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De-Occupy Honolulu v. City and County of Honolulu

United States District Court, District of Hawaii

March 9, 2015



J. Michael Seabright, United States District Judge.


This is the third action over the last year-and-a-half in which this court is tasked with determining reasonable fees for attorneys Richard Holcomb and Brian Brazier in civil rights litigation against the City and County of Honolulu (the “City”). The court has already addressed in these previous cases several issues directly bearing on this case, including the legal framework for determining prevailing party status, Holcomb’s and Brazier’s reasonable hourly rate, and the appropriateness of reductions to the hours requested to reach a reasonable fee award.

Both parties largely ignore these previous determinations in objecting to Magistrate Judge Kevin S.C. Chang’s recommendation that Plaintiffs be afforded prevailing party status and that the requested fees of $220, 101.22 be reduced to $72, 176.18. See Doc. No. 221, Oct. 31, 2014 Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs’ Motion for Attorneys’ Fees and Non-Taxable Expenses; Order Directing Resubmission of Timesheets (“F&R”); Doc. No. 226, Feb. 3, 2015 Supplemental Findings and Recommendation Regarding Amount of Fee Award (“Supplemental F&R”). Based upon a de novo review, the court finds that Plaintiffs are the prevailing parties and that Plaintiffs are entitled to attorneys’ fees in the amount of $72, 176.18 as determined by Magistrate Judge Chang, plus additional fees for their time on the Objections.


A. Plaintiffs’ Complaint

Plaintiffs De-Occupy Honolulu, Catherine Russell, Christopher Smith, Andrew Smith, Madori Rumpungworn, and Dominic James (“Plaintiffs”) were part of the “Occupy” movement that took place throughout various cities. At the time of this action, Plaintiffs had maintained a constant presence at Honolulu’s Thomas Square for over a year, where they erected tents, signs, and other artwork. Defendants the City and Westley Chun, Trish Morikawa, Larry Santos, and Ken Shimizu (collectively, “Defendants”) conducted, participated in, and/or oversaw several impoundments of Plaintiffs’ property at Thomas Square. These impoundments were conducted pursuant to Chapter 29, Articles 18 and 19 of the Revised Ordinances of Honolulu (“ROH”) (“Articles 18 and 19”), which outline that the City may seize personal property left on public property after providing twenty-four hours notice.

On December 12, 2012, Plaintiffs filed this action, asserting that Articles 18 and 19 violate the First, Fourth, Fifth, and Fourteenth Amendments and the Hawaii Constitution both facially and as applied to Plaintiffs, and asserting related state laws. Doc. No. 1. The Complaint alleged several instances in which Defendants seized property without providing the required twenty-four hours notice, destroyed property without impounding it, and/or provided no opportunity for a post-deprivation hearing. Plaintiffs sought injunctive and declaratory relief, and monetary damages.

B. Plaintiffs’ Motion for Temporary Restraining Order, Motion for Sanctions, and First Motion for Preliminary Injunctive Relief

Along with their December 12, 2012 Complaint, Plaintiffs filed Motions for Temporary Restraining Order (“TRO Motion”) and for Preliminary Injunction (“PI Motion”). Doc. Nos. 4, 5. On December 17, 2012, the court held a status conference regarding these Motions in which the parties agreed to enter a stipulation pending briefing and hearing on the PI Motion, which would obviate the need to proceed on the TRO Motion. Doc. No. 15. The court also questioned the basis of Plaintiffs’ PI Motion, given that the success-on-the-merits argument did not make a clear facial attack on Article 19, despite counsels’ assertions that they were proceeding on both a facial and as-applied challenge. Although the court gave Plaintiffs the opportunity to file a new PI Motion, see Doc. No. 17 (granting Plaintiffs the opportunity to file a new PI Motion “to incorporate additional arguments”), Plaintiffs declined to do so.

On December 19, 2012, the parties entered into a “Stipulation Re: Motion for Temporary Restraining Order” (“Stipulation”), agreeing that pending a hearing on the PI Motion, Defendants would comply with Article 19 and take other safeguards when impounding and holding items taken from Thomas Square. Doc. No. 18. The Stipulation required, among other things, that impounded property be placed in numbered bins, that the notice left at the place of impoundment describe the property and identify the bin number in which the property was stored, and that impounded property be returned “immediately” when a person produces the impoundment notification and attests to ownership of the property. The parties further agreed that Plaintiffs could file a Motion for Enforcement of the Stipulation if they believed that Defendant breached the Stipulation’s terms.

On December 20, 2012, one day after the Stipulation, Defendants impounded property at Thomas Square, which resulted in Plaintiffs filing a December 21, 2012 Motion for Sanctions asserting six different breaches of the Stipulation. Doc. No. 19. One of the breaches alleged was that Defendants failed to record the bin number on a notice of impoundment, and Plaintiffs attached as an exhibit a photocopy of a crumpled and/or ripped notice without a bin number. See Doc. No. 19-1. After Defendants produced a copy of the notice with the bin number written on the top left-hand corner, see Doc. No. 30-28, Plaintiffs accused Defendants of fabricating evidence. See Doc. No. 33, at 10 (“[I]f anyone is guilty of ‘fabricating evidence, ’ it is the City.”). It was not until the court directed the parties to make available for inspection the original notice that Holcomb admitted that the notice included the bin number, provided a flimsy excuse for his oversight, and withdrew his objection to the lack of a bin notice. See Doc. No. 88, at 7-8.

After holding an evidentiary hearing, the court issued a January 24, 2013 Order determining that Plaintiffs carried their burden as to only one alleged violation -- that the City refused to return impounded property “immediately.” Doc. No. 48. The court’s January 24, 2013 Order provided:

As to Plaintiffs’ complaint that the City breached the Stipulation by refusing to return impounded property “immediately, ” although the court finds that the term “immediately” may be ambiguous in some circumstances, the court is able to conclude that the City did not comply with this provision. Accordingly, the City and Plaintiffs shall meet and confer to work out a reasonable procedure by which the City will process requests for appointments to repossess impounded property to owners. Further, the City must train its personnel in the implementation of such a procedure given the apparent lack of knowledge of the terms of the Stipulation regarding the return of the seized property. The parties shall provide the court with a status letter by January 28, 2013 regarding the negotiations on this point. Thus, the court GRANTS the Motion on this point.

Id. at 3-4.[1] As a result of this meet-and-confer process, the City adopted a policy in which it (1) set up a dedicated telephone number for all Article 19 related phone calls, which would be answered by a live person during regular business hours and which would take recorded voice mail messages after regular hours; and (2) would allow repossession of impounded personal property within one business day after contacting the City, or within two days if contact was made after 2:30 p.m. Doc. No. 50.

C. Plaintiffs’ Superseding PI Motion and Defendants’ Motion to Dismiss

Focusing back on the PI Motion, Plaintiffs asserted during a February 5, 2013 status conference that their Motion argued likelihood of success on the merits based on both a facial and as-applied challenge to Article 19. Because Plaintiffs’ PI Motion did not articulate clearly a facial challenge (as to the court had previously informed Plaintiffs), the court directed Plaintiffs to file a new Motion for Preliminary Injunction to make such argument. Doc. No. 72, Feb. 5, 2013 Status Conf. Tr. at 12 (the court explaining that supplemental briefing was necessary because “given how little was in your initial filing, I just didn’t know if it was fair to the city because they maybe didn’t know quite how to respond at this point in time”).

On February 8, 2013, Plaintiffs filed a “Superseding Motion” for PI, which argued that Article 19 is facially unconstitutional, and simply incorporated by reference Plaintiffs’ previous arguments in their original PI Motion. Doc. No. 56. Defendants also filed a Motion to Dismiss, to be heard on the same day as the PI Motion. Doc. No. 57.

After both Motions were fully briefed, Plaintiffs filed an Amended Complaint, which not only added additional allegations occurring after the filing of the Complaint, but also clarified allegations in the Complaint and added new parties and claims. Doc. No. 67; see also Doc. No. 71 (Plaintiffs’ statement explaining differences in pleadings). In light of the Amended Complaint’s new allegations, the court vacated the pending Motions. The court explained that going forward with the hearing on only the PI Motion would result in piecemeal litigation. Further, both Plaintiffs’ Amended Complaint and Superseding PI Motion improperly incorporated by reference matters in the original Complaint and Plaintiffs’ other filings, which resulted in a mess of claims, evidence, and arguments distributed throughout the docket through which the court would not hunt to determine the scope and basis of Plaintiffs’ arguments and claims. See Doc. No. 73; Doc. No. 87, Mar. 8, 2013 Tr. at 5-6. The court therefore granted Plaintiffs leave to file a Second Amended Complaint that did not improperly incorporate by reference documents and facts in previous filings, and set deadlines for the parties to file a Motion to Dismiss and PI Motion.

D. Plaintiffs’ Second Amended Complaint and Related Motions Leading to Plaintiffs’ Third Amended Complaint

Plaintiffs filed their Second Amended Complaint on March 18, 2013, Doc. No. 80, and the parties filed their respective Motions to Dismiss and for PI on April 1, 2013. Doc. Nos. 84, 85. At a May 10, 2013 status conference, the parties agreed to work together on a stipulation for preliminary injunction addressing Plaintiffs’ as-applied challenge to Article 19, such that the hearing on the Motions would focus only on the facial challenge. Doc. No. 119. On May 21, 2014, the court granted in part and denied in part Defendants’ Motion to Dismiss, Doc. No. 125, and denied Plaintiffs’ PI Motion. Doc. No. 126.

On June 6, 2013, the parties entered into a Stipulation addressing Plaintiffs’ as-applied challenge to Article 19, which essentially extended the earlier Stipulation regarding procedures for repossession of stored property until trial (“Second Stipulation”). Doc. No. 134. The Second Stipulation recited that (1) Defendants stated that they were not admitting liability and that the Second Stipulation did not materially change the City’s practices and procedures; (2) the parties agreed that the Second Stipulation was not a determination on the merits of the PI Motion; and (3) the court was not making any finding or ruling as to “prevailing party” status.

E. Plaintiffs’ Motion for Order to Show Cause; the Parties’ Motions for Summary Judgment

On July 24, 2013, Plaintiffs filed their Third Amended Complaint. Doc. No. 137.

On August 23, 2013, Plaintiffs filed a Second Motion for Order to Show Cause Why Defendants Should Not be Held in Contempt in light of several recent impoundments of property at Thomas Park, allegedly in violation of the Second Stipulation. Doc. No. 150. On August 27, 2013, the court issued an Order requiring Plaintiffs to further explain the factual basis of their Motion given that the Second Stipulation applied only to impoundments pursuant to Article 19, and the impoundments that were the subject of Plaintiffs’ Motion were pursuant to a new ordinance ...

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