United States District Court, D. Hawaii
EMERSON M.F. JOU, M.D., Plaintiff,
GREGORY M. ADALIAN, Defendant.
ORDER OVERRULING OBJECTIONS AND ADOPTING FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART
DEFENDANT'S BILL OF COSTS
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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
(C) Witness Fees
(D) Copying Costs
ECF No. 265 at 19.
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
STANDARD OF REVIEW
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)
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).