United States District Court, D. Hawaii
HOWARD G., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JOSHUA G.; AND JOSHUA G., Plaintiffs,
STATE OF HAWAII, DEPARTMENT OF EDUCATION, et al.; Defendants. DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff,
J.G., by and through his Parents, H.G. and D.G., Defendants.
FINDINGS AND RECOMMENDATIONS TO SUSTAIN IN PART AND
OVERRULE IN PART STATE OF HAWAII, DEPARTMENT OF
EDUCATION'S OBJECTION TO PLAINTIFFS' BILL OF
TRADER, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant-Plaintiff Department of
Education's (“DOE” or
“Defendant”) Objection to Plaintiffs' Bill of
Costs, timely filed on June 13, 2019
(“Objection”) (Howard G., ECF No. 137).
This is a consolidated case pursuant to a Stipulation to
Consolidating for All Purposes, filed on August 21, 2013.
Cases Howard G., et al. v. State of Hawaii
Department of Education, et al., Civil No. 11-00523
DKW-RT (“Howard G.”) and State of Hawaii
Department of Education, et al. v. J.G., et al., Civil
No. 13-00029 DKW-RT (“J.G.”) were consolidated
under Civil No. 11-00523.
to Rule 7.1(c) of the Local Rules of Practice of the United
States District Court for the District of Hawaii
(“Local Rules”), the Court finds this matter
suitable for disposition without a hearing.
Howard G. and J.G. (collectively “Plaintiffs”)
filed their Bill of Costs on June 7, 2019 (“Bill of
Costs”) (Howard G., ECF No. 135), and requested fees of
the clerk, fees for transcripts, copying fees, docket fees,
and other costs, which includes filing fees, additional
copying fees, traveling fees, and pro hac vice fees, to be
taxed. Defendant objects to (1) transcript fees for the
August 11, 2017 Motion to Enforce Resolution Agreement; (2)
docket fees of $5.00; (3) airfare and cab fare to attend oral
argument before the 9th Circuit; and (4) the filing fee for
Plaintiffs' Petition for a Writ of Mandamus.
careful review of the parties' submissions, the records
in this case, and the applicable law, the Court FINDS and
RECOMMENDS that Defendant's Objection be SUSTAINED IN
PART and OVERRULED IN PART. The Court FINDS and RECOMMENDS
that a total of $1, 520.43 out of the requested $3, 560.03
are taxable costs under 28 § U.S.C. § 1920. Out of
the total requested amount, the Court FINDS and RECOMMENDS
that $2, 039.60 is not taxable.
August 25, 2011, Plaintiffs filed their Complaint in the
district court in order to appeal from the Administrative
Hearings Officer's August 3, 2011 administrative
decision. The Administrative Hearings Officer had found that
Plaintiffs failed to prove their claims under the Individuals
with Disabilities Education Act (“IDEA”). Howard
G., ECF No. 1. On June 29, 2012, the district court issued
its Order Affirming in Part, Vacating in Part and Remanding
in Part the Decision of the Administrative Hearings Officer
(“Remand Order”). Howard G., ECF No. 27. The
district court remanded and instructed the Administrative
Hearings Officer to address whether one-to-one services were
required given that the district court found that the
Individualized Education Program (“IEP”) did not
offer one-to-one services, and whether the IEP was
substantively adequate. Howard G., ECF No. 27, p. 30, ¶
remand, the Administrative Hearings Officer's December
20, 2012 administrative decision found that one-to-one
services were required, and the IEP was not substantively
adequate. Howard G., ECF No. 7-1, p.11. The Defendant
appealed the Administrative Hearings Officer's decision
by filing its Complaint in the district court on January 17,
2013. Howard G., ECF No. 1. On February 24, 2014, the Court
reversed and remanded the December 20, 2012 administrative
decision. Howard G., ECF No. 37.
March 20, 2014, Plaintiffs filed their Notice of Appeal.
Howard G., ECF No. 39. On November 3, 2016, the Ninth Circuit
issued its Memorandum Opinion, which reversed and remanded
the Court's February 24, 2014 decision. Howard G., ECF
No. 51. On remand, the district court was instructed to give
substantial weight to the hearing officer's conclusion
and to reconsider whether a Free Appropriate Public Education
(“FAPE”) was denied. Id.
March 1, 2017, current counsel appeared on behalf of
Plaintiffs. Howard G., ECF No. 69. On March 6, 2017,
Plaintiffs' prior counsel, Kirstin M. Hamman and Keith
H.S. Peck, withdrew as counsel. Howard G., ECF No. 72.
January 29, 2018, the district court issued its Order
Affirming the Administrative Hearings Officer's December
20, 2012 Decision on One-to-One Services, Finding a
Deprivation of FAPE, and Denying without Prejudice Remedy
Requested in Plaintiffs' Remand Memorandum. Howard G.,
ECF No. 89. The January 29, 2018 Order affirmed that the
student required one-to-one services and found that the
denial of such services constituted a denial of FAPE under
IDEA. The district court ordered reimbursement of specific
costs, but denied the request for reimbursement of additional
fees and costs. Howard G., ECF No. 89, p.19.
February 25, 2018, Plaintiffs filed their Motion for
Reconsideration and for Award of Attorney's Fees and
Costs. Howard G., ECF No. 90. The district court denied the
motion for reconsideration on February 26, 2018. Howard G.,
ECF No. 92.
February 27, 2018, Plaintiffs filed their Request for
Judgment Granting Reimbursement of Private Tuition. Howard
G., ECF No. 93. After briefing and oral argument, the
district court entered its Order Granting Plaintiffs'
Motion for Judgment Granting Reimbursement of Private Tuition
on May 17, 2018. Howard G., ECF No. 116.
6, 2019, Plaintiffs filed a Motion Requesting Judgment be Set
Out in Separate Document. Howard G., ECF No. 126. The
district court granted in part and denied in part
Plaintiffs' May 6, 2019 motion. Howard G., ECF No. 133.
Specifically, the district court directed the Clerk of Court
to enter judgment for Plaintiffs, consistent with the May 17,
2018 order, but denied all other requests in Plaintiff's
May 6, 2019 motion. Howard G., ECF No. 133. On that same day,
the Clerk of Court entered judgment in favor of Plaintiffs.
Howard G., ECF No. 134.
6, 2019, Plaintiffs filed their Bill of Costs and Petition
for Award of Attorneys' Fees and Costs. Howard G., ECF
Nos. 135 & 136. On June 13, 2019, Defendant filed its
Objection to Plaintiffs' Bill of Costs. Howard G., ECF
No. 137. On July 18, 2019, the Court directed the parties to
meet and confer as required by LR54.2(d). In compliance with
the Court's direction on July 18, 2019, Plaintiffs'
counsel filed a Supplemental LR54.2(c) Declaration of Robert C.
Thurston, Esq. on July 23, 2019 stating that counsel had met
and conferred on July 23, 2019. Howard G., ECF No. 142. The
parties were able to successfully reach some agreement as to
the Bill of Costs entries. Plaintiffs originally requested
$3, 577.93 in costs as the prevailing party in this action.
After the parties met and conferred on July 23, 2019,
Plaintiffs have agreed to reduce their costs by $17.90. The
new total Plaintiffs request is $3, 560.03 in costs.
prevailing party, Plaintiffs are entitled to their costs.
Defendant does not dispute Plaintiff's status as the
prevailing party. A prevailing party is a “party in
whose favor judgment is entered.” LR54.2(a); San
Diego Police Officers' Ass'n v. San Diego City
Employees' Retirement Sys., 568 F.3d 725, 741 (9th
Cir. 2009) (citation omitted). Prevailing plaintiffs are
generally entitled to recover costs pursuant to Rule 54(d)(1)
of the Federal Rules of Civil Procedure (“FRCP”).
Under Rule 54(d)(1), “[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.” Fed.R.Civ.P. 54(d)(1). This rule creates
“a presumption in favor of awarding costs to a
prevailing party.” Escriba v. Foster Poultry Farms,
Inc., 743 F.3d 1236, 1247 (9th Cir. 2014) (citing
Ass'n of Mexican-American Educ. v. State of
Cal., 231 F.3d 572, 591 (9th Cir. 2000) (en banc)).
unsuccessful party has the burden of showing why costs should
not be awarded. Tibble v. Edison Intern., 520
Fed.Appx. 499, 500 (9th Cir. 2013) (quoting Quan v.
Computer Sciences Corp., 623 F.3d 870, 888 (9th Cir.
2010) (FRCP 54(d)(1) “‘create[s] a presumption
for awarding costs to prevailing parties,' placing the
burden on the unsuccessful party to ‘show why costs
should not be awarded.'”); Ko Olina Dev., LLC
v. Centex Homes, Civ. No. 09-00272 DAE-LEK, 2012 WL
13018941, at *5 (D. Haw. Feb. 28, 2012). Defendant has
objected to Plaintiffs' Bill of Costs and thus has the
burden of showing why this Court should not award Plaintiffs
trial judge has “wide discretion in awarding costs[,
]” but may only tax costs identified in 28 U.S.C.
§ 1920. K-S-H Plastics, Inc. v. Carolite, Inc.,
408 F.2d 54, 60 (9th Cir. 1969) (citation omitted). Section
or clerk of any court of the United States may tax as costs
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained ...