Opinion
CV 14-8984 RSWL (RZx)
10-15-2015
ROYAL HAWAIIAN ORCHARDS, L.P., a Delaware Limited Partnership, Plaintiff, v. EDMUND C. OLSON, in his capacity as trustee of the Edmund C. Olson Trust No. 2; THE EDMUND C. OLSON TRUST NO. 2, erroneously referred to as a California business trust; and DOES 1-50, collectively, Defendants.
ORDER re: DEFENDANT'S NOTICE OF MOTION AND MOTION FOR ATTORNEYS' FEES AND COSTS [29]
Currently before the Court is Defendant Edmund C. Olson's ("Defendant") Motion for Attorneys' Fees and Costs [29].
I. INTRODUCTION
This Action stems from an agricultural lease dispute between Plaintiff Royal Hawaiian Orchards, L.P. ("Plaintiff") and Defendant Edmund C. Olson ("Defendant"), as sole trustee of the Edmund C. Olson Trust No. 2. This Action has been dismissed pursuant to this Court's Order [28] granting Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3), on the grounds of improper venue [11].
Defendant brings the instant Motion for Attorneys' Fees and Costs [29].
II. BACKGROUND
A. Factual Background
Plaintiff is a Delaware limited partnership that is licensed to do business in Hawaii. Compl. ¶ 3. Defendant is the sole trustee of The Edmund C. Olson Trust No. 2, and as such is named in this action and sued in his capacity as the sole trustee of the Trust. Id. ¶ 4. On or about December 22, 1986, a lease agreement ("the Lease Agreement" or "the Agreement") was drafted and entered into between Plaintiff's predecessor-in-interest and Defendant's predecessor-in-interest, by which the Plaintiff (through its predecessor) leased certain parcels of real property located in Hawaii from Defendant's predecessor-in-interest. Compl. ¶ 9. Both Plaintiff and Defendant grow, process, and market macadamia nuts and macadamia nut products in Hawaii. Compl. ¶¶ 7-8. Plaintiff and Defendant are direct competitors in the United States marketplace. Id. ¶ 8. B. Procedural Background
On November 20, 2014, Plaintiff filed its Complaint with this Court [1], raising the following allegations: (1) Breach of contract; (2) Breach of implied covenant of good faith and fair dealing; (3) Unfair and deceptive competition under Hawaii Revised Statute ("H.R.S.") § 480-2; (4) Intentional interference with prospective economic advantage; (5) Monopolization in violation of Sherman Anti-Trust Act, 15 U.S.C. § 1-2 et seq.; Seeking (6) declaratory relief and (7) equitable relief from any alleged breach. See generally, Compl. On December 31, 2014, Plaintiff filed its First Amended Complaint ("FAC") [10].
In its original Complaint and FAC, Plaintiff alleges that Defendant is a resident of Los Angeles, California. However, Defendant contested this assertion. Compl. ¶ 4; FAC ¶ 4; Def.'s Mot. to Dismiss 15:23-28. On January 14, 2015, Defendant filed his Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6), or, in the Alternative, Transfer Pursuant to 28 U.S.C. § 1404 [11]. On June 26, 2015, this Court issued its Order granting Defendant's Motion based on Rule 12(b)(3) [28], finding that Plaintiff failed to establish Defendant's domicile in California. Order 6:12-15, 6/26/2015. Rather, this Court found that Defendant was domiciled in Hawaii. Id. at 6:10-12.
On July 13, 2015, Defendant filed the instant Motion for Attorneys' Fees and Costs [29]. On July 28, 2015, Plaintiff filed its Opposition to Defendant's Motion for Attorneys' Fees and Costs [30]. On August 04, 2015, Defendant filed its Reply in support of its Motion for Attorneys' Fees and Costs [32]. The matter is now before the state court of Hawaii.
III. DISCUSSION
A. Legal Standard
1. Attorneys' Fees
The general rule in federal courts is that "absent an express statutory command, attorney's fees will not be awarded in civil cases." Home Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1162 (9th Cir. 1991) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 262 (1975)).
Under the "American Rule," each party to a lawsuit is generally responsible for its own attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). However, an award of attorneys' fees may be proper where a valid contract or statute shifts fees to a losing party. See, e.g., United States v. Standard Oil Co. of Cal., 603 F.2d 100, 103 (9th Cir. 1979). In order to award attorneys' fees to a party in litigation, a court must be satisfied that both (1) the party is entitled to the fees and (2) that the fee award is reasonable. Garzon v. Varese, No. CV 09 9010 PSG PLAX, 2011 WL 103948, at *1, (C.D. Cal. Jan. 11, 2011).
If it is state law that allows for a fee award, federal courts must look to that law to determine the propriety of such an award. Michael-Regan Co., Inc. v. Lindell, 527 F.2d 653, 656 (9th Cir. 1975).
2. Costs
Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." F.R.C.P. 54(d)(1). "By its terms, the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs." Ass'n of Mexican-American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 200) (citing National Info. Servs., Inc. V. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir. 1995)). B. Analysis
Defendant moves for the Court to award him attorneys' fees in the amount of $51,725 (plus taxes in the amount of $2,437.29) and costs in the amount of $325. Def.'s Mot. for Attys' Fees and Costs 4:10-12. Defendant seeks an additional award of $3,750.00 incurred in preparing his Reply brief, for a total award of fees and costs of $58,237.29. Def.'s Reply 2:12-15. Defendant seeks this award of attorneys' fees and costs for obtaining dismissal of the present action on the grounds of improper venue. Def.'s Mot. for Attys' Fees and Costs 3:3-8.
1. Defendant is not Entitled to Attorneys' Fees Under the Terms of the Agreement
Plaintiff argues that, under the terms of the parties' Agreement, Defendant is not entitled to attorneys' fees for successfully moving to dismiss this action for improper venue. Plaintiff contends that pursuant to the parties' Agreement, Defendant is only entitled to attorneys' fees if Defendant was "without fault" when he was sued by Plaintiff. Pl.'s Opp. To Def.'s Mot. for Attys' Fees and Costs 9:15-17. Plaintiff argues that because the state court of Hawaii that is now hearing this matter has yet to determine whether Defendant was "without fault" when he was sued by Plaintiff, by the terms of the parties' Agreement, Defendant is not entitled to attorneys' fees. Id. at 9:6-22.
Upon review of the Lease Agreement, this Court finds that the matter of whether Defendant was "without fault" when he was sued by Plaintiff has yet to be determined by the Hawaii state court. Accordingly, Defendant is not entitled to attorneys' fees under the terms of the parties' Agreement for obtaining dismissal of the present action for improper venue.
2. Hawaii Law Governs the Resolution of Defendant's Attorneys' Fees Motion
a. Hawaii law applies pursuant to California Civil Code section 1646 and the Restatement (Second), Conflict of Laws section 188.
Defendant moves for the Court to award him attorneys' fees in the amount of $51,725 (plus taxes in the amount of $2,437.29) and costs in the amount of $325. Def.'s Mot. for Attys' Fees and Costs 4:10-12. Defendant requests an additional $3,750 incurred in preparing his Reply brief, in support of his Motion for Attorneys' Fees, for a total request of $58,237.29. Reply 2:12-15. Defendant's primary contention is that such an award is reasonable and appropriate given that the total fees are "in line with awards granted by this district in favor of defendants at the pre-answer stage." Reply 10:3-5.
Federal courts sitting in diversity decide attorney's fees motions based on the law of the forum state, which in the present case is California. Klopfenstein v. Pargeter, 229 F.2d 150, 52 (9th Cir. 1979); Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).
When parties to a contract have not included an effective choice of law provision in their agreement, California courts have employed different choice of law analyses, including both California Civil Code section 1646 and Section 188 of the Restatement (Second) of Conflict of Laws, in making a choice of law determination. Rutherford v. FIA Card Services, N.A., Case No: 11-cv-04433 DDP MANX, 2012 WL 993885, at *2 (C.D. Cal. Mar. 23, 2012) (citing Arno v. Club Med Inc., 22 F.3d 1464, 1469 n. 6 (1993)).
California Civil Code section 1646 requires that "[a] contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." Cal. Civ. Code § 1646.
Section 188 of the Restatement (Second), Conflict of Laws states that, if the parties to a contract fail to make an effective choice of law, the contract will be determined by the "law of the state which, with respect to that issue, has the most significant relationship to the transaction." Restatement (Second), Conflict of Laws § 188(1) (1969). Section 188 provides the relevant factors to consider in determining the state that has the most significant relationship to the transaction: (1) the place of contracting, (2) the place of negotiation of the contract, (3) the place of performance, (4) the location of the subject matter of the contract, and (5) the domicile, residence, nationality, place of incorporation, and place of business of the parties. Restatement (Second), Conflict of Laws § 188(2).
The parties in the present case did not include a choice of law provision in their Agreement. See Compl., Ex. 1. Therefore, pursuant to section 188, the contract is interpreted according to the law of the state with the most "significant relationship to the transaction," which in applying the above factors to the present case is Hawaii. Here, the contract at issue, the Lease Agreement, was entered into in Hawaii. Id. The location of the subject matter of the contract, the property over which the Lease Agreement governs, is in Hawaii. Id. The place where the contract was to be performed is Hawaii. Id. Plaintiff conducts its business in Hawaii, id., and this Court has found that Defendant is domiciled in Hawaii. Order 6:12-15, 6/26/2015. Therefore, the state with the most significant relationship to the transaction in the present case is clearly Hawaii. On June 26, 2015, the Court granted Defendant's Motion to Dismiss on grounds of improper venue [28], finding that "the underlying issue in this case, the Lease and land dispute, all concern Hawaii." Order at 2, 6/26/2015. Thus, pursuant to section 188, the Court finds that Hawaii law applies to the present attorneys' fees issue.
Alternatively, the Court finds that Hawaii law applies pursuant to California Civil Code section 1646. The Lease Agreement must be interpreted "according to the law and usage of the place where it is to be performed," or where it was made, which in the present case, as discussed above, is Hawaii.
b. California Civil Code section 187 does not apply to the Agreement, and thus section 1717 cannot be considered.
Plaintiff contends that California Civil Code section 1717 must apply to the present attorneys' fees dispute because section 1717 represents a strongly held public policy that is contrary to H.R.S. § 607-14. Pl.'s Opp. To Def.s' Mot. for Attys' Fees and Costs at 13:11-16. Plaintiff presumably makes this argument pursuant to Restatement (Second), Conflict of Laws section 187(2)(b). However, section 187 is inapplicable to the parties' dispute in the present case because the Lease Agreement does not include a choice of law provision, and section 187 governs only those contracts that contain an effective choice of law provision.
Section 187 governs contracts in which the parties' agreement contains an effective choice of law provision. Restatement (Second), Conflict of Laws § 187 (1971). Section 187(2) provides exceptions under which the court will decline to apply the state law chosen by the parties. Section 187(2) provides that the law of the state chosen by the parties will be applied unless "(a) the chosen state has no substantial relationship to the parties or the transaction...or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state." Restatement (Second), Conflict of Laws § 187(2).
H.R.S. section 607-14 allows attorneys fees to be awarded without a decision on the merits. Kona Enters. v. Estate of Bernice Pauahi Bishop, 229 F.3d 877, 889 (9th Cir. 2000); Wong v. Takeuchi, 88 Hawai'i 46, 49 (1988). In contrast, California Civil Code section 1717 has been interpreted differently as to whether attorneys' fees may be awarded without a decision on the merits. In reviewing the relevant case law, it is clear that H.R.S. § 607-14 is contrary to section 1717. Further, it is "well-established that Section 1717 reflects a fundamental California public policy." Laurel Village Bakery, LLC v. Global Payments Direct, Inc., Case No: C06-1332 MJJ, 2007 WL 4410396, at *3 (N.D. Cal. Dec. 14, 2007).
Whereas in Profit Concepts Mgmt., Inc. v. Griffith, 162 Cal. App. 4th 950 (2008), the court granted the movant attorneys' fees, holding that the determination of which party is "prevailing" must be made without consideration of whether the plaintiff may re-file the action, in Vistan Corp. v. Fadei, USA, Inc., the court denied the movant attorneys' fees because the case could be re-filed in the forum state. 2013 WL 1345023. Further, the court in Vistan Corp. notes that "[f]ederal district courts appear uniform in denying fees under section 1717 where a non-merits decision results in dismissal of the contract claim." Id. at 3.
While Plaintiff is correct in contending that H.R.S. § 607-14 is contrary to the "well-established" fundamental California public policy of section 1717 regarding attorneys' fees, this conclusion is irrelevant because, as discussed above, section 187 does not apply to the Lease Agreement in the present case. Thus, H.R.S. § 607-14 should govern Defendant's attorneys' fees motion. Section 187(2)(b) cannot be employed to apply California Civil Code section 1717 instead.
Furthermore, even if the Court were to consider section 187(2)(b), California does not have a "materially greater interest" in the Lease Agreement, as is required by the section 187 exception. This was established when this Court ruled that California was an improper venue for this action. See generally, Order, 6/26/15. For this additional reason, Plaintiff's argument that California law rather than Hawaii law should govern the resolution of Defendant's attorneys' fees motion fails.
Plaintiff improperly relied on the court's decision in Laurel Village Bakery, LLC v. Global Payments Direct, Inc. in support of its contention that California law should apply to Defendants' attorneys' fees motion in the present case. Case No: C06-1332 MJJ, 2007 WL 4410396 (N.D. Cal. Dec. 14, 2007). However, Laurel is distinguishable from the present case in two significant ways. First, in Laurel, the parties effectively chose Georgia as the forum for resolution of their disputes. Id. at *1. Because the parties in Laurel had an existing forum selection clause, the court properly considered the fundamental public policy of Section 1717 under section 187(2)(b)'s choice of law exception. Id. at *3. Second, the court in Laurel found that California had a "materially greater interest than the chosen state" because the agreement at issue was primarily formed and performed in California, providing the court with further grounds on which to apply California law under section 187(2)(b). Id. In the present case, as discussed above, the parties did not include an effective forum selection clause in their Lease Agreement and California does not have a materially greater interest in the transaction at issue.
3. Defendant is Not Entitled to Attorneys' Fees Under H .R.S. § 607-14
a. The Agreement is governed by H .R.S. § 607-14 because it is an action in the nature of assumpsit.
Under Hawaii law, "[o]rdinarily, attorneys' fees cannot be awarded as damages or costs unless so provided by statute, stipulation, or agreement." Stanford Carr Development Corp v. Unity House, Inc., 111 Hawai'i 286, 305 (2006). H.R.S. § 607-14 allows for attorneys' fees in all actions in the nature of assumpsit. It is well established under Hawaii law that "an action in the nature of assumpsit includes 'all possible contract claims.'" Leslie v. Estate of Tavares, 93 Hawai'i 1, 5 (2000) (citing Healy Tibbitts Constr. Co. v. Hawaiian Indep. Refinery, Inc., 673 F.2d 284, 86 (9th Cir. 1982)). "Assumpsit is a common law form of action which allows for the recovery of damages for the non-performance of a contract, either express or implied, written or verbal, as well as quasi contractual obligations." Schulz v. Honsador, Inc., 67 Haw. 433, 435 (1984).
H.R.S. § 607-14 provides, in part: "In all the courts, in all actions in the nature of assumpsit and in all actions on a promissory note or other contract in writing that provides for an attorney's fee, there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable...." H.R.S. § 607-14.
Here, Plaintiff alleged in its Complaint that Defendant breached the Lease Agreement, breached an implied-at-law covenant of good faith and fair dealing, engaged in unfair and deceptive competition within H.R.S. § 480-2(e), engaged in intentional interference with prospective economic advantage, and engaged in monopolistic conduct in violation of the Sherman Anti-Trust Act. Compl. ¶¶ 23, 29, 34, 40, 43. Plaintiff's claims all arise from alleged or prospective breaches of the Lease Agreement, and therefore Plaintiff's action is in the nature of assumpsit. As such, Defendant's Motion is governed by H.R.S. § 607-14.
b. Defendant is not a "prevailing party" within the meaning of H .R.S. § 607-14.
"Under H.R.S. § 607-14, an action in the nature of assumpsit does not need a clause in writing providing for attorneys' fees in order for attorneys' fees to be granted." Eastman v. McGowan, 946 P.2d 1317, 1327 (Haw. 1997). When H.R.S. § 607-14 applies, generally "the litigant in whose favor judgment is rendered is the prevailing party ... Thus, a dismissal of the action whether on the merits or not, generally means that [the] defendant is the prevailing party." Wong v. Takeuchi, 961 P.2d 611, 614 (Haw. 1988) (citing Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d section 2667 (1983)). "There is no requirement that the judgment in favor of the prevailing party be a ruling on the merits of the claim." Id. In a diversity action, if state law entitles a "prevailing party" to attorneys fees for "permanently defeat[ing][a] lawsuit," that right is not lost by obtaining judgment on procedural grounds. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 888 (9th Cir. 2000) (citing Anderson v. Melwani, 179 F.3d 763, 766 (9th Cir. 1999).
Although H.R.S. § 607-14 does permit courts to award attorneys' fees to "prevailing parties" who obtained judgment absent a ruling on the merits of the claim, the Supreme Court and the Ninth Circuit have defined and narrowed the meaning of a "prevailing party.".
The Supreme Court of the United States has held that a "'material alteration of the legal relationship of the parties' [is] necessary to permit an award of attorneys' fees." Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 604 (2001) (citing Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 792-793 (1989)). The Supreme Court reasoned that "[t]he key inquiry is whether some court action has created a material alteration of the legal relationship of the parties." Cadkin v. Loose, 569 F.3d 1142, 1148 (9th Cir. 2009) (internal quotations omitted).
The Ninth Circuit addressed how to determine whether a party is a "prevailing party" under H.R.S. § 607-14 in Countrywide Home Loans, Inc. v. Hoopai. 581 F.3d 1090 (9th Cir. 2009). The court stated that "Hawaiian courts focus on which party prevailed on the 'disputed main issue.'" Id. at 1101 (citing Food Pantry, Ltd. v. Waikiki Bus Plaza, Inc., 575 P.2d 869, 879 (Haw. 1978)). The Ninth Circuit examined what constitutes a "disputed main issue" and stated that it is "'identified by looking to 'the principal issues raised by the pleadings and proof in a particular case....'" Id. (citing Fought & Co., Inc. v. Steel Eng'g & Erection, Inc., 951 P.2d 487, 503 (Haw. 1998)). The Ninth Circuit clearly stated that "[t]hus, the 'prevailing party' is the party that succeeds on the issue or issues that are (1) the 'principal' issues raised in the litigation and (2) disputed by the parties." Id. The Ninth Circuit has held that a dismissal without prejudice does not alter the legal relationship of the parties "because the defendant remains subject to risk of re-filing." Oscar v. Alaska Dept. of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008). Further, the Ninth Circuit has noted that "[u]nder the Supreme Court's 'generous formulation' of the term 'prevailing parties,' parties 'may be considered prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Kona, 229 F.3d 877, 891, fn 10 (9th Cir. 2000) (citing Farrar v. Hobby, 506 U.S. 103, 109 (1992)).
In Kona, the Ninth Circuit affirmed the district court's holding that defendants were "prevailing parties" for purposes of H.R.S. § 607-14. 229 F.3d 877 at 891 (9th Cir. 2000). The district court dismissed plaintiffs' claims with prejudice and entered judgment for the defendants. 229 F.3d 877, 888 (9th Cir. 2000). The Ninth Circuit held that "[t]herefore, under Wong, the district court correctly deemed defendants to be 'prevailing parties.'" Id. (citing Wong v. Takeuchi, 961 P.2d 611, 614 (1998)). The Ninth Circuit reasoned that defendants were "prevailing parties" within the meaning of H.R.S. § 607-14 because "[t]he doctrine of res judicata bar[red] all plaintiffs from re-litigating any of their claims..." and "[t]herefore, defendants clearly succeeded in 'permanently defeating' all direct claims arising out of this lawsuit and the derivative claims of Kona." Id. at 888. In affirming the district court's ruling that defendants were "prevailing parties" within the meaning of H.R.S. § 607-14, the Ninth Circuit further reasoned that Defendants were "prevailing parties" because "Kona could never bring this action again on behalf of the Companies." Id. at 891, fn 10.
Similarly, in Wong, the Supreme Court of Hawaii held that the defendant was a "prevailing party" for purposes of H.R.S. § 607-14. 961 P.2d 611, 614 (Haw. 1998). The circuit court granted defendant's motion for summary judgment on the defense of laches and the applicable statute of limitations. The Supreme Court of Hawaii held that although the dismissal of plaintiff's claim was not a determination on the merits, plaintiff was rendered unable to re-litigate his claim and thus the defendant was a "prevailing party" for purposes of H.R.S. § 607-14. 961 P.2d 611, 614 (Haw. 1998).
Defendant cites Kona for the proposition that a party may recover fees under Hawaii law even if there has been no determination on the merits. Def.'s Mot. 8:4-6. Plaintiff contends that Defendant is not a "prevailing party" within the meaning of H.R.S. § 607-14, and thus is not entitled to attorneys' fees, because Plaintiff's action was not dismissed with prejudice and thus the Court's holding does not have res judicata effect. Pl.'s Opp. at 13:18-14:5. Plaintiff cites Kona and Wong to support its premise that a court must enter judgment with prejudice for the moving party to have "prevailing party" status. Id.
Defendant is correct in asserting that Hawaiian courts have granted attorneys' fees without a final resolution on the action's merits. However, as discussed above, courts have largely limited such a holding to cases in which the movant has "permanently defeated" his opponent's claims, or where there has been a "material alteration of the legal relationship of the parties," such as the parties being unable to re-litigate the disputed issue. Therefore, the key inquiry as to whether Defendant can be deemed a "prevailing party" is not whether the action was dismissed with or without prejudice, as Plaintiff contends. Rather, the key inquiry is whether the movant has "succeeded on a significant issue on the litigation," or whether the parties' claims have been "permanently defeated" by judicial action such that they cannot be further litigated.
In the present case, this Court granted Defendant's Motion to Dismiss on the grounds of improper venue under F.R.C.P. 12(b)(3) [28]. The parties are currently litigating their claims in Hawaii state court. In contrast to Kona and Wong, the parties' litigation of the underlying claims is ongoing following this Court's dismissal. Furthermore, in obtaining dismissal for improper venue, Defendant clearly did not succeed in "permanently defeating" Plaintiff's claims. Kona, 229 F.3d at 888 (9th Cir. 2000). Defendant simply obtained dismissal of the action for improper venue and, as such, the parties had not even begun to litigate their claims in this Court.
Additionally, this Court's dismissal of the present action for improper venue did not cause a "material alteration of the legal relationship of the parties", which the Supreme Court has emphasized as the "key inquiry" in determining whether a party may be deemed a "prevailing party". Buckhannon, 532 U.S. at 604 (2001); Cadkin, 569 F.3d at 1148 (9th Cir. 2009). Rather, the legal relationship of the parties in the present action is largely unchanged because the parties will continue to litigate Plaintiff's claims in Hawaii state court. Accordingly, this Court will not confer "prevailing party" status on Defendant at this juncture.
The Court should find that the Defendant has not yet succeeded on the disputed main issue in the case, and as such, cannot be deemed a "prevailing party" within the meaning of the statute. As per the Ninth Circuit's "prevailing party" analysis in Countrywide Home Loans, because this action was dismissed for improper venue and thus this Court did not address the "principal issues raised by the pleadings". Again, the principal issues are yet to be determined by the Hawaii state court. In considering the relevant Hawaiian, Ninth Circuit, and Supreme Court definitions and analyses of what constitutes a "prevailing party" under H.R.S. § 607-14, this Court finds that Defendant is not a "prevailing party" and accordingly Defendant's Motion for Attorneys' Fees and Costs [29] is DENIED.
4. This Court need not address whether the attorneys' fees sought are "reasonable".
Because this Court finds that Defendant is not a "prevailing party" within the meaning of H.R.S. § 607-14, and thus the Defendant is not entitled to attorneys' fees under the statute, this Court need not address whether Defendant's request for attorneys' fees is "reasonable".
5. Defendant is not Entitled to Costs
Defendant seeks $325.00 in costs for his Application for attorney Paul Alston to Appear Pro Hac Vice [15]. Def.'s Mot. for Attys' Fees and Costs 4:10-12. Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." F.R.C.P. 54(d)(1). Although Rule 54(d)(1) creates a presumption in favor of awarding costs to a "prevailing party", this Court has discretion to refuse to awards costs. Ass'n of Mexican-American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 200); National Info. Servs., Inc. V. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir. 1995). In accordance with this Court's finding that Defendant is not a "prevailing party" in the present action at this juncture, the Court declines to awards costs to Defendant. Defendant's request for costs is DENIED.
IV. CONCLUSION
Based on the foregoing, the Court DENIES Defendant's Motion for Attorneys' Fees and Costs [29].
IT IS SO ORDERED.
DATED: October 15, 2015
S/ RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge