In re: Starr Adjustment Services, Inc.
ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEYS' FEES AND COSTS re 11 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 9/15/2017. "In accordance with the foregoing, the Court HEREBY GRANTS Starr's Motion for Att orneys' Fees and Costs, filed July 12, 2017. Starr is awarded $3,888.50 in attorneys' fees and costs and $47.00 in costs. Ms. Rucker is to remit payment to defense counsel by October 6, 2017." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Katrina Rucker shall be served by first class mail to the address of record on September 18, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STARR ADJUSTMENT SERVICES,
MISC. NO. 17-00133 DKW-KSC
ORDER GRANTING PETITIONER’S
MOTION FOR ATTORNEYS’ FEES AND
ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEYS’ FEES AND COSTS
Before the Court is Petitioner Starr Adjustment
Services, Inc.’s (“Starr”) Motion for Attorneys’ Fees and Costs,
filed July 12, 2017.
On July 26, 2017, Starr filed a Statement
of Consultation, representing that Respondent Katrina Rucker did
not respond to its request for consultation.1
Plaintiff filed a “Certificate of Service:
On July 28, 2017,
Response to Starr’s
Request for Phone Conference”2 in Rucker v. Air Ventures Hawaii,
LLC, Civil No. 16-00492 KSC, the civil action to which this
miscellaneous case relates.
Civil No. 16-00492 KSC, Doc. No.
The response, improperly filed and incorrectly submitted in
to Federal Rule
this is not a motion for attorneys’ fees pursuant
of Civil Procedure 54, a statement of
unnecessary. However, the Court appreciates
to engage in the consultation process.
The Court has already informed Plaintiff that
certificates of service referencing discovery-related documents
may be filed, but not the documents themselves. Civil No. 1600492 KSC, Doc. Nos. 58, 60, 70. This is an example of an
improper use of a certificate of service.
I am currently in the middle of preparing for an
April 2018 District Court trial, and as I am also
recovering from a concussion, I can not [sic]
assist you with a phone conference at this time.
I will be available on June 22, 2018 at 12pm
(pacific standard time).
Plaintiff did not file an opposition to Starr’s Motion.
After careful consideration of Starr’s submissions and the
applicable law, the Court HEREBY GRANTS the Motion for the
reasons stated below.
In Rucker, by letter dated April 19, 2017, Ms. Rucker
submitted a “formal application request for the attached six(6)
subpoenas needed for immediate serving,” which included a
subpoena addressed to “Shari Thompson/Star Companies Insurance”.
Civil No. 16-00492 KSC, Doc. No. 86.
The Clerk of Court
responded on April 24, 2017, and returned the subject subpoena to
Plaintiff because it did not include Plaintiff’s contact
Civil No. 16-00492 KSC, Doc. No. 87.
response, the Clerk of Court advised Plaintiff that she may
resubmit the subject subpoena for issuance after providing the
On or around April 24, 2017, Starr received the subject
On April 28, 2017, Starr filed a Motion to Quash
Subpoena Dated April 18, 2017.
On June 28, 2017, this Court issued an Order Granting
(1) Defendants’ Motion to Quash Plaintiff’s Subpoenas Dated April
14, 2017 and (2) Starr Adjustment Services, Inc.’s Motion to
Quash Subpoena Dated April 18, 2017 (“Order”).
Doc. No. 10.
The Court quashed the subject subpoena, along with others,
because Ms. Rucker failed to obtain the signature of the Clerk of
Court; she failed to personally serve the subpoenas; and the
subpoenas were unduly burdensome and provided insufficient time
Starr presently requests $4,802.50 in attorneys’ fees
and $46.003 in costs against Ms. Rucker as a sanction for her
violation of Federal Rules of Civil Procedure (“FRCP”)
26(g)(1)(B) and 45(d)(1).
FRCP 45(d)(1) provides:
A party or attorney responsible for issuing and
serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a person
subject to the subpoena. The court for the
district where compliance is required must enforce
this duty and impose an appropriate
sanction--which may include lost earnings and
reasonable attorney’s fees--on a party or attorney
who fails to comply.
Fed. R. Civ. P. 45(d)(1).
FRCP 45(d)(1) sanctions are
discretionary, Legal Voice v. Stormans, Inc., 738 F.3d 1178, 1185
Starr paid $47.00 in total.
(9th Cir. 2013), and “courts have discretion over the type and
degree of sanction imposed.”
Mount Hope Church v. Bash Back!,
705 F.3d 418, 425 (9th Cir. 2012).
One form of permissible
sanction is payment of the opposing counsel’s attorneys’ fees.
A party is not exposed to sanctions merely because it
has lost a motion to compel.
Legal Voice, 738 F.3d at 1185
(citing Mount Hope Church, 705 F.3d at 425-27).
while failure narrowly to tailor a subpoena may be a ground for
sanctions, the district court need not impose sanctions every
time it finds a subpoena overbroad; such overbreadth may
sometimes result from normal advocacy, which we have said should
not give rise to sanctions.”
F.3d at 426).
Id. (citing Mount Hope Church, 705
Sanctions may be imposed, however “when a party
issues a subpoena in bad faith, for an improper purpose, or in a
manner inconsistent with existing law.”
Id. (citing Mount Hope
Church, 705 F.3d at 425, 428; Mattel, Inc. v. Walking Mountain
Prods., 353 F.3d 792, 814 (9th Cir. 2003)).
FRCP 26(g)(1)(B) “requires parties seeking discovery to
act (1) consistently with the rules of existing law or with good
reason to change the law; (2) without bad faith; and (3)
reasonably without imposing undue burden or expense considering
the needs of the case.”
Mount Hope Church, 705 F.3d at 425.
violation of any of these duties without substantial
justification mandates the imposition of an appropriate sanction,
such as reasonable expenses, including attorneys’ fees, caused by
Id.; Fed. R. Civ. P. 26(g)(3).4
45[(d)](1) gives ‘specific application’ to Rule 26(g), it follows
that a violation of any one of the Rule 26 duties will be
relevant to assessing propriety of sanctions under Rule
45[(d)](1)’s ‘undue burden’ language.”
Mount Hope Church, 705
F.3d at 425.
Here, an award of sanctions is appropriate because the
subpoena imposed an undue burden on Starr, it was inconsistent
with existing law, and Ms. Rucker’s failures were without
As already noted, Ms. Rucker failed
to obtain the signature of the Clerk of Court; she failed to
personally serve the subpoena; and the subpoena was unduly
burdensome and failed to allow reasonable time to comply.
failure to obtain the Clerk of Court’s signature and to effect
FRCP 26(g)(3) provides:
If a certification violates this rule without
substantial justification, the court, on motion or
on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer
was acting, or both. The sanction may include an
order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.
Fed. R. Civ. P. 26(g)(3).
personal service was in contravention of FRCP 45’s requirements.5
Moreover, the four-day window to comply imposed an undue burden
and was inconsistent with existing law.
For these reasons, Starr
is entitled to sanctions in the form of attorneys’ fees and
Beaver Cty. Employees’ Ret. Fund v. Tile Shop Holdings,
Inc., No. 16-MC-80076-JSC, 2016 WL 7212308, at *4 (N.D. Cal. Dec.
13, 2016) (awarding sanctions pursuant to FRCP 45(d)(1)); Sec. &
Exch. Comm’n v. Schooler, No. 316CV00517MMDWGC, 2016 WL 6821079,
at *5 (D. Nev. Nov. 17, 2016) (awarding $10,661.00 in sanctions
pursuant to FRCP 45(d)(1)).
Hawaii courts calculate reasonable attorneys’ fees
based on a method that is virtually identical to the traditional
“lodestar” calculation set forth in Hensley v. Eckerhart, 461
U.S. 424, 433 (1983).
See DFS Group L.P. v. Paiea Props., 110
Hawai‘i 217, 222, 131 P.3d 500, 505 (2006).
The court must
determine a reasonable fee by multiplying the number of hours
reasonably expended by a reasonable hourly rate.
Id. at 222-23,
131 P.3d at 505-06.
Starr requests the following hourly rates for its
Ms. Rucker inexplicably mailed the subject subpoena to
Starr before obtaining a response to her request for issuance of
the subpoenas from the Clerk’s office and did not withdraw the
subpoena after being informed that it was deficient.
1) Lyle Hosoda - $280; 2) Kevin Morikone - $200;
3) Addison Bonner - $200; and 4) Kristen Yamamoto - $175.
Hawaii courts consider the reasonable hourly rate in a manner
virtually identical to the traditional lodestar formulation and
some courts have considered federal law in determining a
reasonable hourly rate.
See, e.g., Reiche v. Ferrera, No. 24449,
2003 WL 139608, at *8 (Haw. Ct. App. Jan. 16, 2003) (“The
reasonable hourly rate is that prevailing in the community for
similar work.” (citing United States v. Metro. Dist. Comm’n, 847
F.2d 12, 19 (1st Cir. 1988)).
The Court therefore finds that
federal case law on the determination of a reasonable hourly rate
is instructive in this case.
In determining the reasonableness of an hourly rate,
the experience, skill, and reputation of the attorney requesting
fees are taken into account.
See 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
This Court is well aware of the prevailing rates in the
community for similar services performed by attorneys of
comparable experience, skill and reputation.
Based on this
Court’s knowledge of the community’s prevailing rates, the hourly
rates generally granted by the Court, the Court’s familiarity
with this case, and counsel’s submissions, this Court finds the
following rates to be manifestly reasonable:
1) Mr. Hosoda -
$280;6 2) Mr. Morikone - $200;7 3) Mr. Bonner - $185;8 and 4) Ms.
Yamamoto - $175.
Beyond establishing a reasonable hourly rate, a
prevailing party seeking attorneys’ fees bears the burden of
See, e.g., Booth v. Wong, No. CIV. 10-00680 DKW-RLP, 2015
WL 4663994, at *3 (D. Haw. July 17, 2015), adopted by 2015 WL
4676343 (D. Haw. Aug. 5, 2015) (finding reasonable a $300 hourly
rate for an attorney with 20 years of experience); Pelayo v.
Platinum Limousine Servs., Inc., No. CV 15-00023 DKW-KJM, 2016 WL
5402185, at *5 (D. Haw. Sept. 27, 2016) (finding reasonable an
hourly rate of $310 for an attorney with 27 years of experience).
Pelayo, 2016 WL 5402185, at *5 (making an upward
adjustment from $200 to $225 to the hourly rate for an attorney
with 11 years of experience even though $200 was well within the
range of reasonableness for the attorney’s experience in order
“to place counsel at the higher end of reasonable rates in this
community, given the nature of this case, to ensure the
availability of representation in cases where damages are low or
non-existent, and to avoid stagnation of rates over time”).
Roberts v. City & Cty. of Honolulu, No. 15-00467 ACK-RLP,
2016 WL 3136856, at *4, *7 (D. Haw. June 3, 2016) (finding an
hourly rate of $150.00 to be reasonable for an attorney with 7
years of experience); Hawaii Defense Found. v. City & Cty. of
Honolulu, No. CIV. 12-00469 JMS-RLP, 2014 WL 2804448, at *5 (D.
Haw. June 19, 2014) (concluding that $185 was at the higher end
of reasonable rates for an attorney with 7.5 years); De-Occupy
Honolulu v. City & Cty. of Honolulu, No. CIV. 12-00668 JMS-KSC,
2015 WL 1013834, at *10 (D. Haw. Mar. 9, 2015) ($185 hourly rate
for attorney with approximately 8 years of experience).
proving that the fees and costs taxed are associated with the
relief requested and are reasonably necessary to achieve the
Tirona v. State Farm Mut. Auto. Ins. Co., 821
F. Supp. 632, 636 (D. Haw. 1993) (citations omitted).
must guard against awarding fees and costs which are excessive,
and must determine which fees and costs were self-imposed and
Id. at 637 (citing INVST Fin. Group v. Chem-Nuclear
Sys., 815 F.2d 391, 404 (6th Cir. 1987)).
Courts have the
“discretion to ‘trim fat’ from, or otherwise reduce, the number
of hours claimed to have been spent on the case.”
Soler v. G &
U, Inc., 801 F. Supp. 1056, 1060 (S.D.N.Y. 1992) (citation
Time expended on work deemed “excessive, redundant, or
otherwise unnecessary” shall not be compensated.
See Gates, 987
F.2d at 1399 (quoting Hensley, 461 U.S. at 433-34).
After careful review of counsel’s timesheets, the Court
finds that reductions must be made for unrelated tasks, clerical
tasks,9 and block billing.10
Applying these reductions, the Court
“[C]lerical or ministerial costs are part of an
attorney’s overhead and are reflected in the charged hourly
rate.” HRPT Props. Trust v. Lingle, 775 F. Supp. 2d 1225, 1241
(D. Haw. 2011) (alteration in original) (citations and quotations
omitted). The following is a list of tasks previously deemed
clerical or ministerial in this district and are therefore noncompensable:
reviewing Court-generated notices; scheduling
dates and deadlines; calendering dates and
deadlines; notifying a client of dates and
deadlines; preparing documents for filing with the
Court; filing documents with the Court; informing
finds that counsel reasonably expended the following hours:
1) Mr. Hosoda - 6.7; 2) Mr. Morikone - 5.9; 3) Mr. Bonner - 1;
and 4) Ms. Yamamoto - 3.7.
With the application of the
respective hourly rates to the foregoing hours, Starr reasonably
incurred $3,888.50 in attorneys’ fees.
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.
Haw. Motorsports Inv., Inc. v. Clayton Grp. Servs., Inc., Civ.
No. 09–00304 SOM–BMK, 2010 WL 4974867, at *5 (D. Haw. Dec. 1,
2010), adopted by 2010 WL 5395669 (D. Haw. Dec. 22, 2010) (also
deeming clerical identification and organization of exhibits);
see also, e.g., Yamada v. Weaver, Civil No. 10–00497 JMS–RLP,
2012 WL 6019363, at *10 (D. Haw. Aug. 30, 2012), adopted in
pertinent part by 2012 WL 6019121 (D. Haw. Nov. 30, 2012)
(deeming clerical work completed on table of authorities).
“The term ‘block billing’ refers to the time-keeping
method by which each lawyer and legal assistant enters the total
daily time spent working on a case, rather than itemizing the
time expended on specific tasks.” Robinson v. City of Edmond,
160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (citations and quotation
marks omitted). Block billed entries generally fail to specify a
breakdown of the time spent on each 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). See also id. (citing Role Models Am., Inc.
v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (reducing
requested hours because counsel’s practice of block billing
“lump[ed] together multiple tasks, making it impossible to
evaluate their reasonableness”)); see also Hensley, 461 U.S. at
437 (holding that applicant should “maintain billing time records
in a manner that will enable a reviewing court to identify
The $47.00 in requested costs represents the filing fee
for this miscellaneous case.
Because the initiation of this
action was necessitated by the improper issuance of the subject
subpoena, the Court includes the filing fee as part of the
Starr is therefore entitled to $47.00 in costs.
In accordance with the foregoing, the Court HEREBY
GRANTS Starr’s Motion for Attorneys’ Fees and Costs, filed July
Starr is awarded $3,888.50 in attorneys’ fees and
costs and $47.00 in costs.
Ms. Rucker is to remit payment to
defense counsel by October 6, 2017.
IT IS SO ORDERED.
Honolulu, Hawaii, September 15, 2017.
Kevin S.C. Chang
United States Magistrate Judge
MISC. NO. 17-00133 DKW-KSC; STARR ADJUSTMENT SERVICES, INC. V. RUCKER; ORDER
GRANTING PETITIONER’S MOTION FOR ATTORNEYS’ FEES AND COSTS
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