United States District Court, D. Hawaii
ORDER ADOPTING IN PART AND MODIFYING IN PART
MAGISTRATE JUDGE FINDINGS AND RECOMMENDATION
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
certified class action, originally filed in 2010, concerns
whether the State of Hawaii Department of Education
(“DOE”) wrongfully denied services under the
Individuals with Disabilities Education Act
(“IDEA”) to individuals that the DOE viewed as
having “aged out” of being eligible to receive
services. This matter was settled, with the DOE agreeing to
deposit $8, 750, 000.00 into an interest bearing bank account
(“Services Fund”) and to pay class counsel $1,
500, 000 in attorneys fees and costs. See ECF No.
480-3. The settlement agreement provided that “an
additional $250, 000.00 may be awarded to Class Counsel out
of the [S]ervices [F]und upon application to and approval by
the court.” Id.
now seek an interim award of $152, 404.13 in fees including
the general excise tax out of the Services Fund. See
ECF No. 532. The DOE did not oppose the motion. On November
26, 2019, the Magistrate Judge issued his Findings and
Recommendation to Deny Without Prejudice Plaintiff
Class's Application for Interim Attorneys' Fees
(“F&R”). See ECF No. 543. The
Magistrate Judge reasoned that Plaintiffs had not established
that they had met and conferred before filing the motion, as
required by Local Rule 54.2. The Magistrate Judge also
declined to review Plaintiffs' attorneys' fees
requests on a piecemeal basis, noting that “judicial
economy and the administration of justice will be best served
by addressing Plaintiffs' fee requests at the conclusion
of this action.” See ECF No. 543.
have objected to the F&R. After reviewing Plaintiffs'
fee request de novo, this court adopts the F&R
in part and modifies it in part.
STANDARD OF REVIEW.
district judge reviews de novo those portions of a
magistrate judge's findings and recommendation to which
an objection is made and may accept, reject, or modify, in
whole or in part, the findings and recommendation made by the
magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); Local Rule 74.2. Kealoha v. Totto, 2017 WL
1839280, *2 (D. Haw. May 8, 2017); Paco v. Meyers,
2013 WL 6843057, *1 (D. Haw. Dec. 26, 2013). In other words,
a district judge “review[s] the matter anew, the same
as if it had not been heard before, and as if no decision
previously had been rendered.” Freeman v. DirectTV,
Inc., 457 F.3d 1001, 1005 (9th Cir. 2006).
While the district judge must arrive at independent
conclusions about those portions of the magistrate
judge's report to which objections are made, a de
novo hearing is not required. United States v.
Remsing, 874 F.2d 614, 617 (9th Cir. 1989);
Kealoha, 2017 WL 1839280, *2; Local Rule 74.2.
district judge may accept those portions of the findings and
recommendation that are not objected to if the district judge
is satisfied that there is no clear error on the face of the
record. United States v. Bright, 2009 WL 5064355, *3
(D. Haw. Dec. 23, 2009); Stow v. Murashige, 288
F.Supp.2d 1122, 1127 (D. Haw. 2003).
seeking attorneys' fees, Plaintiffs argue that the
settlement agreement does not require them to meet and confer
with opposing counsel before filing a fee application.
Plaintiffs are ignoring this court's order of March 1,
2016, in which this court stated that Plaintiffs
“should limit any request to reasonable attorneys'
fees incurred and must meet and confer with the DOE
to explore settlement of the fees. This court hopes
[Plaintiffs] will exclude from any future motion instances of
‘overzealous and overreaching' work.” ECF No.
345, PageID # 6347 (emphasis added). This court clearly
requires Plaintiffs to meet and confer with the DOE before
filing any motion for fees or costs and to attempt to work
out issues and problems with fee requests. The Magistrate
Judge correctly recommended denial of the motion based on
Plaintiffs' failure to establish that they had met and
court disagrees with Plaintiffs' contention that the DOE
“has no voice” in whether Plaintiffs are entitled
to fees under the settlement agreement. Admittedly, the
settlement agreement does not provide for the exact procedure
to be used when Plaintiffs seek any portion of the $250, 000
in fees provided for in the settlement agreement, and the DOE
filed no opposition to the motion, having agreed that $250,
000 in additional fees may be paid. But this court has never
modified the meet-and-confer requirement expressly noted in
its order of March 1, 2016. If the parties must meet and
confer, it stands to reason that both sides may be heard as
to a fee request.
argue that denying an interim fee award creates an
inappropriate financial burden on class counsel.
Plaintiffs' failure to meet and confer is Plaintiffs'
own fault. Additionally, this court has already awarded
Plaintiffs significant fees in this case. See ECF
No. 345 (Mar. 1, 2016) (awarding $100, 000.00 in fees); ECF
Nos. 491-92 (Dec. 27, 2017) (awarding $1, 570, 650.00 in fees
and GET); ECF No. 510 (Nov. 8, 2018) (awarding $35, 032.45 in
also argue that they have proven their entitlement to fees,
Plaintiffs documented reasonable hourly rates and
expenditures of time. See Ex. 2. Furthermore, Plaintiffs'
first interim fee application for $35, 032.45 (ECF No. 509),
which included the ...