Moskowitz v. American Savings Bank, F.S.B.

Filing 40

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION (ECF NO. 38 ) AND ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT AMERICAN SAVINGS B ANK, F.S.B.'S MOTION FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS (ECF NO. 36 ) - Signed by JUDGE HELEN GILLMOR on 12/26/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electron ic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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AMERICAN SAVINGS BANK, F.S.B., )
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Defendant.
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__________________________________
CRAIG MOSKOWITZ, on behalf of
himself and all others
similarly situated,

CIVIL NO. 17-00299 HG-KSC

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION (ECF No. 38)
and
ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART DEFENDANT AMERICAN SAVINGS BANK,
F.S.B.’S MOTION FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS (ECF
No. 36)

On February 21, 2017, Plaintiff Craig Moskowitz, on behalf
of himself and others similarly situated, filed a lawsuit in the
United States District Court for the District of Connecticut
against Defendant American Savings Bank, F.S.B., Moskowitz v.
American Savings Bank, F.S.B., Civ. No. 3:17-00307AWT.
On May 15, 2017, Plaintiff filed a Notice of Voluntary
Dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
A month later, on June 23, 2017, Plaintiff filed a nearly

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identical Complaint that asserted the same claims against the
same Defendant in this District.

(ECF No. 1).

Defendant American Savings Bank, F.S.B. filed a Motion for
Costs and Stay of Proceedings related to the District of
Connecticut proceeding pursuant to Fed. R. Civ. P. 41(d).

(ECF

No. 15).
On October 30, 2017, the Magistrate Judge issued a FINDINGS
AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT
AMERICAN SAVINGS BANK, F.S.B.’S MOTION FOR RULE 41(d) COSTS AND
STAY OF PROCEEDINGS.

(ECF No. 36).

On November 13, 2017, Plaintiff filed Objections to the
Magistrate Judge’s Findings and Recommendation.

(ECF No. 38).

On November 27, 2017, Defendant filed its Response.

(ECF

No. 39).
Plaintiff’s Objections (ECF No. 38) are OVERRULED.
The Magistrate Judge’s Findings and Recommendation (ECF No.
36) is ADOPTED.

STANDARD OF REVIEW
28 U.S.C. § 636(b)(1)(B) permits a district court judge to
designate a magistrate judge to determine matters pending before
the court and to submit a findings and recommendation to the
district court judge.

Any party may object to a magistrate

judge's findings and recommendation, pursuant to District of

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Hawaii Local Rule 74.2.
The district court judge shall make a de novo determination
of those portions of the findings and recommendation to which a
party properly objects 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)(c); Dawson v. Marshall,

561 F.3d 930, 933 (9th Cir. 2009).
ANALYSIS
Plaintiff objects to the Magistrate Judge’s October 30, 2017
Findings and Recommendation (ECF No. 36).

Plaintiff specifically

objects to the recommendation to award Defendant costs pursuant
to Fed. R. Civ. P. 41(d).

Plaintiff’s Objections (ECF No. 38)

merely repeat arguments he made to the Magistrate Judge in
Opposition to Defendant’s Motion.
Contrary to the Plaintiff’s position, decisions in the
District Court for the District of Hawaii have found that Federal
Rule of Civil Procedure 41(d) allows for recovery of both
expenses and attorneys’ fees.

Aloha Airlines, Inc. v. Mesa Air

Grp., Inc., Civ. No. 07-00007 DAE-KSC, 2007 WL 2320672, *1 (D.
Haw. Aug. 10, 2007) (Order Adopting Findings and Recommendation
to Award Attorneys’ Fees pursuant to Fed. R. Civ. P. 41(d)); Uy
v. HSBC Bank U.S., Nat’l Assn, Civ. No. 14-00261 HG-KSC, 2014 WL
6471331, *2 (D. Haw. Nov. 3, 2014), report and recommendation

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adopted, 2014 WL 6471747 (D. Haw. Nov. 18, 2014).
Numerous other courts in the Ninth Circuit have agreed.
See, e.g., Platinum Logistics, Inc. v. Platinum Cargo, 2015 WL
11921401, *5 (S.D. Cal. Sept. 15, 2015) (finding persuasive the
reasoning of the cases finding that attorneys’ fees are
recoverable under Rule 41(d) and collecting cases); Whole E
Nature, LLC v. Wonderful Co., LLC, 2017 WL 4227150, *5-*6 (S.D.
Cal. Sept. 22, 2017).
A showing of subjective bad faith, vexatiousness, or forum
shopping is also not required for an award pursuant to Fed. R.
Civ. P. 41(d).

Uy, 2014 WL 6471331, at *2; Whole E Nature, LLC,

2017 WL 4227150, *5-*6 (finding costs including attorneys’ fees
appropriate given the “remedial purpose and discretionary nature”
of Rule 41(d)).
Plaintiff’s Objections do not contain any information that
requires a change in the Findings and Recommendation of the
Magistrate Judge.
CONCLUSION
Plaintiff’s Objections to the Magistrate Judge’s Findings
and Recommendation (ECF No. 38) are OVERRULED.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 74.2,
the “FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN
PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.’S MOTION FOR RULE

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41(d) COSTS AND STAY OF PROCEEDINGS” (ECF No. 36) is ADOPTED AS
THE OPINION AND ORDER OF THIS COURT.
IT IS SO ORDERED.
DATED: December 26, 2017, Honolulu, Hawaii.

Craig Moskowitz, on behalf of himself and all others similarly
situated v. American Savings Bank, F.S.B., Civ. No. 17-00299 HGKSC; ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION (ECF No. 38) and ADOPTING THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT IN PART
AND DENY IN PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.’S MOTION
FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS (ECF No. 36)
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