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Jou v. Adalian

United States District Court, D. Hawaii

August 6, 2018

EMERSON M.F. JOU, M.D., Plaintiff,




         Plaintiff Emerson M.F. Jou objects under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2) to Magistrate Judge Kenneth J. Mansfield's June 15, 2018 Findings and Recommendation to Grant in Part and Deny in Part Defendant Gregory M. Adalian's Bill of Costs (“June 15, 2018 F&R”). ECF No. 276. Based on the following, the objections are OVERRULED and the June 15, 2018 F&R is ADOPTED. As recommended, costs are taxed in favor of Defendant in the amount of $4, 668.16.


         Plaintiff filed this suit on April 29, 2015, ECF No. 1, followed by a First Amended Complaint (“FAC”) on November 13, 2015, ECF No. 21. Defendant filed a Motion for Judgment on the Pleadings as to the FAC on March 29, 2016, ECF No. 41, which the court granted on September 1, 2016, ECF No. 67. The court dismissed three counts of the FAC with prejudice, but granted Plaintiff leave to amend to re-assert a claim for intentional spoliation of evidence. Accordingly, Plaintiff filed the Second Amended Complaint (“SAC”) on September 22, 2016, ECF No. 68.

         After denying Plaintiff's Renewed Motion for Summary Judgment as to the spoliation claim, ECF No. 171, among many other intervening proceedings, the court held a status conference on August 1, 2017 to discuss the possibility of certifying a question of law (whether Hawaii recognized spoliation as a stand-alone tort) to the Hawaii Supreme Court, ECF No. 183. At that conference, the court granted Defendant leave to file a substantive motion regarding choice-of-law. Id. Defendant then filed a Motion for Judgment on the Pleadings, arguing that California (not Hawaii) law applied and that California did not recognize a tort of spoliation of evidence. ECF No. 193. That Motion was heard on February 12, 2018. ECF No. 235. And on April 25, 2018, the court granted Defendant's Motion and dismissed the SAC with prejudice. ECF No. 249; Jou v. Adalian, 2018 WL 1955415 (D. Haw. Apr. 25, 2018).

         Following the April 25, 2018 entry of Judgment, Defendant filed a Bill of Costs pursuant to Federal Rule of Civil Procedure 54(d)(1), seeking costs in the amount of $6, 834.88. ECF No. 252. After carefully examining the Bill of Costs and considering Plaintiff's Objections to it, ECF No. 255, Magistrate Judge Mansfield issued the June 15, 2018 F&R, which recommended granting it in part and denying it in part. Specifically, Magistrate Judge Mansfield recommended reducing the amount sought, and taxing costs in favor of Defendant under 28 U.S.C. § 1920 as follows:

(A) Fees for Service of Subpoenas


(B) Transcript Costs

$4, 196.54

(C) Witness Fees


(D) Copying Costs



$4, 668.16

ECF No. 265 at 19.

         On June 29, 2018, Plaintiff filed Objections to the June 15, 2018 F&R pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2). ECF No. 276. Defendant did not file a response. The court decides the matter under Local Rule 7.2(e) without an oral hearing.


         When a party objects to a magistrate judge's findings or recommendations, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.”). That is, “[t]he 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.” Naehu v. Read, 2017 WL 1162180, at *3 (D. Haw. Mar. 28, 2017) (citations omitted).

         Under a de novo standard, this court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).

         IV. ...

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