United States District Court, D. Hawaii
ORDER MODIFYING AND ADOPTING AS MODIFIED THE
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS REGARDING
ATTORNEYS' FEES AND COSTS
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
Bridge Aina Le'a (“Bridge”) and Defendant
State of Hawaii Land Use Commission (the “LUC”)
have filed separate objections to the Magistrate Judge's
Findings & Recommendations (“F&R”) to
grant in part and deny in part Plaintiff Bridge's Motion
for Attorneys' Fees and Costs. See ECF Nos. 428,
F&R, the Magistrate Judge recommended that this court
deny Bridge any attorneys' fee award because Bridge is
not entitled to fees under the private attorney general
doctrine, and because the LUC's sovereign immunity bars
any award of attorneys' fees. The Magistrate Judge also
recommended that Bridge be awarded $15, 085.51 of its
requested costs, including $1, 429.10 in copying costs.
objects to the denial of its request for attorneys' fees
and argues that it is entitled to the remainder of its
requested costs. The LUC objects to the award of copying
costs, arguing that it should be limited to $725.15.
reviewed the F&R in light of the parties' objections,
this court concludes that the LUC's waiver of Eleventh
Amendment sovereign immunity extends to attorneys' fees
and that therefore this court has jurisdiction over
Bridge's request. However, the court agrees with the
Magistrate Judge that Bridge does not meet the requirements
for recovery under the private attorney general doctrine. The
court also adopts the Magistrate Judge's recommendation
that Bridge be awarded $15, 085.51 in costs.
court therefore adopts the F&R with modified reasoning on
whether the LUC's sovereign immunity bars an award of
attorneys' fees. The court denies Bridge's request
for attorneys' fees and awards Bridge $15, 085.51 in
costs. Pursuant to Local Rule 7.2(d), the court finds this
matter suitable for disposition without a hearing.
factual and procedural background of this case has been
discussed at length in the court's previous orders.
See, e.g., ECF Nos. 131, 283, 318, 404. For the
purposes of this order, the court adopts the F&R's
background section, finding that it sets forth the relevant
facts and noting that neither party raised any objections
related to that section. See ECF No. 428, PageID #s
11303-06. Because the parties and the court are familiar with
the background of this case, this court describes only those
events relevant to the F&R and to Bridge's Motion.
case arises out of a decision by the LUC to reclassify a
parcel of land owned by Bridge from urban use to agricultural
use. See ECF No. 1. Bridge filed a Complaint in
state court, asserting eleven counts against the LUC and some
of its commissioners for violations under the United States
Constitution, the Hawaii constitution, and various Hawaii
laws. See ECF No. 1-2. The Complaint was then
removed to this court based on federal question jurisdiction.
See ECF No. 1. The case was stayed for several years
pending the resolution of related state-court proceedings.
See ECF No. 48.
the completion of the state-court proceedings and this
court's partial grant of the LUC's motion for summary
judgment, Bridge had two takings claims that were tried to a
jury. See ECF No. 131, PageID # 3112. On March 23,
2018, the jury found in favor of Bridge, concluding that the
LUC's decision to reclassify the land constituted a
taking under both the Lucas and Penn
Central analyses. See ECF Nos. 372, 373. On
March 30, 2018, the court awarded Bridge $1 in nominal
damages. See ECF No. 375. Bridge then
filed the present Motion on April 13, 2018. ECF No. 384.
F&R was filed on August 31, 2018, and both parties filed
their objections shortly thereafter. ECF Nos. 428, 429, 431.
This court requested supplemental briefs on the scope of the
LUC's sovereign immunity in federal court, and the
parties filed their supplemental briefs on December 3, 2018.
ECF Nos. 434, 436, 437.
STANDARD OF REVIEW.
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 attorneys'
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 under Local Rule 54.3(h).
district judge reviews a magistrate judge's findings and
recommendations prior to ruling on the motion, and may
accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge.
Fed.R.Civ.P. 72(b). If a party timely objects to portions of
the findings and recommendations, the district judge reviews
those portions of the findings and recommendations 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)
(explaining that a 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. See 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.
district judge may accept the portions of the findings and
recommendations 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
objects to the portions of the F&R that recommended
denial of its request for an award of attorneys' fees,
totaling $662, 227, 03, and to the portions recommending
denial of $47, 724.55 of its requested costs. See
ECF No. 429. The LUC filed cross-objections, arguing that the
Magistrate Judge's recommended award of $1, 429.10 in
copying costs should be reduced to $725.15. See ECF
performed a de novo review of the portions of the F&R to
which the parties objected, the court adopts the Magistrate
Judge's recommendations to deny Bridge's request for
attorneys' fees and to award Bridge $15, 085.51 in costs.
However, as an initial matter, the court modifies the
Magistrate Judge's reasoning with respect to whether the
LUC's sovereign immunity bars an award of attorneys'
This Court Is Not Barred from Awarding Attorneys' Fees to
Bridge Because the LUC Waived Its Sovereign Immunity by
Removing the Case.
objects to the Magistrate Judge's conclusion that the
LUC's sovereign immunity bars an award of attorneys'
fees. See ECF No. 429, Page ID # 11347; ECF No. 428,
PageID # 11324. The Magistrate Judge based its conclusion on
the LUC's statement in a motion in limine that
“removal to this Court ‘waived Eleventh Amendment
immunity but not any other aspect of sovereign
immunity.'” ECF No. 428, PageID # 11325 (quoting
ECF No. 191-1, PageID # 4609). This court concludes that the
LUC's waiver of Eleventh Amendment immunity extends to
attorneys' fees and that the LUC's sovereign immunity
is not a jurisdictional bar to an award of attorneys'
fees by this court.
Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. Under the Eleventh Amendment, a state is immune
from lawsuits for monetary damages or other retrospective
relief brought in federal court by its own citizens or
citizens of other states. Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004); Papasan v.
Allain, 478 U.S. 265, 276 (1986); Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 105-06
(1984). Federal court actions against agencies or
instrumentalities of a state, such as the LUC, are also
barred by the Eleventh Amendment. Sato v. Orange Cty.
Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017);
Blount v. Sacramento Cty. Superior Court, 559
Fed.Appx. 623, 623 (9th Cir. 2014). Eleventh Amendment
immunity does not apply if Congress exercises its power under
the Fourteenth Amendment to override Eleventh Amendment
immunity, or if a state consents to federal suit. See
Will v. Mich. Dep't of State Police, 491 U.S. 58,
66-68 (1989); Pennhurst, 465 U.S. at 99.
have Eleventh Amendment immunity to takings claims seeking
just compensation, meaning that federal courts lack
jurisdiction over such claims. See Seven Up Pete Venture
v. Schweitzer, 523 F.3d 948, 954 (9th Cir. 2008)
(holding that “the constitutionally grounded
self-executing nature of the Takings Clause does not alter
the conventional application of the Eleventh
Amendment”); see also City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 710 (1999)
(“As its name suggests, . . . just compensation is,
like ordinary money damages, a compensatory remedy.”).
sovereign immunity is “quasi-jurisdictional in nature,
” meaning that it may be waived. See In re
Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002) (citing
Hill v. Blind Indus. & Servs., 179 F.3d 754, 760
(9th Cir. 1999), amended by 201 F.3d 1186 (9th Cir.
2000)). A state may waive Eleventh Amendment immunity by
voluntarily invoking federal jurisdiction or by engaging in
“conduct that is incompatible with an intent to
preserve that immunity.” See id.;
Hill, 179 F.3d at 758. A state's removal of a
case to federal court signals the state's voluntary
invocation of federal jurisdiction for that case, whether the
case involves state law claims, federal law claims, or both.
See Lapides v. Bd. of Regents of Univ. Sys. of Ga.,
535 U.S. 613, 624 (2002) (“[R]emoval is a form of
voluntary invocation of a federal court's jurisdiction
sufficient to waive the State's otherwise valid objection
to litigation of a matter (here of state law) in a federal
forum.”); Embury v. King, 361 F.3d 562, 564
(9th Cir. 2004) (“[T]he rule in Lapides
applies to federal claims as well as to state claims and to
claims asserted after removal as well as to those asserted
when the LUC removed this case to this court, it voluntarily
invoked federal jurisdiction and waived its Eleventh
Amendment immunity with respect to Bridge's state and
federal claims. The LUC conceded this waiver early in the
case. See ECF No. 37, PageID # 327 (stating in the
LUC's reply to Bridge's motion to dismiss,
“Defendants do not dispute they waived the protections
of the Eleventh Amendment by removing to this court.”).
Additionally, the LUC's behavior during trial proceedings
was consistent with waiver; it never raised a sovereign
immunity defense and did not argue that this court lacked
jurisdiction to award money damages against it. The LUC
appears to concede as much. See ECF No. 37, PageID #
327 (“Defendants do not dispute they waived the
protections of the Eleventh Amendment by removing to this
its waiver of Eleventh Amendment immunity, the LUC now argues
that its sovereign immunity bars this court from awarding
attorneys' fees. See ECF No. 399, PageID # 9551.
The LUC appears to argue that its sovereign immunity in
federal court is broader than the Eleventh Amendment and bars
an award of attorneys' fees. It is true that “the
sovereign immunity of the States neither derives from, nor is
limited by, the terms of the Eleventh Amendment.”
Alden v. Maine, 527 U.S. 706, 713 (1999). Thus,
states have sovereign immunity from suit in their own courts,
in addition to federal courts. See Id. However, this
court is unaware of case law holding that, if a state waives
Eleventh Amendment immunity and submits to the jurisdiction
of a federal court, the state retains some additional
sovereign immunity preventing the federal court from awarding
attorneys' fees if the state is on the losing end of the
rule would give states an unfair tactical advantage in
federal court. “In large part the rule governing
voluntary invocations of federal jurisdiction has rested upon
the problems of inconsistency and unfairness that a contrary
rule of law would create.” Lapides, 535 U.S.
at 622-23 (“And that determination reflects a belief
that neither those who wrote the Eleventh Amendment nor the
States themselves (insofar as they authorize litigation in
federal courts) would intend to create that
unfairness.” (internal citation omitted)).
Inconsistency and unfairness would certainly result if a
state could actively litigate a matter in federal court and
then invoke sovereign immunity post-trial. See
Embury, 361 F.3d at 566 (“[A]llowing the
reassertion of Eleventh Amendment immunity, after the State
had litigated extensively in federal court but began to
anticipate an unfavorable outcome, would waste the time and
money of the litigants and the resources of the
courts.”). While this court understands that the LUC is
saying that it waived only Eleventh Amendment immunity but
retains some other aspect of sovereign immunity that bars a
fee award, the problem is that the LUC cannot actually point
to an operable immunity source that applies here.
sensible understanding of the scope of sovereign immunity in
federal court is that once a state voluntarily submits to
federal jurisdiction, it cannot then pick and choose the
stages of federal litigation in which it will participate.
“Allowing a State to waive immunity to remove a case to
federal court, then ‘unwaive' it to assert that the
federal court could not act, would create a new definition of
clear, the court is not saying that a waiver of Eleventh
Amendment immunity via removal necessarily means that a state
will pay attorneys' fees. Rather, it means that
the court may exercise jurisdiction to award attorneys'
fees provided the plaintiff proves that it is entitled to
such an award (which, as discussed below, Bridge has not
proven here). Nor is this court saying that Eleventh
Amendment immunity is the only kind of sovereign immunity the
LUC enjoys. What the court ...