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Berry v. Deutsche Bank Nat'l Trust Co.

United States District Court, D. Hawaii

November 24, 2014

BRIAN VICTOR BERRY and DONNA DARLENE BERRY, Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., ET AL., Defendants

For Brian Victor Berry, Donna Darlene Berry, Plaintiffs: Dana R. Lyons, Ryan M. Hamaguchi, Ted N. Pettit, LEAD ATTORNEYS, Case Lombardi & Pettit, Honolulu, HI.

For Deutsche Bank National Trust Company, as national banking association, Defendant: James B. Rogers, Paul Alston, LEAD ATTORNEYS, Alston Hunt Floyd & Ing, Honolulu, HI.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S OBJECTION TO THE SUPPLEMENT TO THE AMENDED FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS BRIAN VICTOR BERRY AND DONNA DARLENE BERRY'S MOTION TO ENFORCE SETTLEMENT AGREEMENT; ADOPTING THE AMENDED FINDINGS AND RECOMMENDATION; AND ADOPTING THE SUPPLEMENT TO THE AMENDED FINDINGS AND RECOMMENDATION, AS MODIFIED

Leslie E. Kobayashi, United States District Judge.

On October 3, 2014, the magistrate judge filed his Amended Findings and Recommendation to Grant Plaintiffs Brian Victor Berry and Donna Darlene Berry's Motion to Enforce Settlement Agreement (" Amended F& R").[1] [Dkt. no. 36.] On October 16, 2014, the magistrate judge issued a supplement to the Amended F& R (" Supplemental F& R"). [Dkt. no. 41.] Defendant Deutsche Bank National Trust Company, a national banking association (" Defendant"), filed its objections to the Supplemental F& R (" Objections") on October 30, 2014. [Dkt. no. 42.] Plaintiffs Brian Victor Berry and Donna Darlene Berry (" Plaintiffs") filed their response to the Objections (" Response") on November 13, 2014. [Dkt. no. 43.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(e) of the Local Rules of Practice of the United States District Court for the District of Hawai'i (" Local Rules"). After careful consideration of the Objections, the Response, and the relevant legal authority, and for the reasons set forth below, the Objections are HEREBY GRANTED IN PART AND DENIED IN PART, the Amended F& R is HEREBY ADOPTED, and the Supplemental F& R is HEREBY ADOPTED, AS MODIFIED.

BACKGROUND

Plaintiffs filed this action on December 19, 2013. The factual background in this case is set forth in the Amended F& R. [Amended F& R at 2-4.[2] This Court will only discuss the events that are relevant to the Objections.

On September 3, 2014, Plaintiffs filed their Motion to Enforce Settlement Agreement (" Motion to Enforce"). [Dkt. no. 22.] This Court referred the Motion to Enforce to the magistrate judge. The magistrate judge held a hearing on the Motion to Enforce on September 26, 2014, [dkt. no. 34 (Minutes), ] and issued the F& R later that day.

The magistrate judge recommended that this Court grant the Motion to Enforce and award Plaintiffs their attorneys' fees and expenses incurred in bringing the Motion to Enforce. [Amended F& R at 8-9.] The magistrate judge directed Plaintiffs to file a declaration regarding the amount of their expenses and gave Defendant leave to file an optional response. [ Id. at 9.]

Plaintiffs filed their Supplemental Memorandum in Support of Request for Award of Attorneys' Fees and Costs (" Fee Memorandum") on October 3, 2014. [Dkt. no. 37.] Plaintiffs request an award of $15, 249.96 in attorneys' fees and $39.79 in expenses, for a total award of $15, 289.75. [Fee Memorandum at 1.] Defendant filed its opposition to the Fee Memorandum (" Fee Opposition") on October 9, 2014, and Plaintiffs filed their reply (" Fee Reply") on October 13, 2014. [Dkt. nos. 38, 39.]

In the Supplemental F& R, the magistrate judge summarized the fee request as follows:

ATTORNEY

HOURS

RATE

TOTAL

Ted N. Pettit, Esq.

7.0

$400

$2, 800.00

Dana R. Lyons, Esq.

47.7

$245

$11, 686.50

Stephanie J. Yoder, paralegal

0.5

$155

$77.50

Hawaii General Excise Tax

4.71%

$685.96

TOTAL

$15, 249.96

[Supplemental F& R at 2 (citation omitted).] The magistrate judge found that " the following hourly rates are reasonable: $325 for Mr. Pettit, $190 for Mr. Lyons, and $85 for Ms. Yoder, " and that all of " the time requested was reasonably incurred in enforcing the Settlement Agreement." [Id. at 3.]

The magistrate judge therefore recommended the following award of attorneys' fees:

ATTORNEY

HOURS

RATE

TOTAL

Ted N. Pettit, Esq.

7.0

$325

$2, 275.00

Dana R. Lyons, Esq.

47.7

$190

$9, 063.00

Stephanie J. Yoder, paralegal

0.5

$85

$42.50

Hawaii General Excise Tax

[3] 4.71%

$536.25

TOTAL

$11, 916.75

[ Id. ] He also found that Plaintiffs' request for $39.79 in copying costs was reasonable. [ Id. at 4.] Thus, he recommended an award of attorneys' fees of $11, 916.75 and an award of expenses of $39.79, for a total award of $11, 956.54. [ Id.]

In the instant Objections, Defendant states that it does not object to the recommended hourly rates, but it argues that the number of hours reflected in the ...


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