citing Dang v. Cross, 422 F.3d 800, 814 (9th Cir.
2005)); see also S.E.C. v. Gemstar-TV Guide Int’l,
Inc., 401 F.3d 1031, 1056 n.8 (9th Cir. 2005)
(“[I]t is “the fee applicant [that] has the burden
of producing satisfactory evidence, in addition to
the affidavits of its counsel, that the requested
rates are in line with those prevailing in the
community for similar services of lawyers of
reasonably comparable skill and reputation.”)
(quoting Jordan v. Multnomah Cnty., 815 F.2d 1258,
1263 (9th Cir. 1987)).
Pelayo v. Platinum Limousine Servs., Inc., CIVIL NO. 15-00023
DKW-KJM, 2016 WL 5402185, at *3 (D. Hawai`i Sept. 27, 2016) (some
alterations in Pelayo).
Attorneys Jade Lynne Ching and Kanoelani S. Kane worked
on the instant Motion and the Clarification Motion.

Ms. Ching is

a partner with twenty five years experience and Ms. Kane is an
associate admitted to practice law for fourteen years, with
extensive experience clerking in federal and Hawai`i courts.2

2

Ms. Ching’s and Ms. Kane’s experience and requested hourly
rates are described as follows:
Jade Lynne Ching (JLC). Ms. Ching has been
admitted to practice before all courts of the
State of Hawai`i since 1992, and has over 25 years
of commercial and real estate litigation
experience in the State of Hawai`i. Ms. Ching
billed time on this matter at $300.00 per hour,
which is within the range of reason for attorneys
with similar experience in this community.
Ms. Ching is currently the lead attorney on this
case.
Kanoelani S. Kane (KSK). Ms. Kane has been
admitted to practice before all courts in the
State of Hawai`i since 2003. Prior to joining
(continued...)
8

[Mem. in Opp., Decl. of Jade Lynne Ching (“Ching Decl.”) at
¶ 10.]

The Court finds Ms. Kane’s requested hourly rate of $200

is reasonable and consistent with prevailing market rates.

See

Pelayo, 2016 WL 5402185, at *5 & n.5 (increasing hourly rate from
$200 to $225

for an attorney with eleven experience practicing

law; approving increase, in part, “to avoid stagnation of rates
over time”).

The Court finds Ms. Ching’s requested hourly rate

of $300 is reasonable and consistent with prevailing market
rates.

See id. (approving rate of $310 for attorney with twenty

seven years experience practicing law); see also Pascual v.
Aurora Loan Services, LLC, Civil No. 10-00759 JMS-KSC, 2012 WL
5881972, at *11 (D. Hawai`i Oct. 31, 2012) (finding, six years
ago, that $275 is a reasonable hourly rate for Ms. Ching), report

2

(...continued)
Nakashima Ching as an associate attorney, Ms. Kane
had extensive experience serving as a law clerk to
various judges in the state and federal courts as
follows: two years with Chief Justice Ronald T.Y.
Moon at the Hawai`i Supreme Court, two years with
District Judge Susan Oki Mollway at the United
States District Court for the District of Hawai`i,
one year with Judge Richard R. Clifton at the
Ninth Circuit Court of Appeals, and eight and onehalf years with Magistrate Judge Barry M. Kurren
at the United States District Court for the
District of Hawai`i. At Nakashima Ching, Ms. Kane
practices in the areas of commercial and real
estate litigation. Her hourly rate of $200.00 in
this matter is within the range of reason for
attorneys with similar experience in this
community.

[Ching Decl. at ¶ 10.]
9

and recommendation adopted, 2012 WL 5881858, at *1 (D. Hawai`i
Nov. 21, 2012).
“[D]istrict courts ‘should exclude from [their] initial
fee calculation hours that were not reasonably expended.’”

Gates

v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S. Ct. 1933,
1939-40 (1983) (citations omitted)).

Motion Defendants submitted

detailed billing information, which shows the following hours
worked on the Clarification Motion and the instant Motion,
including the review of the Second Amended Complaint.3

[Ching

Decl., Exh. 2 at 5.]
Attorney

Jade Lynne Ching
Kanoelani S. Kane

Motion for Motion to Dismiss Total
Clarification Second Amended Hours
Complaint
0.3
0.1
0.4
0.6
5.3
5.9
TOTAL HOURS
6.3

The Court finds these hours were reasonably expended.

The total

recoverable hours for Ms. Ching are 0.4 hours, and for Ms. Kane,
5.9 hours.
Under the lodestar method, reasonable attorneys’ fees
are determined by multiplying “the number of hours reasonably
expended on the litigation” by “a reasonable hourly rate.”

3

Exhibit 2 does not comply with Local Rule 54.3. This
Court emphasizes it does not condone failure to follow the
applicable rules. Under the circumstances of this case, however,
the detailed billing information contained in Exhibit 2 is
sufficient to determine the fee award for the instant Order.
10

Hensley, 461 U.S. at 433.

Based on the foregoing, voluntary

dismissal is conditioned on the following fee award:
Attorney
Jade Lynne Ching
Kanoelani S. Kane

Hours
0.4
5.9

Rate
Total
$300.00
$120.00
$200.00
$1,180.00
Subtotal
$1,300.00
GET (4.712%)
$61.26
TOTAL
$1,361.26

“The Supreme Court has repeatedly emphasized that the
lodestar fee should be presumed reasonable unless some
exceptional circumstance justifies deviation.”

Quesada v.

Thomason, 850 F.2d 537, 539 (9th Cir. 1988) (citing Pennsylvania
v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711,
107 S. Ct. 3078, 3088, 97 L. Ed. 2d 585 (1987).

This case

presents no exceptional circumstances justifying deviation from
the lodestar fee of $1,361.26.4

4

The Ninth Circuit “requires that courts reach attorneys’
fee decisions by considering some or all of twelve relevant
criteria set forth in Kerr v. Screen Extras Guild, Inc., 526 F.
2d 67 (9th Cir. 1975).” Quesada, 850 F.2d at 539.
The Kerr factors are (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 relationship with the
(continued...)
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CONCLUSION
On the basis of the foregoing, Plaintiff Ronald Hale
McElroy’s Motion to Dismiss Second Amended Complaint Filed
October 13, 2017 is HEREBY GRANTED IN PART AND DENIED IN PART.
Plaintiff’s Motion is GRANTED insofar as the Court CONCLUDES
dismissal without prejudice pursuant to Rule 41(a)(2) is
appropriate.

Plaintiff’s Motion is DENIED insofar as dismissal

pursuant to Rule 41(a)(2) is CONDITIONED on Plaintiff’s payment
of Motion Defendants’ reasonable attorneys’ fees of $1,361.26 by
May 30, 2018.
Because the Court’s approval of Plaintiff’s request for
dismissal is conditional, Plaintiff must be given the opportunity
to consider whether he wishes to accede to the conditions.
Plaintiff is DIRECTED to file a notice by May 3, 2018, stating
whether he agrees to pay Motion Defendants, through their
counsel, $1,361.26 by May 30, 2018.

If Plaintiff does not timely

file such a notice, the Court will dismiss the action with
prejudice.

4

(...continued)
client; and (12) awards in similar cases.

Id. at 539. The first five Kerr factors have been “subsumed in
the initial lodestar calculation.” Morales v. City of San
Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996). A district court
may “adjust the presumptively reasonable lodestar figure on the
basis of the Kerr factors that are not already subsumed in the
initial lodestar calculation.” Id. at 363.
12

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 5, 2018.

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

RONALD HALE MCELROY VS. LOGAN MCBARNET, ET AL; CIVIL 17-00009
LEK-RLP; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT FILED OCTOBER 13, 2017

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