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Frost-Tsuji Architects v. Highway INN, Inc.

United States District Court, D. Hawaii

March 30, 2016

FROST-TSUJI ARCHITECTS, Plaintiff,
v.
HIGHWAY INN, INC.; HO‘OLA MAU, LLC; BRYCE UYEHARA, A.I.A., INCORPORATED; J. KADOWAKI, INC.; FESTIVAL MANAGEMENT CORPORATION; et al., Defendants.

ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT IN PART DEFENDANTS’ MOTIONS FOR ATTORNEY’S FEES AND COSTS

Susan Oki Mollway United States District Judge

I. INTRODUCTION.

Before the court are objections filed by Plaintiff Frost-Tsuji, Defendant J. Kadowaki, Inc., and Defendants Highway Inn, Inc., and Ho’ola Mau, LLC (collectively “Highway Inn”) to the Magistrate Judge’s Findings & Recommendation to Grant in Part Defendants’ Motions for Attorney’s Fees and Costs (“F & R”).

The F & R recommends the award of $24, 033.97 in attorney’s fees and costs to Defendant Bargreen Ellingson of Hawaii, Inc., $139, 832.00 in fees and costs to J. Kadowaki, $214, 574.97 in fees and costs to Highway Inn, and $70, 089.62 in fees and costs to Highway Inn on behalf of Defendants Bryce Uyehara, A.I.A., and Iwamoto and Associates, LLC. The awards are for (1) Defendants’ work on Frost-Tsuji’s claim for copyright infringement (Count IV) after this court granted summary judgment in Defendants’ favor on Count IV on August 26, 2014, and (2) Defendants’ work on Frost-Tsuji’s claim that Defendants improperly removed copyright management information (“CMI”).

Frost-Tsuji objects to the portion of the F & R recommending an award to Defendants of their fees and costs for discovery-related work after August 26, 2014. Frost-Tsuji also challenges the Magistrate Judge’s finding that Frost-Tsuji’s motions for reconsideration on the copyright claims were “objectively unreasonable.”

Highway Inn challenges the Magistrate Judge’s finding and recommendation to reduce the reasonable hourly rate of its counsel, Harvey Lung, from $450.00 to $300.00.

J. Kadowaki objects to the Magistrate Judge’s finding and recommendation to award it only sixty billable hours for its work on its attorney’s fees motion.

After reviewing the various objections and the F & R, this court adopts the F & R in its entirety.

Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing.

II. FACTUAL BACKGROUND.

Because the parties and the court are familiar with the facts and procedural background of this case, this court addresses only those events relevant to the F & R. Additional background facts are contained in this court’s Order Adopting in Part and Rejecting in Part the Magistrate Judge’s Findings and Recommendations that Defendants’ Motion for Attorney’s Fees and Costs Be Denied, filed September 23, 2015 (“September 2015 Order”). See ECF No. 451.

On April 29, 2015, Bargreen Ellingson, Highway Inn, and J. Kadowaki filed separate motions for attorney’s fees and costs as to Frost-Tsuji’s copyright infringement claim and its CMI claim (collectively “copyright claims”). Bargreen Ellingson seeks $84, 744.66 in fees, plus $355.97 in costs, ECF No. 419; Highway Inn seeks $438, 440.03 in fees, plus $9, 083.11 in costs, ECF No. 420; and J. Kadowaki seeks $275, 356.25 in fees, GET in the amount of $12, 974.79, and $9, 809.68 in costs, ECF No. 421.

The motions were referred to the Magistrate Judge, who made findings and recommended that Defendants’ motions for attorney’s fees and costs be denied. See ECF No. 437, PageID # 8410. The movants objected. See ECF Nos. 439, 441, 443.

On September 23, 2015, this court issued an order adopting in part and rejecting in part the Magistrate Judge’s July 2015 F & R (“September 2015 Order”). See ECF No. 451. Applying the factors set forth in Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994), this court determined that Defendants were entitled to an award of reasonable attorney’s fees and costs for (1) their work on the copyright infringement claim after the order of August 24, 2014, granting partial summary judgment in Defendants’ favor; and (2) their work relating to Frost-Tsuji’s CMI claim. See ECF No. 451, PageID #s 8622-23. The court referred the motion to the Magistrate Judge for a determination of the amounts to be awarded to each Defendant. See id., PageID # 8624.

On February 1, 2016, the Magistrate Judge issued his F & R, recommending that Defendants’ motions for attorney’s fees and costs be granted in part in the following amounts: $24, 033.97 in attorney’s fees and costs to Bargreen Ellingson, $139, 832.00 in fees and costs to J. Kadowaki, $214, 574.97 in fees and costs to Highway Inn, and $70, 089.62 in fees and costs to Highway Inn on behalf of Bryce Uyehara and Iwamoto and Associates. See ECF No. 462, PageID #s 9474-75.

Frost-Tsuji, Highway Inn, and J. Kadowaki filed the present objections. See ECF Nos. 463, 464, 465.

III. STANDARD OF REVIEW.

Congress has empowered magistrate judges, upon referral of dispositive pretrial motions by district judges, to conduct hearings and issue findings and recommendations regarding dispositive pretrial motions. See 28 U.S.C. § 636(b)(1)(B); see also Fed.R.Civ.P. 72(b) (promulgating rule). The Federal Rules of Civil Procedure permit a district judge to similarly refer a post-judgment motion for attorney’s fees “as if it were a dispositive pretrial matter, ” see Fed.R.Civ.P. 54(d)(2)(D), and such motions are customarily referred to magistrate judges in this district, see Local Rule 54.3(h).

A district judge reviews a magistrate judge’s findings and recommendation prior to ruling on the motion, and may accept, reject, or modify, in whole or in part, the findings and recommendation made by the magistrate judge. Fed.R.Civ.P. 72(b). If a party timely objects to portions of the findings and recommendation, the district judge reviews those portions of the findings and recommendation de novo. Fed.R.Civ.P. 72(b)(3); Local Rule 74.2. The district judge may consider the record developed before the magistrate judge. Local Rule 74.2. The district judge also has discretion to receive further evidence. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Rule 74.2; see also United States v. Raddatz, 447 U.S. 667, 676 (1980) (district judge has wide discretion in deciding whether to allow new evidence). The de novo standard requires the district court to consider a matter anew and arrive at its own independent conclusions, but a de novo hearing is not ordinarily required. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Boulware, 350 F.Supp.2d 837, 841 (D. Haw. 2004); Local Rule 74.2.

The district judge may accept the portions of the findings and recommendation to which the parties have not objected as long as it is satisfied that there is no clear error on the face of the record. See United States v. Bright, Civ. No. 07-00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003); Fed.R.Civ.P. 72(b) advisory committee’s note.

The court determines that a hearing on this matter is neither necessary nor appropriate. See Local Rule 7.2(d).

IV. ANALYSIS.

A. Frost-Tsuji’s Objections.

1. Defendants’ Discovery-related Work After August 26, 2014.

Frost-Tsuji objects to the Magistrate Judge’s recommendation to award Defendants their fees and costs for discovery-related tasks after August 26, 2014, the date of the order granting partial summary judgment. See ECF No. 463, PageID # 9478.

Frost-Tsuji’s first contention is that the Magistrate Judge’s recommended award of fees exceeds the scope of this court’s September 2015 Order. See id., PageID # 9481.

The Magistrate Judge correctly construed this court’s September 2015 Order as awarding Defendants their reasonable attorney’s fees for discovery-related work after August 26, 2014, on the copyright infringement claim and CMI claim. See ECF No. 451.

Frost-Tsuji next argues that the September 2015 Order should not have awarded such fees because “[l]egal work performed after November 7, 2014, could only be based on [Highway Inn’s] Counterclaim and [Frost-Tsuji’s] contract and unjust enrichment claims, as [Frost-Tsuji’s] copyright ...


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