United States District Court, D. Hawaii
ORDER OVERRULING OBJECTIONS, ADOPTING OCTOBER 19,
2018 FINDINGS AND RECOMMENDATION, AND DENYING DEFENDANT'S
MOTION FOR ATTORNEYS' FEES AND BILL OF COSTS WITHOUT
Michael Seabright, Chief United States District Judge
Nordic PCL Construction, Inc. (“Defendant” or
“Nordic”) objects under 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72(b)(2) to
Magistrate Judge Richard Puglisi's October 19, 2018
Findings and Recommendation to Deny Defendant Nordic PCL
Construction, Inc.'s Motion for Attorneys' Fees and
Bill of Costs (the “October 19, 2018 F&R”).
Based on the following, the objections are OVERRULED and the
October 19, 2018 F&R is ADOPTED. Because the action was
dismissed without prejudice under Hawaii Revised Statutes
(“HRS”) § 672E-13, Defendant is not a
“prevailing party.” Defendant's Motion and
Bill of Costs are DENIED without prejudice.
August 6, 2018, this court granted Defendant's Motion to
Dismiss, dismissing without prejudice the First Amended
Complaint (“FAC”) filed by Plaintiffs Ward
Management Development Company, LLC (“Ward
Management”); Waiea Management Development Company, LLC
(“Waiea”); Victoria Ward, Ltd. (“Victoria
Ward”); and 1118 Ala Moana, LLC (“1118 Ala
Moana”) (collectively “Plaintiffs”).
See ECF No. 81; Ward Mgmt. Dev. Co. v. Nordic
PCL Constr. Co., 2018 WL 3733608 (D. Haw. Aug. 6, 2018).
dismissing the FAC, the court did not address the merits of
the suit (and does not do so here) - the substance, however,
concerns alleged claims against Nordic sounding in breach of
contract and breach of warranty arising from alleged defects
in the recent construction of the 36-story Waiea Tower in the
Kaka‘ako district of Honolulu, and related contractual
issues with a Construction Management Agreement between Ward
Management and Nordic. Rather, much of the litigation in this
forum centered around alleged jurisdictional defects:
Defendant's arguments that complete diversity of
citizenship is lacking because (1) the Association of Unit
Owners of 1118 Ala Moana is a required party under Federal
Rule of Civil Procedure 19(b) whose presence destroys
diversity; and (2) Victoria Ward has Hawaii citizenship
(rather than Texas citizenship as alleged in the FAC) where
Defendant also has Hawaii citizenship.
however, the court - applying Sinochem International Co.
v. Malaysia International Shipping Corp., 549 U.S. 422
(2007) - “bypassed” even the jurisdictional
issues, and dismissed the FAC without prejudice as required
by HRS § 672E-13 because Plaintiffs had failed to
properly fulfill notice and mediation prerequisites of
Hawaii's Contractor Repair Act, HRS ch. 672E, before
filing suit. See Ward Mgmt., 2018 WL 373308, at *1.
That is, the court did not preclude Plaintiffs from re-filing
in this federal forum (and, likewise, did not preclude
Defendant from reasserting any other defenses it might want
to raise) if mediation was unsuccessful.
Specifically, HRS § 672E-13 provides in pertinent part:
The court . . . shall dismiss, without prejudice, any action
failing to meet the requirements of this chapter, unless: . .
(3) An applicable statute of limitations on actions would
prevent the refiling of an action, in which case the action
shall be immediately stayed to provide the claimant with an
opportunity to comply with this chapter, but for no longer
than six months[.]
672E-13 thus contemplates that a dismissed action can be
re-filed after “the requirements of this chapter”
(e.g., mediation) have been met, if the parties are otherwise
unable to resolve the dispute under the Contractor Repair
Act's provisions, as the Hawaii Legislature envisioned.
Indeed, § 672E-13(3) preserves such a right to re-file
by requiring a stay if an applicable limitations period would
otherwise expire in the meantime (which was not the situation
the court instructed the Clerk of Court to “close the
case file, ” and the Clerk entered a corresponding
judgment, stating “IT IS ORDERED AND ADJUDGED that the
Action is DISMISSED WITHOUT PREJUDICE, and DISMISSED as
pursuant to and in accordance with the Court's Order
filed August 6, 2018[.]” ECF No. 82.
August 20, 2018, Nordic filed a Motion for Attorneys'
Fees and a Bill of Costs, seeking an award of $515, 683.04 in
attorneys' fees and $2, 439.39 in costs as a
“prevailing party” under HRS § 607-14,
§ 14.6 of the Construction Management Agreement,
Federal Rule of Civil Procedure 54(d)(1). ECF Nos. 83 &
84. After due consideration, Magistrate Judge Richard Puglisi
entered the October 19, 2018 F&R, concluding that Nordic
is not entitled to fees or costs because this court's
August 6, 2018 dismissal did not render it a
“prevailing party” for such purposes. ECF No. 92
November 2, 2018, Nordic filed Objections to the October 19th
F&R under 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b)(2). ECF No. 93. Plaintiffs filed an
Opposition on November 30, 2018, ECF No. 96, and a
corresponding Reply and Sur-Reply were filed on December 12,
2018 and December 21, 2018 respectively. ECF Nos. 97-2 &
99-2. The court decides the matter without an oral hearing
under Local Rule 7.2(e).
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).