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Pell v. HMC Kea Lani LP

United States District Court, D. Hawaii

September 24, 2019

STEVE PELL; DIONNA PELL; J.P. & L.P., minors; ERIN BARENS; SHANNON BAILEY; EMMA PELL; and STEVI PELL, Plaintiffs,
v.
HMC KEA LANI LP; CCFH MAUI LLC; JOHN DOES 1-5; JOHN DOE CORPORATIONS 1-5; JOHN DOE PARTNERSHIPS 1-5; ROE NON-PROFIT CORPORATIONS 1-5; and ROE GOVERNMENTAL AGENCIES 1-5, Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANTS HMC KEA LANI LP AND CCFH MAUI LLC'S BILL OF COSTS

          KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE

         On September 13, 2019, Defendants HMC Kea Lani LP and CCFH Maui LLC (collectively, “Defendants”) filed their Bill of Costs. ECF No. 150. On September 20, 2019, Plaintiffs Steve Pell (“Mr. Pell”), Dionna Pell, J.P. and L.P., minors, Erin Barens, Shannon Bailey, Emma Pell, and Stevi Pell (collectively, “Plaintiffs”) filed their Objections to Defendants Cost Bill for Taxable Costs (“Objection”). ECF No. 152.

         The Court elects to decide this matter without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). After carefully considering the Bill of Costs, the parties' memoranda, and the record in this case, the Court FINDS AND RECOMMENDS that the district court GRANT IN PART AND DENY IN PART Defendants' Bill of Costs as set forth below.

         BACKGROUND

         This case arises from injuries Plaintiff Steve Pell (“Mr. Pell”) sustained on October 22, 2015, while boogie boarding in the ocean fronting the Fairmont Kea Lani Resort (the “Resort”) in Maui, which Defendants own and operate. Mr. Pell was paralyzed as a result of his injuries. At the time of the incident, Plaintiffs were guests at the Resort. The Amended Complaint alleged that Defendants knew that the ocean fronting the Resort posed an unreasonably dangerous condition, but failed to warn Mr. Pell of such condition.

         On June 5, 2019, Defendants filed a motion for summary judgment, asserting that they satisfied their duty to warn Mr. Pell of hazardous ocean conditions, pursuant to Hawaii Revised Statutes § 486K-5.5. ECF No. 97. On August 27, 2019, the district court granted Defendants' motion for summary judgment. ECF No. 145. The Clerk of Court subsequently entered judgment in favor of Defendants on August 30, 2019. ECF No. 148.

         Defendants timely filed a Bill of Costs on September 13, 2019. The Bill of Costs includes a supporting affidavit from Defendants' Mainland counsel, Noel C. Capps, Esq. (“Capps Affidavit”), and declaration from Defendants' local counsel, Jeffrey Hu, Esq. (“Hu Declaration”).

         DISCUSSION

         Defendants request $21, 361.57 in costs pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure. Rule 54(d)(1) states that, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” “Thus, Rule 54(d) creates a presumption in favor of awarding costs to prevailing parties, and it is incumbent upon the losing party to demonstrate why the costs should not be awarded.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999) (citation omitted).

         “The presumption itself provides all the reason a court needs for awarding costs, and when a district court states no reason for awarding costs, [the appellate court] will assume it acted based on that presumption.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). “To overcome this presumption, the losing party must ‘establish a reason to deny costs.'” Seven Signatures Gen. Partnership v. Irongate Azrep BW LLC, 871 F.Supp.2d 1040, 1047 (D. Haw. 2012) (quoting Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006)).

         While courts have discretion to award costs pursuant to Rule 54(d), “courts may tax only those costs defined in 28 U.S.C. § 1920.” Yasui v. Maui Elec. Co., 78 F.Supp.2d 1124, 1126 (D. Haw. 1999) (other citations omitted) (citing Aflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 176 (9th Cir. 1990) (providing that § 1920 enumerates expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d))). Section 1920 enumerates costs taxable to the prevailing party:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily ...

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