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 DEFENDANTS HMC
KEA LANI LP AND CCFH MAUI LLC'S MOTION FOR NON-TAXABLE
KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE
September 18, 2019, Defendants HMC Kea Lani LP and CCFH Maui
LLC (collectively, “Defendants”) filed a Motion
for Non-Taxable Costs (“Motion”). ECF No. 151.
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
Motion, the applicable law, and the record in this case, the
Court FINDS AND RECOMMENDS that the district court GRANT the
Motion 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.
filed the Motion on September 13, 2019. The Motion includes a
supporting affidavit from Defendants' counsel, Noel C.
Capps, Esq. (“Capps Affidavit”). The Capps
Affidavit states that Mr. Capps met and conferred with
Plaintiffs' attorney regarding the Motion, and
Plaintiffs' attorney represented that Plaintiffs do not
object to the costs requested in the Motion. See ECF
No. 151-2 at ¶ 8 (citing ECF No. 151-5).
Rule 54(d)(1) provides that costs, other than attorneys'
fees, “should be allowed to the prevailing
party.” The Local Rules provide that “[t]he party
entitled to costs shall be the prevailing part in whose favor
judgment is entered . . . .” LR54.1(a). Courts have
discretion to award costs to the prevailing party. See
Yasui v. Maui Elec. Co., 78 F.Supp.2d 1124, 1126 (D.
Haw. 1999). The burden is on the losing party to demonstrate
why costs should not be awarded. Stanley v. Univ. of S.
Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).
expenses are awarded pursuant to state law in diversity
cases.” CUMIS Ins. Soc., Inc. v. CU Pac. Audit
Sols., LLC, CIV NO. 14-00140 LEK-BMK, 2015 WL 13234467,
at *10 (D. Haw. Nov. 20, 2015), adopted in 2016 WL
8710196 (D. Haw. Jan. 15, 2016) (citing Farmers Ins.
Exch. v. Law Offices of Conrado Joe Sayas, Jr., 250 F.3d
1234, 1236 (9th Cir. 2001)); Pascual v. Aurora Loan
Servs., Civil No. 10-00759 JMS-KSC, 2012 WL 5881972, at
*11 (D. Haw. Oct. 31, 2012), adopted in 2012 WL
5881858 (D. Haw. Nov. 21, 2012) (same). Hawaii Revised
Statutes (“HRS”) § 607-9 expressly allows
for recovery of “[a]ll actual disbursements, including
but not limited to, intrastate travel expenses for witnesses
and counsel . . . sworn to by an attorney or a party, and
deemed reasonable by the court . . . .” HRS §
607-9. Local Rule 54.2(f)(4) mandates that, “[i]n
addition to identifying each requested nontaxable expense,
the movant shall set forth the applicable authority entitling
the movant to such expense and should attach copies of
invoices and receipts, if possible.”
seek $3, 059.87 for non-taxable expenses, which consists of
costs for intrastate airfare, car rentals, lodging, and
transportation. See ECF No. 151-2 at 3-9. Defendants
incurred these costs for their attorneys' attendance at
oral depositions and hearings in this case. See Id.
The Court has carefully reviewed the Motion, the Capps
Affidavit, and Defendants' supporting invoices and
on Defendants' submissions, and given the lack of
objection from Plaintiffs, the Court finds that
Defendants' requested costs are reasonable and
compensable under HRS § 607-9. See Wong v.
Takeuchi, 88 Haw. 46, 54, 961 P.2d 611, 619 (1998)
(holding that “[e]xpenditures for parking, rental car,
and gas, while not specifically enumerated in the language of
HRS § 607-9, are within the scope of ‘intrastate
travel expenses'”); see also Santiago v. State
of Hawaii, CIVIL NO. 16-00583 DKW-KSC, 2018 WL 6037549,
at *2 (D. Haw. Oct. 29, 2018) adopted in 2018 WL
6028688 (D. Haw. Nov. 16, 2018) (awarding the defendants
costs for airfare, car rentals, and lodging pursuant to HRS
§ 607-9). The Court thus recommends that the district
court award Defendants $3, 059.87 for non-taxable costs.
on the foregoing, the Court FINDS AND RECOMMENDS that the
district court GRANT Defendants' Motion for Non-Taxable
Costs and ...