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Pacific Commercial Services, LLC v. LVI Environmental Services, Inc.

United States District Court, D. Hawaii

October 29, 2018

PACIFIC COMMERCIAL SERVICES, LLC, Plaintiff,
v.
LVI ENVIRONMENTAL SERVICES, INC. and NORTHSTAR RECOVERY SERVICES, INC., Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND NON-TAXABLE COSTS

          Kenneth J. Mansfield, United States Magistrate Judge

         Plaintiff 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.

         After 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 Fee Motion.

         BACKGROUND

         On 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 Subcontract”) (collectively, “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.

         “After 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 2-3.

         The 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.

         Plaintiff's 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.

         Plaintiff 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.

         DISCUSSION

         A. Entitlement to Fees

         The 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 . . . .”).

         The 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. ...


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