Case: 1:12-cv-00469-JMS-RLP As of: 01/23/2019 12:27 PM HST 1 of 10
U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:12−cv−00469−JMS−RLP

CLOSED

Hawaii Defense Foundation et al v. City and County of Honolulu et al Assigned to: CHIEF JUDGE J. MICHAEL SEABRIGHT Referred to: MAGISTRATE JUDGE RICHARD L. PUGLISI Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/21/2012 Date Terminated: 01/21/2014 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Hawaii Defense Foundation

represented by Alan A. Beck 4780 Governor Drive San Diego, CA 92122 (808) 295−6733 Email: ngord2000@yahoo.com ATTORNEY TO BE NOTICED

Brian J. Brazier 430 Lewers St. #20E Honolulu, HI 96815 922−2032 Email: brianbrazierlaw@gmail.com ATTORNEY TO BE NOTICED

Richard L. Holcomb Holcomb Law, LLLC 1136 Union Mall, Ste. 805 Honolulu, HI 96813 808−545−4040 Fax: 808−356−1954 Email: rholcomblaw@live.com ATTORNEY TO BE NOTICED

Plaintiff Christopher Baker

represented by Alan A. Beck (See above for address) ATTORNEY TO BE NOTICED

Brian J. Brazier (See above for address) ATTORNEY TO BE NOTICED

Richard L. Holcomb (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Derek Scammon

represented by Alan A. Beck (See above for address) ATTORNEY TO BE NOTICED

Brian J. Brazier (See above for address) ATTORNEY TO BE NOTICED

Richard L. Holcomb (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-00469-JMS-RLP As of: 01/23/2019 12:27 PM HST 2 of 10

V. Defendant City and County of Honolulu
Defendant Andrew Lum in his personal and official capacity
Defendant John Does 1−10 in their personal and official capacities

represented by Curtis E. Sherwood Office of Corporation Counsel−Honolulu 530 S King St Ste 110 Honolulu, HI 96813 768−5134 Fax: 768−5105 Email: csherwood@honolulu.gov ATTORNEY TO BE NOTICED
represented by Curtis E. Sherwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012
08/21/2012
08/21/2012
08/21/2012 08/21/2012

# Docket Text
1 COMPLAINT against All Defendants, filed by Hawaii Defense Foundation, Derek Scammon, Christopher Baker. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Civil Cover Sheet)(gls, ) (Entered: 08/21/2012)
2 Order Setting Rule 16 Scheduling Conference TO BE SET before Magistrate Judge RICHARD L. PUGLISI. Signed by JUDGE SUSAN OKI MOLLWAY on 8/21/12. (Attachments: # 1 Corporate Disclosure Memo)(gls, ) (Entered: 08/21/2012)
3 Filing fee: $ 350.00,receipt number HI004904 re 1 Complaint (gls, ) (Entered: 08/21/2012)
4 Summons Issued as to City and County of Honolulu. (gls, ) (Entered: 08/21/2012)
5 Summons Issued as to Andrew Lum. (gls, ) (Entered: 08/21/2012)
6 MOTION for Temporary Restraining Order Alan A. Beck, Brian J. Brazier, Richard L. Holcomb appearing for Plaintiffs Christopher Baker, Hawaii Defense Foundation, Derek Scammon (Attachments: # 1 Declaration of Counsel, # 2 Notice and COS)(gls, ) (Entered: 08/21/2012)
7 MOTION for Preliminary Injunction Alan A. Beck, Brian J. Brazier, Richard L. Holcomb appearing for Plaintiffs Christopher Baker, Hawaii Defense Foundation, Derek Scammon (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Notice and COS)(gls, ) (Entered: 08/21/2012)
8 EO: Status Conference set for 8/22/2012 09:00 AM before JUDGE J. MICHAEL SEABRIGHT. (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/21/2012)
11 SUMMONS Returned Executed City and County of Honolulu & Andrew Lum in Official Capacity served on 8/21/2012, answer due 9/11/2012. (gls, ) (Entered: 08/22/2012)
12 SUMMONS Returned Executed Andrew Lum in his individual capacity served on 8/21/2012, answer due 9/11/2012. (gls, ) (Entered: 08/22/2012)

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08/22/2012

9 EO: Rule 16 Scheduling Conference is set for 09:15AM on 12/5/2012 before JUDGE RICHARD L. PUGLISI. (JUDGE RICHARD L. PUGLISI)(mrf)

08/22/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/22/2012)
10 EP: Status Conference held regarding Plaintiffs Motion for Temporary Restraining Order, Doc. No. 6, and Plaintiffs Motion for Preliminary Injunction, Doc. No. 7. The court will hold a hearing on Plaintiffs Motion for Preliminary Injunction on September 5, 2012 at 9:00 a.m. By August 28, 2012, Defendants shall file an Opposition, as well as a statement outlining the facts they will seek to introduce at the September 5, 2012 hearing and the witnesses that they wish to call (if any), including the expected length of testimony. By August 31, 2012, Plaintiffs shall file a Reply and a statement outlining the facts they will seek to introduce at the September 5, 2012 hearing and the witnesses that they wish to call (if any), including the expected length of testimony. The parties shall also meet and confer regarding the admissibility of proffered exhibits for the hearing. In light of the briefing schedule on the Motion for Preliminary Injunction and as the parties agreed, the court DEEMS MOOT Plaintiffs Motion for Temporary Restraining Order. (Court Reporter Gloria Bediamol.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )

08/22/2012 08/22/2012 08/24/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/22/2012)
13 Amended Declaration re 6 MOTION for Temporary Restraining Order. (gls, ) (attachment(s) : # 1 Declaration of Counsel, # 2 Certificate of Service) (gls, ). (Entered: 08/23/2012)
14 Corporate Disclosure Statement by Hawaii Defense Foundation. (gls, ) (Entered: 08/23/2012)
15 EO: Status Conference set for 8/24/2012 03:30 PM before JUDGE J. MICHAEL SEABRIGHT, to be held in the first floor conference room adjacent to the Chambers of the Honorable J. Michael Seabright. (JUDGE J. MICHAEL SEABRIGHT)(apg, )

08/24/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/24/2012)
16 EP: Settlement conference held in chambers.As agreed to by the parties, the court VACATES the pending briefing deadlines on Plaintiffs Motion for Preliminary Injunction. The court further converts the September 5, 2012, 9:00 a.m. hearing on the Motion for Preliminary Injunction into a status conference regarding the Motion for Preliminary Injunction and/or settlement discussions. By August 31, 2012, close of business, counsel for Defendants shall submit to the court a letter providing an update regarding settlement. (Court Reporter NO RECORD.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )

09/05/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/27/2012)
17 EP: Status conference held regarding Plaintiffs Motion for Preliminary Injunction and settlement.

In light of the changes in the City and Countys position regarding public posting on the Honolulu Police Departments Facebook page and upon agreement of the parties, the court DEEMS MOOT Plaintiffs Motion for Preliminary Injunction, Doc. No. 7, without prejudice to Plaintiffs refiling either the same Motion for Preliminary

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09/11/2012 10/03/2012
10/09/2012
11/30/2012 11/30/2012 12/04/2012
01/14/2013 01/14/2013 01/15/2013 01/22/2013

Injunction or a new Motion for Preliminary Injunction in the future.
The court will hold another status conference on October 4, 2012 at 1:30 p.m. to determine the parties progress in resolving this matter. (Court Reporter Cynthia Fazio.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 09/05/2012)
19 ANSWER to Complaint with Jury Demand by City and County of Honolulu, Andrew Lum. (Attachments: # 1 Demand for Jury Trial, # 2 Certificate of Service)(Sherwood, Curtis) (Entered: 09/11/2012)
20 EO: Status Conference set for Thursday 10/4/2012 1:30PM is continued to Tuesday 10/9/2012 11:00 AM before JUDGE J. MICHAEL SEABRIGHT. (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 10/03/2012)
21 EP: Status Conference held on 10/9/2012. Discussion held. By October 30, 2012, the parties shall notify the court via letter whether they have reached settlement. If settlement has been reached on all issues except attorneys fees, thereafter Plaintiffs may file an appropriate motion. (Court Reporter Gloria Bediamol.) (JUDGE J. MICHAEL SEABRIGHT)(bbb, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 10/10/2012)
22 Letter addressed to Judge J. Michael Seabright from Curtis E. Sherwood, Deputy Corporation Counsel, dated October 30, 2012 −− re status update on final settlement. (emt, ) (Entered: 11/30/2012)
23 Letter addressed to Judge J. Michael Seabright from Richard Holcomb, Esq., dated October 30, 2012 −− re status update on settlement negotiations. (emt, ) (Entered: 11/30/2012)
24 EO: Per counsel's request and agreement, the Rule 16 Scheduling Conference is CONTINUED from 12/05/2012 to 1/22/2013 at 09:30AM before JUDGE RICHARD L. PUGLISI. (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 12/04/2012)
25 Scheduling Conference Statement . (Holcomb, Richard) (Entered: 01/14/2013)
26 Scheduling Conference Statement Corrected COS. (Holcomb, Richard) (Entered: 01/14/2013)
27 Scheduling Conference Statement by Defendants City and County of Honolulu and Andrew Lum. (Attachments: # 1 Certificate of Service)(Sherwood, Curtis) (Entered: 01/15/2013)
28 EP: Rule 16 Scheduling Conference held on 1/22/2013. Rule 16 Scheduling Conference Order to be issued. Jury Selection/Trial is set for 09:00 AM on 1/28/2014 in Aha Kaulike before JUDGE J. MICHAEL SEABRIGHT. Final Pretrial Conference is set for 12/19/2013 at 09:15 AM in Chambers of Judge Richard L. Puglisi before JUDGE RICHARD L. PUGLISI. Motions due by 8/28/2013. Discovery due by

Case: 1:12-cv-00469-JMS-RLP As of: 01/23/2019 12:27 PM HST 5 of 10

01/22/2013
01/22/2013 01/22/2013
08/29/2013
10/16/2013
10/23/2013 10/23/2013 10/23/2013 10/24/2013

11/29/2013. (Court Reporter not reported) (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/22/2013)
29 EO: Amended Minutes. Brian J. Brazier, Esq. appeared on behalf of Plaintiff instead of Alan A. Beck, Esq. at the Rule 16 Scheduling Conference set for 1/22/2013 before JUDGE RICHARD L. PUGLISI. (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/22/2013)
30 CERTIFICATE OF SERVICE by City and County of Honolulu, Andrew Lum Regarding Defendants' Initial Disclosures (Sherwood, Curtis) (Entered: 01/22/2013)
31 Rule 16 SCHEDULING ORDER. Signed by JUDGE RICHARD L. PUGLISI on 1/22/13. (gls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/22/2013)
32 STIPULATION TO AMEND RULE 16 SCHEDULING ORDER TO EXTEND DISPOSITIVE MOTIONS DEADLINE, ( Motions due by 10/11/2013.). Signed by JUDGE RICHARD L. PUGLISI on 8/29/13. (gls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 08/29/2013)
33 STIPULATION TO FURTHER AMEND RULE 16 SCHEDULING ORDER TO EXTEND DISPOSITIVE MOTIONS DEADLINE, (Dispositive Motions due by 10/23/2013.). Signed by JUDGE RICHARD L. PUGLISI on 10/16/13. (gls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 10/16/2013)
34 MOTION for Summary Judgment on Behalf of Plaintiffs Hawaii Defense Foundation, Christopher Baker, and Derek Scammon Richard L. Holcomb appearing for Plaintiff Christopher Baker (Holcomb, Richard) (Entered: 10/23/2013)
35 MOTION for Summary Judgment Concise Statement in Support of MSJ Richard L. Holcomb appearing for Plaintiff Hawaii Defense Foundation (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Holcomb, Richard) (Entered: 10/23/2013)
36 MOTION for Judgment on the Pleadings Curtis E. Sherwood appearing for Defendants City and County of Honolulu, Andrew Lum (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Declaration of Counsel, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Certificate of Service)(Sherwood, Curtis) (Entered: 10/23/2013)
37 NOTICE of Hearing on Motion 36 MOTION for Judgment on the Pleadings , 34 MOTION for Summary Judgment on Behalf of Plaintiffs Hawaii Defense Foundation, Christopher Baker, and Derek Scammon :. Motion Hearing set for 1/21/2014 09:00 AM before JUDGE J. MICHAEL SEABRIGHT. (apg, )
CERTIFICATE OF SERVICE

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10/24/2013
12/18/2013 12/19/2013 12/30/2013
12/30/2013

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry. (Entered: 10/24/2013)
ADVISORY ENTRY. The entry docket number 35 MOTION for Summary Judgment Concise Statement in Support of MSJ filed by Hawaii Defense Foundation was filed incorrectly in this case. The filing party entered the submission as another pending motion. The correct event for Concise Statement in Support can be found in the Responses and Replies Event field. Also, the filing party should take caution to submit pleadings electronically signed, e.g., /s/Attorneys name, by ONLY the person who's login and password is being used. No further action necessary. (gls, ) (Entered: 10/24/2013)
38 Pretrial Conference Statement by City and County of Honolulu, Andrew Lum . (Sherwood, Curtis) (Entered: 12/19/2013)
39 EP: Final Pretrial Conference held on 12/19/2013. Estimated total trial days: 3. Jury Trial set for 1/28/2014 at 9:00 a.m., Judge Seabright. (Court Reporter not reported) (JUDGE RICHARD L. PUGLISI)(mrf)No COS issued for this docket entry (Entered: 12/20/2013)
40 EO: Pursuant to counsel's request and agreement, a Settlement Conference is set for 1/8/2014 at 10:00 AM in Chambers of Judge Richard L. Puglisi before JUDGE RICHARD L. PUGLISI. Settlement Conference Statements by 1/03/2014. (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 12/30/2013)
41 EO: On December 30, 2013, the court received a Request for Continuance regarding briefing deadlines, and hearing and trial dates. The Request is GRANTED IN LIMITED PART. The deadline for the Oppositions to the pending Motions is extended from December 31, 2013 until January 3, 2014. The optional Replies are due by January 8, 2014. The hearing on the Motions remains set for January 21, 2014. The January 28, 2014 trial date is VACATED, with a new trial date to be set by Magistrate Judge Puglisi on January 8, 2014 (if the case is not settled). (JUDGE J. MICHAEL SEABRIGHT)(apg, )

12/31/2013 01/03/2014 01/08/2014
01/08/2014

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 12/30/2013)
42 MOTION to Continue (1) Deadline for responses to the parties' pending motions (docs 34 − 36 ); (2) Hearing on the parties' pending motions (docs 34 − 36 ); and (3) Trial Richard L. Holcomb appearing for Plaintiff Hawaii Defense Foundation (Holcomb, Richard) Docket text modified on 1/2/2014 (afc). (Entered: 12/31/2013)
43 MEMORANDUM in Opposition re 36 MOTION for Judgment on the Pleadings filed by Hawaii Defense Foundation. (Attachments: # 1 Declaration of Christopher Baker, # 2 Exhibit One)(Holcomb, Richard) (Entered: 01/03/2014)
44 EP: Settlement Conference held on 1/8/2014. Case did not settle. New trial date will be set and an Amended Rule 16 Scheduling Order will be issued. (Court Reporter not reported) (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/08/2014)
45 EO: Hearing on 34 Plaintiffs Hawaii Defense Foundation, Christopher Baker, and Derek Scammon's Motion for Summary Judgment and 36 City and County of Honolulu, Andrew Lum's Motion for Judgment on the Pleadings is set as scheduled for 1/21/2014 at 09:00 AM in Aha Kaulike before JUDGE J. MICHAEL SEABRIGHT.

Case: 1:12-cv-00469-JMS-RLP As of: 01/23/2019 12:27 PM HST 7 of 10

01/08/2014
01/09/2014
01/09/2014 01/09/2014 01/10/2014

(JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/08/2014)
47 EO: Amended Rule 16 Scheduling Conference Order to be issued. Jury Selection/Trial is set for 09:00 AM on 5/20/2014 in Aha Kaulike before JUDGE J. MICHAEL SEABRIGHT. Final Pretrial Conference is set for 4/8/2014 at 09:30 AM in Chambers of Judge Richard L. Puglisi before JUDGE RICHARD L. PUGLISI. (JUDGE RICHARD L. PUGLISI)(mrf)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/09/2014)
46 EO: The deadline for Oppositions to (1) Plaintiffs Motion for Summary Judgment, Doc. No. 34, and (2) Defendants Motion for Judgment on the Pleadings, Doc. No. 36, was January 3, 2014, and the deadline for Replies was January 8, 2014. With Defendants failing to file an Opposition to Plaintiffs Motion for Summary Judgment, and with no Replies filed, the court deems the briefing on these Motions CLOSED. (JUDGE J. MICHAEL SEABRIGHT)(tl, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/09/2014)
48 AMENDED RULE 16 SCHEDULING ORDER − Signed by JUDGE RICHARD L. PUGLISI on 1/9/14. (emt, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/09/2014)
49 MOTION for Reconsideration re 46 Link,,, 41 Link,,, and for Leave to File Opposition Curtis E. Sherwood appearing for Defendants City and County of Honolulu, Andrew Lum (Attachments: # 1 Declaration of Counsel, # 2 Exhibit A, # 3 Certificate of Service)(Sherwood, Curtis) (Entered: 01/09/2014)
50 EO: re 49 Currently set for hearing on January 21, 2014 are Plaintiffs' Motion for Summary Judgment, Doc. No. 34, and (2) Defendants Motion for Judgment on the Pleadings, Doc. No. 36. The parties previously requested an extension of the briefing deadlines and the hearing, which the court granted in part by extending the deadline to file Oppositions to January 3, 2014. Doc. No. 41. Despite this extension, Defendants failed to file an Opposition to Plaintiffs' Motion for Summary Judgment, and the court therefore deemed the briefing closed on these Motions. See Doc. No. 46.
Defendants have now filed a Motion for Reconsideration, seeking leave to file an Opposition to Plaintiffs' Motion for Summary Judgment. Defendants assert that this action was close to settlement, and Defendants' lead counsel is off island from January 4−17, 2014, he was very busy with other actions prior to his departure, and he did not see the court's Order regarding the briefing deadlines.
The court DENIES the Motion for Reconsideration. Defendants apparently assumed that the court would grant their request for extension, and such assumption was at their own peril. Further, it is Defendants' own fault that counsel does "not recall" seeing the court's order granting only a limited extension. Indeed, counsel's complaint that "I currently handle several federal cases and frequently receive up to 50 emails per day" is no excuse for allowing the opposition deadline to pass. The Motion for Reconsideration does, however, suggest that the parties were close to settlement. If all parties concur that meeting with Judge Seabright would be helpful in reaching

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01/14/2014 01/16/2014 01/17/2014 01/21/2014 02/04/2014
02/05/2014

settlement before both the parties and this court spends additional resources on this action, they may contact the court's acting courtroom manager, Theresa Lam, at 808−541−3577, to schedule a settlement conference.
(JUDGE J. MICHAEL SEABRIGHT)(sna, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/10/2014)
51 EO: Settlement Conference set for 1/16/2013 01:30 PM before JUDGE J. MICHAEL SEABRIGHT. (JUDGE J. MICHAEL SEABRIGHT)(tl, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/14/2014)
52 EP: Settlement Conference held.Proposed settlement reached.Mr. Holcomb to confirm costs with client and submit stipulation with added language to Mr. Pyuns office. Counsel to contact the court by 12 noon, 1/17/2014 regarding status. (JUDGE J. MICHAEL SEABRIGHT)(tl, )No COS issued for this docket entry (Entered: 01/17/2014)
53 EO: In light of settlement, court vacates hearing date of 1/21/2014 and terminates 34 Motion for Summary Judgment; and 36 Motion for Judgment on the Pleadings. (JUDGE J. MICHAEL SEABRIGHT)(tl, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 01/17/2014)
55 STIPULATION FOR DISMISSAL WITH PREJUDICE AND ORDER. Signed by JUDGE J. MICHAEL SEABRIGHT on 1/21/2014. (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first
class mail on January 23, 2014. (Entered: 01/22/2014)
56 First MOTION for Attorney Fees Richard L. Holcomb appearing for Plaintiff Hawaii Defense Foundation (Attachments: # 1 Memorandum in Support of Motion for Attorneys' Fees, # 2 Declaration of Richard L. Holcomb; Exhibit A, # 3 Declaration of Brian Brazier; Exhibit A, # 4 Declaration of Alan Beck, # 5 Declaration of Christopher Baker, # 6 Exhibit One − Policy, # 7 Exhibit Two − Cost of Living Index, # 8 Exhibit Three − Pacific Business News*, # 9 Exhibit Four − Laffey Matrix, # 10 Exhibit Five − Adjusted Laffey Matrix, # 11 Exhibit Six − Media Article, # 12 Exhibit Seven Media Article, # 13 Appendix 1, # 14 Appendix 2, # 15 Appendix 3, # 16 Appendix 4, # 17 Appendix 5, # 18 Appendix 6, # 19 Appendix 7, # 20 Appendix 8, # 21 Appendix 9, # 22 Appendix 10, # 23 Appendix 11, # 24 Appendix 12, # 25 Appendix 13, # 26 Appendix 14, # 27 Appendix 15, # 28 Appendix 16, # 29 Appendix 17, # 30 Appendix 18, # 31 Appendix 19, # 32 Appendix 20, # 33 Appendix 21, # 34 Appendix 22, # 35 Appendix 23, # 36 Appendix 24, # 37 Appendix 25, # 38 Appendix 26, # 39 Appendix 27, # 40 Appendix 28, # 41 Appendix 29, # 42 Appendix 30, # 43 Appendix 31, # 44 Appendix 32, # 45 Appendix 33, # 46 Appendix 34, # 47 Appendix 35, # 48 Appendix 36, # 49 Appendix 37, # 50 Appendix 38, # 51 Appendix 39, # 52 Appendix 40, # 53 Appendix 41, # 54 Appendix 42, # 55 Appendix 43, # 56 Certificate of Service)(Holcomb, Richard) Docket text modified on 2/5/2014 . (afc)
* Docket text modified on 2/6/2014:A complete copy of Exhibit 3 subsequently e−filed with an Errata.
Please refer to docket entry no. 58 . (afc) (Entered: 02/04/2014)
ADVISORY ENTRY. Please be advised that the declarations of Brian Brazier and Alan Beck
submitted in support of the 56 First MOTION for Attorney Fees filed by Hawaii Defense Foundation doe not contain scanned images of the signatures. LR100.5.2. states "An electronically filed document requiring the original, wet signature of an individual other than the CM/ECF user, such as an affidavit or

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02/05/2014
02/05/2014 02/10/2014 02/12/2014 02/13/2014
02/14/2014 02/18/2014 02/25/2014 04/22/2014
05/05/2014
05/06/2014 05/06/2014

declaration, must contain the original, or a scanned image of that individual's signature." The filing party may resubmit the declarations with the scanned images of the signature. The filing party is further advised (for future reference), that exhibits should be labeled (LR10.2.(d) ~ "All exhibits attached to
papers shall show the exhibit number or letter at the bottom of the first page of the exhibit". (emt, ) (Entered: 02/05/2014)
57 EO: Pursuant to Local Rule 54.3(f), the Court elects to decide 56 MOTION for Attorney Fees without a hearing. (JUDGE RICHARD L. PUGLISI)(agh)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 02/05/2014)
58 Errata re 56 First MOTION for Attorney Fees . (Attachments: # 1 Exhibit Pacific Business News)(Holcomb, Richard) (Entered: 02/05/2014)
59 Errata re 56 First MOTION for Attorney Fees Corrected Declaration. (Attachments: # 1 Declaration Declaration of Brian Brazier)(Holcomb, Richard) (Entered: 02/10/2014)
60 Declaration of Alan Beck in Support of Motion re 56 First MOTION for Attorney Fees; Exhibit A. . (Beck, Alan) Modified on 2/13/2014 (afc). (Entered: 02/12/2014)
ADVISORY ENTRY re "Exhibit A" as included with docket entry number 60 Declaration of Alan Beck filed on behalf of plaintiffs. Local Rule 100.2.5 "Exhibits" states in part that "Each exhibit referenced in a document shall be submitted as a separate ECF attachment to the main document, regardless of the size of the file containing the exhibit." Unless directed to do so by the court, the document need not be re−filed. The Office of the Clerk will modify the docket text to reflect the inclusion of the exhibit. (afc) (Entered: 02/13/2014)
61 STATEMENT of Consultation re 56 First MOTION for Attorney Fees pursuant to LR 54.3(b) filed by Hawaii Defense Foundation. (Holcomb, Richard) (Entered: 02/14/2014)
62 MEMORANDUM in Opposition re 56 First MOTION for Attorney Fees filed by City and County of Honolulu, Andrew Lum. (Attachments: # 1 Declaration of Counsel, # 2 Certificate of Service)(Sherwood, Curtis) (Entered: 02/18/2014)
63 REPLY to Memorandum in Opposition to Motion for Attorneys' Fees re: 56 filed by Hawaii Defense Foundation. (Attachments: # 1 Declaration Declaration of Richard L. Holcomb, # 2 Certificate of Service)(Holcomb, Richard) Docket text modified on 2/25/2014 to add document number link to correlate to the M/Atty Fees, doc no. (56). (afc). (Entered: 02/25/2014)
64 FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES re: 56 . Signed by JUDGE RICHARD L. PUGLISI on 4/22/2014. (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 04/22/2014)
65 OBJECTION re 64 FINDINGS AND RECOMMENDATIONS re 56 First MOTION for Attorney Fees filed by Hawaii Defense Foundation filed by Hawaii Defense Foundation. (Attachments: # 1 Declaration of Richard L. Holcomb, # 2 Exhibit One Civil Beat Articles, # 3 Exhibit Two PBN Article, # 4 Exhibit Three Rail Fees, # 5 Appendix Olson v. Lui, # 6 Appendix Mancini, # 7 Appendix Marquez, # 8 Appendix Garden Grove, # 9 Appendix Hohlbein, # 10 Appendix DeCampo, # 11 Certificate of Service)(Holcomb, Richard) (Entered: 05/05/2014)
66 Errata re 65 Objection. (Holcomb, Richard) (Entered: 05/06/2014)
67 EO: On May 5, 2014, Plaintiffs filed their Objections to the Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Attorneys' Fees. Doc. No. 65 . Defendants may file an optional Response by May 23, 2014. (JUDGE J. MICHAEL SEABRIGHT)(apg, )

Case: 1:12-cv-00469-JMS-RLP As of: 01/23/2019 12:27 PM HST 10 of 10

05/14/2014 05/21/2014 05/27/2014
06/19/2014

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class
mail on the date of this docket entry (Entered: 05/06/2014)
68 STATEMENT of Consultation filed by Hawaii Defense Foundation. (Holcomb, Richard) (Entered: 05/14/2014)
69 RESPONSE re 65 Objection,, filed by City and County of Honolulu, Andrew Lum. (Attachments: # 1 Certificate of Service)(Sherwood, Curtis) (Entered: 05/21/2014)
70 REPLY re 69 Response to Plaintiffs' Objections filed by Hawaii Defense Foundation. (Attachments: # 1 Exhibit Exhibit One, # 2 Exhibit Exhibit Two, # 3 Certificate of Service)(Holcomb, Richard) (Entered: 05/27/2014)
71 ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, DOC. NO. 64 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/19/2014. (afc)

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on
the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications. (Entered: 06/19/2014)

 
 Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 1 of 15 PageID #: 1

RICHARD L HOLCOMB (HI Bar No. 9177) BRIAN J BRAZIER (HI Bar No. 9343) (Of Counsel) Holcomb Law, A Limited Liability Law Corporation 1136 Union Mall, Suite# 808 Honolulu, HI 96813 Telephone: (808) 545-4040 Facsunile: (808) 356-1954 Email: rholcomblaw@gmail.com Email: brianbrazier@gmail.com
ALAN BECK (HI Bar No. 9145) Attorney at Law 4780 Governor Drive San Diego, California 92122 Telephone: (808) 295-6733 Ematl: ngord2000@yahoo. com Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAll

Hawaii Defense Foundation, Christopher Baker, and Derek Scammon
Plaintiffs, vs. City and County of Honolulu; Anarew Lum, in his personal and official capacity; John Does 1-1 0 in their personal and official capacities.
Defendants.

J CASE'NM.l . 00 4 6 9
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS, DECLARATORY
AND INJUNCTIVE RELIEF JURY TRIAL REQUESTED

Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 2 of 15 PageID #: 2
COMPLAINT COME NOW the Plaintiffs, HAWAli DEFENSE FOUNDATION, CHRIS BAKER, and DEREK SCAMMON, by and through their undersigned counsel, and complain against Defendants CITY AND COUNTY OF HONOLULU; and JOHN DOE 1-10 as follows:
INTRODUCTION 1. The Honolulu Police Department "HPD" operates an official social media page at the website Facebook.com. This page clearly purports to be the "official Facebook page of the Honolulu Police Department." Additionally, the fan page plainly states that it was created to be "a forum open to the public." 2. Despite affmnatively opening this page for discourse and commentary, Plaintiffs have had their comments removed in violation of their freedoms of speech. Moreover, in this specific instance, because Plaintiffs were critical of the HPD in their comments and/or did not express a viewpoint aligned with the department, the HPD has banned Plaintiffs from participating in the "public forum." 3. Plaintiffs have received no explanation for this ban or the censorship of their comments. No notice or opportunity to be heard was ever provided to Plaintiffs.
1

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JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343, 2201, and 2202. 5. This Court has personal jurisdiction over Defendant City and County of Honolulu as it is a government entity, more specifically a municipal corporation incorporated under the laws of the State ofHawai'i, located in Hawai'i. 6. This Court also has personal jurisdiction over each of the Defendants because they, inter alia, acted under the color of laws, policies, customs, and/or practices of the City and County of Honolulu and/or within the geographic confmes ofthe State ofHawai'i. 7. Venue is proper pursuant to 28 U.S.C. § 1391.
PARTIES 8. Plaintiff Hawaii Defense Foundation is a 50l.c (3) non-profit membership organization incorporated under the laws of the State of Hawai'i, and hosts its principal place of business in Honolulu, Hawai'i. 9. Hawaii Defense Foundation promotes education and legal action, as well as research, publishing, and advocacy, in support of civil liberties. 10. Plaintiff Christopher Baker is a natural person and a citizen of the United States, who at all material times herein did reside in Honolulu, Hawai'i. He is a
2

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member and the President of the Hawaii Defense Foundation. Mr. Baker continues to reside in Honolulu, Hawai'i. 11. Plaintiff Derek Scammon is a natural person and a citizen of the United States, who at all material times herein did reside in Honolulu, Hawai'i. He is a member and Assistant Director of the Hawaii Defense Foundation. Mr. Scammon continues to reside in Honolulu, Hawai'i. 12. Defendant Andrew Lum is an employee of the HPD and is responsible for managing, administering, and maintaining the website. These duties are believed to include the removal of posts and banning of users. Mr. Lum is sued in both his personal and official capacity. 13. Defendants John Doe 1-10 are sued in both their personal and official capacity as administrators of the HPD's Facebook page. John Doe 1-10 are responsible for executing, maintaining and administering the HPD Facebook page and may be participants in the unconstitutional acts and practices discussed within this complaint. 14. Defendants John Doe 1-10, because of their enforcement actions, are accordingly liable to Plaintiffs for damages and other relief as set forth in this Complaint. 15. Plaintiffs have reviewed all documents available to them and have made a diligent and good faith effort to ascertain said persons' full names and identities;
3

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however, Plaintiff has been unable to ascertain the identities of said Defendants. The names, capacities, and relationships of defendants named as Doe Defendants will be alleged by amendment to this Complaint when they are revealed and thus properly identified. 16. Plaintiffs reserve the right to amend this Complaint to add such parties as his true identities and capacities are ascertained through discovery or otherwise. 17. Defendant City is a municipal corporation incorporated under the laws of the State of Hawai'i. The City is authorized by law to control and maintain the Honolulu Police Department, an agency of the city, who acts on the City's behalf in the area of law enforcement. The City is therefore ultimately responsible for HPD and their actions, and therefore, must assume the risks incidental to the maintenance of HPD and its employees. 18. Employees of the HPD have enforced the policies complained in this action against Plaintiffs.
Unlawful Administration of the Official Facebook Page 19. Plaintiff Christopher Baker has communicated, on numerous occasions and for the purpose of political commentary and/or public information, on the "wall" of the HPD Facebook fan page. And, without his consent or authorization and with no explanation, he has had numerous comments and posts deleted including posts Mr. Baker submitted on January 18, 25, 26, 27, and 31 of 2012. Plaintiffs have
4

Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 6 of 15 PageID #: 6
attached printed images of the postings made on the HPD facebook page hereto as Exhibit One. Exhibit One is specifically incorporated herein as is restated verbatim herein. 20. Shortly after his posts were deleted, Mr. Baker discovered he was banned from participating in the discussion on the Official Honolulu Police Department Facebook site. 21. Plaintiff Derek Scammon has communicated, on numerous occasions and for the purpose of political commentary and/or public information, on the "wall" of the HPD Facebook fan page. And, without his consent or authorization and with no explanation, he has had numerous comments and posts deleted including posts submitted on January 27, 28 and 29 of 2012. Plaintiffs have attached printed images of the postings made on the HPD facebook page hereto as Exhibit Two. Exhibit Two is specifically incorporated herein as is restated verbatim herein. 22. Shortly after his posts were deleted, Mr. Scammon also discovered he was banned from participating in the discussion on the Official Honolulu Police Department Facebook site.
County Policies and Actions have Violated the First and Fourteenth Amendment Rights of Hawaii Defense Foundation and its Members. 23. Hawaii Defense Foundation is a 501.c (3) non-profit membership organization that has members and supporters throughout the United States, including members and supporters who live in both the City and County of
5

Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 7 of 15 PageID #: 7
Honolulu and State of Hawai'i, as well as members and supporters who travel through the City and State. 24. One of the core purposes of Hawaii Defense Foundation is to vindicate the legal rights of individuals who are unable to act on their own behalf in light of the costs and time commitments involved in litigation. Hawaii Defense Foundation brings this action on behalf of both itself and its members. 25. HDF' s members have therefore had their speech and expressive conduct suppressed and their civil rights infringed. Defendants have deleted posts and banned individual members, and most notably three directors, of the Hawaii Defense Foundation. Furthermore, they have also removed and deleted posts that were made by the Foundation on the Police Department's fan page. Individual members and supporters of Hawaii Defense Foundation continue to face an ongoing threat that their posts or commentary will be arbitrarily deleted and/or that they may be banned from the page. 26. The members and supporters of Hawaii Defense Foundation also include individuals who would otherwise post on HPD's Facebook page, but in fear of HPD's policy of deleting posts and banning users whose speech they do not like, they refrain from doing so.
6

Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 8 of 15 PageID #: 8
The First Amendment Applies To Online Speech, Including Facebook. 27. The First Amendment of the United States protects the "freedom of speech." U.S. Const. amend. I. 28. Those protections undoubtedly apply to the States. See Gitlow v. New York, 268 U.S. 652 (1925). 29. Social media, in our current age, is a very common activity that the people engage in to communicate with others, share ideas, protest, lobby, and generally express their views on topics to others. In fact, 845 million people actively used Facebook for purposes such as these in December 2011. 1 30. "Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty. Statutory limitations on those freedoms are examined for substantive authority and content as well as for definiteness or certainty of expression." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Here, City agents are acting arbitrarily with no statutory limitations, and minimizing, rather than maximizing, individual freedoms by suppressing one of the most common and modern forms of free speech and, specifically, speech that is critical of the government.
1 In 2011, Facebook reported 845 million monthly active users at the end of December 2011; approximately 165 million of those users live within the United States. Facebook, Statistics, Facebook (Apr. 2, 2012, 11:32 p.m.), http://newsroom.fb.com/content/default.aspx?NewsAreald=22.
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Case 1:12-cv-00469-JMS-RLP Document 1 Filed 08/21/12 Page 9 of 15 PageID #: 9
31. In some instances, government entities may determine the type of forum they want to create. Here, the HPD, using the social media site facebook.com, has expressly created a "forum open to the public." HPD only prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities. The HPD rules governing the facebook posts is attached as Exhibit Three and is incorporated as if restated verbatim herein. 32. Thus, the HPD facebook page is an open forum. In an open public forum, restrictions that apply to certain viewpoints but not others face the highest level of scrutiny. Legal Services Corp. v. Velazquez, 531 U.S. 535 (2001). Alternatively, even if HPD didn't intend to create a traditional public forum, their policies and procedures would still fail under the rules and tests promulgated for non-traditional public forums; the HPD allows some comments, but not others, even when they are within the scope of the initial topic presented by the agency themselves. 33. Although the internet is not a park in the physical sense, the First Amendment has been designed to protect more than just newspapers and magazines. Moreover, a forum need not be a physical place. Rosenberger v. Rector and Visitors ofthe University of Virginia, 515 U.S. 819 (1995).
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34. Defendants Lum and/or one or more John Does 1-10 violated Plaintiffs' First Amendment rights in removing the facebook posts and banning Plaintiffs from further participation in the forum. 35. Defendants Lum and/or one or more John Does 1-10 committed these acts pursuant to Defendant City's policy, practice, or customs, which constitute the standard operating procedure. 36. Alternatively, Defendant City's policy, practice, or customs, which constitute the standard operating procedure caused the violative acts and/or Plaintiffs' damages because Defendant City's practice or custom is to fail, neglect, or decline to oversee its employees or offer guidelines or policies to any or all of its employees in regards to administration, operation, or maintenance of the facebook. com site - guidelines or policies which could easily be implemented to ensure that the rights of Plaintiffs or any other citizen would not be violated. 37. Alternatively, Defendant Lum and/or one or more ofDefendant(s) John Doe 1-10 were or are officials with fmal policy-making authority and/or the removal of the Plaintiffs' posts and/or banning Plaintiffs from participation in the forum constitutes an act of official governmental policy. 38. Alternatively, Defendant Lum and/or one or more Defendant(s) John Doe 110, employed by the HPD and/or the City, have fmal policy-making authority and ratified a subordinate's unconstitutional decision to remove Plaintiffs' posts and/or
9

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to ban Plaintiffs from further participation in the forum and the basis for that decision. The subordinate is also named as one or more of the John Doe 1-1 0 Defendants.
The United States Constitution Requires Procedural Due Process 39. The Fourteenth Amendment provides in pertinent part: "No State shall ... deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. 40. Fundamental civil rights are protected against discretionary treatment. In order to ensure the fair, equal, and non-discretionary governance of these rights, government actions that affect a fundamental right, such as the freedom of speech, require procedural due process. Mathews v. Eldridge, 424 U.S. 319 (1976). 41. Defendant City, in response to an Information Practices Act request, have admitted that there are no governing policies in regard to the administration or management of their facebook page. Instead posts are removed at the sole discretion of the Defendants or their agents. The actions in this case violate essentially everything that our civil rights are supposed to be protected from.
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FIRST CAUSE OF ACTION Violation of First and Fourteenth Amendments 42. Paragraphs 1 through 35 are incorporated as though fully stated herein. 43. Just as the First Amendment has been held to protect television, radio, and other developments in technology, online speech, including those comments posted and shared through Facebook, must be protected from Government infringement under the First Amendment. 44. Defendant's actions in arbitrarily deleting comments and banning users from participating on the HPD's official Facebook fan page, which was designed and is designated as an open public forum, is a violation of the First and Fourteenth Amendment to the United States Constitution and the current cause of action is within this Court's jurisdiction pursuant to 42 U.S. C. § 1983.
SECOND CAUSE OF ACTION Due Process Violation
45. Paragraphs 1 through 35 are incorporated as though fully stated herein. 46. Plaintiffs comments were deleted and their participation banned without any explanation. 47. Plaintiffs have no means to appeal the deletion and/or ban or seek relief from a higher authority.
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48. No policies or procedures have been developed or promulgated to help guide the decisions and actions of the HPD's Facebook fan page administrators. 49. The actions described herein amount to a clear and present danger to civil liberties; and importantly, Defendants have failed to establish and provide the necessary safeguards of due process required when dealing with fundamental rights. The actions complained herein infringe upon the civil rights guaranteed by the First and Fourteenth Amendment to the United States Constitution and must be found unconstitutional and the current cause of action is within this Court's jurisdiction pursuant to 42 U.S.C. § 1983.-
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: 1. That a jury be empaneled to decide contested factual issues in this matter. 2. Declaratory judgment that Defendant's administration of their Facebook fan page and the policies governing its use violate the First Amendment of the United States Constitution. 3. Declaratory judgment affirming that Defendants' administration of the Facebook fan page and the policies, customs and/or practices governing this administration violate the Fourteenth Amendment of the United States Constitution.
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4. A temporary restraining order compelling Defendants and/or their officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this injunction, to restore Plaintiffs' deleted posts~ to permit Plaintiffs to participate in the forum discussions; and restraining Defendants and/or their officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this injunction from banning not only Plaintiffs but any person for political speech made on the HPD facebook page and/or from removing protected speech from the facebook page. 5. Preliminary and/or permanent injunctive relief compelling Defendants and/or their officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this injunction, to restore Plaintiffs' deleted posts; to permit Plaintiffs to participate in the forum discussions; and restraining Defendants and/or their officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this injunction from banning not only Plaintiffs but any person for political speech made on the HPD facebook page and/or from removing protected speech from the facebook page. 6. Such other and further relief, including injunctive relief, against all Defendants, as may be necessary to effectuate the Court's judgment, or as the Court otherwise deems just and equitable; and
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7. Attorney's fees, statutory fees and costs pursuant to 42 U.S.C. § 1988. Dated: Honolulu, HI; August 20, 2012.
Respectfully submitted, Brian Brazier
1\/
A~Be"cl( Attorneys for Plaintiffs
14

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

HAWAII DEFENSE FOUNDATION, ET )

AL.,

)

)

Plaintiffs,

)

)

vs.

)

)

)

CITY AND COUNTY OF HONOLULU, )

ET AL.,

)

)

Defendants.

)

______________________________ )

CIVIL NO. 12-00469 JMS-RLP
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES

FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES1
Before the Court is Plaintiffs Hawaii Defense Foundation, Christopher Baker and Derek Scammon’s (collectively “Plaintiffs”) Motion for Attorneys’ Fees, filed on February 4, 2014 (“Motion”). See ECF No. 56. Plaintiffs request an award of $64,690.29 for attorneys’ fees as the “prevailing party” pursuant to 42 U.S.C. § 1988(b). Defendants City and County of Honolulu (the “City”) and Andrew Lum (collectively “Defendants”) filed their memorandum in opposition to Plaintiffs’ Motion on February

1 Within fourteen (14) days after a party is served with a copy of the Findings and Recommendation, that party may, pursuant to 28 U.S.C. § 636(b)(1)(B), file written objections in the United States District Court. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the Findings and Recommendation. If no objections are filed, no appellate review will be allowed.

18, 2014, and Plaintiffs filed their reply on February 25, 2014. See ECF Nos. 62, 63.
The Court finds this matter suitable for disposition without a hearing pursuant to LR 54.3(f) of the Local Rules of Practice for the United States District Court for the District of Hawaii. Based on the following, and after careful consideration of the Motion, the supporting and opposing memoranda, declarations, and exhibits attached thereto, and the record established in this action, the Court FINDS AND RECOMMENDS that Plaintiffs’ Motion be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that the District Judge AWARD Plaintiffs $22,064.39 in attorneys’ fees.
BACKGROUND This action arises from the Honolulu Police Department’s (“HPD”) policies and practices regarding its “official” social media page at the website Facebook.com. Plaintiffs contend that, although HPD’s Facebook page was created to be “a forum open to the public,” their comments and posts were removed in violation of their free speech rights. Plaintiffs claim that their posts were targeted because they were critical of HPD and/or did not express a viewpoint aligned with the department. Plaintiffs also allege that, for a period of time, they were banned from posting to HPD’s Facebook page. Plaintiffs allegedly received no explanation for this ban or for the removal
2

of their posts and state that no notice or opportunity to be heard was provided to them.
On August 21, 2012, Plaintiffs filed their Complaint, alleging violations of the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. See ECF No. 1. That same day, Plaintiffs also filed a motion for a temporary restraining order (“TRO”), as well as a motion for preliminary injunction, which sought an order compelling Defendants to restore Plaintiffs’ deleted posts, permitting Plaintiffs to participate in HPD’s Facebook page, and prohibiting Defendants from banning persons or removing posts based on political content. See ECF Nos. 6, 7. On August 22, August 24, and September 5, 2012, the Court held status conferences with the parties, which resulted in Defendants’ decision to not remove any posts until a policy governing the removal of speech from HPD’s Facebook page could be negotiated between Defendants and the American Civil Liberties Union (“ACLU”), Plaintiffs’ designated proxy. See ECF Nos. 10, 16, 17. In light of Defendants’ new position, the Court deemed Plaintiffs’ TRO and preliminary injunction motions moot. See id.
On October 9, 2012, the Court held another status conference with the parties. See ECF No. 21. The parties were instructed to notify the Court regarding the status of their settlement negotiations, and, if settlement had been reached on all issued except attorneys’ fees, Plaintiffs were permitted to file the appropriate motion. See id. After a lengthy
3

negotiation, the parties reached a mutually agreeable policy regarding HPD’s Facebook page in January 2013. See Pls.’ Mot. Ex. 1. Although an agreement in principle had been reached, the parties’ settlement negotiations stalled with respect to the form of the dismissal documents and Defendants’ payment of Plaintiffs’ costs. See Pls.’ Mem. Supp. Mot. 5-7; Defs.’ Mem. Opp. Mot. 4-5.
On January 21, 2014, the Court approved the parties’ Stipulation for Dismissal With Prejudice (“Stipulation”). See ECF No. 55. The Stipulation stated that “the policies developed as a result of extended negotiations between the Plaintiffs and Defendants are still in place.” Id. at 2. All claims were dismissed with prejudice, but “the parties acknowledge that Plaintiffs may bring a subsequent motion . . . seeking attorneys’ fees” and Defendants “may contest Plaintiffs’ entitlement to an award of attorneys’ fees and the amount of fees sought.” Id. at 3. The instant Motion followed.
ANALYSIS A. Entitlement to Attorneys’ Fees and Costs
42 U.S.C. § 1988(b) permits the Court to award reasonable attorneys’ fees to the “prevailing party” in certain civil rights actions, including those brought under 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). A plaintiff “prevails” for the purposes of § 1988 “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly
4

benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Relief “on the merits” occurs when the material alteration of the parties’ legal relationship is accompanied by “judicial imprimatur on the change.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). Judicial imprimatur can come in the form of an enforceable judgment on the merits or a court-ordered consent decree, such as in Buckhannon, but “[o]ther court-approved actions will suffice, provided they entail a judicial determination that the claims on which the plaintiff obtains relief are potentially meritorious.” Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir. 2013).
Here, Defendants do not dispute that Plaintiffs are entitled to an award of reasonable attorneys’ fees. First, Plaintiffs obtained actual relief on the merits of their claims. A material alteration of the parties’ legal relationship occurs when “the plaintiff can force the defendant to do something that he otherwise would not have to do.” Higher Taste, 717 F.3d at 716 (quoting Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)). In this case, Plaintiffs’ Complaint and the subsequent status conferences with the Court resulted in Defendants’ consenting to a temporary moratorium on removal of posts from HPD’s Facebook page and ultimately adopting a mutually agreeable policy for removal of speech on the page. This policy, which is still in place, directly benefitted Plaintiffs and was a
5

sufficiently enduring change in the parties’ legal relationship. See id. at 717.
Second, the record shows that the parties agreed that the Court would retain jurisdiction to decide the issue of Plaintiffs’ attorneys’ fees. See Stipulation, ECF No. 55, at 3. A legally enforceable settlement agreement that provides that the court retains jurisdiction over the issue of attorneys’ fees is sufficient to convey “judicial imprimatur” over the settlement. See Richard S. v. Dep’t of Developmental Servs. of Cal., 317 F.3d 1080, 1087 (9th Cir. 2003) (“[t]hrough [the parties’] legally enforceable settlement agreement and the district court’s retention of jurisdiction [to resolve the issue of fees and costs], plaintiffs obtained a judicial imprimatur that alters the legal relationship of the parties”) (internal quotation marks omitted); Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 n.5 (9th Cir. 2002) (finding that “the parties, in their settlement, agreed that the district court would retain jurisdiction over the issue of attorneys’ fees, thus providing sufficient judicial oversight to justify an award of attorneys’ fees and costs”); Justin R. ex rel. Jennifer R. v. Matayoshi, No. 12-16048, 2014 WL 905817, at *1 (9th Cir. Mar. 10, 2014) (finding that settlement agreement stating that the district court shall retain jurisdiction to determine that issue of Plaintiffs’ entitlement to reasonable attorneys’ fees and costs provided
6

sufficient judicial imprimatur).2 C.f. P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1173 (9th Cir. 2007) (finding that there was no “judicial imprimatur” of the settlement agreement at issue where the agreement did not contemplate any judicial enforcement and the matter of attorneys’ fees and costs “was not referred to any court.”). Accordingly, based on the parties’ settlement and agreement that this Court retain jurisdiction to decide the issue of fees, the Court concludes that Plaintiffs are the prevailing party and are entitled to an award of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988(b). B. Calculation of Attorneys’ Fees
In calculating an award of reasonable attorneys’ fees, district courts use the lodestar calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A court must determine a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. at 433.
Once calculated, the lodestar amount is presumptively reasonable. See Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728 (1987); Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000) (stating that “a ‘strong presumption’ exists that the lodestar figure represents a
2 The Court cites Justin R. for its persuasive, not precedential, value pursuant to Ninth Circuit Rule 36-3.
7

‘reasonable fee’”). However, in “rare and exceptional
circumstances,” a court may decide to adjust the lodestar figure
based on an evaluation of the factors articulated in Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which
have not been subsumed in the lodestar calculation.3 See
Fischer, 214 F.3d at 1119 n.4. The factors the Ninth Circuit
identified in Kerr are:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
3 The following factors are subsumed within the lodestar determination: “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, . . . (4) the results obtained, and (5) the contingent nature of the fee agreement.” Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996) (stating that “[a]djusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable hours or reasonable hourly rate at the first step . . . is a disfavored procedure”) (citations and quotations omitted). The Ninth Circuit, however, extending City of Burlington v. Dague, 505 U.S. 557, 567 (1992), has held that whether the fee is fixed or contingent may not be considered in the lodestar calculation. See Davis v. City & Cnty. of S.F., 967 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993).
8

Kerr, 526 F.2d at 70. Plaintiffs request the following lodestar amount for
work performed by its counsel in this case:

ATTORNEY Richard Holcomb Brian Brazier Alan Beck SUBTOTAL Oahu GET of 4.712% TOTAL

HOURS 75.10 45.75 81.00
201.85

RATE $355.00 $325.00 $250.00

TOTAL $26,660.50 $14,868.75 $20,250.00 $61,779.25
$2,911.04 $64,690.29

See Pls.’ Mot. ¶ 7. 1. Reasonable Hourly Rate The “prevailing market rates in the relevant community”
set the reasonable hourly rate for lodestar purposes under § 1988. Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013). “Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (quoting Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008)). Within this geographic community, “the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Webb v. Ada County, 285 F.3d 829, 840 (9th Cir. 2002) (citing Chalmers v. City of L.A., 796 F.2d 1205, 1210-11 (9th Cir. 1986)); see
9

also Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992) (noting that the rate awarded should reflect “the rates of attorneys practicing in the forum district”). In addition to their own statements, attorneys are required to submit additional evidence that the rate charged is reasonable. Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987).
Rather than applying Hawaii rates, Plaintiffs claim that the so-called “Laffey Matrix,” see Pls.’ Mot. Ex. 4, should be used to establish the appropriate hourly rates for their attorneys. “Approved originally in Laffey v. Nw. Airlines, Inc., 573 F. Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), the Laffey matrix is an inflation-adjusted grid of hourly rates for lawyers of varying levels of experience in Washington, D.C.” Prison Legal News, 608 F.3d at 454. The Ninth Circuit has questioned whether the Laffey Matrix is a reliable measure of rates for attorneys practicing outside the Washington, D.C. area. See id. (“But just because the Laffey matrix has been accepted in the District of Columbia does not mean that it is a sound basis for determining rates elsewhere, let alone in a legal market 3,000 miles away.”). In this case, although two of Plaintiffs three attorneys are located in Honolulu, Hawaii, and the other is in San Diego, California, Plaintiffs assert that Laffey matrix rates should be applied for all counsel. In support, Plaintiffs rely on their counsel’s
10

independent “survey” of this Court’s attorney fee awards, the “prevailing cost of living” in Hawaii, and the novelty of this litigation. See Holcomb Decl. ¶ 18.
The Court finds that the Laffey matrix should not be applied and that Plaintiffs’ counsel should be awarded prevailing local rates. First, this Court is well aware of this district’s previous attorney fee awards, as well as the prevailing rates in the community for similar services performed by attorneys of comparable experience, skill, and reputation. Plaintiffs’ counsel’s “survey,” which essentially consists of a 10-page-long string cite of this district’s fee awards, only confirms that (1) this Court has consistently applied the correct standard of awarding attorneys’ fees at the prevailing market rates in this district and (2) this Court has never recognized hourly rates as high as those requested by Plaintiffs’ counsel for attorneys with comparable experience, skill, and reputation.
Indeed, although Plaintiffs insinuate that this Court improperly relied upon its own knowledge of prevailing Hawaii rates in its prior decisions, see Pls.’ Mem. Supp. Mot. 15, the Ninth Circuit has held that judges are justified in relying on their own knowledge of customary rates and their own experience concerning reasonable attorneys’ fees. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). Moreover, unlike in Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008), where
11

the district court had applied a de facto policy of awarding a rate of $250 per hour to civil rights cases for the previous ten years, it is evident that this Court makes an individualized determination, for each fee request, of the reasonable rate that should be awarded to each particular attorney given his or her experience and the circumstances of the specific case. See Sam K. ex rel. Diane C. v. Dep’t of Educ., Haw., Civ. No. 12-00355 ACK-BMK, 2013 WL 3071317, at *3 (D. Haw. June 17, 2013) (magistrate judge did not “hold the line” at a certain level of fees where judge based his conclusion on recent fee awards to attorneys involved in similar lawsuits, skill of counsel, and result obtained).
Second, Plaintiffs’ reliance on Hawaii’s high cost of living as a factor in measuring hourly rates is misplaced. According to the Ninth Circuit, “The best way [to strike a balance between granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel] is to compensate counsel at the prevailing rate in the community for similar work; no more, no less.” Moreno, 534 F.3d at 1111 (citations omitted, emphasis added). See also Blum v. Stenson, 465 U.S. 886, 895 (1984) (“reasonable fees” are “to be calculated according to the prevailing market rates in the relevant community”) (emphasis added).
12

Despite its high cost of living, it is a well-known

fact that Hawaii’s market simply does not permit Honolulu-based

attorneys to charge nearly as much as their mainland

counterparts. According to Gary Slovin, who at the time was the

managing partner at one of Honolulu’s largest law firms, Goodsill

Anderson Quinn & Stifel,

The billable hour rates in the major Mainland

cities have been dramatically higher than the

billable rates that are charged by Hawaii

attorneys. It’s just the function of a

smaller marketplace.

Compensation for

attorneys is tied to what clients are charged

and Hawaii’s business market just doesn’t

sustain those kinds of rates.

Linda Chiem, Mainland-Hawaii Salary Gap Grows, Pacific Business

News (Sept. 20, 2009),

http://www.bizjournals.com/pacific/stories/2009/09/21/story1.html

?page=all. As a result, law partners on the mainland charge

between $300 and $1,000 an hour, while most of the bigger firms

in Hawaii charge closer to $250. Id. This has been accepted as

the “price of paradise.” Id.

For this reason, where local counsel is available, this

Court has repeatedly rejected requests that attorneys be awarded

mainland rates. See, e.g., Frankl v. HGH Corp., Civ. No. 10-

00014 JMS-RLP, 2012 WL 1755423, at *6 (D. Haw. Apr. 23, 2012)

(refusing to apply Laffey Matrix to determine rates of out-of-

district attorneys); Harris v. Trash Man, LLC, 12-00169 HG-KSC,

2013 WL 1932715, at *2 (D. Haw. Apr. 16, 2013) (declining to

13

award mainland rates to government attorneys based in California even where no staff attorney was located in Hawaii); BMW of N. Am., LLC v. Mini Coupe Haw., LLC, 2013 WL 1568546, at *1-2 (D. Haw. Mar. 21, 2013) (denying mainland counsel’s request to be awarded mainland hourly rates where case did not require specialized knowledge of mainland attorneys); HRPT Props. Trust v. Lingle, 775 F. Supp. 2d 1225, 1239 (D. Haw. 2011) (reducing hourly rates requested by mainland counsel to match local rates).
Finally, the novelty of this case does not justify Laffey matrix rates. Novelty does not equal difficulty or complexity. This case was not complex and did not require specialized knowledge or skill. It was not particularly contentious. Instead, this was a relatively simple matter of declaratory and injunctive relief where Plaintiffs’ TRO and preliminary injunction motions were deemed moot within two weeks of the Complaint being filed and a settlement as to the merits of the claim was reached within six months. Plaintiffs’ comparison to rates the City might pay its attorneys for work related to a $5.2 billion rail transit project, which has already faced multiple federal and state legal challenges, see Pls.’ Mot. Ex. 3, is completely inapt.
Therefore, based on this Court’s knowledge of the community’s prevailing rates, the hourly rates generally granted by the Court, the Court’s familiarity with this case, and
14

Plaintiffs’ counsel’s submissions, this Court finds that the requested hourly rates are excessive. The proper measure of reasonableness is whether the requested hourly rate is consistent with those in this district. There is no basis for deviating from this rule here. This case was not complex and did not require the involvement of a mainland attorney. It is only in cases requiring the specialized knowledge of a mainland attorney or law firm that this Court might consider awarding an hourly rate commensurate with the rates in the mainland attorney’s district or community. Plaintiffs are certainly entitled to counsel of their choice, and have the right to retain mainland counsel. However, in this case, they are not entitled to reimbursement at Washington, D.C. rates. See BMW of N. Am., 2013 WL 1568546, at *1.
Nevertheless, the Court will award Plaintiffs’ counsel their current market rates. Here, Defendants contend that Plaintiffs’ counsel should be compensated based on their legal experience when they began working on this case in 2012. District courts have discretion to apply the rates in effect at the time the work was performed, but may also award rates at current rates where appropriate to compensate for counsel’s delay in receiving payment. Bell v. Clackamas Cnty., 341 F.3d 858, 868 (9th Cir. 2003) (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989)). The Court finds that current market rates are
15

appropriate to compensate for the two-year delay here. In addition, the Court declines to strike Plaintiffs’ memorandum in support of their Motion for violating the page-length requirements of Local Rule 7.5. Instead, the Court will attribute this violation as reflecting Plaintiffs’ counsel’s lack of skill and experience and will factor it into the Court’s determination of appropriate hourly rates.
In view of the foregoing, the Court reduces the requested Laffey matrix hourly rates and concludes that the following hourly rates are reasonable for Plaintiffs’ counsel: (1) Mr. Holcomb (9 years experience) - $185; (2) Mr. Brazier (7.5 years experience) - $175; and Mr. Beck (4.5 years experience) $150. See id. at *2 (awarding attorney with 7.5 years of experience $175 per hour); Seven Signatures Gen. P’ship v. Irongate Azrep BW LLC, 871 F. Supp. 2d 1040, 1054 (D. Haw. 2012) (awarding attorney with 5 years of experience $150 per hour).
2. Hours Reasonably Expended Beyond establishing a reasonable hourly rate, the fee
applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked. Hensley, 461 U.S. at 437; Gates, 987 F.2d at 1397. Counsel for a fee applicant should exclude from a request time that is “excessive, redundant, or otherwise unnecessary.” Id. (quoting Hensley, 461 U.S. at 433-34). The opposing party
16

then has the burden of rebuttal that requires submission of evidence challenging the accuracy and reasonableness of the hours charged or the facts asserted by the fee applicant in its affidavits. Id. at 1397-98.
In making an award, the court is required to explain how it made its determination in a comprehensible, but not elaborate, fashion. Id.; see also Hensley, 461 U.S. at 437 (stating that the court’s explanation may be “concise,” but must also be “clear”). The court need not set forth an hour-by-hour analysis of the fee request but may instead make across-the-board percentage cuts to the number of hours claimed as a “practical means of trimming the fat” from a fee application. Gates, 987 F.2d at 1399. Indeed, the court has the authority to impose “a small reduction, no greater than ten percent -- a ‘haircut’ -based on its exercise of discretion and without a more specific explanation.” Moreno, 534 F.3d at 1111.
a. Excessive Hours Billed Defendants contend that the number of hours Plaintiffs’ counsel spent working certain tasks were excessive. In particular, Defendants object to Plaintiffs’ counsel’s billings for working on the Complaint (39.5 hours total), motion for preliminary injunction (55.5 hours), motion for summary judgment and concise statement of facts (24.75 hours), and the instant motion for attorneys’ fees (20.0 hours).
17

A district court’s reasonableness inquiry must be limited to determining whether the fees requested are justified for the particular work performed and the results achieved in the case. Moreno, 534 F.3d at 1115. “By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on a case; after all, he won, and might not have, had he been more of a slacker.” Id. at 1112.
Here, the Court elects to defer to Plaintiffs’ counsel’s judgment as to how much time was needed to successfully litigate this case, with the exception of the time entries regarding the Complaint and motion for summary judgment and concise statement of facts. The Complaint asserted two causes of action for First and Fourteenth Amendment violations and was 14 pages long. It should not have taken 39.5 hours to complete. Therefore, the Court will deduct 19.5 hours from Mr. Beck’s time for work spent on the Complaint. Furthermore, at the time the motion for summary judgment was filed, on October 23, 2013, see ECF Nos. 35, 36, the parties had already reached an agreement in principle to settle the merits of the case regarding HPD’s Facebook policy, so the motion could have been avoided. Moreover, large portions of the motion for summary judgment were taken verbatim from the motion for preliminary injunction. Accordingly, the Court will deduct 7.0 hours from Mr. Brazier’s time and 6.0 hours from Mr. Beck’s time for work spent on the
18

motion for summary judgment and concise statement of facts as excessive.
b. Clerical Work Clerical or ministerial tasks are not compensable because such tasks are part of an attorney’s overhead and are reflected in the charged hourly rate. HRPT Props., 775 F. Supp. 2d at 1241. Examples of clerical work include: filing court documents or confirming that court documents have been filed; organizing and maintaining files and binders for intra-office use; delivering or transmitting documents; preparing memoranda for office files; bates stamping or other labeling of documents; organizing documents for production; coordinating service of documents; and formatting or printing documents; reviewing courtgenerated notices; notifying clients of court hearings; communications with court staff; scheduling; and corresponding regarding deadlines. See id.; Ko Olina Dev., LLC v. Centex Homes, Civ. No. 09-00272 DAE-LEK, 2011 WL 1235548, at *12 (D. Haw. Mar. 29, 2011). Defendants assert that several of Plaintiffs’ counsel’s time entries are for clerical work. After review of these entries, however, the Court finds that only two entries, for coordinating status conferences, are actually clerical in nature. Therefore, the Court will deduct 0.5 hours from Mr. Holcomb’s
19

time and 0.5 hours from Mr. Beck’s time as non-compensable clerical work.
c. Duplicative Time The Court does not permit more than one attorney to bill for attending: (1) a meeting between co-counsel; (2) a client meeting; or (3) a meeting with opposing counsel. Seven Signatures, 871 F. Supp. 2d at 1055. See also HRPT Props., 775 F. Supp. 2d at 1240 (“duplicative time spent by multiple attorneys is non-compensable”). In such a situation, the time spent by the lowest-billing attorney(s) is deducted. Id. As a general rule, the Court allows two attorneys to bill for their appearances at court proceedings when it is reasonable and necessary for a “second chair” to appear with lead counsel. Sheehan v. Centex Homes, 853 F. Supp. 2d 1031, 1044 (D. Haw. 2011). After review of Plaintiffs’ counsel’s timesheets and Defendants’ objections thereto, the Court finds that 2.5 hours from Mr. Brazier’s time and 2.0 hours from Mr. Beck’s time should be deducted as duplicative. d. Block Billing “District courts have the authority to reduce hours that are billed in block format because such a billing style makes it difficult for courts to ascertain how much time counsel spent on specified tasks.” HRPT Props., 775 F. Supp. 2d at 1240 (citing Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th
20

Cir. 2007)). See also Hensley, 461 U.S. at 437 (holding that fee applicant should “maintain billing time records in a manner that will enable a reviewing court to identify distinct claims”); LR 54.3(d) (requiring a “description of the work performed by each attorney and paralegal broken down by hours or fractions thereof expended on each task”). Here, Plaintiffs’ counsel’s time logs contain some instances of block billing, but the majority of entries are for discrete tasks. Viewing Plaintiffs’ counsel’s request as a whole, the limited instances of block billing do not prevent the Court from evaluating the reasonableness of the hours expended. See Ko Olina, 2011 WL 1235548, at *11. The Court therefore declines to apply a specific reduction for block billing.
e. Inadequate Description of Time Local Rule 54.3(d)(2) requires that the party seeking an award of fees “describe adequately the services rendered, so that the reasonableness of the requested fees can be evaluated,” and provides that “[i]f the time descriptions are incomplete, or such descriptions fail to describe adequately the services rendered, the court may reduce the award accordingly.” LR 54.3(d)(2). In this case, Plaintiffs’ counsel’s time logs contain some entries in which descriptions of services are incomplete, e.g., entries that fail to identify the reason for a telephone conference or client meeting. However, the Court was
21

able to evaluate the reasonableness of the requested fees from context clues within the time entries immediately before and after the questionable entries. Thus, the Court declines to reduce Plaintiffs’ counsel’s time for inadequate descriptions of the services rendered.
f. Quarter-Hour Increments Finally, the Court has concerns about Plaintiffs’ counsel’s practice of billing in primarily half-hour increments. This Court routinely reduces hours when attorneys bill in quarter-hour increments because the tasks reflected in the time entries likely took a fraction of the time billed and the practice of billing in such large fractional increments typically results in requests for excessive hours. See, e.g., Robinson v. Plourde, 717 F. Supp. 2d 1092, 1100-01 (D. Haw. 2010) (20% reduction for quarter-hour billing); World Triathlon Corp. v. Dunbar, 539 F. Supp. 2d 1270, 1286 (D. Haw. 2008) (10% reduction for quarter-hour billing). See also Welch, 480 F.3d at 949 (affirming district court’s 20% across-the-board reduction for quarter-hour billing). Here, out of dozens of time entries, Plaintiffs’ counsel billed only once in a tenth-hour increment and only seven times in quarter-hour increments. The vast majority of time entries are for half-hour and full-hour increments, and in many instances, purport to be for six or more hours of work in a
22

single entry. In one glaring example, Mr. Holcomb billed a single entry for work on the instant Motion which supposedly spanned five days and amounted to 16.0 hours. To offset the excessive hours that resulted from Plaintiffs’ counsel’s primarily half-hour billing practice, the Court will impose an across-the-board reduction of 25% on their remaining hours, i.e., those that were not reduced in accordance with the discussion above.
3. Total Lodestar Award Based on the foregoing, the Court finds that Plaintiff
has established the appropriateness of an award of attorneys’ fees as follows:

ATTORNEY Richard Holcomb Brian Brazier Alan Beck SUBTOTAL Oahu GET of 4.712%

HOURS 55.954 27.195 39.756 122.89

RATE $185.00 $175.00 $150.00

TOTAL $10,350.75
$4,758.25 $5,962.50 $21,071.50
$992.89

4 75.10 hours - 0.5 clerical hours = 74.60 hours x 25% quarter-hour billing reduction = 55.95 total hours.
5 45.75 hours - 7.0 excessive hours - 2.5 duplicative hours = 36.25 hours x 25% quarter-hour billing reduction = 27.19 total hours.
6 81.00 hours - 25.5 excessive hours - 0.5 clerical hours 2.0 duplicative hours = 53.00 hours x 25% quarter-hour billing reduction = 39.75 total hours.
23

TOTAL

$22,064.39

Therefore, the Court recommends that the District Judge award Plaintiff $22,064.39 in attorneys’ fees.
CONCLUSION In accordance with the foregoing, the Court FINDS and RECOMMENDS that Plaintiffs’ Motion for Attorneys’ Fees, filed on February 4, 2014, be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that the District Judge AWARD Plaintiff $22,064.39 in attorneys’ fees. IT IS SO FOUND AND RECOMMENDED. DATED: HONOLULU, HAWAII, APRIL 22, 2014.

_____________________________ Richard L. Puglisi United States Magistrate Judge
HAW. DEF. FOUND. ET AL. V. CITY & CNTY. OF HONOLULU, CIVIL NO. 12-00469 JMS-RLP; FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES

24

 
 Case 1:12-cv-00469-JMS-RLP Document 55 Filed 01/21/14 Page 1 of 4 PageID #: 356

l

CLERK. u.S. DISTRICT COURT
DISTRICT OF HAWAII
IN THE UNITED STATES DISTRICT COlJRT :FOR THE DISTRICT OF HAWAH

HAWAll DEFENSE FOUNDATION, ) CASE NO. CV 12-00469JM~)-RLP

CHRISTOPHER BAKER,

)

AND DEREK SCAM.MON

)

) STIPULATION FOR DISMISSAL WITH

Plaintiffs,

) PREJUDICE AND ORDER

vs.

)

)

CITY AND COUNTY OF

)

HONOLULU;

)

ANDREW LUM, IN HIS PERSONAL )

AND OFFICIAL CAPACITY;

)

JOHN DOES 1-10 IN THEIR

)

PERSONAL AND OFFICIAL

)

CAPACITIES.

)

)

____________D_e_fe_n_da_n_ts_. ____

)
)

STIPULATION FOR DISMISSAL WITH PREJUDICE AND ORI>ER

Case 1:12-cv-00469-JMS-RLP Document 55 Filed 01/21/14 Page 2 of 4 PageID #: 357
WHEREAS, on or about June 15, 2011, the CITY AND COUNTY OF HONOLULU'S Honolulu Police Department ("HPD") created a Facebook page.
WHEREAS, in late January, 2012, certain postings made by Plaintif1s CHRISTOPHER BAKER ("Baker") and DEREK SCAMMON ("Scammon") were removed from that page and Baker and Scammon were subsequently prohibited from making further postings there;
WHEREAS, Plaintiffs HAWAll DEFENSE FOUNDATION, CHRISTOPHER BAKER and DEREK SCAMMON filed the instant action on August 21, 2012 asserting that their rights under the First Amendment of the U.S. Constitution had been violated and seeking declaratory and injunctive relie:~.
WHEREAS, after the filing of the instant complaint and after approv 11 of Plaintiffs, HPD and CITY AND COUNTY OF HONOLULU changed their policies and procedures with regard to the administration of their Facebook pages.
WHEREAS, after the filing of the instant complaint, Baker and Scammon had their privileges to post on the I-·IPD Facebook page restored;
WHEREAS, this Honorable Court subsequently determined the requests for preliminary injunctive relief, made by Plaintiffs, to be moot.
WHEREAS, the policies developed as a result of extended negotiations between the Plaintiffs and Defendants are still in place.

Case 1:12-cv-00469-JMS-RLP Document 55 Filed 01/21/14 Page 3 of 4 PageID #: 358
NOW, THEREFORE, the parties hereby agree as follows: IT IS HEREBY STIPULATED AND AGREED by and between all oflhe parties currently remaining in this action, pursuant to Rule 41 (a)( I )(ii) of the Federal Rules of Civil Procedure, that all claims herein shall be and are hen~by dismissed with prejudice. The trial in this matter was set for January 28, 201 4. All parties currently to this action have indicated their approval and have signed this stipulation. No other claims and/or parties remain. However, the parties acknowledge that Plaintiffs may bring a subsequent motion, pursuant to the rules, seeking attorneys' fees above and beyond the costs that are to be reimbursed as set forth above. Defendants CITY AND COUNTY OF HONOLULU and ANDREW LUM may contest Plaintitis' entitlement to an award of attorneys' fees and the amount of fees sought. Upon presentation of invoices or receipts associated with this case, Defendants CITY AND COUNTY OF HONOLULU will reimburse Mr. Baker and/or the Hawaii Defense Foundation for the cc,sts expended in this case. Any specific itemized costs that the City believes i~ not legitimately attributable to this case can be submitted to the Court.

Case 1:12-cv-00469-JMS-RLP Document 55 Filed 01/21/14 Page 4 of 4 PageID #: 359
DATED: Honolulu, Hawaii, January 17, 2014.
Attorneys for Plaintiffs HAWAII DEFENSE FOlJNDA1ION, CHRISTOPHER BAKER and DEREK S CA:tvfl\10N
DATED: Honolulu, Hawaii, January 17, 2014.
DONNA Y.L. LEONG Corporation Counsel
_ _ By: ,/r'-...)--.. /T'A-'T'r~ n~_--r
tfOIL-CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendants ANDREW LUM and the CITY AND COUNTY OF HONOLULU
APPROVED AND SO ORDERED:
*********************************************************************************************~**********
Hawaii Defense Foundation, et a/. v. City and County of Honolulu, et '11., Civ. No. 12-00469 J1\1S-RLP; Stipulation for Dismissal with Prejudice and Orc.er

 
 Case 1:12-cv-00469-JMS-RLP Document 71 Filed 06/19/14 Page 1 of 22 PageID #: 1741

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

HAWAII DEFENSE FOUNDATION, )

ET AL.,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY AND COUNTY OF

)

HONOLULU, ET AL.,

)

)

Defendants.

)

_______________________________ )

CIVIL NO. 12-00469 JMS-RLP
ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, DOC. NO. 64

ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, DOC. NO. 64

I. INTRODUCTION

Currently before the court is Plaintiffs Hawaii Defense Foundation,

Christopher Baker, and Derek Scammon’s (collectively, “Plaintiffs”) May 5, 2014

Objections to Magistrate Judge Richard L. Puglisi’s April 22, 2014 Findings and

Recommendation to Grant in Part and Deny in Part Plaintiffs’ Motion for

Attorneys’ Fees (“F&R”). The F&R recommends that Plaintiffs’ request for

attorneys’ fees of $64,690.29 be reduced to $22,064.39. See Doc. No. 64, F&R at

2. Based on the following, the court ADOPTS in part and MODIFIES in part the

F&R.

Case 1:12-cv-00469-JMS-RLP Document 71 Filed 06/19/14 Page 2 of 22 PageID #: 1742
II. BACKGROUND On August 21, 2012, Plaintiffs filed this action against Defendants City and County of Honolulu (the “City”) and Andrew Lum (collectively, “Defendants”) alleging violations of the First and Fourteenth Amendments when Plaintiffs’ posts to the Honolulu Police Department’s social media page on Facebook.com were removed and Plaintiffs were blocked from making further posts. Doc. No. 1, Compl. at 1, 11-13. That same day, Plaintiffs also filed a Motion for Temporary Restraining Order and a Motion for Preliminary Injunction, which sought to restore Plaintiffs’ deleted posts, permit Plaintiffs to post to the HPD’s page, and prohibit Defendants from banning people or removing posts based on political content. Doc. Nos. 6 & 7. Following several status conferences, Defendants agreed to develop a policy, through negotiations with Plaintiffs’ proxy, the American Civil Liberties Union, governing public posting on HPD’s Facebook page. See Doc. Nos. 10, 16, 17, Minutes. Accordingly, the court deemed the Motions for Temporary Restraining Order and Preliminary Injunction moot. See Doc. Nos. 10, 17, Minutes. Thereafter, the parties engaged in settlement negotiations, reaching an agreement in principle by January 2013, but failing to resolve the form of dismissal documents and issues regarding payment of Plaintiffs’ attorneys’ fees and costs.
2

Case 1:12-cv-00469-JMS-RLP Document 71 Filed 06/19/14 Page 3 of 22 PageID #: 1743
On October 23, 2013, Plaintiffs filed a Motion for Summary Judgment, Doc. No. 34, and Defendants filed a Motion for Judgment on the Pleadings as to claims against Defendant Andrew Lum. Doc. No. 36. On January 16, 2014, the parties reached a settlement on all issues except payment of Plaintiffs’ attorneys’ fees, see Doc. No. 52, Minutes, and the pending motions were terminated. See Doc. No. 53, Entering Order.
On January 21, 2014, the parties filed a Stipulation dismissing all claims, but acknowledging Plaintiffs’ right to file a subsequent motion for attorneys’ fees. Doc. No. 55. The underlying Motion for Attorneys’ Fees followed, in which Plaintiffs sought an award of $64,690.29. Doc. No. 56. After the F&R recommended that Plaintiffs be awarded attorneys’ fees of $22,064.39, Doc. No. 64, Plaintiffs filed their Objections on May 5, 2014, Doc. No. 65, and an Errata on May 6, 2014. Doc. No. 66. Defendants filed a Response on May 21, 2014, Doc. No. 69, and Plaintiffs filed a Reply on May 27, 2014. Doc. No. 70. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing.
III. STANDARD OF REVIEW When a party objects to a magistrate judge’s findings or recommendations, the district court must review de novo those portions to which
3

Case 1:12-cv-00469-JMS-RLP Document 71 Filed 06/19/14 Page 4 of 22 PageID #: 1744
the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court’s obligation to arrive at its own independent conclusion about those portions of the magistrate judge’s findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
IV. DISCUSSION In recommending that Plaintiffs’ request for $64,690.29 in attorneys’ fees be reduced to $22,064.39, the F&R determined, among other things, that (1) counsels’ hourly rates were not based on the applicable Hawaii market rates; (2) time spent on certain tasks was excessive; (3) time spent on tasks by multiple
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attorneys was duplicative; and (4) an across-the-board reduction of 25% on the remaining hours was necessary to offset counsels’ billing in primarily half-hour increments. Doc. No. 64, F&R at 9. Plaintiffs object to these reductions,1 and the court addresses each objection in turn. A. Hourly Rate
Plaintiffs object to the F&R’s determination that counsels’ requested hourly rates were well out of line with the prevailing rates in Hawaii and should be reduced from (1) $355.00 to $185.00 for Mr. Richard Holcomb; (2) $325.00 to $175.00 for Mr. Brian Brazier; and (3) $250.00 to $150.00 for Mr. Alan Beck. See Doc. No. 64, F&R at 9, 16. Based on a de novo review, the court agrees with the F&R that the requested rates do not reflect the prevailing rates in this district.
A reasonable hourly rate should reflect the “prevailing market rates in the relevant community,” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013), which generally “is the forum in which the district court sits.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010). In determining the reasonableness of an hourly rate, the experience, skill, and reputation of the attorney requesting fees are taken into account. Id. at 455; see also Webb v. Ada
1 The parties agree, however, that Plaintiffs are entitled to an award of reasonable attorneys’ fees and that the lodestar method of calculation applies. See Doc. No. 64, F&R at 5, 7.
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Cnty., 285 F.3d 829, 840 & n.6 (9th Cir. 2002). “Importantly, the fee applicant has the burden of producing ‘satisfactory evidence’ that the rates he requests meet these standards.” Gonzalez, 729 F.3d at 1206 (citing Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005)); see also S.E.C. v. Gemstar-TV Guide Int’l, Inc., 401 F.3d 1031, 1056 n.8 (9th Cir. 2005) (“[I]t is “the fee applicant [that] has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” (quoting Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987))).
In a somewhat rambling fashion, Plaintiffs appear to argue that the court should ignore this well-entrenched standard. In particular, Plaintiffs argue that the court should determine a reasonable hourly rate based on the Laffey matrix, Doc. Nos. 56-9, 56-10, Pls.’ Exs. 4, 5, which is a grid of inflation-adjusted hourly rates for lawyers with varying levels of experience in the Washington, D.C. area, and which was approved in Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). Plaintiffs contend that the court should apply the Laffey matrix “as evidence of a baseline standard that would reflect the true market value of legal services,” because courts in this district “notoriously award[] fees far below any
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reasonable rate on the mainland and/or Hawaii.” Doc. No. 65, Pls.’ Objs. at 3; see also Doc. No. 56-1, Mot. at 14-24 (citing fee awards in this district to argue that this district’s practice is to reject evidence of prevailing rates and instead rely on the court’s purported unsupported “knowledge” of prevailing rates). Plaintiffs argue that this practice is “particularly troubling” in light of Honolulu’s high cost of living and the salary gap between Hawaii and certain locations on the mainland. See also Doc. No. 56-7, Pls.’ Ex. 2 (United States Census Bureau Cost of Living Index); Doc. No. 65-3, Pls.’ Ex. 2 (news articles on Hawaii’s high cost of living and salary gap compared to certain locations on the mainland).
The Laffey matrix and evidence regarding the cost of living in Hawaii do not address the applicable standard for determining a reasonable hourly rate -i.e., they are not evidence of the prevailing rates in the District of Hawaii. See Prison Legal News, 608 F.3d at 454 (“[J]ust because the Laffey matrix has been accepted in the District of Columbia does not mean that it is a sound basis for determining rates elsewhere, let alone in a legal market 3,000 miles away.”); J & J Sports Prods., Inc. v. Arvizu, 2014 WL 2135996, at *2 (D. Ariz. May 22, 2014) (rejecting Laffey matrix as applicable to determining hourly rates in Arizona); Lema v. Comfort Inn Merced, 2014 WL 1577042, at *4 (E.D. Cal. Apr. 17, 2014) (“The Laffey Matrix is inapplicable to the determination of market rates in both the
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Ninth Circuit and the Eastern District.”); Project Vote/Voting for Am., Inc. v. Long, 887 F. Supp. 2d 704, 712 (E.D. Va. 2012) (“[T]he Laffey matrix is insufficient as a reliable indicator of reasonable rates for a case proceeding outside of Washington, D.C.”); JJCO, Inc. v. Isuzu Motors Am., Inc., 2010 WL 3001924, at *5 (D. Haw. July 30, 2010) report and recommendation adopted as modified, 2010 WL 4272980 (D. Haw. Oct. 21, 2010) (rejecting Laffey matrix as evidence of prevailing market rates in Hawaii). Indeed, it is irrelevant that attorneys in other districts may receive higher hourly rates or that Hawaii has a higher cost of living and lower salary ranges. Rather, the court must determine a reasonable hourly rate in this market, based on the hourly rate, the experience, skill, and reputation of the attorneys requesting the fees.
Setting aside Plaintiffs’ argument to ignore the applicable standard, as to the market rates in this district Plaintiffs present (1) declarations of Plaintiffs’ counsel detailing their experience, and the novelty and undesirability of this case; (2) a Pacific Business News article indicating that the City recently paid outside counsel hourly rates between $295.00 and $495.00 for work in connection with Honolulu’s $5.2 billion rail transit project, see Doc. No. 58-1, Errata, Pls.’ Ex. 1; and (3) citations to numerous attorneys’ fees orders in this district. Doc. Nos. 56-2 - 56-4, Decls. of Holcomb, Brazier, and Beck. Although counsels’ experience
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justifies a much lower hourly rate than requested based on the prevailing rates granted in other District of Hawaii cases, Plaintiffs argue that they should be awarded their requested rates because (1) Mr. Holcomb has his own practice and has had “a number of significant legal victories and publications,” see Doc. No. 65, Pls.’ Obj. at 8-9; (2) the orders in this district show that courts simply apply the same hourly rates based on an unsupported assertion that the court is aware of the prevailing rates; and (3) the Pacific Business News article suggests that the prevailing hourly rates are higher than the rates awarded in these cases. The court rejects Plaintiffs’ argument.
As an initial matter, the court finds the Pacific Business News article unhelpful in determining the prevailing market rates in Hawaii for similar services. The hourly rates listed in this article are not tied in any way to the particular attorneys charging such rates -- there is no information indicating the experience, skill, and reputation of counsel. And comparing this relatively simple First Amendment case to the complex rail transit litigation provides no meaningful guidance to the court. The scope and complexity of work on the rail transit project, which has faced multiple federal and state legal challenges and has several moving parts, is not at all comparable to the work required in this single case, which was
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far less contentious and was largely resolved through a negotiated settlement.2
Simply put, such a comparison is off the track.
Nor do the declarations of Plaintiffs’ counsel and arguments for a
higher rate based on experience support Plaintiffs’ requested hourly rates. The
declarations of counsel describe only their experience, and fail to explain how
counsels’ experience compares to any reasonable rate in this district. See Jordan,
815 F.2d at 1263 (“The fee applicant has the burden of producing satisfactory
evidence, in addition to the affidavits of its counsel . . . [of] prevailing [rates] in the
community for similar services of lawyers of reasonably comparable skill and
reputation.”) (emphasis added). Further, the mere fact that Mr. Holcomb started
his own firm does not suggest that counsel is entitled to the hourly rates awarded
attorneys with many more years experience -- reasonable hourly rates are
determined by experience, skill, and reputation, not title. And although Plaintiffs’
counsel has had some successes in civil rights litigation, the court is well aware of the experience and skill of counsel,3 and finds that an hourly rate commensurate
2 In arguing that the rail transit litigation is not unduly complex, Plaintiffs cite to Kaleikini v. Yoshioka, 129 Haw. 454, 304 P.3d 252 (2013). Plaintiffs ignore, however, that Kaleikini, applying the same test as in this case, reduced the requested hourly rate of the prevailing attorneys, awarding $300 per hour for an attorney with 20 years experience, and $160 an hour for an attorney with 3 years experience. Id. at 473, 304 P.3d at 271. The court’s hourly rates awarded below are in line with Kaleikini.
3 Beyond this action, Plaintiffs’ counsel has appeared before this court in an unrelated (continued...)
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with their years of experience is appropriate.
In determining the reasonable hourly rates for attorneys with
counsels’ years of experience, the court is left with little evidence from Plaintiffs
-- as described above, the Laffey matrix and the Pacific Business News article are
unhelpful, and Plaintiffs do not provide declarations from other attorneys or even
state what their usual billing rates are for paying clients.4 That is, counsel failed to
3(...continued) case, De-Occupy Honolulu et al. v. City & County of Honolulu et al., Civ. No. 12-00668 JMSKSC. In De-Occupy Honolulu, the court struck counsels’ motion for summary judgment because, among other reasons, they failed to authenticate their evidence. Id. at Doc. No. 188. In their Reply in support of attorneys’ fees in this action, Plaintiffs suggest the court improperly struck their De-Occupy motion because authentication was unnecessary where the exhibits were authenticated by operation of law when the defendants failed to timely file responses to Requests for Admissions. Doc. No. 70, Pls.’ Reply at 7. Plaintiffs are mistaken -- regardless of whether Defendants could have disputed exhibits presented in a summary judgment motion, Plaintiffs must still authenticate what they present to the court. In other words, Plaintiffs must provide a declaration identifying each exhibit.
Counsel’s submissions in this case are no different -- they attach exhibits to their Motion and Objections without ever providing a declaration identifying and authenticating those exhibits to the court. Such sloppiness does nothing to support counsels’ claim of experience and skill.
4 Although not entirely clear, it appears that Plaintiffs argue that the court should consider the declarations and articles referred to in the numerous District of Hawaii cases which Plaintiffs cite -- i.e., that the court should go to each individual docket of the cases Plaintiffs cite and review the declarations and evidence submitted by attorneys in those cases. See Doc. No. 65, Pls.’ Objs. at 4, n.6 (“Defendants completely ignored the various Declarations and Pacific Business News articles presented in the prior cases cited in and attached to Plaintiffs’ brief. These past decisions discussing the evidence presented in those [cases] . . . are proper evidence.”); see also id. at 5-6 (contending that the magistrate judge ignored their evidence of prevailing market rates consisting of “past requests, Declarations, and evidence from” these cited cases). If this was Plaintiffs’ intent, they again misunderstand how to present evidence. Declarations and other evidence referred to in Plaintiffs’ cited cases were not submitted in this action for the court’s consideration. Mere citation to prior cases discussing specific evidence from those cases neither compels judicial notice of nor provides proper authentication of the underlying evidence for use in this case. See Ungureanu v. A. Teichert & Son, 2011 WL
(continued...)
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present “satisfactory evidence” to support the rates requested. See Gonzalez, 729
F.3d at 1206. The court must therefore rely on its knowledge of the community’s
prevailing rates, the hourly rates generally granted by this court, the court’s
familiarity with this case, and Plaintiffs’ counsel’s submissions detailing their
experience. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).5
And in making this determination, the court finds helpful -- despite
Plaintiffs’ argument to the contrary -- the numerous cases in this district discussing
the prevailing hourly rates in this district.6 Although Plaintiffs argue that the rates
4(...continued) 4862425, at *2 (E.D. Cal. 2011) (“[F]acts contained in a declaration . . . found in another case . . . could not normally be judicially noticed.); see also Forest v. Equitable Life Assurance Soc’y of the U.S., 2001 WL 1338809, at *3 (N.D. Cal. June 12, 2001) (rejecting deposition taken and exhibits acquired in another case because they were not properly authenticated in this case).
5 Ingram provides that the court may rely, at least “in part, on its own knowledge and experience” in determining the prevailing market rate. 647 F.3d at 928; see also Family PAC v. Ferguson, --- Fed. Appx. ----, 2014 WL 1047658, at *1 (9th Cir. Mar. 19, 2014) (“In determining prevailing market rates, the court properly relied on a declaration from an attorney in the relevant market and its own knowledge of the legal market.”). In an apparent contradiction, Gonzalez v. City of Maywood, 729 F.3d 1196, 1206 (9th Cir. 2013), provides that “no Ninth Circuit case law supports the district court’s apparent position that it could determine the hourly rates for the members of Plaintiffs’ legal team, without relying on evidence of prevailing market rates.” Reading Gonzalez literally to require evidence of prevailing market rates even where a plaintiff fails to carry his burden and presents no evidence of the prevailing market rates would leave this court in a bind in determining reasonably attorneys’ fees. Rather, the court believes that Gonzalez and Ingram permit he court to consider other cases in this District awarding attorneys’ fees -- these cases determined the prevailing market rates based on the evidence presented, and these evidence-based determinations help this court to determine the prevailing market rate in this District.
6 These cases include, for example, Tylor v. Smart Enter., 2013 WL 6843056, at *7 (D. Haw. Dec. 26, 2013) (finding $150 a reasonable hourly rate for attorney admitted to Hawaii bar
(continued...)
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in these orders must be below the prevailing market rate given that they rarely
award the hourly rates requested by attorneys, such fact just as easily suggests that
attorneys seek higher rates from the court than they may charge a paying client.
Indeed, Plaintiffs assert that Messrs. Brazier and Holcomb share a case that is
billed hourly by a paying client at $250 an hour, see Doc. No. 65, Objs. at 10, yet
they both seek an hourly rate much higher than what this single client pays them.7
Thus, Plaintiffs have failed to convince the court that the hourly rates awarded in
6(...continued) since 2010); Trendex Fabrics, Ltd. v. Chad Jung Kim, 2013 WL 5947027, at *8 (D. Haw. Nov. 5, 2013) (awarding attorney with seven and two years experience hourly rates of $175 and $125 respectively); Valencia v. Carrington Mortg. Servs., 2013 WL 3223628, at *8 (D. Haw. June 25, 2013) (adopting recommendation that partner with twelve years experience was entitled to a $250 hourly rate, and that a fifth year litigation associate was entitled to a $175 hourly rate); Au v. The Funding Group, Inc., 2013 WL 1187919, at *8 (D. Haw. Mar. 21, 2013) (adopting finding that $165 is a reasonable hourly rate for an attorney with six years of experience); Seven Signatures Gen. P’ship. v. Irongate Azrep BW LLC, 871 F. Supp. 2d 1040, 1054 (D. Haw. 2012) (awarding attorneys with over four years and seven years experience $150 and $165 respectively); Yamada v. Weaver, 2012 WL 6019363, at *3 (D. Haw. Aug. 30, 2012) (finding that attorneys with eleven and six years experience entitled to hourly rates of $225 and $150 respectively); Donkerbrook v. Title Guar. Escrow Servs., 2011 WL 3649539, at *8 (D. Haw. Aug. 18, 2011) (finding that $150 per hour is reasonable for attorneys with more than four years experience); Gunderson v. Mauna Kea Props., Inc., 2011 WL 9754085, at *6 (D. Haw. May 9, 2011) (awarding $175 per hour for attorneys with seven years experience and $190 for attorney with nine years experience); Shea v. Kahuku Hous. Found., Inc., 2011 WL 1261150, at *7 (D. Haw. Mar. 31, 2011) (finding that $125 per hour is reasonable for an attorney with three years experience); McMillon v. Hawaii, 2011 WL 744900, at *6 (D. Haw. Feb. 22, 2011) (finding a $210 hourly rate reasonable for an attorney with ten years experience); United States v. Bright, 2010 WL 2734787, at *2 (D. Haw. Apr. 26, 2010) (finding manifestly reasonable a $174 hourly rate for a government attorney with 2 years of federal clerkship experience and approximately 9.5 years of experience as a trial attorney with the Department of Justice, Tax Division).
7 Needless to say, what Messrs. Brazier and Holcomb are able to charge a single client does not suggest they command this rate as to all their clients and/or are entitled to such rate as a reasonable hourly rate.
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attorneys’ fees orders in this district do not reflect the prevailing rates. Rather, given the court’s knowledge of this case and counsels’ experience, the court finds those rates appropriate in this case.
Although the rates recommended by the F&R are within the range of reasonable rates for counsels’ experience, the court finds that a small upward adjustment to place counsel at the higher end of reasonable rates is necessary given the nature of this case and to ensure representation in civil rights cases. The court therefore ADOPTS the hourly rate for Mr. Beck, but MODIFIES the hourly rates for Mr. Holcomb, who has practiced for nine years, and Mr. Brazier, who has practiced for 7.5 years, to $200.00 and $185.00 respectively. B. Reduction for Billing in Hour and Half-Hour Increments
Plaintiffs argue that the F&R’s 25% across-the-board reduction for counsels’ billing in mostly hour and half-hour increments is unwarranted where counsel asserted that their submitted hours had already been reduced and Mr. Holcomb’s submitted time sheet shows that he did not charge for several tasks. See Doc. No. 65, Pls.’ Obj. at 23-25. The court agrees with Plaintiffs in part.
Courts in this district have generally applied a percent reduction for billing in quarter-hour increments. See Harris v. Trash Man, LLC, 2013 WL 1932715, at *4 (D. Haw. Apr. 16, 2013) (reducing award by 10% for quarter-hour
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billing); Robinson v. Plourde, 717 F. Supp. 2d 1092, 1100-01 (D. Haw. 2010) (applying a 20% reduction for billing in quarter-hour increments); World Triathlon Corp. v. Dunbar, 539 F. Supp. 2d 1270, 1286 (D. Haw. 2008) (affirming 10% reduction for quarter-hour billing). The rationale for such reduction is that where counsel bills in larger time increments (such as quarter-hour, half-hour, and hour increments in this case), tasks more likely than not took only a portion of the time billed, resulting in requests for excessive hours. See World Triathalon Corp., 539 F. Supp. 2d at 1286.
Counsels’ time sheets indicate that they largely billed in hour or half hour increments, which suggests that the hours billed are excessive. Indeed, the bulk of counsels’ time sheets are comprised of entries billed in half-hour and full hour increments, with many entries spanning multiple hours, and with the description for each entry lacking in any amount of specificity. For example, one of Mr. Brazier’s entries states, “Draft memo re MSJ” for six hours, Doc. No. 56-3, Brazier Decl. Ex. A, but certainly Mr. Brazier did not sit at his desk for six hours straight drafting a summary judgment motion, and he certainly could have described his work for this six-hour period with more specificity (e.g., Were there particular portions of the motion he worked on during this time? Did his work during this time period involve research?). And although each counsel includes the
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boiler-plate statement in each of their declarations that “[i]n certain instances, I have exercised billing judgment to omit hours reasonably related to the case but which I did not deem sufficiently relevant to the results to warrant inclusion in a motion for attorneys’ fees,” Doc. No. 56-2, Holcomb Decl. at 8; Doc. No. 59-1, Brazier Decl. at 6; Doc. No. 60, Beck Decl. at 4, this bare statement, in the face of their block billing and vague descriptions, offers no insight into what time was reduced or omitted. Absent some specificity, the court cannot determine whether adequate billing judgment was exercised or if counsel merely incorporated boilerplate language. See Gilster v. Primebank, 884 F. Supp. 2d 811, 877 (N.D. Iowa 2012) (finding that absent an indication of which fees counsel excluded from fee requests, the court had “no way of knowing whether this is simply boilerplate fee affidavit language, or whether some billing judgment was actually exercised”). With that said, however, the court does recognize that Mr. Holcomb’s time sheet lists some tasks for which he did not charge (although there is little indication as to how long most of these tasks took Mr. Holcomb, and some tasks appear de minimis (i.e., “requested continuance/settlement conference”)). These inclusions in his time sheet provide some details suggesting that some billing judgment was in fact exercised (despite the block billing and generalized descriptions of work). The court therefore MODIFIES the F&R by imposing a 15% reduction as to counsels’
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time. The court further finds that this 15% reduction does not apply to
counsels’ time spent on the Objections to the F&R. Unlike their earlier time sheets, Mr. Holcomb billed his time on the Objections in proper tenth-of-an-hour increments, and he provided more detail in describing time spent. C. Hours Billed for Specific Tasks
The F&R deducted 19.5 hours out of the total 39.5 hours requested for Mr. Beck’s work on the Complaint. Doc. No. 64, F&R at 17-18. And of the 24.75 hours billed for work on the Motion for Summary Judgment and Concise Statement of Facts, the F&R deducted 7 hours from Mr. Brazier and 6 hours from Mr. Beck. Id. at 17-19.
After de novo review, the court agrees that work on the Complaint was excessive and ADOPTS the 19.5 hour reduction of Mr. Beck’s time. The two causes of action asserted in the Complaint did not involve complicated facts, and although there were no cases directly on point addressing a public entity’s use of social media as a public forum, the legal framework is well-defined. See, e.g., Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011) (describing four categories of government property); Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (describing forums for free speech). The court
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therefore finds that the Complaint warranted no more than 20 hours to complete. The court further agrees that some work on the Motion for Summary
Judgment was excessive -- largely because sections were lifted verbatim from the Motion for Preliminary Injunction. The court disagrees, however, with the F&R’s determination that further reductions are necessary because the motion for summary judgment could have been avoided. Doc. No. 64, F&R at 18. Based on the court’s involvement in settlement negotiations just prior to the scheduled hearing on the Motion for Summary Judgment, the court finds that it was reasonable for Plaintiffs to file the Motion for Summary Judgment -- a binding settlement had not been reached and a favorable determination on the motion for summary judgment would cement Plaintiffs’ entitlement to attorneys’ fees. Accordingly, the court will reduce only 2.0 hours from the requested fees for the Motion for Summary Judgment from Mr. Brazier and 3.0 hours from Mr. Beck. Total deductions from Plaintiffs’ requested fees for excessive hours are as follows: 2.0 hours from Mr. Brazier, and 22.5 hours from Mr. Beck. D. Duplicative Time
Plaintiffs object to the deduction of 2.5 hours from Mr. Brazier and 2.0 hours from Mr. Beck as duplicative for time spent in meetings/discussions with co-counsel. Doc. No. 65, Pls.’ Objs. at 27.
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The court certainly recognizes that litigation often requires the participation of multiple attorneys, see Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993), but “overstaffing cases inefficiently is common, and district courts are therefore encouraged to scrutinize fee petitions for duplicative billing when multiple lawyers seek fees.” Schlacher v. Law Offices of Phillip J. Rotche & Assocs., 574 F.3d 852, 858 (7th Cir. 2009); see also Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (“A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism.”). Thus, as a general rule, the court does not permit more than one attorney to bill for attending: (1) a meeting between co-counsel; (2) a client meeting; or (3) a meeting with opposing counsel. See Seven Signatures Gen. P’ship, 871 F. Supp. 2d at 1055 (internal citations omitted). “In such a situation, the court typically deducts the time spent by the lowest-billing attorney.” Id.
Upon de novo review, the court finds that Mr. Holcomb billed for nine hours of meetings/discussions/exchange of emails with co-counsel. Doc. No. 56-2, Holcomb Decl., Ex. A. He did not charge for additional specified meetings, but he also did not indicate how much time was deducted for those additional meetings. Id. Of Mr. Holcomb’s billed hours, Mr. Brazier billed 2.5 hours, during which he
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spent 1.5 hours discussing the status of filings and one hour discussing exhibits and filings. Doc. No. 59-1, Brazier Decl., Ex. A. Mr. Beck billed 2 hours for two separate one-hour discussions on the status of filings. Doc. No. 60, Beck Decl., Ex. A. Although the court commends counsel for voluntarily deducting much of the time spent by Mr. Beck and Mr. Brazier in conference with co-counsel, the time spent discussing the status of filings is redundant. The court therefore ADOPTS the F&R with regard to reductions for duplicative time of Mr. Brazier (2.5 hours) and Mr. Beck (2 hours). E. Fees for Objections
Plaintiffs seek additional fees for 22.4 hours spent by Mr. Holcomb on the instant Objections. Defendants did not oppose these additional hours in their Response. Nevertheless, the court finds the over six hours spent on additional research regarding the reasonable hourly rate to be excessive. Significant research on this issue was already done in connection with the Motion and therefore, the court deducts three hours. Plaintiffs are therefore awarded an additional 19.4 hours for work on the instant Objections. F. Summary of Fees
Based on the foregoing and those portions of the F&R that are adopted, the court finds that Plaintiffs are entitled to the following lodestar:
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Attorney Richard Holcomb Brian Brazier Alan Beck Subtotal GET of 4.712% TOTAL

Hours 82.818 35.069 47.610 165.47

Rate $200.00 $185.00 $150.00

Total $16,562.00
$6,486.10 $7,140.00 $30,188.10 $1,422.46 $31,610.56

V. CONCLUSION After carefully reviewing the F&R de novo, having considered all written argument, and having fully analyzed the record, the court ADOPTS the F&R in part and MODIFIES the F&R in part as follows: (1) awarding reasonable hourly rates for Mr. Holcomb in the amount of $200.00, and for Mr. Brazier in the amount of $185.00; (2) applying a 15% reduction on the hours remaining after other reductions are taken for work excluding the Objections; and (3) deducting only 2.0 hours from Mr. Brazier, and 3.0 hours from Mr. Beck, for work on the

8 75.10 total hours requested (Doc. No. 56-2) - 0.5 clerical hours (deducted by F&R and not objected to, Doc. No. 64 at 19) = 74.60 hours x 15% reduction (for quarter-hour billing) = 63.41 hours + 19.4 hours for Objections = 82.81 total hours.
9 45.75 hours total hours requested (Doc. No. 56-3) - 2.0 excessive hours for Summary Judgment Motion (above at § IV(C)) - 2.5 duplicative hours (above at § IV(D)) = 41.25 hours x 15% reduction = 35.06 total hours.
10 81.0 hours total requested (Doc. No. 56-4) - 22.5 excessive hours (above at § IV(C)) 0.5 clerical hours (deducted by F&R and not objected to, Doc. No. 64 at 19) - 2.0 duplicative hours (above at § IV(D)) = 56.0 hours x 15% reduction = 47.6 total hours.
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Case 1:12-cv-00469-JMS-RLP Document 71 Filed 06/19/14 Page 22 of 22 PageID #: 1762
Motion for Summary Judgment and Concise Statement of Facts. In addition, the court awards Plaintiffs an additional 19.4 hours for Mr. Holcomb’s work on the Objections, which is not subject to the 15% reduction. Plaintiffs are awarded total attorneys’ fees in the amount of $31,610.56.
IT IS SO ORDERED. DATED: Honolulu, Hawaii, June 19, 2014.
/s/ J. Michael Seabright J. Michael Seabright United States District Judge
Hawaii Defense Found., et al. v. City & Cnty. of Honolulu et al., Civ. No. 12-00469 RLP, Order Adopting in Part and Modifying in Part Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs’ Motion for Attorneys’ Fees, Doc. No. 64
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