The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER GRANTING IN PART DEFENDANT/JUDGMENT CREDITOR ISUZU MOTORS' SECOND EX PARTE MOTION FOR WRIT OF EXECUTION
Before the court is an appeal from the Magistrate Judge's Order Granting in Part Defendant/Judgment Creditor Isuzu Motors' Second Ex Parte Motion for Writ of Execution. This court affirms the order, but notes also that, assuming the court construes that order as findings and a recommendation ("F&R"), the F&R is adopted following de novo review.
This case involves a business dispute between Plaintiff JJCO, Inc., and Defendant Isuzu Motors America, LLC ("Isuzu"). From 1998 until 2008, JJCO was authorized to sell Isuzu vehicles pursuant to a Sales and Service Agreement ("Agreement") with Isuzu. On January 30, 2008, Isuzu announced its plans to stop distributing new Isuzu vehicles in North America. JJCO and Isuzu disagreed about whether Isuzu continued to have obligations under the Agreement, and JJCO ultimately sued.
In 2010, the court conducted a jury trial on this matter. The court granted Isuzu's motion for judgment as a matter of law as to several matters during the trial, and the jury subsequently returned a verdict in favor of Isuzu on the remaining counts.
On June 22, 2010, the court denied JJCO's Motion to Alter or Amend Judgment and/or to Order a New Trial. ECF No. 457. JJCO filed a Notice of Appeal on July 21, 2010. ECF No. 462.
On October 21, 2010, this court issued an order awarding Isuzu $303,892.43 in attorneys' fees and costs under section 607-14 of Hawaii Revised Statutes, which allows the prevailing party to recover fees in an assumpsit action. ECF No. 491.
The Ninth Circuit affirmed the judgment entered by this court, noting in the process that it lacked jurisdiction over the portion of JJCO's appeal addressing the award of attorneys' fees because JJCO had not filed a notice of appeal from that post-judgment order. ECF No. 539.
On January 19, 2011, then-Magistrate Judge Leslie Kobayashi granted Isuzu's Ex Parte Motion for a Writ of Execution. ECF No. 508-6. Shortly thereafter, then-Magistrate Judge Kobayashi granted JJCO's Ex Parte Motion to Reconsider or Dissolve the Writ of Execution "based on technical defects" in Isuzu's underlying motion. ECF No. 521 at 16. She noted that "[t]he granting of the Motion for Reconsideration does not diminish, or [somehow] erase, Defendant's judgment for attorneys' fees and costs." Id. at 16.
On August 22, 2012, Isuzu filed its Second Ex Parte Motion for Writ of Execution (the "Motion"), which is the subject of the appeal before the court. ECF No. 541. On November 9, 2012, Magistrate Judge Richard Puglisi issued an order granting the portion of the Motion seeking a writ of execution for the $303,892.43 award of fees and costs, plus interest. Order Granting in Part Defendant/Judgment Creditor Isuzu Motors America, LLC's Second Ex Parte Motion for Writ of Execution ("Order"), ECF No. 563. The Order cited section 651-32 of Hawaii Revised Statutes, which sets forth the procedure for issuance of a writ of execution. Order at 5-6. Magistrate Judge Puglisi said, "The mandatory language of Section 651-32 requires that the Court issue a writ of execution. There is no discretionary language that would allow the Court to decline to issue a writ." Id. at 6.
In appealing Magistrate Judge Puglisi's Order, JJCO says:
The Magistrate Judge's decision should be reviewed and reversed as clearly erroneous or contrary to law since issuing the Writ of Execution amounts to a fruitless and frivolous act where he had the discretion to consider the equities and based thereon should have denied the requested Writ of Execution at this time when it is undisputed there are insufficient assets to satisfy the debts of the priority creditors with no reasonable probability of excess funds to be applied to Isuzu's third position judgment in an execution sale.
Appeal at 2, ECF No. 565. JJCO also asks for certification of the following question to the Hawaii Supreme Court: "Whether equitable standards may be considered by the court in determining whether to issue a writ of execution under Chapter 651 HRS, especially where those equitable standards would not permit such issuance." Id. at 11. Neither side ...