FINDINGS AND RECOMMENDATION TO DENY DEFENDANT WDI INTERNATIONAL, INC.'S MOTION FOR ATTORNEY'S FEES AND COSTS

KEVIN S.C. CHANG, Magistrate Judge.

Before the Court is Defendant WDI International, Inc.'s ("Defendant") Motion for Attorney's Fees and Costs ("Motion"), filed April 11, 2013. Defendant filed a Statement of Consultation on April 24, 2013. On May 7, 2013, Plaintiff Fanny Tsun ("Plaintiff") filed an Opposition. Defendant filed a Reply on May 20, 2013.

The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the U.S. District Court for the District of Hawaii ("Local Rules"). After careful consideration of the Motion and the applicable law, the Court HEREBY FINDS AND RECOMMENDS that the Motion be DENIED for the reasons set forth below.

BACKGROUND

As the Court and the parties are familiar with the history of this case, the Court includes only those facts relevant to the disposition of the instant Motion.

Plaintiff commenced this action on January 24, 2012, alleging that Defendant 1) violated the Family Medical Leave Act ("FMLA") by terminating her employment on the basis of a serious health condition and 2) violated Hawaii Revised Statutes ("HRS") Chapter 398 by retaliating against, denying, and terminating Plaintiff's employment based on her use of protected leave.

On November 26, 2012, Defendant filed a motion for summary judgment. U.S. District Judge Leslie E. Kobayashi granted the motion on March 28, 2013. Doc. No. 94. That same day, the Clerk entered judgment. Doc. No. 95.

I. Attorneys' Fees

Defendant argues that it is entitled to $77,712.01 in attorneys' fees and tax pursuant HRS § 607-14.5. "When a district court . . . hears state law claims based on supplemental jurisdiction, the court applies state substantive law to the state law claims." Mason & Dixon Intermodal, Inc. v. Lapmaster Int'l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011). Under Hawaii law, "[o]rdinarily, attorneys' fees cannot be awarded as damages or costs unless so provided by statute, stipulation, or agreement." Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Haw. 286, 305, 141 P.3d 459, 478 (2006) (citation and quotation marks omitted); DFS Group, L.P. v. Paiea Props., 110 Haw. 217, 219, 131 P.3d 500, 502 (2006) (quoting TSA Int'l, Ltd. v. Shimizu Corp., 92 Haw. 243, 263, 990 P.2d 713, 733 (1999) ("Generally, under the `American Rule,' each party is responsible for paying his or her own litigation expenses. A notable exception to the `American Rule,' however, is the rule that attorneys' fees may be awarded to the prevailing party where such an award is provided for by statute, stipulation, or agreement.")).

HRS § 607-14.5 authorizes the award of attorneys' fees and costs in cases involving frivolous claims. It provides:

Haw. Rev. Stat. § 607-14.5(a). A "frivolous" claim is one that is "`so manifestly and palpably without merit, so as to indicate bad faith on the pleader's part such that argument to the court was not required.'" Canalez v. Bob's Appliance Serv. Ctr., Inc., 89 Haw. 292, 300, 972 P.2d 297, 303 (1999) (quoting Coll v. McCarthy, 72 Haw. 20, 29, 804 P.2d 881, 887 (1991)).

Defendant argues that because Plaintiff's claims were frivolous, it is entitled to attorneys' fees. The Court disagrees. Although Judge Kobayashi disposed of all of Plaintiff's claims in her summary judgment order and determined that Plaintiff's claims were not supported by the law and facts in the action, at no point has she made a finding in writing that Plaintiff's claims were frivolous. HRS § 607-14.5(b) mandates that the court "find in writing that all or a portion of the claims . . . made by the party are frivolous and are not reasonably supported by the facts and the law in the civil action." Haw. Rev. Stat. § 607-14.5(b).

Absent a written finding by Judge Kobayashi that Plaintiff's claims were frivolous, the Court is unable to recommend an award of attorneys' fees under HRS § 607-14.5. This Court was not involved with the motion for summary judgment and cannot speak to the merits of Plaintiff's claims. It would be inappropriate for this Court to make a finding of frivolousness when Judge Kobayashi, who had the opportunity to carefully assess the merits of the claims, did not do so. For these reasons, the Court must decline to recommend an award of fees under HRS § 607-14.5. Young v. Geico Indem. Co., CIV. No. 08-00171 JMS/KSC, 2009 WL 3049640, at **2-3 (D. Haw. Sept. 23, 2009) (adopting recommendation to deny fees pursuant to HRS § 607-14.5 in the absence of a written finding of frivolousness by the district judge).

II. Costs

Defendant additionally requests $4,620.13 in costs. Insofar as the Court addressed costs in its Findings and Recommendation Regarding Plaintiff's Objection to Defendant's Bill of Costs, see Doc. Nos. 115, 117, and $4,585.48 costs were taxed against Plaintiff, this request is deemed moot.2

CONCLUSION

In accordance with the foregoing, the Court HEREBY FINDS AND RECOMMENDS that Defendant's Motion for Attorney's Fees and Costs, filed April 11, 2013, be DENIED.

IT IS SO FOUND AND RECOMMENDED.