Trust v. Lingle
| Decision Date | 01 March 2011 |
| Docket Number | CIV. NO. 09-00375 SOM/KSC |
| Parties | HRPT Properties Trust, et al., Plaintiffs, v. LINDA LINGLE, in her official capacity as Governor of the State of Hawaii, Defendant, and Citizens for Fair Valuation, Intervenor-Defendant. |
| Court | U.S. District Court — District of Hawaii |
Plaintiff Commonwealth REIT, formerly known as HRPT Properties Trust, and others (collectively, "Commonwealth") object to the Findings & Recommendation ("F&R") by the Magistrate Judge recommending denial of their motion for attorneys' fees and expenses.
CommonWealth seeks attorneys' fees under the Civil Rights Attorney's Fees Award Act, 42 U.S.C. § 1988, from Intervenor-Defendant Citizens for Fair Valuation ("CFV"). Magistrate Judge Kevin S.C. Chang determined that CFV was not liable for attorneys' fees because CFV was an innocentintervenor, and CFV's actions were not frivolous, unreasonable, or without foundation. The Magistrate Judge further found that Commonwealth's fee request was grossly excessive and unreasonable.
Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. After reviewing Commonwealth's Objections, the court overrules Commonwealth's Objections to the Magistrate Judge's F&R, and ADOPTS the Magistrate Judge's F&R in its entirety.
The parties are familiar with the background of this case. The court repeats the background facts only as necessary for a decision on the Objections to the Magistrate Judge's F&R, see "Obj.", ECF No. 126, in the discussion section below. Additional background facts are contained in this court's summary judgment order on May 31, 2010, ECF No. 100, and in the Magistrate Judge's F&R on December 21, 2010, ECF No. 123.
On September 29, 2009, CFV filed a motion to intervene. CFV is a nonprofit organization consisting of a number of Plaintiffs' lessees. On October 21, 2009, the Magistrate Judge issued an Order Granting CFV's Motion to Intervene. On May 31, 2010, this court issued an Order Granting Plaintiffs' Motion for Summary Judgment, Denying Defendant Linda Lingle's Second Counter Motion for Summary Judgment, and Denying Intervenor-Defendant Citizens for Fair Valuation's Counter Motion for Summary Judgment ("SJ Order"). On June 1, 2010, the court entered judgment in favor of Commonwealth and against Defendant Lingle and CFV, pursuant to the SJ Order. On June 3, 2010, the Magistrate Judge granted Commonwealth's request to extend the time for filing a motion for an award of attorneys' fees.
On June 30, 2010, Defendant Lingle filed a Notice of Appeal. On September 29, 2010, Commonwealth and Defendant Lingle reached a settlement agreement. As part of the agreement, Commonwealth agreed not to seek attorneys' fees or costs incurred in this lawsuit from Defendant Lingle, the State, State entities, or other State agents, officers, or employees. Obj., Ex. 1 ¶ 11. On October 18, 2010, the Ninth Circuit issued an Order dismissing the appeal with prejudice pursuant to a stipulation of the parties.
On December 21, 2010, the Magistrate Judge issued his F&R denying Plaintiffs' Motion for Attorneys' Fees and Expenses. Two days later, the court granted Commonwealth's request for an extension of time to file objections to the F&R. On January 18, 2011, Commonwealth filed Objections to the F&R.
Congress has empowered magistrate judges, upon referral of dispositive pretrial motions by district judges, to conduct hearings and issue findings and recommendations regardingdispositive pretrial motions. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b) (promulgating rule). The Federal Rules of Civil Procedure permit a district judge to similarly refer a post-judgment motion for attorney's fees "as if it were a dispositive pretrial matter, " see Fed. R. Civ. P. 54(d)(2)(D), and such motions are customarily referred to magistrate judges in this district, see Local Rule 54.3(h).
The district judge may accept, reject, or modify, in whole or in part, the findings and recommendation made by the magistrate judge. Fed. R. Civ. P. 72(b). If a party timely objects to portions of the findings and recommendation, the district judge reviews those portions of the findings and recommendation de novo. Fed. R. Civ. P. 72(b)(3); Local Rule 74.2. The district judge may consider the record developed before the magistrate judge. Local Rule 74.2. The district judge also has discretion to receive further evidence. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Rule 74.2; see also United States v. Raddatz, 447 U.S. 667, 676 (1980) (). The de novo standard requires the district court to consider a matter anew and arrive at its own independent conclusions, but a de novo hearing is not ordinarily required. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Boulware, 350 F. Supp. 2d 837, 841 (D. Haw. 2004); Local Rule 74.2.
The district judge may accept the portions of the findings and recommendation to which the parties have not objected as long as it is satisfied that there is no clear error on the face of the record. See United States v. Bright, Civ. No. 07-00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003); Fed. R. Civ. P. 72(b) advisory committee's note.
Commonwealth challenges the Magistrate Judge's F&R and seeks $1,512, 949.92 in attorneys' fees and expenses pursuant to 42 U.S.C. § 1988 from CFV. The Magistrate Judge, finding that CFV was not liable for attorneys' fees because CFV was an innocent intervenor, reasoned that it would be inequitable to allow Commonwealth to recover fees from CFV. In its Objections, Commonwealth largely repeats the arguments rejected by the Magistrate Judge. Commonwealth's arguments remain unpersuasive. The Magistrate Judge appropriately recommended that attorneys' fees and costs not be awarded to Commonwealth, and this court adopts the Magistrate Judge's F&R in its entirety.
CFV is an "innocent intervenor" under the definition set forth by the Supreme Court in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 109 S. Ct. 2732 (1989), and discussed by the Ninth Circuit in Costco Wholesale Corporation v. Hoen, 538 F.3d 1128 (9th Cir. 2008). The word "innocent" refers to "an intervenor who has not been found liable for engaging in unlawful activity." Costco, 538 F.3d at 1134; Sable Commc'ns of Cal. Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 194 n.20 (9th Cir. 1989). The Magistrate Judge correctly stated that a prior finding of liability for engaging in unlawful activity is a prerequisite to establishing that an intervenor is not innocent.
Commonwealth does not dispute that a finding of unlawful activity is required. Nor does Commonwealth point to anything in the record that constitutes an express finding that CFV engaged in unlawful activity. As the court is unpersuaded by Commonwealth's argument that a finding of illegality is implicit in this court's SJ Order, this court concludes that CFV is "innocent" for purposes of Commonwealth's motion for fees and is not liable for those fees. The SJ Order declared a state law unconstitutional. while it rejected CFV's arguments to the contrary, the SJ Order did not imply that CFV's arguments or actions were illegal.
Furthermore, "§ 1988 fee awards should be made against losing intervenors... 'only where the intervenors' action was frivolous, unreasonable, or without foundation." Costco, 538 F.3d at 1133 . Commonwealth cites this proposition in its briefing, see Obj. at 5-6, without expressly objecting to the F&R's findings that CFV's actions were not frivolous, unreasonable, or without foundation. Even if this court treats Commonwealth as having implicitly objected to those findings, this court finds no error in those findings. See Abordo v. State of Hawaii, 902 F. Supp. 1220, 1224 (D. Haw. 1995).
This court is unpersuaded by any of the five reasons advanced by Commonwealth for the proposition that CFV is not an innocent intervenor.
First, Commonwealth argues that its prompt enforcement of its constitutional rights supports a request for an award of attorneys' fees. This argument seems to concede that CFV did not actually deprive Commonwealth of its constitutional rights. The court's focus is therefore on whether there was any prior finding that CFV engaged in unlawful activity. See Costco, 538 F.3d at 1134 (quoting Zipes, 491 U.S. at 762-63, 109 S. Ct. 2732). Commonwealth fails to point to such a finding. As CFV has never been found to have engaged in an unlawful activity, it is innocent for purposes of determining fee liability. See Costco, 538 F.3d at 1134 ( the intervenor innocent for the purposes of determining fee liability under § 1988(b) because it was not liable under § 1983 for adhering to an unconstitutional state law).
Commonwealth complains that "the logic" of the Magistrate Judge's findings means that no intervenor could ever be held liable for attorneys' fees in a case involving a pre-enforcement constitutional challenge to a statute. See Obj. at 8. The F&R itself makes no such global statement; the Magistrate Judge's findings were clearly tied to the specific facts of the present case.
Commonwealth argues that the precedent for awarding fees against government agents and entities who were prevented from violating a plaintiff's constitutional rights by a declaratory judgment or...
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