The opinion of the court was delivered by: VANARTSDALEN
On February 14, 1989, this court entered an opinion and order
awarding plaintiffs' counsel a total of $ 273,990.52 in attorneys' fees and litigation expenses pursuant to Section 505(c) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(d). 721 F. Supp. 604. Presently before the court are plaintiffs' counsel's motion for reconsideration of the February 14, 1989 opinion, and an additional petition for attorneys' fees and litigation expenses associated with litigating the fees issue. I will address those motions seriatim.
As the facts of the underlying litigation and award of attorneys' fees and related litigation expenses have previously been set forth in considerable detail, they need not be repeated. For a complete discussion of the underlying facts of this case, see opinion and order of March 18, 1988 (Docket No. 93) and opinion and order of February 14, 1989 (Docket No. 144).
III. PLAINTIFFS' MOTION FOR RECONSIDERATION
On February 28, 1989, plaintiffs filed a motion for reconsideration of this court's February 14, 1989 opinion pursuant to Federal Rules of Civil Procedure 52 and 59. Plaintiffs contend that reconsideration is warranted because the court apparently overlooked one of their responsive briefs; to wit, "Plaintiffs' Brief in Reply to Defendant's Brief in Opposition to Plaintiffs' Application for an Award of Litigation Costs, Including Attorneys' Fees and Expert Witness Fees" (plaintiffs' reply brief).
Plaintiffs are apparently correct in that regard. Plaintiffs' reply brief was inadvertently overlooked amidst the plethora of briefs filed in this matter. Plaintiffs' motion for reconsideration shall thus be granted.
1. Application of Southern New Jersey Rates
In my February 14, 1989 opinion, I concluded that southern New Jersey was the "relevant community" for purposes of computing the reasonable hourly rate prong of the lodestar. 721 F. Supp. 604, Slip op. at 28. One of the sources cited in support of that proposition was the Report of the Third Circuit Task Force on Court Awarded Attorney Fees, 108 F.R.D. 237 (1987) (Task Force Report), wherein the Task Force "concluded that the best rule is the 'forum rate' rule . . . deviation [from which] should be permitted only when the need for 'the special expertise of counsel from a distant district' is shown or when local counsel are unwilling to handle the case." Id. at 261 & n.72. In that regard I stated that "plaintiffs in the instant action have provided no evidence to establish a lack of New Jersey counsel capable of litigating this action, or that New Jersey law firms were unwilling to handle the case." 721 F. Supp. at 618.
Plaintiffs' Washington, D.C., lead counsel, Terris, Edgecombe, Hecker & Wayne (The Terris firm or plaintiffs' counsel) and local New Jersey counsel, Gordon, Gordon & Haley, dispute that finding and argue that they in fact provided specific evidence that (i) they were unable to locate New Jersey counsel willing to represent them, and (ii) the Terris firm had special environmental litigation expertise at the time they were initially retained.
Before addressing the merit of plaintiffs' "evidence," I note two things. First, the Task Force's words "deviation from this rule should only be permitted," clearly manifest a presumption favoring application of the forum's rate and placing the burden of rebuttal upon the party urging a different rate, i.e., plaintiffs' counsel. Second, it should be noted that the Task Force Report was merely one of several rationales cited to support application of the forum rate rule. See slip op. at 25-30.
Plaintiffs point to the affidavits of Edward Lloyd, Esquire, and Carolyn Smith Pravlik, Esquire, as demonstrative of their inability to locate available and willing New Jersey counsel. Plaintiffs' Brief in Support of their Motion for Reconsideration and to Amend the Findings and Order Pursuant to Federal Rules 52 and 59
at 2-3 (citing Plaintiffs' Reply Brief at 15-16; Plaintiffs' Ex. 56, paras. 2, 4-5, at 1-2 (affidavit of Edward Lloyd, Esq.); Plaintiffs' Ex. 57, paras. 2-3, at 1 (affidavit of Carolyn Smith Pravlik, Esq.)). Mr. Lloyd's affidavit, however, proves nothing of that sort, but merely states that he "was not aware of any attorneys or law firms who would have been willing to assume the risks of litigating cases of this type . . . . without contemporaneous payment for their services[,] [or of] New Jersey firms with any experience litigating environmental issues on behalf of plaintiffs." Plaintiffs' Ex. 56, para. 4, at 2 (emphasis added). Regardless of Mr. Lloyd's experience as a staff attorney with the Rutgers University Environmental Law Clinic, his ignorance of the existence of New Jersey attorneys willing to have undertaken litigation of this sort is simply not probative evidence on the issue. Ignorance of a fact in this context is not evidence.
Further, nowhere in Mr. Lloyd's affidavit does he attest to any affirmative effort to retain New Jersey counsel. On that issue, defendant pointedly notes that
one probable reason why Mr. Lloyd's affidavit is devoid of specific efforts to retain New Jersey counsel is that there was apparently no need to engage in such efforts. As set forth in the first affidavit of Bruce Terris, sometime in 1982, SPIRG was contacted by the [National Resources Defense Council (NRDC)] pilot project to develop and institute citizen suits under the Clean Water Act. After SPIRG agreed to participate in this project, Trial Lawyers for Public Justice ("TLPJ"), a Washington, D.C. based law firm, and Kathleen Butler "agreed to serve as counsel" to SPIRG, NRDC and other environmental groups. In late 1982, after NRDC and TLPJ decided they did not wish to pursue the New Jersey cases developed during the pilot project (including this case against defendant Monsanto), Anthony J. Roisman of TLPJ referred plaintiffs to the Terris firm for continued representation. In early 1983, according to Mr. Terris, the Terris firm "agreed" to represent plaintiffs.
Defendant's Brief in Opposition to Plaintiffs' Motion for Reconsideration and to Amend the Findings and Order Pursuant to Federal Rules 52 and 59 at 4 n.* (citing Plaintiffs' Ex. 1, para. 2, at 1-3). Thus, it would appear that plaintiffs' failure to proffer any evidence of an inability to retain New Jersey counsel to represent them in this matter at the time this litigation was initially contemplated was because no such attempt was ever made.
Mr. Lloyd's statement that he was "aware of" a few sole practitioners who engaged in environmental litigation practice on behalf of plaintiffs, but that "none of them was in a position to handle litigation of this magnitude," Plaintiffs' Ex. 56, para. 4, at 2., is conclusory and similarly fails to constitute evidence. Moreover, since I have repeatedly stated this case "neither prospectively, nor retrospectively viewed was particularly difficult, complex, or requiring of specialized expertise," 721 F. Supp. at 618. Mr. Lloyd's reference to "litigation of this magnitude" is presumably an allusion to the entire group of twenty-six Clean Water Act cases. The question here, however, was not whether there were New Jersey counsel capable of efficiently litigating twenty-six Clean Water Act cases, but whether there was New Jersey counsel capable of handling this case. Mr. Lloyd's own statement would suggest there were. Plaintiffs' Ex. 56, para. 4, at 2.
Mr. Lloyd further states that recently he has been unsuccessful in locating New Jersey counsel willing to initiate similar citizen suits. Id., para. 5, at 2. Plaintiffs' efforts to retain New Jersey counsel in 1988 in connection with other cases are of little significance.
Ms. Pravlik claims in her affidavit to have encountered "considerable difficulty in locating an attorney to serve as local counsel." Plaintiffs' Ex. 57, para. 2, at 1. That statement similarly fails to prove the absence of New Jersey counsel willing or able to handle this case. Regardless of the asserted (and unspecified) difficulties she encountered, Ms. Pravlik was ultimately successful in locating local counsel. Further, Ms. Pravlik's affidavit speaks only to her own firm's difficulty in retaining local counsel ; not plaintiffs' inability to secure willing and able New Jersey lead counsel. The former is not the same as the latter. There are many reasons why a firm might readily agree to represent SPIRG as lead counsel, but decline an invitation to serve as local counsel.
Plaintiffs also argue that defendant's affidavit evidence from New Jersey attorneys "does not show that the affiants were willing to represent plaintiffs in an action such as this case." Plaintiffs' Reconsideration Brief at 5. Plaintiff's further complain that "none of the affiants even identified themselves as environmental litigators for plaintiffs." Id. at 5-6 (citations omitted). That argument is meritless. As noted above, the burden was on plaintiffs (as the party demanding non-forum rates) to demonstrate that New Jersey counsel were unwilling or otherwise incompetent to undertake representation of plaintiffs in this matter. See Task Force Report, 108 F.R.D. at 261 & n. 72 (citing Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140-41 (8th Cir. 1982) ("If 'a plaintiff can show he has been unable through diligent, good faith efforts to retain local counsel, attorney's fees . . . are not limited to the prevailing rate in the district where the case is tried.'" (citation omitted)). As stated in the February 14, 1989 opinion, and as discussed above, plaintiffs never satisfied that burden. The burden of rebuttal thus never shifted to defendant. Defendant's affidavits were submitted for one purpose only: to establish prevailing southern New Jersey market rates. They did not address, nor did they need address, whether the affiants would have been willing to represent plaintiffs some five years ago. Nor did the court cite the affidavits in question for any other purpose than to establish prevailing southern New Jersey market rates on a historical basis. See slip op. at 29, 30-33.
Plaintiffs' counsel also take issue with the court's statement that "the special expertise, if any, which the Terris firm claims to have gained . . . as a result of litigating twenty-six substantially similar Clean Water Act cases could not have accrued until after the decision had already been made. . . to retain them, i.e., 'after the fact.'" 721 F. Supp. at 618 (citing Plaintiff's Brief at 15) (emphasis in original). Plaintiffs' counsel somehow misconstrues that portion of the opinion as a finding that the Terris firm had no previous environmental litigation experience. See Plaintiffs' Reconsideration Brief at 3-4; Plaintiffs' Reconsideration Reply Brief at 3. The court said nothing of the kind. The citation given by the court to "Plaintiffs' Brief at 15" quite clearly evidences that the finding was directed only to plaintiffs' claim that their litigation of "45 similar cases, the original 26 cases and 19 cases brought in 1986 and 1987 . . . provided them with a level of expertise and familiarity with both the Water Act and the developing body of citizen suit case law which [made] their time spent in any individual case more efficient." The court's observation was thus correct to the extent plaintiffs' counsel claimed "special expertise" as a result of litigating the twenty-six Clean Water Act cases.
Finally, even assuming the Terris firm were environmental litigation experts, and that such expertise was acquired prior to this litigation, the key inquiry remains not whether the Terris firm had such experience, but whether such claimed unique expertise was essential for this litigation. In the February 14, 1989 opinion, I concluded it was not. See slip op. at 9. Notwithstanding plaintiffs' view to the contrary, Plaintiffs' Reconsideration Reply Brief at 4-5, I decline to modify my decision as to this issue.
In sum, I conclude plaintiffs had the burden of proving that New Jersey attorneys/law firms were unwilling or unable to litigate this case. Plaintiffs failed to sustain this burden, and imposition of the forum rate rule is thus appropriate in this case. Inasmuch as plaintiffs did not submit evidence sufficient to rebut application of the forum rate rule, there is no contested factual issue requiring a hearing. See Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), vacated and remanded on other grounds, 478 U.S. 1015, 106 S. Ct. 3324, 92 L. Ed. 2d 731 (1986), original decision reinstated 807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049, 107 S. Ct. 2179, 95 L. Ed. 2d 836 (1987).
2. Travel Time and Travel Expenses
3. Staffing of Depositions of Plaintiffs' Witnesses
Plaintiffs' next complaint is directed to the court's 50% reduction to the number of hours claimed for the deposition of plaintiffs' own witnesses, which reduced plaintiffs' claim by 53 hours. Plaintiffs' id. at 5-6. That reduction was premised on a finding that plaintiffs had two attorneys present at the depositions of their own witnesses and that there was "no way to determine from the evidence . . . which attorney was doing the 'lion's share' of the deposition in question." 721 F. Supp. at 612 & n. 14. Plaintiffs submit that the court overlooked "rebuttal evidence submitted by plaintiffs that Ms. Pravlik defended all six depositions of plaintiffs' witnesses," Plaintiffs' Reconsideration Brief at 8 (citing Plaintiffs' Reply Brief at 28-29; Plaintiffs' Ex. 57, para. 5, at 2); and that Mr. Sunderland briefly attended only two of the depositions in order to participate in certain discussions. Plaintiffs consequently argue that only some 1.25 hours logged by Mr. Sunderland should be deducted from their total hours claimed for depositions of their witnesses.
After due consideration of Ms. Pravlik's rebuttal affidavit, I believe modification of the 50% reduction made to plaintiffs' claim for hours spent in depositions of their own witnesses to be in order. Plaintiffs shall be entitled to an additional 53 hours of attorney time, less 10 hours,
for a total increase of 43 hours to their attorneys' fees lodestar. Forty-three hours multiplied by the average hourly rate, see slip op. at 33-34, of $ 87 yields an increase to the Terris firms' fee award of $ 3,741.00.
4. Photocopying Expenses, Postage/Overnight Delivery Charges and Expert Witness Fees
After due consideration of plaintiffs' arguments and defendant's response thereto, the court finds plaintiffs' arguments meritless and declines to modify the February 14, 1989 opinion as it pertains to photocopying expenses, postage/overnight delivery charges and expert witness fees. I believe the February 14, 1989 opinion provides ample support for those reductions. See also infra at 22-31.
5. Water-General and Water-NJ
This court denied plaintiffs' request for compensation for hours allocated to this case from plaintiffs' two general billing categories, "Water-General" and "Water-NJ." Slip op. at 12 n. 3, 48-49. Therein, I stated that plaintiffs failed to provide any evidence that the allocated hours were for activities that related to this specific litigation. Id. I believe the Third Circuit's recent affirmance of Judge Brown's decision to deny such hours in SPIRG v. Anchor Thread, 1988 U.S. Dist. LEXIS 4348, No. 84-320 (D.N.J. May 13, ...