United States District Court, D. Hawaii
STEVE PELL; DIONNA PELL; J.P. & L.P., minors; ERIN BARENS; SHANNON BAILEY; EMMA PELL; and STEVI PELL, Plaintiffs,
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
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.
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.
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
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.
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”).
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).
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
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
(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 ...