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16 ELR 21019 | Environmental Law Reporter | copyright © 1986 | All rights reserved No Damaging or Unsightly Municipal Pollution, Inc. v. King CountyNo. C82-186V (W.D. Wash. July 28, 1986)The court holds that an award of attorneys fees and litigation costs to the citizens' group that prevailed on its underlying claims is appropriate under Resource Conservation and Recovery Act § 7002(e). The court first holds that the prevailing party's attorney's time records are insufficiently detailed and too cryptic to determine the number of hours reasonably expended in the litigation. The court next holds that, on its own review of the casefile, that 372.4 hours to prepare an overly long complaint is excessive, and that an inordinate amount of time was wasted pursuing two summary judgment motions for which there was little, if any, likelihood of success. The court holds that, in the absence of sufficient documentary evidence presented to it, an award of fees and costs is determined by the following factors: the court's observation of the time devoted to trial; information revealed by the clerk's file; time devoted pursuing pretrial motions; the relative success of the plaintiff's action; and "any other factors" bearing upon reasonableness. These are to be considered in light of the action's novelty and difficulty, the requisite skill of counsel, the preclusion of other employment, and the experience and ability of counsel. The court further holds that there should be no upward adjustment of the fee since the action was neither rare or exceptional, nor was the risk of loss great. Based on its analysis of these factors, the court awards plaintiff $175,000 in attorneys fees. The court also holds that the services and fees of expert witnesses are reasonable, and awards these costs, plus miscellaneous costs. [The opinion on the merits appears at 16 ELR 21016. An opinion on a supplemental award of fees and costs appears at 16 ELR 21021.] Counsel are listed at 16 ELR 21016. Voorhees, J.: Having considered the motion of plaintiff for attorney's fees and costs in this litigation, together with the memoranda and affidavits submitted by counsel, the Court now finds and rules as follows: 1. The Resource Conservation and Recovery Act of 1976 provides for the allowance of attorney's fees and costs in an action brought by a citizen under the Act. Title 42 U.S.C. Section 6972(e) provides as follows: The court, in issuing a final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. 2. The Court finds that plaintiff was the prevailing party in this action and has well served the public interest in commencing and pursuing this action. In consequence, the Court finds that an award of costs of litigation in this action is appropriate. 3. It was relatively easy to make the finding that plaintiff is entitled to an award for its costs of litigation. It has been most difficult, however, for the Court to make a finding as to the appropriate amount of that award. The reason for difficulty was the failure by plaintiff's counsel to provide the Court with detailed records describing the nature of the services that were rendered for each unit of time charged to this action. By affidavit plaintiff's counsel has presented evidence of the time devoted each month to this action by each of the attorneys or legal assistants in the law firm retained by plaintiff. That monthly time has not, however, been broken down into a detailed description of the work that was performed for each time charge. Onerous though it may be, it is the clear obligation of any law firm to keep detailed, descriptive time records in any action in which it hopes to recover the costs of litigation from the opposing party. Those records must then be presented to the court when an award of attorney's fees is sought. The Court has examined copies of a portion of the original time records of plaintiff's counsel. These were attached to the affidavit of Michael V. Linnabary in support of the memorandum of defendant King County resisting the award of attorney's fees. The Court found that entries such as the following in the original time records: to be too cryptic to be of any real assistance to the Court in determining how much time was reasonably devoted by plaintiffs' attorneys to this action. In fixing an award of attorney's fees the Court is required to determine the number of hours reasonably expended on the litigation. Hensley v. Eckerhart, 461 U.S. 424 (1983). The Court found that the evidence presented to it in justification of the time for which plaintiff sought an award was simply not sufficient to enable the Court to determine the number of hours that were reasonably necessary to perform the legal services for which compensation is sought. Hence, it is not possible for the Court to accept as a lodestar figure the value of the time charged to this action by plaintiff's counsel even though the Court finds that the hourly rates of the attorneys and the legal assistants were reasonable. 4. Because of the absence of the necessary supporting evidence, the Court has been compelled to work its way through the fourteen volumes of pleadings in this action in order to try to determine the number of hours reasonably devoted to this action by plaintiff's counsel. 5. In correlating the monthly time totals with the activities revealed by the court file of this action, the Court found that an inordinate amount of time was devoted by plaintiff's counsel in the preparation of the complaint in this action. The time records presented by plaintiff's counsel indicate that 372.4 hours, were devoted to this matter prior to the filing of plaintiff's complaint. That so much time was devoted to this matter before the action was begun is, at least partially, explained by the complaint itself. Rather than being a "short and plain" statement of the claim, as required by Fed. R. civ. P. 8(a), the complaint was 42 pages in length, and improperly plead pages and pages of evidentiary matter. The Court recognizes that investigation and legal briefing are properly done prior to the drafting of a complaint, but finds that an excessive number of hours were charged to this matter prior to the filing of the complaint. The Court found also that an inordinate amount of time was spent in pursuing plaintiff's motion and renewed motion for summary judgment. The Court considers the time spent on the motion and renewed motion for summary judgment to have been largely wasted. In this Court's opinion plaintiffs' counsel should have recognized early on, that in an action so replete with factual issues, there was little, if any, likelihood that a motion for summary judgment could be successful. In the Court's opinion those motions did little more than consume a great deal of counsels' time and a great deal of the Court's time. The Court cannot determine from the records presented to it the number of hours charged by plaintiff's counsel to the motions for summary judgment but finds that an excessive number of hours were devoted by plaintiff's counsel to those motions. 6. In light of the failure by plaintiff's counsel to provide detailed, descriptive time records to the Court to justify the time charged by attorneys or legal assistants to this action, the Court is forced to exercise its own judgment as to the time that was reasonably devoted to this matter. In making this determination, the Court is relying upon its observation of the time that was devoted to the trial of this action, upon its judgment of the time that must necessarily have been devoted to the preparation of this matter for trial, upon the information revealed by the Clerk's file, upon the time that was spent in the drafting of the complaint, upon the time that was devoted by plaintiff's counsel in pursuing plaintiff's motion and renewed motion for summary judgment, upon the relative success of plaintiff's counsel upon the many causes of action pleaded by them in plaintiff's complaint, as well as upon all other factors that the Court felt bors upon the reasonableness of the time devoted to this matter. In light of all of the foregoing the Court finds that the value of the time which was reasonably devoted to this action by plaintiff's counsel is the sum of $175,000.00. 7. The Court has considered the factors which are required by Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975), to be considered. The Court finds that in light of the time reasonably devoted to this action by plaintiff's counsel, the novelty and difficulty of the questions, the requisite skill of counsel, the preclusion of other employment, the result obtained and the experience and ability of plaintiff's counsel, plaintiff should be awarded the sum of $175,000.00 as its attorney's fees in this action. 8. For the reasons set forth in Blum v. Stenson, 465 U.S. 886 (1984), the Court finds that there should not be an upward adjustment of that fee. The Court finds that this action is not so rare, nor so exceptional, nor the risk of loss so great as to justify an upward adjustment of the fee found by the Court to be reasonable. See also: Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, U.S. , 54 L.W. 5017 [16 ELR 20801] (July 2, 1986). 9. With respect to the costs incurred by plaintiffs, the Court finds that plaintiff should be reimbursed for the following costs of the following-named experts. The Court heard these experts testify in Court and finds that their fees are reasonable in light of the services rendered by them to plaintiff:
10. The Court finds that plaintiffs should recover from defendant the sum of $175,000.00 as attorney's fees and the sum of $42,711.21 as reimbursement for costs. Accordingly, plaintiffs shall recover from defendant the sum of $217,711.21 as its costs of litigation in this action. The Clerk shall prepare judgment to reflect the rulings made in this order. The Court will, by a separate order, rule upon plaintiff's supplemental application for the award of additional fees and costs in this matter. The Clerk of this Court is instructed to send uncertified copies of this order to all counsel of record. 16 ELR 21019 | Environmental Law Reporter | copyright © 1986 | All rights reserved |