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STUDENT PUB. INTEREST RESEARCH GROUP OF NEW JERSEY

February 14, 1989

STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, et al.
v.
MONSANTO COMPANY


VanArtsdalen, Senior United States District Judge.


The opinion of the court was delivered by: VANARTSDALEN

I. INTRODUCTION

 The Third Circuit Court of Appeals has cautioned that attorneys' fee applications have the potential for "assum[ing] massive proportions, perhaps even dwarfing the case in chief." Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (Lindy II). It was hoped that having received -- on the pending issue of attorneys' fees alone -- a total of twenty-six pounds of pleadings, responsive pleadings, and counter-responsive pleadings measuring three feet in thickness, that the proper measure of attorneys' fees and litigation expenses could finally be determined and end this litigation spanning more than half of this decade. Unfortunately however, there has recently been filed a further application for additional attorneys' fees and costs involved in preparing and briefing the present fee application from May 9, 1988 to December 1, 1988, seeking $78,778.34 in additional compensation. Undoubtedly, plaintiffs' counsel will seek additional future compensation as this dispute winds its way through the appellate process. A brief review of the relevant facts is in order. *fn1"

 In their complaint, plaintiffs alleged that Monsanto had violated the Clean Water Act by discharging pollutants from its Bridgeport, New Jersey, facility into the Delaware River in violation of the discharge limitations contained in its National Pollutant Discharge Elimination System (NPDES) permit. Plaintiffs alleged over 204 violations of Monsanto's NPDES permit. It should be noted that the violations were taken directly from Discharge Monitoring Reports (DMRs) and Non-Compliance Reports (NCRs) which Monsanto itself had prepared and filed with the EPA and NJDEP in accordance with state and federal reporting requirements. Plaintiffs sought in their complaint, inter alia, declaratory relief, injunctive relief, the imposition of civil penalties of $ 10,000 per day for each violation and an award of litigation fees and costs.

 On December 14, 1983, the Honorable John F. Gerry entered summary judgment in favor of plaintiffs on the issue of liability for 236 violations (from August 4, 1977, through September 12, 1983). Six of those 236 violations occurred subsequent to the filing of the complaint. However, there remained to be resolved the issue of Monsanto's liability for thirty-five permit violations which occurred following Judge Gerry's decision. In January 1988, this case came to trial before me to determine liability as to the additional thirty-five alleged permit violations, the amount of any civil penalties to be assessed against Monsanto for all violations, and the propriety of injunctive or other equitable relief.

 Plaintiffs sought the imposition of a maximum penalty of $ 17,190,000.00 on all claimed violations as set forth in their pretrial proposed findings of fact and conclusions of law. This figure was based in part upon plaintiffs' contention that penalties should be assessed for each day of the month in which there was, on any day of the month, a violation of Monsanto's average daily permitted discharge amount. Plaintiffs additionally urged this court to apply the EPA Civil Penalty Policy in determining the minimum civil penalty to be assessed against Monsanto. Plaintiffs argued that consistent with this policy, the amount of any penalty had to reflect the economic benefit derived by Monsanto from noncompliance, as well as the gravity of the noncompliance. Under this alternative approach, plaintiffs sought the imposition of a minimum penalty of $ 2,392,066.00 for all claimed violations.

 Following a nine-day bench trial, on March 30, 1988, I filed an opinion and order disposing of the outstanding merits of the case. I concluded therein that no civil penalties should be assessed for pre-complaint, pre-notice violations. Opinion at 14-22. Penalties were determined to be appropriate, however, in thirty-eight of the alleged forty-one post-complaint violations. Id. at 22-27. I additionally held that plaintiffs' were entitled to an award of litigation fees and costs pursuant to Section 505(c) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(c). Opinion at 37. In that regard, the order directed Monsanto to pay plaintiffs' litigation costs, including reasonable attorney and expert witness fees, and provided that if the parties were unable to agree on the amount of such costs and fees plaintiffs should submit an application to the court on or before April 30, 1988.

 Despite attempts to resolve their differences, the parties were unable to agree and plaintiffs submitted the instant fee petition seeking $ 519,411.80 in attorney's fees, $ 114,108.39 for expenses and expert witness fees, and a delay enhancement of $ 155,879.97, for a total claim of $ 789,400.16. Plaintiffs' Brief at 30. While plaintiffs' counsel are properly entitled to reasonable litigation expenses, including attorney's fees, the claimed sum is excessive and will be reduced in accord with the following discussion.

 II. DISCUSSION

 A. Plaintiffs' Entitlement to Litigation Expenses

 My conclusion that plaintiffs are entitled to reasonable litigation costs and attorneys' fees is amply set forth in my opinion and order entered March 30, 1988. See Opinion at 37-38.

 B. Underlying Policies of Fee-Shifting Statutes

 Plaintiffs' application for the award of attorneys' fees is brought pursuant to Section 1365(d) of the Clean Water Act, which provides in pertinent part that

 
the 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 prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.

 An award of attorney's fees in favor of the prevailing party is not mandatory. The "benchmark" of an award under a fee-shifting statute of this nature is that the fees assessed against the non-prevailing party be "reasonable". See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986) (Delaware Valley I).

 In determining whether an award of fees is "reasonable" within the meaning of section 1365(d), the underlying policies of the statute should be considered. One of the main purposes of section 1365(d), as well as that of other federal fee-shifting statutes, is to enhance enforcement of important federal policies through citizen involvement. Delaware Valley I, 478 U.S. at 559-60; SPIRG v. AT&T Bell Laboratories, 842 F.2d 1436, 1449 (3d Cir. 1988) (SPIRG v. AT&T).

 The United States Supreme Court has enunciated a balancing test to be employed by the court in assessing the reasonable measure of attorney's fees. The attorneys' fee award should be "adequate enough to attract competent counsel to the case," SPIRG v. AT&T, 842 F.2d at 1448 (citing Senate Report on § 1988 of the Civil Rights Act, S. Rep. No. 1011, 94 Cong., 2d Sess. 6, reprinted in, 1976 U.S. Code Cong. & Admin. News 5913), while avoiding the award of an undue windfall. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 3090-91, 97 L. Ed. 2d 585 (1987) (O'Connor, J. concurring) ("[A] court may not enhance a fee award any more than necessary to bring the fee within the range that would attract competent counsel.") (Delaware Valley II); Delaware Valley I, 478 U.S. at 565 ("These [fee-shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client."). Thus, it follows that not every expense which might ordinarily be charged a firm's fee paying clients is necessarily "reasonable" under the purview of section 1365(d).

 The Third Circuit has enunciated a two-part test to be used in the calculation of reasonable attorneys' fees known as the "lodestar" approach. The court should first determine the "hours reasonably spent" on the case, and multiply that figure by the "reasonable hourly rate" of compensation for each attorney involved. Delaware Valley I, 478 U.S. at 563 (citing Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973) (Lindy I). Second, using the lodestar figure as a starting point, adjustments may be made to that figure in light of "(1) the contingent nature of the case, reflecting the likelihood that hours were invested and expenses incurred without assurance of compensation; and (2) the quality of the work performed as evidenced by the work observed, the complexity of the issues and the recovery obtained," id. (citing Lindy II, 540 F.2d at 117; Merola v. Atlantic Richfield Co., 515 F.2d 165, 168 (3d Cir. 1975); see also In re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir. 1984) (Fine Paper), and the party's degree of success. Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 918-19 (3d Cir. 1985).

 C. Determination of the Lodestar

 1. General Reduction

 The first inquiry, then, is to determine the number of hours reasonably spent by plaintiffs in prosecuting this action. In that regard, the fee applicant has the "burden of showing that the claimed rate and number of hours are reasonable." Blum v. Stenson, 465 U.S. 886, 897, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). Plaintiffs' comparison chart at Exhibit 79 shows a total of 3,499.14 hours claimed to have been spent on this case. I note that according to plaintiffs' own interpretation of the time records Monsanto's counsel expended some 732.84 *fn2" fewer hours, or 21% less time, on defense, than did plaintiffs' counsel in prosecuting this action. For the following reasons, I conclude that an overall reduction in plaintiffs' lodestar hours of work by 20% is appropriate, after eliminating certain specific claimed hours.

 I do not agree with defendants' blanket assertion that "a defendant's attorney typically invests more time in defending a civil case than a plaintiff's attorney invests in prosecuting it." Defendant's Supp. Brief at 3 (citing Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 659 (7th Cir. 1985); Samuel v. University of Pittsburgh, 80 F.R.D. 293, 294 (W.D. Pa. 1978). Obviously, who spends more time on a case may vastly differ based on the facts of the case, access to discovery, and competence of counsel. However, in this case plaintiffs' counsel professed to have gained extensive experience, efficiency, and expertise as a result of simultaneously litigating twenty-six parallel cases brought under the Clean Water Act. Plaintiffs' Brief at 14. Thus, the considerably greater amount of time spent by plaintiffs in the course of this litigation is relevant for consideration in modifying the lodestar amount.

 It is also appropriate to consider the complexity of the work undertaken by plaintiffs' counsel. Delaware Valley I, 478 U.S. at 563 (citing Lindy II, 540 F.2d at 117; Merola, 515 F.2d at 168). In this case, both the violations determined by Judge Gerry, and the additional violations determined to have occurred after September 1983, were based solely upon DMRs and NCRs submitted by defendant Monsanto to the EPA and NJDEP. Opinion at 3. Establishing liability was a minimal task as most of the "work" related to proving the liability of Monsanto for the violations of its NPDES permit was done for plaintiffs by Monsanto's monitoring reports. Plaintiffs were not presented with an unduly difficult, complex, or novel case or one that required a huge amount of time in preparation. Discharges exceeding permit levels create a type of "no fault" liability.

 The Third Circuit has held that consideration of a party's degree of success in a matter is appropriate in making adjustments to the lodestar figure. Institutionalized Juveniles, 758 F.2d 897, 918-19. After considering plaintiffs' degree of success as to the method of determining the amount of the penalties, the relative simplicity of proving liability through defendant's own data, and the economy of time and resources that should have accrued from simultaneous prosecution of twenty-six similar claims, I conclude that an overall reduction of 20% to the Terris firms' lodestar, after eliminating certain specific claimed hours as hereafter discussed, is both reasonable and appropriate. It is, of course, an approximation as to the extent of excessive hours utilized. I believe this reduction appropriately serves the dual interests set forth by the United States Supreme Court of insuring a sufficient fee to attract competent counsel while avoiding the award of an undue windfall or overcompensating for unnecessary and excessive "work". See Delaware Valley I, 478 U.S. at 565; Delaware Valley II, U.S. , 107 S. Ct. at 1453.

 In so doing, I reject as unreasonable defendant's argument that a 50% reduction in the lodestar should be made. I similarly reject the plaintiffs' explanation that their substantially greater number of hours spent upon this case can be attributed to the "higher caliber" of their work when compared to that of defense counsel. See Plaintiff's Supp. Brief, at 11. Both sides in this litigation presented high caliber work. They also submitted consistently well written and helpful, but overly lengthy briefs, advocating their positions. Plaintiffs are certainly entitled to the distinction of having submitted the greater quantity of paper in this matter, but greater quantity does not necessarily denote superior quality. The Terris firms' paralegal hours will similarly be reduced by 20%, because so much of the time spent on this case appears to be excessive in light of all of the circumstances.

 2. Hours Reasonably Spent

 (a) Overstaffing and Deposition Hours

 Specific modifications to plaintiffs' "reasonable hours spent" figure are in order. The grossly excessive hours claimed by plaintiffs' counsel may be explained in part by their practice of overstaffing and/or top-staffing even the most common legal procedures such as routine depositions. For example, as noted by defense attorney Kenneth D. Roth and supported by plaintiffs' exhibits, the Terris firm had two attorneys, Mr. Sunderland and Ms. Pravlik, simultaneously in attendance at twelve of the depositions taken in this case. Defendant's Ex. 1, P 1 2X, at 6-7. Mr. Sunderland's 1986 rate is claimed to be $ 175 per hour. Ms. Pravlik's current rate is claimed to be $ 160 per hour. Defendant's Ex. 4, at 34. I find particularly unnecessary the presence of two attorneys at depositions of plaintiffs' own witnesses for which they claim 106 hours. *fn3" I will therefore divide that number in half, and decrease plaintiffs' hours claimed for depositions by 53 hours. *fn4"

 I also agree with defendant that the presence of two attorneys was unnecessary for the depositions of defendant's fact and expert witnesses. Plaintiffs should not be entitled to have both counsel paid by defendant at their full hourly rates (including travel time to and from the depositions) where one is merely taking notes, a duty which could have been attended to by a paralegal, if anyone, and performed much more economically. See Daggett v. Kimmelman, 811 F.2d 793, 799 (3d Cir. 1987) (stating court would approve hour or fee reductions if district court specified in sufficient detail "the tasks and the hours devoted to them that should have been performed by associates or paralegal."). Since in contrast to the deposition of their own witnesses, the presence of the second attorney may have served some legitimate function at times, the Terris firm's claim of 220 hours *fn5" will be reduced by 25%. Fifty-five hours will therefore be deducted from plaintiffs' claimed attorneys' hours for the taking of depositions of defendant's proposed witnesses because of "over staffing."

 Another instance of overstaffing occurred at the trial. Every day of the trial plaintiffs had three attorneys present - Mr. Terris, Ms. Wayne, and Ms. Pravlik; and frequently Mr. Nguyen, a paralegal in the Terris firm. Plaintiffs thus had approximately 60% of the partners in their firm present in court every day of the trial. Seldom in my experience has the presence of more than one attorney per party been absolutely necessary, even in the most complex litigation. Equally reasonably, a partner is frequently assisted by an associate. The presence of three partners, however, with all their "meters running" is clearly excessive given that the case was not unduly difficult except where made so by plaintiffs themselves.

 The very concept of "reasonableness" dictates that at some point the court must impose limitations on the number of counsel who may attend trial and claim compensation from opponents as the result of a fee-shifting statute, lest that number grow out of all proportion to utility. As noted, the presence during trial of two attorneys (but not three) and one paralegal was reasonable, if not absolutely necessary, in this litigation. The Terris firm's claim for 361 attorney-hours spent at trial, Plaintiff's Ex. at 17, will be reduced by one-third or 120 hours to compensate for overstaffing.

 (b) Amici Curiae Brief Hours

 Plaintiffs also seek compensation for approximately thirty-nine *fn6" hours spent on the preparation of amici curiae briefs for the Court of Appeals for the Fourth Circuit and the United States Supreme Court in the appeal of Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542 (E.D. Va. 1985), and the First Circuit in the appeal of Pawtuxet Cove Marina v. Ciba-Geigy Corp., 21 Env't Rep. Cas. (BNA) 1393 (D.R.I. 1984). See Plaintiffs' Ex. 1, para. 19, at 23-24 (affidavit of Bruce J. Terris). Therein, plaintiffs were proponents of the position that citizen suits should be allowed to seek penalties for past Clean Water Act violations. Those hours will be disallowed since they are not part of the instant case, are not authorized by statute, and were not even litigated in this circuit. Defendant Monsanto should not be made to pay fees for plaintiffs' unilateral decision to intervene in matters extrinsic to this litigation for the purpose of improving their position vis-a-vis all twenty-six of their Clean Water Act claims. Moreover, it is impossible to determine with any certainty what, if any, effect plaintiffs' amici curiae briefs had upon the decision of the Supreme Court in Gwaltney of Smithfield, Ltd., v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987). Theoretically, if entitled to any fees for such amici curiae briefs, application for the same should be made in the cases where the briefs were filed.

 (c) Plaintiffs' Travel Time Claims

 Although not explicitly set forth in plaintiffs' Summary of Fees and Expenses, plaintiffs' counsel have included in their proposed lodestar figure numerous hours inevitably and foreseeably spent travelling between the Terris firm's Washington, D.C. office and Camden, Trenton, and/or Philadelphia for court appearances, settlement negotiation meetings, and other activities related to this litigation. See generally Plaintiffs' Ex. 5. See also Defendant's Ex. 49, at 22 (listing Terris firm's travel time claims). As best as can be determined from the Terris firm's time slips, which are often illegible and/or missing their "classification codes", approximately 112.25 hours of such travel was logged for which the Terris firm claims a right to attorney's fees at the full hourly rate during all travel time. I conclude that amount should be modified.

 Plaintiffs are entitled to retain whatever counsel they desire so long as they comply with the relevant Federal and Local Rules of Civil Procedure; but penalizing the defendant for plaintiffs' choice of distant counsel is a separate matter.

 In Danny Kresky Enterprises Corp. v. Magid, 716 F.2d 215 (3d Cir. 1983), the district court considered plaintiff's request for compensation for its attorney's travel time from Philadelphia, where counsel worked, to the Pittsburgh venue of the trial. The district court eliminated most of the plaintiff's attorney's travel time claim stating that:

 
Plaintiff was fully aware of the fact that this litigation would take place in Pittsburgh. Despite this, plaintiff chose to secure out-of-town counsel, knowing that capable attorneys were present in Pittsburgh, who could have handled this case. The Court does not believe it fair to impose these travel costs upon defendants; rather, the plaintiff should bear these costs.

 Id. at 217-18. The Third Circuit, however, directed the district court to reinstate the deducted travel time, mainly because it was "not an appropriate case to fault plaintiff for selecting a counsel from outside the city of trial. Plaintiff's counsel was from the same state, not from across the country, and under Pennsylvania rules is free to practice throughout the state." Id. at 218 (emphasis added).

 In contrast, the instant case presents circumstances warranting modification of the Terris firm's travel time from Washington, D.C. to Camden, Trenton, and/or Philadelphia. Plaintiffs have made no showing that they were unable to secure qualified counsel within the District of New Jersey. To the contrary, defendant's submissions establish that qualified south New Jersey attorneys could have successfully handled the case. Moreover, under Local Rule 4 of the District Court of New Jersey, the ...


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