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Howard G. v. State, Department of Education

United States District Court, D. Hawaii

September 27, 2019

HOWARD G., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JOSHUA G.; AND JOSHUA G., Plaintiffs,
v.
STATE OF HAWAII, DEPARTMENT OF EDUCATION, et al.; Defendants. DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff,
v.
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 COSTS

          ROM A. TRADER, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Pursuant 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.

         Plaintiffs 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.

         After 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.

         BACKGROUND

         On 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, ¶ 1.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On June 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)[1] 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.

         DISCUSSION

         As the 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)).

         The 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 taxable costs.

         The 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 1920 states:

         A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained ...

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