United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT THIRD PARTY
DEFENDANT ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD
SANDS MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS' FEES
REBER PORTER, UNITED STATES MAGISTRATE JUDGE
the Court is Third Party Defendant Association of Apartment
Owners of Diamond Head Sands (Association) Motion for
Supplemental Award of Attorneys' Fees and Costs, filed on
August 2, 2019 (Motion). See ECF No. 501. The
Association requests a supplemental award of attorneys'
fees against Defendant Abigail Gaurino. See id. The
Association filed a Statement of Consultation on August 15,
2019. See ECF No. 510. Defendant Abigail Gaurino did
not file an opposition or other response to the Motion.
careful consideration of the Motion, the record in this
action, and the relevant legal authority, the Court FINDS AND
RECOMMENDS that the Association's Motion be GRANTED IN
PART AND DENIED IN PART.
the parties and the Court are familiar with the history of
this case, the Court includes only those facts relevant to
the present Motion.
Atooi Aloha, LLC entered into an agreement to purchase shares
in exchange for the conveyance of certain real property (the
Property). See ECF No. 30, First Amended Complaint,
¶ 37. The Property was conveyed to Defendant Abigail
Gaurino. See id. The Association administers and
operates the condominium project where the Property is
located. See ECF No. 169-2, Crossclaim Against
Defendant Abigail Lee Garuino, ¶ 3.
action, Plaintiffs brought suit against Defendant Abigail
Gaurino, APT-320 LLC, the holder of the Note and Mortgage on
the Property, and others related, in part, to the conveyance
of the Property. See ECF Nos. 1, 30. Defendant
APT-320 LLC filed a Third-Party Complaint against the
Association. See ECF No. 145. The Association then
filed a Crossclaim against Defendant Abigail Gaurino
asserting a claim for unpaid assessments and attorneys'
fees and costs incurred by the Association. See ECF
No. 169-2. On October 3, 2018, a stipulation resolving the
Association's Crossclaim against Defendant Abigail
Gaurino was approved and ordered by the district court
(Stipulation and Order). See ECF No. 334. Pursuant
to the Stipulation and Order, the Association is entitled to
judgment against Defendant Abigail Gaurino on its crossclaim,
including attorneys' fees and costs incurred by the
Association. See id. at 6-7. The Stipulation and
Order states that the Association had incurred through
September 12, 2018, attorneys' fees and costs of $24,
995.89. See id. at 7.
was entered based, in part, on the Stipulation and Order, by
the Clerk on July 19, 2019. See ECF No. 484. The
present Motion followed. See ECF No. 501. In the
present Motion, the Association ask the Court to award
additional attorneys' fees and costs against Defendant
Abigail Gaurino that the Association has incurred since
September 13, 2018. See id.
federal court sitting in diversity applies state law in
determining whether the prevailing party is entitled to
attorney's fees. See Farmers Ins. Exch. v. Law
Offices of Conrado Joe Sayas, Jr., 250 F.3d 1234, 1236
(9th Cir. 2001). Under Hawaii law, “[o]rdinarily,
attorneys' fees cannot be awarded as damages or costs
unless so provided by statute, stipulation, or
agreement.” Stanford Carr Dev. Corp. v. Unity
House, Inc., 141 P.3d 459, 478 (Haw. 2006) (citation
detailed above, the Stipulation and Order provides that the
Association is entitled to an award against Defendant Abigail
Gaurino for attorneys' fees and costs incurred by the
Association. See ECF No. 334 ¶ 5. Based on the
Stipulation and Order, the Court finds that the Association
is entitled to an award of attorneys' fees and costs.
courts calculate the reasonableness of attorneys' fees
based on a method that is nearly identical to the traditional
“lodestar” calculation set forth in Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). See DFS Grp.
L.P. v. Paiea Props., 131 P.3d 500, 505 (Haw. 2006).
Under the lodestar method, the court must determine a
reasonable fee by multiplying a reasonable hourly rate by the
number of hours reasonably expended. See id. 505-06.
In addition, the court may consider additional factors
including the novelty of the questions involved and charges
for similar service in the community. See Chun v. Bd. of
Trs. of Emps.' Ret. Sys. of Haw., 106 P.3d 339, 358
(Haw. 2005); Chun v. Bd. of Trs. of Emps.' Ret. Sys.
of Haw., 992 P.2d 127, 137 (Haw. 2000).
Reasonable Hourly Rate
courts consider the reasonable hourly rate in a manner
similar to the traditional lodestar formulation, and some
Hawaii state courts have considered federal law in
determining a reasonable hourly rate. See,
e.g., Cnty. of Haw. v. C & J Coupe Family
Ltd. P'ship, 208 P.3d 713, 720 (Haw. 2009). The
Court finds that federal case law regarding the determination
of a reasonable hourly rate is instructive in this case. In
determining whether an hourly rate is reasonable, the Court
considers the experience, skill, and reputation of the
attorney requesting fees. See Webb v. ...