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Public Interest Research Group of N.J. v. Struthers-Dunn, Inc.

ELR Citation: 18 ELR 21398
Nos. No. 87-1773 (SSB), 28 ERC 1218/(D.N.J., 08/10/1988)

The court holds that Federal Rule of Civil Procedure 68, the offer of judgment rule, does not apply to citizen suits under the Federal Water Pollution Control Act (FWPCA). The rule provides that where a party rejects an offer of judgment, prevails at trial, and is awarded less than the amount of the offer of judgment, it will be assessed costs incurred by the offeror after the time of the offer. The court notes that application of the rule to citizen suits creates a disincentive to proceed to trial, since citizen plaintiffs do not personally share in civil penalties awards. This disincentive is contrary to the intent of Congress that persons should be unconstrained to bring citizen suits against FWPCA violators. Under the Rules Enabling Act, 28 U.S.C. §2072, a federal rule of civil procedure may not so impinge the operation of a congressionally passed statute.

Counsel for Plaintiffs
Bruce J. Terris, James M. Hecker, Kathleen L. Millian
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Edward Lloyd
Environmental Law Clinic
15 Washington St., Room 334, Newark NJ 07102

Counsel for Defendant
Phillip D. Reed
Skadden, Arps, Slate, Meagher & Flom
1440 New York Ave. NW, Washington DC 20005
(202) 371-7113

I. Leo Motiuk, Regina A. Murray
Schaff, Motiuk, Gladstone, Moeller & Ligorano
P.O. Box CN-2900, 121 Highway 31 N., Flemington NJ 08822
(201) 788-2000