United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND
Kenneth J. Mansfield, United States Magistrate Judge
Pacific Commercial Services, LLC (“Plaintiff”)
filed a Motion for Attorneys' Fees and Non-Taxable Costs
on September 14, 2018 (“Fee Motion”). On
September 27, 2018, Plaintiff filed a Statement of
Consultation Re Motion for Attorneys' Fees and
Non-Taxable Costs (“Statement”). See ECF
No. 179. Defendants Northstar Contracting Group, Inc. fna LVI
Environmental Services, Inc. and Northstar Recovery Services,
Inc. (collectively, “Defendants”) did not file an
opposition to the Fee Motion. On October 19, 2018, this Court
issued an Entering Order: (1) finding Plaintiff the
prevailing party in this action; (2) explaining its findings
on reasonable rates; and (3) ordering Plaintiff to file an
amended exhibit by October 26, 2018, reflecting the rates
found reasonable by this Court. See ECF No. 183. The
Court notified the parties that it would issue its Findings
and Recommendations on the Fee Motion after Plaintiff had
filed the amended exhibit. On October 25, 2018, Plaintiff
timely filed the additional exhibit (“Amended
Exhibit”). See ECF No. 185.
carefully reviewing the Fee Motion, the record in this
action, and relevant case law, the Court FINDS and RECOMMENDS
that the district court GRANT in PART and DENY in PART the
April 19, 2016, Plaintiff filed a complaint against
Defendants in the State of Hawaii's Circuit Court of the
First Circuit for breach of contract and unjust enrichment
related to Defendants' alleged breach of two subcontracts
for (1) cleaning and waste transportation and disposal
services at the Honolulu Power Plant (“HECO
Subcontract”), and (2) demolition and remediation
services at the Kahuku Wind Farm (“Kahuku
“Subcontracts”). ECF No. 1-3 at 3 ¶ 11. In
response, Defendants filed an Amended Notice of Removal on
May 25, 2016, alleging diversity of citizenship jurisdiction
pursuant to 28 U.S.C. § 1332. ECF No. 6 at 3. On May 26,
2016, Defendants filed a counterclaim against Plaintiff for
reimbursement of excess payments made in connection with the
Kahuku Subcontract (“Counterclaim”). See
ECF No. 8-1 at 3.
substantial pre-trial litigation and an order resolving some
issues at the summary-judgment stage, the [district] court
conducted a non-jury trial of the remaining issues on January
17-18, 2018, followed by post-trial briefing.” ECF No.
170 at 2. On August 10, 2018, the district court entered its
Findings of Fact and Conclusions of Law (“Findings and
Conclusions”), finding and concluding that: (1)
“Plaintiff ha[d] proven by a preponderance of the
evidence that [Defendants had] breached provisions of the
HECO Subcontract and the Kahuku Subcontracts”; (2)
“Plaintiff [was] entitled to damages and, separately,
recovery for unjust enrichment”; (3) Defendants had
failed to prove their “Counterclaim by a preponderance
of the evidence”; and (4) “Plaintiff did not
breach the HECO Subcontract first.” Id. at
district court thus concluded that Plaintiff was entitled to:
(1) “recover damages and restitution against Defendants
in the amount of $767, 053.14, plus prejudgment interest to
be calculated based on a supplemental filing”; and (2)
“submit an application for reasonable attorneys'
fees and costs in accordance with the court's local
rules.” Id. at 3.
filed a Supplemental Brief Regarding Prejudgment Interest on
August 23, 2018. See ECF No. 171. Defendants filed a
Motion for Reconsideration of the Findings and Conclusions on
August 27, 2018 (“Motion for Reconsideration”).
See ECF No. 172. On August 31, 2018, the district
court issued its Order Awarding Prejudgment Interest,
Directing Entry of Judgement, and Addressing Motion for
Reconsideration (“August 31, 2018 Order”).
See ECF No. 173. In its August 31, 2018 Order, the
district court reasoned that Plaintiff prevailing on four of
the five counts “may affect the extent of
success and/or the reasonableness of the amount of
fees or non-taxable expenses, but does not in this particular
case preclude Plaintiff from being deemed a prevailing
party.” Id. at 3 (emphasis in original). The
district court entered its Judgment on August 31, 2018.
See ECF No. 174.
filed its Fee Motion on September 14, 2018, and its Statement
on September 27, 2018. See ECF Nos. 176, 179. The
Statement asserted that Plaintiff attempted to meet and
confer with counsel for Defendants; however Defendants'
counsel “indicated that no agreement on the Fee Motion
could be reached because Defendants' position is that
[Plaintiff] ‘is not entitled to fees in a split
decision case.'” See ECF No. 179 at 2.
Although Defendants filed a reply in connection with their
Motion for Reconsideration, Defendants did not file an
opposition to the Fees Motion. See ECF No. 180.
Plaintiff filed its reply on October 15, 2018
(“Reply”). See ECF No. 182. Plaintiff
requests a total of $258, 030.79 in attorneys' fees, $11,
317.27 in additional attorneys' fees for post-trial
motions, and $256.53 in non-taxable expenses.
Entitlement to Fees
Court agrees with Plaintiff's reasoning in its Fees
Motion that it is entitled to fees under the terms of the
Subcontracts and Hawaii Revised Statutes section 607-14,
which provides a legal basis for fee recovery in assumpsit
actions. See ECF No. 176-1 at 5-6; see also
HRS § 607-14 (“In all the courts, in all actions
in the nature of assumpsit . . . or other contract in writing
that provides for an attorney's fee, there shall be taxed
as attorneys' fees, to be paid by the losing party and to
be included in the sum for which execution may issue, a fee
that the court determines to be reasonable . . . .”).
Court also finds that the district court has already
determined that Plaintiff's success in four of five
counts did not preclude Plaintiff from recovery, only that it
might affect the extent of success and/or the reasonableness
of the amount of fees or non-taxable expenses. See
ECF No. 173 at 3. The Court has reviewed the record in this
case. Plaintiff succeeded on four of its five claims, which
achieved “some of the benefit” Plaintiff sought
in this action. The Court thus concludes that Plaintiff is
the prevailing party; therefore, Plaintiff is entitled to
reasonable attorneys' fees. Eggs ‘N Things
Int'l v. ENT Holdings LLC, Civil No. 10-00298
JMS/LEK, 2011 WL 676226, at *9 (D. Haw. Feb. 17, 2011)
(“Plaintiffs need not receive all the relief they
sought to be afforded ‘prevailing party' status- a
party ‘prevails' for purposes of attorneys'
fees if ‘they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit.'”) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (citation and
quotation signals omitted)); see also Food Pantry, Ltd.