|
19 ELR 20665 | Environmental Law Reporter | copyright © 1989 | All rights reserved Student Public Interest Research Group of New Jersey, Inc. v. Anchor Thread Co.No. 84-320 (28 ERC 1121) (D.N.J. May 12, 1988)The court holds that attorneys fees are appropriate in a Federal Water Pollution Control Act (FWPCA) citizen suit, but expenses incurred prior to the filing of the notice of intent to sue are not compensable. The court first holds that attorneys fees are appropriate under FWPCA § 505(d). Plaintiffs achieved some success, since the court granted summary judgment on liability in their favor and the parties' settlement required defendant to pay civil penalties to the federal treasury. The court then rules that expenses incurred prior to the filing of the notice of intent to sue are not compensable under the FWPCA. The notice of intent to sue constitutes the beginning of citizen suit litigation in much the same way that the filing of a complaint constitutes the beginning of other types of litigation. The court holds that plaintiffs may recover fees for time spent drafting the notice of intent to sue, and upholds the magistrate's grant of approximately seven hours for this expense. The court rules that the FWPCA expressly authorizes expert witness fees in excess of the general federal fee provisions in 28 U.S.C. §§ 1821 and 1920, which provide for fees of $ 30 per day. FWPCA § 505(d) specifically includes reasonable expert witness fees as part of litigation costs that may be recovered. If Congress had intended for the general federal provisions to apply, it would not have expressly authorized compensation of reasonable expert witness fees in the FWPCA. The court holds that an hourly rate of $ 65 per day for plaintiffs' engineering expert is reasonable, but denies an economist's fees since his work is not adequately specified. The court rules that reasonable attorneys fees under FWPCA § 505(d) include out-of-pocket expenses such as postage, telephone calls, and other miscellaneous expenses. The court denies plaintiffs' overnight postal charges and secretarial overtime expenses, holding that plaintiffs have not shown that these expenses were necessary. The court disallows certain photocopying expenses as not being sufficiently documented and disallows some attorney travel costs. The court holds that fees for work common to this case and 26 similar FWPCA citizen suits brought by plaintiffs are inappropriate, since it is impossible for the court to determine to what extent the common work relates to the instant case. The court holds that the use of Washington, D.C., attorney hourly rates is appropriate, since there is no reasonable basis to assume that there is any difference between markets in Washington, D.C., and New Jersey, where this case arose. The court allows the fees of plaintiffs' local counsel, even though they did not enter an appearance, since this court's [19 ELR 20666] rules require that local counsel be designated and defendant has not shown that local counsel was not helpful to the case. The court disallows fee requests that the magistrate found to be inadequately described or illegible, although plaintiffs have submitted descriptions to cure the defects. The court holds that the lodestar should be reduced by one-third to reflect plaintiffs' incomplete success, and disallows certain fees that it considers excessive for the type of task performed. The court orders a delay-in-payment adjustment for the time between entry of the consent decree and this opinion. [Subsequent decisions in this litigation are published at 19 ELR 20670 and 20671. The court's decision on the merits is published at 15 ELR 20964.] Counsel for Plaintiff Counsel for Defendant Brown, J.: This matter comes before the Court on the parties' objections to the Magistrate's Report and Recommendation as to plaintiffs' request for attorneys' fees and costs. On October 1, 1984, this Court entered an Order granting summary judgment in favor of plaintiffs Student Public Interest Research Group of New Jersey, Inc. ("SPIRG") and Friends of the Earth ("FOE") and against defendant Anchor Thread Company ("ATC") on the issue of ATC's liability for its violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (commonly called the "Clean Water Act"). Subsequently, on August 11, 1986 the parties entered into a Consent Decree which provided that ATC pay a civil penalty to the United States Treasury in the total amount of $ 25,000 in equal annual installments over a period of four consecutive years. The Consent Decree also preserved plaintiffs' right to apply for attorneys' fees pursuant to Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d). On October 20, 198 plaintiffs applied for an award of attorneys' fees and expenses in the amount of $ 116,847.11 (plaintiffs' original application was for $ 99,092.56; they filed two supplemental applications for $ 2,286.16 and $ 15,468.39). This Court referred the matter to the Honorable John W. Devine, United States Magistrate, for a Report and Recommendation. On December 4, 1987, Magistrate Devine filed his Report and Recommendation in which he recommended an award in the amount of $ 88,724.27, plus a delay-in-payment adjustment. Both parties timely filed objections to the Report and Recommendation. Plaintiffs object to the Magistrate's Report and Recommendation, contending that the Magistrate erred in not allowing: 1) the fees of their two expert witnesses; 2) the various out-of-pocket expenses incurred by counsel; 3) the time for work spent on similar cases; 4) the attorneys' fees incurred during investigative work prior to the date the letter notice of intent to sue was sent; and 5) the various fees and costs found by the magistrate to be illegible or inadequately described. Defendant ATC objects to the Magistrate's Report and Recommendation on the grounds that the Magistrate erred in: 1) determining that this was an appropriate case for an award of fees; 2) failing to reduce the lodestar based upon the result obtained by plaintiffs; 3) failing to reduce the award of fees for duplication of effort and the extra costs required by the need for local counsel; 4) failing to reduce the fees awarded in view of the excessive overbilling by plaintiffs; 5) awarding fees for attorneys who had not entered an appearances or otherwise participated in the case; 6) ruling that the applicable hourly rate is that earned by a lawyer with comparable experience and qualifications for the market place in which his or her office is located, rather than the market rate for the district in which the case was prosecuted; and 7) granting an award of $ 88,714.27 where the penalty recovered was only $ 25,000. Pursuant to Rule 40D(5) of the General Rules of the District Court of New Jersey, this Court is required to make a de novo determination of those portions of the Magistrate's Report and Recommendation to which an objection has been made. This Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. Further, it is within the discretion of this Court to receive further evidence or make its determination on the basis of the record that was before the Magistrate. See Local Rule 40D(5). Section 505(d) of the Federal Water Pollution Control Act provides: [T]he court, in issuing any 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. This Court disagrees with defendant ATC's assertion that this case is not an appropriate one for the award of attorneys' fees. The Supreme Court has interpreted Section 505(d) (the attorneys' fees provision, supra), to mean that a party is eligible for an award when that party has achieved "some degree of success on the merits." Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 [13 ELR 20664] (1983). That success need not be a major success to recover attorneys' fees. Id. at 688. In the present case summary judgment as to liability was granted in favor of plaintiffs. Further, the parties settled on terms that required ATC to pay $ 25,000 in civil penalties to the United States Treasury. Clearly, plaintiffs have enjoyed "some success" sufficient to entitle them to an award of attorneys' fees. Cf. Friends of the Earth v. Eastman Kodak Co., 834F.2d 295, 297 [18 ELR 20229] (2d Cir. 1987) ("a favorable settlement is sufficient by itself to support an award of attorney's fees without any adjudication or admission of liability."). Magistrate Devine denied plaintiffs their fees and expenses incurred prior to the filing of the notice of intent to sue. The documents submitted by plaintiffs reveal that Trial Lawyers for Public Justice spent 13.91 hours researching the files of the Environmental Protection Agency and developing the notices of intent to sue. Magistrate Devine allowed half of the 13.91 hours, such time he estimated as representing the hours spent drafting the notice of intent to sue. Plaintiffs contend that the investigation of the facts in this case was "absolutely indispensable" and required by Rule 11 of the Federal Rules of Civil Procedure, and as such, they should be compensated for these hours. This Court disagrees. Pre-notice of intent to sue activity is analagous to investigative work and as such, is not compensable. This Court agrees with Magistrate Devine that in cases under the Federal Water Pollution Control Act, the statutorily mandated Notice of Intent to Sue constitutes the beginning of the litigation in much the same way that the filing of a complaint constitutes the beginning of most other cases. This Court notes that the Magistrate's generous division of the 13.91 hours by one-half should more than compensate plaintiffs for their time spent drafting the notice of intent to sue. Plaintiffs also seek an award of $ 6,597.00, such sum representing the fees of plaintiffs' two expert witnesses. Magistrate Devine disallowed these expenses in their entirety because plaintiffs did not [19 ELR 20667] employ their witnesses at trial and as such, plaintiffs' fees incurred fell outside the statutorily defined allowance set forth in 28 U.S.C. § 1920. As set forth above, pursuant to 33 U.S.C. § 1365(d), Congress provided that costs of litigation, including reasonable attorneys' fees and expert witness fees, may be awarded to a successful party under the Federal Water Pollution Control Act. 33 U.S.C. §1365(d). Congress also provided, pursuant to Title 28 U.S.C. § 1920, that a federal court may tax certain costs against the losing party. That Section reads: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reported for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses and costs of special interpretation services under section 1828 of this title. The witness fee specified in § 1920(3) is defined in 28 U.S.C. § 1821: (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States . . . shall be paid the fees and allowances provided by this section. (b) A witness shall be paid an attendance fee of $ 30 per day for each day's attendance. Awitness shall also be paid the attendance for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. Thus, both the Clean Water Act and Section 1920 allow expert witness fees. The type of analysis to be undertaken in deciding which statute controls was recently addressed by the Supreme Court in Crawford Fitting Co. v. J.T. Gibbons, Inc., 107 S. Ct. 2494 (1987). Plaintiffs contend that the prevailing defendants in Crawford Fitting submitted a bill of costs pursuant to Fed. R. Civ. P. 54(d) and 28 U.S.C. §§ 1920 and 1821, rather than as part of an attorney's fee application. In this case, plaintiffs contend, they do not seek an award under Fed. R. Civ. P. 54(d) but "pursuant to a fee-shifting statute which clearly evinces Congress' intent to expend the nature of the costs which may be awarded to a prevailing party beyond those authorized under the common law American Rule." Alternatively, plaintiffs contend that the Clean Water Act expressly provides for the shifting of expert witness fees, and is therefore "explicit statutory authorization" for an exception to the limitation prescribed by sections 1821 and 1920 and Title 28. Because this Court agrees that the Clean Water Act expressly allows a federal court to award expert witness' fees in excess of the amount specifically provided in sections 1821 and 1920, this Court need not address plaintiffs' first contention. Courts that have been faced with the difficult task of interpreting the Supreme Court's opinion in Crawford Fitting have taken different positions. Some courts have held that the Supreme Court's ruling, with respect to expert witnesses, did not rest on a distinction between an award made under a fee-shifting statute (such as the one in issue here) and an award made under Fed. R. Civ. P. 54(d). E.g. Glenn v. GMC, No. 87-7171 slip op. (11th Cir. April 15, 1988) (available on Lexis) ("We hold that the broad language in Crawford Fitting does not permit a distinction based upon whether or not the award is made under a fee-shifting statute."); Leroy v. Houston, 831 F.2d 576, 586 (5th Cir. 1987) ("Although [Crawford] expressly considered whether Fed. R. Civ. P. 54(d) could, in an antitrust case, override the statutory limit on witness fees, the Court's general reasoning leaves us no room to construe the Voting Rights Act provision here otherwise."). Other courts, however, have held that the Crawford Fitting ruling on expert witness fees involved only the award of costs pursuant to Fed. R. Civ. P.54(d). E.g. Freeman v. Package Machinery Co., 83-0403-F (D. Mass. Sept. 2, 1987) (available on Lexis) ("Defendant's reliance on Crawford is misplaced because that opinion was inapplicable to cases involving explicit fee shifting statutes such as 42 U.S.C. § 1988 and presumably ADEA."); Hillburn v. Commissioner, Civ. H-82-200 (JAC) (D. Conn. Oct. 5, 1987) (available on Westlaw) ("We read [Crawford] . . . to apply only to fee awards under 28 U.S.C. §§ 1920 and 1821(b) and . . . not to reach the question of the awards under 42 U.S.C. § 1988.") This Court agrees with those courts that have interpreted the Crawford Fitting ruling with respect to expert witness fees, to apply beyond the parameters of Fed. R. Civ. P. 54(d). This Court is persuaded by the Supreme Court's own language: We will not lightly infer that Congress has repealed §§ 1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees. Crawford Fitting, 107 S. Ct. at 2499 (emphasis added). The Third Circuit appears to have taken this view. In Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987), a Section 1983 case, the Third Circuit, relying on Crawford, held that a prevailing party in a civil rights case is not entitled to tax [expert] fees as costs. Id. at 474. (42 U.S.C. § 1988 provides only that a prevailing party in a civil rights case may recover "a reasonable attorney's fees as a part of the costs" and makes no mention of expert witness fees.) A statute which provides only for an award of costs will be construed to allow the costs set forth in sections 1821 and 1920. However, a statute which provides for the costs of litigation, including reasonable expert witness fees, as the Clean Water Act does, should be construed as allowing expert witness fees in excess of the amounts provided for in Sections 1821 and 1920. Had Congress intended that the prevailing party in a Clean Water Act case be compensated for his expert witness fees only as defined in section 1920, it would not have authorized the compensation of reasonable expert witness fees in the statute. At least one pre-Crawford court had taken this position. The Court of Appeals for the Fifth Circuit stated, although in dictum, that the Clean Water Act expressly allows a federal court to award expert witness fees in excess of the amounts specified in 28 U.S.C. §§ 1821 and 1920. See International Woodworkers v. Champion International Corp., 790 F.2d 1174, 1179 (5th Cir. 1986).1 As set forth by that court: Given Congress' ability to provide explicitly for the taxing of expert witness fees as costs, we should not infer congressional intent to award such costs in the absence of an express statute so providing. Moreover, a statute which provides only for an award of "costs" or "attorneys' fees' but which fails to address expert witness' fees will not be construed to authorize the taking of expert witness fees in excess of the § 1821 amount. International Woodworkers, 790 F.2d at 1180 (emphasis added). Section 505(d) of the Clean Water Act addresses expert witness fees, and as such this Court must find that expenses beyond those allowed in Section 1920 should be awarded. The question that remains then is what expert witness fees incurred by plaintiffs should be deemed reasonable and therefore allowed by this Court. Plaintiffs' engineering expert, Cahill, billed forty-nine hours at an hourly rate of $ 65, plus $ 62 in out-of-pocket expenses for travel and photocopying for a total of $ 3,247.00. Plaintiffs' economist billed thirty-seven hours at an hourly rate of $ 80 and his research assistant billed thirteen hours at an hourly rate of $ 30, for a total of $ 3,350. More specifically, the $ 6,597.00 sought by plaintiffs represents: (1) the work of a Thomas H. Cahill for his preparation of cross-examination questions for deposition of an ATC expert witness, his preparation of a letter report on waste treatment alternatives, a "site visit," a five-hour review by him of materials, and his attendance at an eight-hour deposition and consulting services; and (2) the work of an unspecified nature of an ICF Inc. This Court finds the expenses incurred by Cahill reasonable, and will therefore allow plaintiffs compensation for such amount. However, this Court will not allow compensation for the services [19 ELR 20668] rendered by ICF. Plaintiffs have not specified the nature of the work performed by ICF, even though they were aware that Magistrate Devine had found the services by ICF were of an "unspecified nature." This Court, therefore, will not request further evidence from plaintiffs in a matter that has consumed disproportionate amounts of time, but will rely instead on the evidence which was before Judge Devine. As this Court cannot find that the fees incurred by ICF were reasonable, plaintiffs' request for $ 3,350.00 will be denied. Plaintiffs also seek an award for their out-of-pocket expenses for monies spent on photocopying, travel, telephone, postage, secretarial overtime, filing fees, messenger services, documents, transcripts, and subpoena services. Magistrate Devine recommended the allowance of an award for filing fees, documents, and transcripts only; he found that these expenses were covered by Section 1920. Plaintiffs contend that reasonable attorneys' fees allowed under the Clean Water Act include expenses such as postage, long-distance telephone calls, and other miscellaneous expenses which are routinely billed to the clients in addition to the attorneys' hourly billing rate. This Court finds plaintiffs' position to be meritorious. Plaintiff contends that Congress intended the phrase "attorney fees" under Section 1365(d) to include all normal litigation expenses. Courts of other circuits have expressly held that the term attorneys' fees traditionally includes out-of-pocket expenses, e.g., Jones v. Chicago, 829 F.2d 553 (5th Cir. 1987); Bennett v. Department of Navy, 699 F.2d 1140, 1144-45 (Fed. Cir. 1983), and this circuit appears to have taken the same view. See, e.g., Wehr v. Burroughs Corp., 619 F.2d 276, 284-85 (3d Cir. 1980) (case brought pursuant to Age Discrimination in Employment Act of 1967) ("Use of computer-aided legal research such as LEXIS, or WESTLAW, or similar systems is certainly reasonable, if not essential, in contemporary legal practice."); Pitchford Scientific Instruments Corp. v. Pepsi, Inc., 440 F. Supp. 1175, 1178 (W.D. Pa. 1977), aff'd w/o opinion, 582 F.2d 1275 (3d Cir. 1978), cert. denied, 440 U.S. 981 (1979) (case brought pursuant to Clayton Act) ("[out-of-pocket expenses] are perhaps not taxable by the Clerk as court costs as authorized by statute, but are certainly expenses which a reasonable and prudent antitrust lawyer would incur for the benefit of his client's case."). But see Vecchione v. Wolhlzemuth, 481 F. Supp. 776, 779 (E.D. Pa. 1979) (court disallowed telephone, travelling, and lodging expenses because not statutorily authorized). Even were this Court not to adopt the broad definition of attorneys' fees — that expenditures made by a litigant in connection with an action are properly under the rubric of attorneys' fees — this Court would reach the same conclusion because the language of Section 1365(d) may be read as providing that other litigation expenses may also be awarded. Were the Third Circuit to address this issue, it would most likely agree. As set forth by the district court in Pitchford Scientific, and affirmed by the Third Circuit Court of Appeals: We note that 15 U.S.C. § 15 does not award merely court costs to a successful antitrust plaintiff, but the "cost of suit." This is a comprehensive term, evidently embracing "the expense of prosecuting the suit to a successful conclusion." The court costs in a technical sense are of course included in "the cost of suit," but other necessary and reasonable expenses are also included (except the attorneys fee, which is specified separately as an additional item to be paid to plaintiff.) Pitchford Scientific, 440 F. Supp. at 1179. This Court notes that in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S. Ct. 3088 (1986), the Supreme Court held that an award of attorneys' fees and costs in a Clean Air Act case should be based on the same principles and case law governing the award of such fees under 42 U.S.C. § 1988, the statute governing civil rights actions. Cases decided since Crawford Fitting, however, have held that the Supreme Court's ruling in Crawford Fitting was specifically limited to the question of reimbursement for fees paid to expert witnesses, and did not reach the question of fee awards under 42 U.S.C. § 1988. Herold v. Hajoca Corp., No. 83-0128-H (W.D. Va. 1988) (available on Lexis) ("Crawford is specifically limited to the question of reimbursement for fees paid to expert witnesses."); Hillburn v. Commissioner, No. H-82-200 (JAC) (Oct. 5, 1987) (available on Lexis). But see Bee v. Greaves, 669 F. Supp. 372, 379 (D. Utah 1987), a post-Crawford decision in which the court held: "Applying the rule of the majority in Crawford this Court has eliminated the 'expenses' in plaintiff's [Section 1988] application that are not specifically covered by 28 U.S.C. § 1920. The Bee v. Greaves court may have relied totally on the fact that Section 1988 provides for attorneys' fees and nothing more. Section 1365(d) of the Clean Water Act, however, is distinguishable. It provides that a prevailing party may recover "costs of litigation." Thus, these expenses, if not allowed as part of the attorneys' fees, if reasonable, should be allowed as part of the costs of litigation based on the rationale of Pitchford Scientific, set forth supra. Plaintiff seeks: $ 282.52 in telephone charges; $ 840.19 in postal charges; $ 232.58 in secretarial overtime; $ 35.50 in messenger service charges; and $ 8.45 in miscellaneous fees. It is the obligation of this Court to determine which expenses were reasonably incurred. This Court finds that $ 382.00 of postal fees representing overnight charges and express delivery charges, and $ 232.58 of secretarial overtime charges are not reasonable expenses and therefore, will not be allowed. Plaintiffs have not met their burden in proving to this Court that such expenses were essential and necessary, and were not incurred merely for the convenience of the plaintiffs' attorneys. Judge Devine disallowed plaintiffs' request for photocopying cost and travel costs because such costs did not come within the purview of Section 1920. Although this Court finds that photocopying and travel expenses may properly be considered as part of the attorneys' fees or the costs of the litigation, see supra, this Court will allow only the photocopying entries of "$ 36.94" and "$ 3.82." With respect to the remaining photocopying entries, this Court cannot determine from the evidence submitted before Magistrate Devine if such expenses were reasonably incurred, or incurred for the mere convenience of the plaintiffs. Plaintiffs describe their expenses, for example, as "May zeroxing," "June zeroxing," etc. This Court will not allow plaintiffs to submit further documentation of the photocopying expenses. With respect to the travel expenses, this Court will allow $ 901.54 and disallow the sum of $ 61.04 which represents the costs of breakfast or lunch during travel by plaintiffs' attorneys. The remaining expenses appear to be reasonable and will therefore be allowed. E. Time for Work on Multiple Cases Plaintiffs' counsel brought fifteen similar Clean Water Act cases in this district (designated by plaintiffs as "Water NJ") and eleven similar Clean Water Act cases in the district court of New York at approximately the same time as the instant suit designated by plaintiffs together with "Water NJ" cases, as "Water General"). In general, plaintiffs' counsel apportioned common time spent on these cases either to all the cases or the fifteen cases brought in New Jersey. Judge Devine disallowed an award for any of plaintiffs' common time, stating that he could "neither make a determination of overlapping effort, nor of the value of the time spent between efforts devoted to critical issues, and that devoted to routine or clerical efforts." Plaintiffs object on the grounds that the evidence they provided was fully adequate to show what work was performed and by whom, and what fraction of that work was allocable to this case. Plaintiffs further argue that the allocation of the time by them was fair. This Court disagrees. This Court is faced with either twenty-six parallel Clean Water Act cases or fifteen parallel Clean Water Act cases (New Jersey only). This is not a case wholly analogous to Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) and its progeny wherein the court was faced with only one parallel case to consider. On remand, the district court in Prandini reduced plaintiff's attorneys' fees by 10% to avoid a double recovery. Plaintiff appealed that decision, and the Third Circuit vacated the district court's grant of attorneys' fees, stating: . . . if evidence in the record supported a finding that certain hours benefitted both cases equally (as, for example, might well be the case where common legal research is incorporated into briefs in both cases), the district would not have abused its discretion if it had prorated the hours between the two cases. [19 ELR 20669] Prandini v. National Tea Co., 585 F.2d 47, 50 (3d Cir. 1978). On remand the second time, the district court held that the fee application was too voluminous and vague for it to particularize a proration without consuming an injustifiably large amount of judicial resources, and therefore allowed the full amount requested by plaintiff. Prandini v. National Tea Co., 80 F.R.D. 447, 448-49 (W.D. Pa. 1978). Unlike the Third Circuit in Prandini, this Court cannot find that the evidence in the record indicates that plaintiffs' counsel has no duplicated charges. Indeed, this Court agrees with defendant's assertion that "it is impossible to determine how and to what extent the individual activity in each of the non-specific files is related to this case." An examination of the time slips submitted by plaintiffs reveals that the work claimed is described in general terms such as "review brief," "reply brief," "amicus brief," "read brief," "settlement," "Penalty policy," "Research — leg. hist. of § 505," etc. However, "double payment for the same effort should be avoided by some apportionment of the fee between the . . . cases." Prandini, 557 F.2d at 1019 n.3. This Court, can neither "make a determination of overlapping effort, nor of the value of the time spent between effort devoted to critical issues, and that devoted to routine or clerical efforts. . . ." Prandini, 80 F.R.D. at 448-49. As such, plaintiffs' attorneys' fees for work apportioned to this case from the so-called "Water General" and "Water NJ" files will not be allowed. F. Washington, D.C. Attorney hourly Rate Defendant opposes the use of a Washington, D.C. attorney hourly rate in calculating the fee award, arguing that "the relevant market in this particular case is New Jersey, where the suit arose and was prosecuted." To date, the Third Circuit has expressly declined to address the issue. See SPIRG v. AT&T Bell Laboratories, Nos. 86-5895, 86-5927, slip op. at 12 n.16 [18 ELR 20758] (3d Cir. March 24, 1988) ("This opinion should not be construed . . . as endorsing a fee based upon an outside market rate at variance with the market rate of the site of the litigation, for we do not reach that issue"). The Third Circuit has only held that a "reasonable attorneys' fee is one that compensates an attorney for the fair market value of his time, experience, and effort." Hall v. Roselle, 747 F.2d 838, 841 (3d Cir. 1984). Further, in In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590 (3d Cir. 1984), the Third Circuit held that "the reasonable value of an attorney's time is the price that time normally commands in the marketplace for legal services in which those services are offered." Accordingly, this Court finds that the reasonable hourly rates listed by plaintiffs' counsel are reasonable. This Court has no reasonable basis for believing any differential exists between the Washington, D.C. and New Jersey markets. Defendants contend that: (i) plaintiffs' retention of local counsel unnecessarily duplicated the efforts of lead counsel; and (ii) plaintiffs should not be awarded the fees incurred by attorneys who had not entered an appearance or otherwise participated in the case. Defendant's contentions are without merit. Rule 5 of the General Rules of this Court provides that an attorney who does not maintain an office within the District of New Jersey shall not appear as an attorney of record for any party in any case without designating local counsel in the initial notice or pleading. Thus, local counsel's role was essential. Further, defendants have not shown how the attorneys who were not active participants were not helpful to the case. Defendant must do more than assert broadly that the fees requested are excessive. National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1337-38 (D.C. Cir. 1982). A review of these particular services reveals that such services were reasonable. These expenses will therefore be allowed. H. Fees and Costs Which are Illegible or Inadequately Described Magistrate Devine found certain of plaintiffs' entries to be illegible or inadequately described. Plaintiffs have now submitted descriptions to cure the defects. Pursuant to Rule 40(D)(5) of the Rules of this Court, this Court may make a determination on the basis of the record before Judge Devine, or may recieve further evidence. This Court is of the opinion that the fee application in this case has already assumed a significant portion of the case in chief, and this Court will not now entertain new evidence. Thus, based on the record before Judge Devine, certain entries are either illegible or inadequately described (as set forth more specifically in the Report and Recommendation), and as such, those hours will be disallowed. I. Fee Award Will Be Reduced to Reflect Incomplete Success on Fee Award Defendant ATC contends that Magistrate Devine erred in his Report and Recommendation because he failed to reduce the lodestar based upon the result obtained by plaintiffs. Defendant's contention is correct, in part. In Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), the Supreme Court held that "the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." See also Riverside v. Rivera, 106 S. Ct. 2686, 2692 (1986). The Court further held that "where the plaintiff achieved only limited success, the district court should award only the amount of fees that is reasonable in relation to the results obtained." Hensley, 461 U.S. at 440. This applies to the degree of success achieved in litigation of the fee award as well. AT&T v. SPIRG, slip op. supra, at 41; Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 925 (3d Cir. 1985). This Court notes that plaintiffs did not succeed in all of their claims for fees. More specifically, this Court has rejected plaintiffs' request for: (1) compensation for work on multiple cases which was allocated to this case; (2) compensation for pre-notice of intent to sue activity; and (3) compensation for time found by Magistrate Devine to be illegible or inadequately described. Accordingly, to the extent that plaintiffs spent time on these issues, the fee award will be reduced. Upon review of the plaintiffs' exhibits, the fee award shall be reduced by the following amounts (where plaintiffs have submitted time slips for a slot of time described generally as drafting the fee application, this Court will subtract one-third of that total as being a reasonable allotment of the hours spent on their unsuccessful claims):
Defendant ATC contends that the fee award should be reduced because plaintiffs overworked and overbilled the case. The award of a reasonable attorney's fee is within this Court's discretion. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 114 (3d Cir. 1976) (en banc). This Court agrees that plaintiffs overbilled this case in certain aspects. This Court will disallow the following fees as being excessive because of the simple or mechanical nature of the work, or because too much time was billed for the type of task performed by the attorney or attorneys. This Court has laboriously reviewed the time slips, and will subtract the following amounts: $ 302.50 for 2.75 hours billed by Carolyn Ann Smith, Esq., [19 ELR 20670] in reviewing defendants' responses to first set of interrogatories; $ 120.00 for 3.0 hours billed by a "LN," a paralegal, described as "search file for defendants possible exhibits"; $ 2,365.00 for 21.50 hours billed by Carolyn Ann Smith, Esq., in drafting the reply brief to defendant's opposition to plaintiffs' motion for partial summary judgment; $ 110 for 1.0 hours billed by Carolyn Ann Smith, Esq., for reviewing a one-page opinion issued by this Court granting partial summary judgment; $ 2,200.00 for 20.00 hours billed by Carolyn Ann Smith, Esq., in drafting the pre-trial order; and $ 440.00 for 4.00 hours billed by Carolyn Smith Pravlick, Esq., in editing the revised finding of facts and conclusions of law. Based on the foregoing, JudgeDevine's recommendation of a fee in the amount of $ 88,714.27 will be modified as follows: The following expenses will be allowed: $ 3,247.00 for expert witness fees; $ 282.52 for telephone charges; $ 35.50 for messenger services; $ 86.00 for subpoena services; $ 8.45 for miscellaneous charges; The following attorney's fees will be disallowed: $ 5,537.50 for time unsuccessfully spent on the fee award; and $ 3,997.50 for time considered to be excessive. It is therefore ORDERED, this 12th day of May, 1988 that for the reasons set forth in the above Report and Recommendation of the Magistrate is hereby adopted as modified above, and that accordingly, plaintiffs shall be awarded a fee of $ 84,239.23, plus a delay-in-payment adjustment for the time between entry of the Consent Decree and the entry of this Opinion calculated at the prevailing rate of interest. 1. This Court notes that the Supreme Court, in J.T. Gibbons, Inc. v. Crawford Fitting Co., 107 S. Ct. 2494 (1987), affirmed the Fifth Circuit's decision in International Woodworkers, supra; however, the Supreme Court did not specifically address the Clean Water Act. 19 ELR 20665 | Environmental Law Reporter | copyright © 1989 | All rights reserved |