United States District Court, D. New Jersey
August 26, 2004.
INTERFAITH COMMUNITY ORGANIZATION, et al., Plaintiff,
HONEYWELL INTERNATIONAL, INC., (formerly known as AlliedSignal, Inc.), et al., Defendants.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Presently before this Court is Plaintiff Interfaith Community
Organization's ("ICO"), and ECARG, Inc.'s ("ECARG") (hereinafter
collectively referred to as the "Petitioners") application for an
award of litigation costs, including attorneys' fees and expert
On May 21, 2003, this Court entered an Amended Opinion granting
judgment in favor of ICO and ECARG with regard to ICO and ECARG's
42 U.S.C. § 7002(a)(1)(B) claims against Honeywell. See
Interfaith Community Organization v. Honeywell Int'l Inc.,
263 F.Supp. 2d 796 (D.N.J. 2003). The Amended Opinion Awarded ICO and
ECARG fees and costs that were "incurred in furtherance of its
RCRA claim against Honeywell in this action." Id. at 850.
On July 18, 2003, ICO filed Plaintiff's Application for an
Award of Litigation Costs, Including Attorneys' Fees and Expert
Witness' Fees ("ICO Fee Application"). The ICO Fee Application
sought reimbursement of $4,706,506.09 in attorneys fees and
expenses. On November 13, 2003, ICO filed Plaintiff's Reply Brief
in Support of Their Application for an Award of Litigation Costs,
Including Attorneys' Fees and Expert Witness' Fees ("ICO Reply"),
reducing ICO's request from $4,706,506.09 to $4,587,990.22.
On July 21, 2003, ECARG filed a Petition for an Award of
Attorneys' Fees, Expert Witness Fees and Other Costs Related to
ECARG's RCRA claim ("ECARG Fee Petition"). The ECARG Fee Petition
sought $7,652,080.24 in attorneys' fees and expenses. On November
14, ECARG filed a Reply in Further Support of the ECARG Fee
Petition ("ECARG Reply"), reducing its request from $7,652,080.24
The parties to this action appeared before this Court on May 4,
2004 for a hearing on the record.
Section 7002(e) of the Resources Conservation and Recovery Act
("RCRA") 42 U.S.C. 6972(e) provides that the Court "may award
costs of litigation (including reasonable attorneys' and expert
witness fees) to any prevailing or substantially prevailing
party, whenever the court determines such an award is
appropriate." This Court having determined that ICO and ECARG are
prevailing parties in this litigation, stating in an Order dated
May 16, 2003:
Having prevailed on their RCRA claims, [ICO] and
ECARG are entitled to an award of attorneys' fees,
costs and expenses they have incurred in furtherance
of their RCRA claims in this action.
Lindy Brothers Builders, Inc. of Philadelphia v. American
Radiator & Standard Corp., 487 F.2d 161, 167 (3d Cir. 1971)
establishes the principle that the "lodestar" is calculated by
multiplying the number of hours reasonably expended by a
reasonable hourly rate. The lodestar method is presumed to yield
a reasonable fee. Washington v. Philadelphia Court of Common
Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal citations
There are several issues that must be addressed in determining
the award of attorneys' fees and costs in this matter. The first
issue is whether the ECARG and ICO petitions are duplicative
(i.e. whether these two parties seek separate compensation for
the same work as they both litigated RCRA claims against
Honeywell). Second, as applies to counsel for ICO, Terris,
Pravlik & Millian, L.L.P. (the "Terris Firm") and counsel for
ECARG, Wallace King Marraro & Branson, P.L.C. ("Wallace King"),
whether New Jersey or Washington, D.C. rates should apply, and
what those rates are. Third, this Court, in calculating the
"lodestar" must determine whether the claimed number of hours
expended by counsel here are reasonable. Thus, this Court must
determine how much of the parties' work is recoverable, what rate
to apply to the work, and multiply that rate by the reasonable
number of hours expended to arrive at the "lodestar" amount.
A. Is the Total Fee Recovery Duplicative?
The first issue that this Court must assess in deriving the
"lodestar" is whether or not ICO and ECARG's pursuit of their
RCRA claims were unnecessarily duplicative. Honeywell argues that
whatever fee this Court awards, it should be tailored to reflect
the reasonable and necessary costs for trying the RCRA claim one
time. Honeywell asserts that ICO and ECARG's fee applications
seek reimbursement as if each applicant was the sole RCRA
plaintiff and was required to bear the entire cost of prosecuting
the RCRA claim, but that in reality the two applicants prosecuted
nearly identical RCRA citizen suit claims that sought and
achieved a single result.
Both ICO and ECARG incurred an enormous amount of attorney
hours; more than 10,000 by ICO and 9,000 by ECARG, and paralegal
hours; 2,797 by ICO and 4,738 by ECARG, prosecuting their RCRA
claims. Honeywell asserts even where ICO and ECARG claim to have
coordinated efforts, that they have done so in name only. As an
example, Honeywell notes that ICO and ECARG filed a joint motion
for summary judgment, but each spent large amounts of time on the
unsuccessful effort; 362.5 attorney hours by ICO and 200 attorney
hours by ECARG. While this is a significant amount of time,
Plaintiff does not demonstrate how a large number of hours is
necessarily indicative of duplicative efforts or lack of
Ultimately, it is the duty of the party seeking fees to exclude
such hours from its initial calculation of the total hours
expended. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Honeywell asserts that while ICO and ECARG are within their
rights to pursue very similar claims independently, that
duplicative and redundant costs cannot be shifted to Honeywell.
See e.g. Halderman v. Pennhurst State Sch. & Hosp.,
49 F.3d 939, 943-44 (3d Cir. 1995). Honeywell insists that it should only
be liable for the fees and costs necessary to the litigation of a
"single and well-managed action." Gerena-Valentin v. Koch,
739 F.2d 755, 759 (2d Cir. 1984).
ECARG is essentially an intervener in this matter,
independently choosing to file a complaint against the Defendant,
Honeywell. Courts in other circuits have awarded interveners
attorneys' fees under fee-shifting statutes. See e.g. EPA v.
Envtl. Waste Control, Inc., 710 F.Supp. 1172, 1248 (N.D.Ind.
1989) aff'd, 917 F.2d 327 (7th Cir. 1990) (intervener
entitled to fees under RCRA).
Furthermore, ICO and ECARG are not fully aligned in interest.
ECARG was a Defendant for the entire litigation against whom
Plaintiffs sought a finding of liability. Only later did ECARG
choose to pursue its RCRA claim against Honeywell.
Furthermore, ECARG and ICO are adverse parties in this
litigation, thus ECARG had no control over ICO's case. Also,
while ICO, as an environmental group, focused its claim on the
imminent and substantial endangerment that the chromium
contamination presents to the environment at or near the Site,
ECARG, as owner of the Site, presented a RCRA claim that was more
focused on the human health risks posed by contamination at the
While it is the case that both ICO and ECARG pursued RCRA
claims, this similarity alone is insufficient to render all of
their work as duplicative. This was an immensely complicated
litigation, and ICO and ECARG were adverse parties throughout.
Accordingly, this Court declines Honeywell's request to treat ICO
and ECARG as a "single prevailing party" for fee recovery
B. Appropriate Billing Rate
The second issue that must be determined with regard to this
fee application is what fee should apply to the Terris Firm and
to Wallace King.*fn1 Both of these firms are based in
Washington, D.C. and wish to have the Washington, D.C. market
rates apply to their fee applications. Honeywell asserts that New
Jersey rates should apply, but that if this Court is to determine
that Washington, D.C. rates should apply, that those rates be
controlled by the Laffey Matrix.*fn2
The starting point in determining a reasonable hourly rate is
the attorneys' usual billing rate, but this is not dispositive.
See Alan Hirsch & Diane Sheehey, Federal Judicial Center,
Awarding Attorneys' Fees & Managing Fee Litigation 20 (1994);
compare Cunningham v. City of McKeesport, 753 F.2d 262, 268
(3d Cir. 1985) (adopting firm's regular billing of $100 per hour
for purposes of lodestar calculation), vacated on other
grounds, 478 U.S. 1015 (1986), original decision reinstated,
807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987)
with Student Pub. Interest Research Group v. AT & T Bell
Lab., 842 F.2d 1436, 1443-45 (3d Cir. 1988) (rejecting approach
of adopting attorneys' actual billing rates for more flexible
community market rate approach).
In Blum v. Stenson, 465 U.S. 886, 890 (1984), the Supreme
Court held that attorneys from the Legal Aid Society of New York,
a non-profit law office, were entitled to a fee based on
prevailing market rates rather than the cost to such lawyers for
providing their services. In AT&T Bell Laboratories, the Third
Circuit has determined the, under Blum, that the normal billing
rate of the Terris Firm was below the market rate and that fee
awards for the Terris Firm should be based on community market
rates rather than the Terris Firm's actual billing rate. AT&T
Bell Lab., 842 F.2d at 1448. That Court also affirmed the
district court's use of rates based on the Washington, D.C.
market, in which the Terris Firm is located. Id.
In fee cases involving out of state counsel, the question
arises as to whether the governing hourly rate should be the
prevailing rate of the forum community or the out of state
counsel's home community. The Third Circuit has not developed a
universal, per se, answer to this issue.
In 1985, the Third Circuit established a Task Force on Court
Awarded Attorney Fees to address the issue of fee awards in this
circuit. The Task Force recommended the adoption of the "forum
rate" rule. Report of the Third Circuit Task Force on Court
Awarded Attorney Fees, 108 F.R.D. 237, 260 (1985). The Task Force
explicitly indicated that this recommendation was "contrary to
current Third Circuit practices." Id. at 261, n. 73. The Task
Force unequivocally stated that where there is a difference
between the forum's rate and that of the petitioning attorney,
"[t]he Third Circuit uses the rate applicable in the locale in
which the attorney practices." Id. at 249, n. 40.
Here, ICO and ECARG seek an award based on market rates in
Washington, D.C., where the Terris Firm and Wallace King are
located. Despite the recommendation of the Task Force, "[n]either
a task force report nor a subsequent panel can overrule a
published opinion of this Court." PIRG v. Windall,
51 F.3d 1179, at 1186 n. 9 (3d Cir. 1995). It is curious that ICO has
cited Windall because, in that case, the Third Circuit adopted
a general rule that the forum community is the relevant community
for the purposes of determining hourly rates unless the fee
applicant can show that the case requires the special expertise
of counsel from the non-forum location or that counsel from the
local forum are unwilling to take the case. Id. at 1187-88.
Ultimately, however, case law is inconsistent with regard to this
Most Courts in this Circuit have held that, absent special
expertise or inability to obtain local counsel, the forum rates
should apply. The Task Force has indicated that the forum rate
rule should be applied except "when the need for `special
expertise of counsel from a distant district is shown' or when
local counsel are unwilling to handle the case."
108 F.R.D. at 261. Accordingly, this Court must determine whether this matter
required the special expertise of the Terris Firm or Wallace
King, or, in the alternative, that local counsel were unwilling
or unable to handle this case.
1. Terris Firm
At the time that this suit was initiated, the Terris Firm had
litigated hundreds of major environmental cases on behalf of
citizens for more than twenty-five years. The Terris Firm's
experience was directly related to such issues in this case as
the notice requirement, standing, and preclusion due to
governmental activities. Furthermore, when this matter was
initiated, the Terris Firm was litigating another RCRA matter
involving the same New Jersey statutes and standards at issue
here. ICO v. Shinn, Civ. No. 93-4774 (JCL), Slip. Op. (D.N.J.
November 24, 1998). Thus, ICO had expertise not only in the
general field of environmental cases brought by citizens, but
more specifically, with regard to the particular issues of this
case. Indeed, this Court is well aware that the Terris Firm has
successfully litigated many citizen suits before this Court,
various Courts of Appeal, and the United States Supreme Court.
This Court further notes that when ECARG decided to pursue its
RCRA claim against Honeywell, that they retained Washington, D.C.
counsel. Moreover, after Honeywell lost the RCRA claim in
district court, it too retained counsel from Washington, D.C.
Since all of the major parties involved in this litigation have
retained counsel from Washington, D.C., ICO's retention of
Washington D.C. counsel strikes this Court as imminently
reasonable. In a case where all counsel were from Washington,
D.C., the Third Circuit used Washington, D.C. rates because "the
case was briefed and argued based on the [Washington] D.C.
market." AT&T Bell Laboratories, 842 F.2d at 1442, n. 4 (1988).
Furthermore, the forum rate rule is allowed "when local counsel
are unwilling to handle the case." 108 F.R.D. at 261. There is
some disagreement between the parties as to what quantum of proof
is necessary in order to demonstrate that local counsel are
unwilling to handle a matter. Honeywell asserts that ICO must
demonstrate that they were unable to obtain competent New Jersey
counsel in this case. This Court does not read the case law to be
so narrow. When a litigant has reason to know that competent
local counsel are unavailable, it strikes this Court as a
needless exercise in futility to go through the process of
searching for something that is not there. See e.g., Charles
Q. by & Through Beilharz v. Houston, 1997 U.S. Dist. LEXIS 17308
(M.D.Pa 1997); Church of the Am. Knights of the Ku Klux Klan v.
City of Erie, 2000 U.S. Dist., LEXIS 20019 (W.D. Pa 1998).
ICO had previously sought to protect residents from chromium
exposure and to clean up properties. Affidavit of Joseph Morris,
¶ 2. ICO sought to bring litigation to clean up the
contamination. Id. at ¶ 4. However, as a community group, ICO
was not in a position to pay an attorney any compensation, not
even for expenses. Id. at ¶ 5. In their search for competent
legal counsel, ICO was repeatedly turned down by local attorneys
for a number of reasons: the case involved political risk, the
case involved intensive factual work, the legal terrain was
extremely specialized, and the costs would be too great. Ibid.
As a result, ICO brought its suit pro se. ICO v. Shinn, Civ.
No. 93-4774 (JCL), Slip Op. (D.N.J. November 24, 1998).
When ICO faced dismissal because it might not be able to
proceed as a pro se litigant, ICO brought their case to the
attention of the Terris Firm. During the litigation of that case,
ICO and the Terris Firm discussed the contamination at issue in
this case. Affidavit of Joseph Morris, ¶ 6. Honeywell seems to
assert that ICO's inability to retain competent counsel in
Shinn is irrelevant because it does not explain why ICO failed
to retain competent local counsel in this particular case.
However, the law does not require ICO to engage in acts of
futility, but rather that local counsel be unavailable or
unwilling to take the case.
Accordingly, this Court will apply Washington, D.C. market
rates to the Terris Firm.
2. Wallace King
Wallace King is based in Washington, D.C. Furthermore Wallace
King has extensive experience litigating RCRA matters and other
complex environmental claims. Wallace King was retained to
represent the Grace Defendants in this matter in April, 1999.
Part of their representation was the prosecution of cross-claims,
including the RCRA cross-claim against Honeywell.
ECARG asserts that Wallace King was retained due to its
substantial expertise in RCRA and other complex environmental
litigation matters, Mr. Marraro's prior experience handling
chromium-related matters in New Jersey, and other matters before
the NJDEP, and the unwillingness of ECARG's prior law firm,
Pitney, Hardin Kipp & Szuch, to pursue ECARG's RCRA claims
Honeywell has asserted that ECARG has failed to introduce any
evidence that there were no lawyers in New Jersey with the
necessary expertise to represent it in this matter. Indeed,
ECARG's primary trial counsel was a New Jersey attorney, Mr.
Agnello of Carella Byrne.
Accordingly, this Court shall apply New Jersey rates to Wallace
King. However, it should be noted that the rates charged in this
matter by Wallace King are in line with prevailing hourly rates
charged by New Jersey attorneys with comparable skill, experience
3. Washington D.C. Rates
Generally, the "reasonable hourly rate" needed to calculate the
lodestar is based on the attorney's normal billing rate so long
as it is reasonable. In Lindy I, the Court of Appeals for the
Third Circuit stated that "[t]he value of an attorney's time is
reflected in his normal billing rate." 487 F.2d at 167. The
attorney's normal billing rate is then compared to the market
value of legal services to assure that an attorney's normal
billing rate is reasonable. Lindy I, supra, 487 F.2d at 167;
Daggett v. Kimmelman, 617 F.Supp. 1269, 1281-1282 (D.N.J.
1985), aff'd, 811 F.2d 793 (3d Cir. 1987).
The reasonableness of an attorney's hourly rate is judged by
comparing it to the prevailing market rate in the community in
which the attorney's office is located or, in the case of the
Terris firm, using market rates for the community since it is
below the market rate.
Based upon the analysis of Third Circuit decisions, supra,
this Court concludes that the fees to be awarded are based on the
market rates where the attorney's office is located. Accordingly,
the Terris firm is to be awarded fees based on the rates for
Here, the Terris firm's request for a fee reward is based on
the current hourly rates for all of the work performed in this
case through May 31, 2003.*fn3 In Missouri v. Jenkins,
491 U.S. 274, 283-84 (1989), the Supreme Court held:
Clearly, compensation received several years after
the services were rendered as it frequently is in
complex civil rights litigation is not equivalent
to the same dollar amount received reasonably
promptly as the legal services are preformed, as
would normally be the case with private billings. We
agree, therefore, that an appropriate adjustment for
dely in payment whether by the application of
current rather than historic hourly rates or
otherwise is within the contemplation of the
statute. [footnote omitted].
In Lanni v. New Jersey, 259 F.2d 146, 149-150 (2001), the Third
When an attorney's fees are awarded, the current
market rate must be used. The current market rate is
the rate at the time of the fee petition, not the
rate at the time the services were performed. . . . A
current rate is exactly that a reasonable rate
based on the currently prevailing rate in the
community for comparable legal services.
Accordingly, this Court will award Plaintiffs their fees based
on the current market rates for Washington, D.C. This Court must
now determine the applicable market rates for Washington, D.C.
Plaintiff has requested that the fee awarded be based on a fee
schedule for Washington, D.C., that has been accepted by the
District Court for the District of Columbia and the Court of
Appeals for the District of Columbia. The fee schedule is called
the "Laffey Matrix" because it was first accepted by the District
Court for the District of Columbia in Laffey v. Northwest
Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), aff'd,
746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save
Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1525 (D.D.
Cir. 1988) (en banc).
The original and updated Laffey Matrix has been consistently
used to determine appropriate fee awards by Courts in the
District of Columbia. See Salazar v. The District of
Columbia, 123 F.Supp.2d 8, 13-15 (D.D.C. 2000); Fischbach v.
District of Columbia, 1993 U.S. Dist. LEXIS 19756, *10 (D.D.C.
1993); Palmer v. Barry, 704 F.Supp. 296, 298 (D.D.C. 1989).
There is some disagreement as to how the Laffey Matrix is
properly updated. Defendant argues that the Laffey Matrix ought
to be updated using the consumer price index, or CPI, for the
Washington, D.C., metropolitan area to the original 1981-1982
Laffey Matrix. This updating methodology was developed by the
U.S. Attorney for the District of Columbia for use in settlement
negotiations. Covington v. District of Columbia, supra,
839 F.Supp. at 898. This methodology produces lower hourly rates than
the Plaintiff's methodology.
Plaintiff has updated the Laffey Matrix to more accurately
reflect the presently existing market rates in Washington, D.C.
This updating has been accepted by the District Court for the
District of Columbia, this Court, and the Middle District of
North Carolina. Salazar v. The District of Columbia, supra,
123 F.Supp.2d at 13-15; PIRG v. Magnesium Elecktron, Inc., Civ.
No. 89-3193, Slip op. 2, 10 (D.N.J. December 28, 1995), vacated
on other grounds, 123 F.3d 111 (3d Cir. 1997); North Carolina
Alliance for Transportation Reform v. North Carolina Department
of Transportation, 168 F.Supp. 2d 569, 579-580 (M.D.N.C. 2001).
There has been one instance where the District of Columbia has
considered these two alternate methods for updating the Laffey
Matrix. In that case, Salazar v. District of Columbia, supra,
123 F.Supp. at 13-15, the plaintiffs requested fees based on the
methodology for updating the Laffey Matrix used by Plaintiffs
here. The defendant, like Honeywell, requested that the U.S.
Attorney's matrix be used to reflect market rates. In its
decision, the court evaluated the approaches and found that the
approach used by plaintiffs was more appropriate.*fn4
Plaintiffs have also submitted the 2002 survey of billing rates
from the National Law Journal in support of their assertion that
the Laffey Matrix as updated is reasonable. Although Defendant
argues that the National Law Journal survey is inadmissible
hearsay, rate surveys have long been recognized as a means of
demonstrating market rates in fee litigation. See, e.g.
Covington v. District of Columbia, supra, 57 F.3d at 1109;
Mathis v. Spears, 857 F.2d 749, 755-756 (Fed. Cir. 1988);
Salazar v. District of Columbia, supra, 123 F.Supp.2d at 14.
Accordingly, this Court will award Plaintiff's their fees based
upon the Laffey Matrix as updated using Plaintiff's methodology.
II. Hours Claimed
The next issue for this Court is to determine the amount of
time reasonably expended. Lindy, 487 F.2d at 167. ICO and ECARG
assert that their time expenditures as set forth in the present
applications were reasonable and necessary to litigate their RCRA
claims against Honeywell. Honeywell asserts that ICO and ECARG's
claim hours are excessive, but backs this assertion primarily
with the opinions of Michael J. Caffrey, an associate at
Lowenstein Sandler. Caffrey is not a legal fee auditor, and it is
unclear why he was given the task of evaluating the hours
expended by counsel for ICO and ECARG as an arbiter of
reasonableness. ICO and ECARG assert that Caffrey did little more
than tally up the total hours that were spent on RCRA related
activities, and arbitrarily reduce those hours.
Furthermore, it is important to note that this Court may not
reduce counsel fees sua sponte as excessive, redundant, or
otherwise unnecessary in the absence of a sufficiently specific
objection to the amount of fees requested. In statutory fee
cases, it is well settled that in calculating the "lodestar," the
court may not award fees less than requested unless the opposing
party makes specific objections to the fee request. Cunningham
v. City of McKeesport, 753 F.2d 262, 266 (3d Cir. 1985),
vacated on other grounds, 478 U.S. 1015 (1986), reinstated,
807 F.2d 49 (3d Cir. 1986) ("when an opposing party has been
afforded the opportunity to raise a material fact issue as to the
accuracy of representations as to hours spent, or the necessity
for their expenditure, and declines to do so, no reason occurs to
us for permitting the trial court to disregard uncontested
affidavits filed by a fee applicant."). Although Honeywell does
raise objections to ICO and ECARG's fee requests, there is far
too little specificity to most of the objections other than to
suggest that a smaller amount should be paid.
A. Standard for Evaluating Reasonableness of Hours Charged
The Third Circuit has explained that, as part of the assessment
of the reasonableness of fee petitions, district courts "should
review the time charged, decide whether the hours set out were
reasonably expended for each of the particular purposes described
and then exclude those that are `excessive, redundant, or
otherwise unnecessary.'" Windall, 51 F.3d at 1188. When a
defendant challenges the number of hours as being excessive,
courts frequently look at two factors to guide the assessment of
reasonableness whether such charges would be billed to a
fee-paying client, and what the opposing party did in the same
case. In re Fine Paper Antitrust Litig., 751 F.2d 562, 587 (3d
Cir. 1984); Lenard v. Argento, 808 F.2d 1242, 1245 (7th
Cir. 1987); Jordan v. CCH, Inc., 230 F.Supp.2d 603, 611
(E.D.Pa. 2002); Coalition to Save Our Children v. State Bd. of
Educ., 143 F.R.D. 61, 63-65 (D.Del. 1992). Honeywell fails to
indicate what their billing practices were in this case.
In Bell v. United Princeton Properties, Inc., 884 F.2d 713,
720 (1989), the Third Circuit held that the opposing party bears
the burden of challenging the reasonableness of a fee application
with sufficient specificity as to give the applicant notice and
an opportunity to respond. Specifically, the Third Circuit stated
[A] court may not sua sponte reduce the amount of the
award when the defendant has not specifically taken
issue with the amount of time spent or the billing
rate, either by filing affidavits, or in most cases,
by raising arguments with specificity and clarity in
briefs (or answering motion papers). . . . It bears
noting that the district court retains a great deal
of discretion in deciding what a reasonable fee award
is, so long as any reduction is based on objections
raised by the adverse party.
Id. (Internal citations omitted). The court went on to state
[T]he adverse party's submissions cannot merely
allege in general terms that the time spent was
excessive. In order to be sufficient, the briefs or
answers challenging the fee request must be clear in
two respects. First, they must generally identify the
type of work being challenged, and second, they must
specifically state the adverse party's grounds for
contending that the hours claimed in that area are
unreasonable. The briefs must be specific and clear
enough that the fee applicants have a fair chance to
respond and defend their request. [footnote omitted].
Id. at 720.
In Rode v. Dellarciprete, 892 F.2d 1177, 1187 (1990), the
Third Circuit explained that based on the challenges raised by
the adverse party, the district court must "explain why it
concludes hours expended on a task are excessive" and must
"specify the number of hours that would be reasonable and why
those hours would be reasonable." It also reiterated that "[t]he
district court cannot `decrease a fee award based on factors not
raised by the adverse party.'" 892 F.2d at 1183 (quoting Bell
v. Union Princeton Properties, supra).
ICO characterizes Honeywell's challenge to their fee
application as "nothing more than arbitrary numbers selected by
associates on Honeywell's litigation team." ICO's
characterization is not altogether unfounded, indeed, Honeywell's
opposition falls well short of their burden to challenge the
reasonableness of ICO and ECARG's fee applications. Accordingly,
this Court shall only reduce the fee requested by ICO and ECARG
where Honeywell has made a sufficiently specific objection. This
Court will focus primarily upon those objections by Honeywell
which are sufficiently specific to guide this Court in evaluating
the hours claimed by Petitioners.
B. ICO's Fee Application
1. Number of Counsel at Trial
Here, Honeywell argues that the hours for trial are excessive
due to the number of attorneys at trial.*fn5 Plaintiff had
two or three attorneys present at the trial. A reduction is
warranted only if the attorneys were doing the same work. Rode
v. Dellarciprete, supra, 892 F.2d at 1187. At trial each of
Plaintiffs' counsel performed different functions. Courts
frequently look to the number of attorneys representing the
defendant at trial to assess the reasonableness of the number of
attorneys representing the Plaintiff. See e.g., Finch v.
Hercules, Inc., 941 F.Supp. 1395, 1425-1426 (D.Del. 1996). Here,
Honeywell had four attorneys in attendance throughout the trial.
Because ICO's counsel were performing different functions, and
because Honeywell too had several counsel attend trial, it is the
opinion of this Court that the attendance of multiple counsel at
trial for ICO is reasonable. Accordingly, the Terris Firm shall
receive a fee award to compensate for the attendance of all three
attorneys present at trial.
2. Hours Unrelated to the RCRA Claim
The time expended in ICO's fee application is set forth by
activity and individual in the time records of counsel which are
divided between two cases; ICO v. Honeywell (95-2097) and
Hackensack Riverkeeper v. Honeywell (00-1451). This is despite
the fact that the Amended Order awarded ICO fees and costs it
"incurred in the furtherance of its RCRA claim against Honeywell
in this action." Interfaith Cmty. Org. v. Honeywell, Inc.,
263 F.Supp.2d 796, 843 (D.N.J. 2003) (emphasis added). ICO's
application also includes some time spent litigating unsuccessful
Clean Water Act and statutory RCRA claims. Although ICO has
excluded the time spent with regard to these claims to the extent
that it is possible, some of the time is inherently inseparable.
Furthermore, ICO has included all time related to the imminent
and substantial endangerment RCRA claims against Grace and Roned,
even though those claims were dismissed. Since this Court has
determined that Grace is an indispensable party to the
litigation, the imminent and substantial endangerment claims
against Grace and Roned are inextricably related to ICO's
successful RCRA claim against Honeywell. However, the fact that
ICO and Roned were necessary parties is not relevant to the
present fee application. Once these parties were joined, the time
expended prosecuting RCRA claims against these parties was not
fairly devoted to ICO's RCRA claims against Honeywell.
Accordingly, this Court deducts from ICO's fee request the
153.7 hours that ICO devoted to its unsuccessful claims against
Grace and Roned. While these hours are certainly tangentially
related to the overall case, these hours were not incurred
specifically in furtherance of ICO's successful RCRA claim
against Honeywell. Moreover, this Court concludes that ICO cannot
recover for attorney time in preparing RCRA notice letters to
Grace and Roned; for time incurred preparing a complaint against
Grace and Roned; for time incurred drafting a letter to Grace and
Roned outlining that which ICO believes Grace and Roned should
disclose as part of their initial disclosure; or for time spent
opposing Grace's motion to dismiss.
Honeywell further asserts that ICO is not entitled to a 55%
reimbursement for time spent in opposition to Defendant's motion
to dismiss because the RCRA and substantial endangerment issues
were only one-third of the total issues in the motion. This
assertion by Honeywell borders on the absurd while the
Defendant's motion may have included three issues, it is a gross
oversimplification to assume that each issue would require the
same time and attention. RCRA substantial endangerment claims are
complicated and require a great deal of attention. Accordingly,
this Court finds that ICO is entitled to 55% reimbursement for
the time spent opposing Honeywell's motion to dismiss.
3. Excessive Hours
In support of their application, Plaintiff has submitted
contemporaneous time records of counsel, as well as the total
amount of time expended by each individual litigation activity.
The activities engaged in by Plaintiff's counsel throughout the
litigation are described in detail in the three affidavits of
Bruce J. Terris, Plaintiff's lead counsel. Again, unless
specifically objected to by Honeywell, the time expended by
Plaintiff's counsel is deemed reasonable. Rode v. Dellaciprete,
892 F.2d 1177, 1187 (1990).
Honeywell makes numerous assertions that Plaintiff's hours are
unreasonable. Honeywell also suggests an amount of time that it
believes would be reasonable for each activity. Honeywell fails,
however, to justify its assertions that Plaintiff's time is
excessive or its claims as to the amount of time that would be
reasonable. Without more, this Court cannot reach any conclusion
other than that the hours expended by Plaintiffs were reasonable.
There can be no doubt that this has been an extensive and very
involved lawsuit. Furthermore, there is no question but that the
Terris Firm spent a great number of hours preparing for as well
as conducting this suit. To the extent that Honeywell makes
specific objections to the hours claimed in ICO's fee
application, those objections shall be discussed in turn.
Honeywell asserts that the time spent in preparing Plaintiff's
pretrial findings of fact and conclusions of law should be
excluded because this document was not ultimately required by the
Court. However, until October 16, 2002, when this Court decided
to make such pretrial findings optional, the deadline for the
submission of each party's pretrial findings was October 24,
2002. Clearly, it is reasonable for Plaintiff to have
substantially prepared their pretrial findings by October 16,
2002. Furthermore, since the preparation of the pretrial document
advanced Plaintiff's preparation of their post trial findings, it
is substantially related to their successful RCRA substantial
endangerment claim and is therefore recoverable.
Honeywell asserts that the time expended on the preparation of
post-trial findings was excessive and should be reduced to 200
hours. However, Honeywell provides no justification for this
figure. Accordingly, this Court concludes that the hours expended
by Plaintiffs are reasonable.
Likewise, Honeywell makes the assertion that the number of
hours spent preparing the Pretrial Order should be reduced to 300
hours but provides no justification for this figure. Nor does
Honeywell provide any justification for their assertion that the
document review time should be reduced to 350 hours or that the
time spent preparing the second motion for summary judgment
should be reduced to 100 hours. Accordingly, this Court will
allow reimbursement Plaintiffs for the actual time expended on
Honeywell further asserts that the time expended on motions to
enforce the January 1997 Order and for a preliminary injunction
that were not filed are not compensable. However, both of these
motions were prepared in order to advance a very slowly
progressing litigation. The second motion to enforce the January
1997 Order was not filed because Magistrate Judge Haneke issued
an order on May 26, 2000 to enforce. The preliminary injunction
motion was not filed because, after it was completed, but before
it was filed, Honeywell began to make repairs to the Interim
Remedial Measures in response to DEP directives, and because the
case was reassigned to this Court and pretrial activities were
Honeywell also asserts that ICO should not be compensated for
time spent on a cross-motion for summary judgment as to standing
because the issue of standing was already being litigated in
Honeywell's motion to dismiss. However, had Plaintiff
successfully opposed Honeywell's motion to dismiss, but not moved
for summary judgment, Plaintiff would still have to present an
affirmative case at trial to demonstrate standing. Because the
issue of standing would have to have been affirmatively presented
regardless, this Court finds that the time expended on this
motion by Plaintiff to be reasonable.
Honeywell argues that no fees should be awarded to Plaintiff
for the efforts expended on Plaintiff's motion to reinstate the
Clean Water Act claim because the motion was never filed.
Plaintiff seeks only a very limited amount of their time on this
motion as it was related to an unsuccessful Clean Water Act
claim. Plaintiff claims only 14% of the total time spent on the
motion, as this represents the part of the motion regarding the
imminent and substantial endangerment claim related to surface
water contamination. Accordingly, this Court accepts Plaintiff's
reduction and awards the fees as claimed.
Honeywell also seeks to reduce hours as excessive where
Plaintiff was represented by two attorneys at depositions. In
each of these instances, the deposed parties were Honeywell's
technical people or experts. In such circumstances it is entirely
reasonable for ICO to have more than one attorney present because
the assistance of an attorney who is familiar with the technical
issues and data presented at such a deposition is often
necessary, and therefore strikes this Court as imminently
reasonable. Accordingly, this Court agrees with ICO that
Plaintiff is entitled to reimbursement for the attendance of a
second attorney at such depositions.
Next, Honeywell attempts to reduce the hours claimed for a
pretrial conference because three attorneys attended the
conference. The conference lasted for only one hour, and, given
the complex nature of this litigation, this Court finds that the
attendance of three counsel was reasonable.
Honeywell further asserts that the amount of time expended on
the Pretrial Order was excessive and that Plaintiff's counsel
failed to delegate the work performed in conjunction with the
development of the Pretrial Order. Honeywell does not provide
information as to what, if any work should have been delegated,
nor why delegation would have been appropriate in this instance.
Given the complexity of this matter, this Court finds that the
time spent on these activities was reasonable and is therefore
compensable. This Court further finds that the Plaintiff's
staffing was reasonable under the circumstances.
Honeywell also attempts to reduce the amount of time claimed by
Plaintiff for scheduling and status conferences by omitting the
time for a second attorney at the conferences and by excluding
time that Honeywell alleges is excessive. Honeywell fails to
adequately explain why the time was excessive or why their
reductions are appropriate for the work performed. Without more,
this Court cannot make any conclusion other than that the hours
claimed by Plaintiff are reasonable. Accordingly, Plaintiff shall
be compensated for the time at scheduling and status conferences
Honeywell also reduces the time for the October 15, 1996,
conference to omit the time of a second attorney at the
conference. Due to the importance of this conference, this Court
finds that the attendance by two counsel reasonable. Honeywell
also reduces the time expended for the November 18, 1996,
conference by omitting travel time. However, the November 18,
1996 conference was a telephone conference. Accordingly, this
attempt at a reduction in time is baseless.
Honeywell also asserts that the amount of time spent by
Plaintiff in preparing the Complaint was excessive. However,
Honeywell fails to inform this Court as to what work within the
Complaint was excessive, merely offering this Court its
conclusion. This Court has reviewed the Plaintiff's time records
and concludes that the work described was necessary and
reasonable in the preparation of the Complaint. Accordingly,
Plaintiff is to be reimbursed for all of the hours spent
preparing the Complaint.
Thus, this Court awards Plaintiff their fees for all of the
hours claimed in their fee application, with a reduction for the
153.7 hours that ICO devoted to its unsuccessful claims against
Grace and Roned.
4. Paralegal Time
Honeywell asserts that Plaintiffs should not be compensated for
all of the paralegal time because it is excessive and, in some
instances, involves clerical tasks. Honeywell notes several
instances of paralegal time spent performing essentially clerical
tasks, but then takes the illogical next step of suggesting that
only 1,000 hours of paralegal time should be compensated.
Generally, paralegal time devoted to clerical tasks is not
reimbursable. See Missouri v. Jenkins, 491 U.S. 274, 288 n.
10 (1989) ("purely clerical or secretarial tasks should not be
billed at the paralegal rate, regardless of who performs them");
Lalla v. City of New Orleans, 161 F.Supp.2d 686, 710-711
(E.D.La. 2001); Blakey v. Continental Airlines, Inc.,
2 F.Supp.2d 598, 605 (D.N.J. 1998). An opponent to a fee
application need not challenge each individual time entry, but
may instead challenge time entries en mass by category. See
Bell, 884 F.2d at 720.
Clearly, a paralegal performing essentially clerical tasks
should not be compensated at a paralegal's rate. Assuredly, a
court cannot reimburse an attorney at an attorney's billing rate
for merely clerical tasks such a moving furniture or stacking
boxes. Likewise, this Court will not reimburse at a paralegal's
rate work which could have been made less expensive. Defendant
has noted several instances of clerical work performed by, as
well as billed at a rate commensurate to, paralegals. This work
amounted to 91.21 hours, and is billed at $120.00 per hour.
Accordingly, ICO's fee application shall be reduced in the amount
5. Travel Time
Honeywell asserts that, because Plaintiff should have retained
New Jersey counsel, that ICO should not be awarded fees for
travel time from Washington, D.C. to New Jersey. However, as
discussed, supra, since it was reasonable for Plaintiff to
retain Washington, D.C. counsel in this matter, it is reasonable
to reward travel time. Accordingly, ICO will be compensated at
their usual rate for travel time from Washington, D.C. to New
C. ECARG's Fee Application
1. Hours Claimed
Wallace King and Carella Byrne have provided this Court with
copies of their detailed monthly billings related to this matter
for the period through May 20, 2003. Both Wallace King and
Carella Byrne have adjusted their monthly bills to exclude
services pertaining to non-RCRA issues. The bills submitted
describe the work performed by each attorney, setting forth the
date of the work, as well as the time spent in 6-minute
increments. This Court finds that the bills submitted are
sufficiently detailed and adequately describe the legal services
provided by the firms with respect to the RCRA related issues.
Honeywell has asserted that the hours that ECARG attempts to
recover for legal services rendered by Wallace King and Carella
Byrne are unreasonable. Honeywell has asserted that the hours
expended by Wallace King and Carella Byrne are generally
excessive, and also has objected to the time that was devoted to
specific tasks. Honeywell's objections shall be discussed in
In large part, Honeywell's opposition to ECARG's fee
application is a broad-brush approach based upon an analysis of
Wallace King and Carella Byrne's hours prepared by Michael J.
Caffrey, an associate with Lowenstein Sandler, counsel for
Honeywell. With respect to Wallace King, Mr. Caffrey states that:
Based on the analysis of Wallace King time contained
in Exhibit B, Honeywell submits that the reasonable
amount of Wallace King time attributable to ECARG's
RCRA claim is 5,649.29 hours, 3,664.89 for attorneys
and 1,985.41 for paralegals. This is approximately
47% of the requested hours.
Mr. Caffrey makes a similar reduction with respect to Carella
The time entries for Carella Byrne were allocated [by
Mr. Caffrey] into categories similar to those used
for Wallace King. Attached as Exhibit E is the
Summary Table of ECARG's Requested Fees and
Honeywell's Proposed Reasonable Fees for Carella
Byrne. Carella Byrne time is allocated to sixty-four
(64) categories of legal services relevant to the
RCRA claim. Honeywell proposes that the reasonable
amount of Carella Byrne time attributable to ECARG's
RCRA claim is 664.89 hours, 650.48 for attorneys and
12.67 for paralegals. This is approximately 34% of
the requested hours.
The vast majority of the reductions proposed by Mr. Caffrey are
based upon the opinion of Mr. Caffrey that the time spent on
various RCRA tasks was excessive. Moreover, much of Mr. Caffrey's
reductions to Carella Byrne's time are based upon Mr. Caffrey's
assertion that much of Carella Byrne's time was "excessive,
duplicative of Wallace King."
For much of their opposition, there is nothing that has been
submitted by Honeywell which would allow this Court to make any
reasoned or supportable determination that the reductions
proposed by Honeywell are reasonable. Insofar as Honeywell makes
sufficiently specific objections to the hours billed by ECARG,
those shall be considered infra.
2. Pre-Trial and Trial Preparation Activities
Honeywell asserts that the 2,100 hours spent by Wallace King
and Carella Byrne attorneys in pre-trial and trial preparations,
much of which was spent by partner-level attorneys is excessive
and that more of the work should have been performed by
This Court finds that the Wallace King and Carella Byrne legal
bills submitted in support of the presently pending Petition
adequately describe and justify the time expended by the
attorneys on pre-trial and trial preparation tasks. Moreover,
while this Court is cognizant of the fact that partner time is
more costly than associate time, this Court is also cognizant of
the fact that the partner level attorneys involved in this
litigation have the greatest familiarity with RCRA issues as well
as the intricacies of environmental litigation. The familiarity
of Messrs. Marraro, Agnello, and Hughes with RCRA issues and
environmental litigation generally would render it grossly
inefficient and unreasonable to delegate important pre-trial and
trial preparation tasks to less experienced junior associates.
Moreover, this Court is satisfied, based upon the submissions
of Wallace King and Carella Byrne, that less complex trial
preparation matters such as legal research, review and
organization of trial exhibits, preparation of arguments as to
evidence were delegated to junior level associates and paralegals
Accordingly, this Court rejects Honeywell's objections to the
time expended on pre-trial and trial preparation activities.
3. Case Transfer from Pitney Hardin
ECARG seeks reimbursement for 23.36 hours that were expended
transferring the case and files from Pitney Hardin (ECARG's prior
counsel) to Wallace King. The time spent transferring the files
is an administrative expense, and is therefore nonrecoverable.
Accordingly, ECARG may not recover the $7,398.20 associated with
4. Bankruptcy Matters
ECARG also seeks reimbursement for 7.57 hours spent by
attorneys on bankruptcy matters with regard to ECARG. Because
this time was not related to ECARG's successful assertion of
their RCRA claim, ECARG may not recover the $2,563.80 associated
with those activities.
5. Findings of Fact and Conclusions of Law
Honeywell further asserts that Wallace King and Carella Byrne
spent 650 hours of attorney time preparing proposed post-trial
findings of fact and conclusions of law which Honeywell argues is
"a staggering amount of time for a single filing." Honeywell
further asserts, without support, that 250 hours of attorney time
is reasonable and that half of those 250 hours should have been
spent by junior level associates.
This Court is convinced that the preparation of ECARG's
proposed post-trial findings of fact and conclusions of law
involved a significant degree of case knowledge and a great deal
of effort. Indeed, many complex issues related to the RCRA claim
had to be examined, including but not limited to: the history of
disposal activities at the Site, the nature and extent of the
chromium contamination, and the nature and extent of the risks
posed to human and environmental receptors at the Site.
Furthermore, the preparation of ECARG's proposed post-trial
findings entailed reviewing, checking, and drafting rebuttal
points to the more than one-thousand proposed findings that
Honeywell and ICO circulated in April, 2003. Also, the papers
submitted by ECARG in support of the present Petition indicate
that basic legal research and other routine matters relating to
the preparation of proposed post-trial findings of fact and
conclusions of law were delegated to junior level associates or
paralegals to the extent possible.
Moreover, it was reasonable, given the circumstances, for
Wallace King and Carella Byrne to have Messrs. Agnello, Marraro
and Hughes do much of the work in connection with the proposed
findings of fact and conclusions of law due to the extensive
experience and knowledge that these attorneys possess with regard
to RCRA related matters and since they actually tried the case.
6. Office Conferences/Strategy Sessions
Honeywell also asserts that the 990 hours for office
conferences and strategy sessions by and between ECARG's counsel
are unreasonable. Instead, without support or analysis, Honeywell
suggests that 350 hours of office conferences and strategy
sessions should be permitted.
ECARG's RCRA claim was filed in 1999. Over the four year period
that ECARG's RCRA claim was litigated, the 990 hours averages
less than 5 hours per week among all ECARG attorneys in the
Wallace King and Carella Byrne firms. Given the context and
complexity of this case, 5 hours per week is hardly a staggering
Accordingly, this Court finds that the hours expended by ECARG
in office conferences and strategy sessions on this matter to be
reasonable and recoverable.
7. Multiple Counsel at Trial
Here, Honeywell argues that the hours for trial are excessive
due to the number of attorneys at trial. ECARG had up to four
attorneys at the trial. A reduction is warranted only if the
attorneys were doing the same work. Rode v. Dellarciprete,
supra, 892 F.2d at 1187. At trial each of ECARG's counsel
performed different functions. Courts frequently look to the
number of attorneys representing the defendant at trial to assess
the reasonableness of the number of attorneys representing the
Plaintiff. See e.g., Finch v. Hercules, Inc.,
941 F.Supp. 1395, 1425-1426 (D.Del. 1996). Here, Honeywell had
four attorneys in attendance throughout the trial. Because ECARG's
counsel were performing different function, and because Honeywell
too had several counsel attend trial, it is the opinion of this
Court that the attendance of multiple counsel at trial for ECARG
is reasonable. Accordingly, ECARG shall receive a fee award to
compensate for the attendance of all counsel present at trial.
8. Paralegal Time
Honeywell also objects to the number of paralegal hours being
claimed in the ECARG Petition as being unreasonable. Honeywell
does not contend that paralegal time is not reimbursible, only
that the amount of paralegal time incurred by ECARG was
Honeywell asserts that "no more than between 1,500 to 2,000 of
the requested ECARG paralegal hours should be reimbursable," and
that clerical tasks performed by ECARG paralegals are not
There can be no doubt that this case was document intensive.
Almost 500,000 pages of documents were produced, there were over
43 depositions, 4,475 pieces of correspondence, in excess of
135,000 pages of trial exhibits, and over 370 motions, briefs and
other submission to this Court. Accordingly, this Court finds
that the use of paralegals to perform tasks typically
attributable to paralegals to be reasonable and reimbursable
As discussed, supra, paralegal time devoted to clerical tasks
is not reimbursable. Defendant has noted several instances of
clerical work performed by, as well as billed at a rate
commensurate to, paralegals. This work amounted to 114.60 hours,
and is billed at $130.00 per hour. Accordingly, ECARG's fee
application shall be reduced in the amount of $14,898.00.
Furthermore, ECARG requests reimbursement of $19,177.25 in
temporary paralegal costs, representing over 140 hours of
paralegal work. This Court concludes that, given the 4,738 hours
billed by staff paralegals that the additional paralegal time is
not reimbursable, as ECARG has not demonstrated the need for such
additional staffing. Accordingly, ECARG may not recover for
temporary paralegal time.
9. Travel Time
ECARG seeks reimbursement for 284.7 hours spent by attorneys
traveling between Washington, D.C. and New Jersey. However,
because ECARG has not demonstrated that competent New Jersey
counsel were unavailable or unwilling to handle this litigation,
they are not entitled to reimbursement for the $104,480.85 in
travel time between Washington and New Jersey. Accordingly, that
amount will be reduced from ECARG's recovery.
III. Litigation Expenses
As an initial matter, this Court takes note of the fact that
many of Honeywell's objections to ICO and ECARG's fee petitions
seem to reduce the costs expended to the amount that might be
spent if the attorneys working on this matter used the most
affordable service providers and worked with perfect efficiency.
While this may be possible in a perfect world, complex
environmental litigation is quite far afield from a perfect
world. Service providers are often very expensive, and efficiency
is almost impossible due to the complexity of such litigation.
Moreover, counsel for ICO and ECARG are not in the business of
saving money, counsel are in the business of winning lawsuits.
Indeed, the Terris Firm, Carella Byrne, and Wallace King all bear
the risk of unsuccessful litigation, so it is obviously in their
best interest to control costs. But upon prevailing on their RCRA
claims, it is their lawyering, not their frugality that is to be
A. Experts and Consultants
In order to be compensable, expert witness fees and costs, like
attorneys fees and costs must be necessary. See Halderman,
49 F.3d at 942-43; Monsanto, 727 F.Supp. at 889. The documentation
as to expert fees must be sufficient "to provide the Court with a
factual basis to evaluate the nature of the work done, the
quantity and quality of the work, the reasonableness of the rates
charges, the necessity for the work, and the nature of its
contribution to the plaintiff's case." Steiner v. Hercules
Inc., 835 F.Supp. 771, 794 (D.Del. 1993); Monsanto,
721 F.Supp. at 625.
1. ICO's Experts
The Terris Firm seeks to reimburse Dr. Bruce Bell $389,807.59,
but Honeywell asserts that ICO's recovery of fees and costs
incurred by Dr. Bell should be limited to $134,455.29. Honeywell
makes a similar assertion with respect to Dr. Ben Ross, arguing
that his reimbursement should be reduced from $194,491.54 to
$96,090.27 because of "excessive travel" and overbilling.
Finally, Honeywell asserts that recovery for work performed by
Dr. Cheryl Montgomery should be reduced from $184,492.31 to
$81,564.45 for excessive billing.
Honeywell further asserts that Plaintiff and ECARG should have
jointly retained experts. However, since these two parties
separately engaged in settlement negotiations with Honeywell,
neither could have relied upon the other to prove the case for
liability or relief at trial. Moreover, ECARG amended its
cross-claims against Honeywell in November, 1999, to include the
RCRA claim, whereas ICO carried the entire burden of the case
against Honeywell well before that date. Moreover, while
Honeywell does label the work performed by ICO's experts as
"excessive" it provides this Court with little reason to leap to
this conclusion other than that Honeywell's attorneys seem to
believe that less time and expense could have been incurred.
The work performed by the experts retained by Plaintiff in this
matter was vital to their success at trial. The work of the
experts greatly assisted this Court in evaluating some of the
more technical aspects of the litigation, and was also necessary
to rebut the technical information presented by Honeywell.
Accordingly, this Court finds that the work done by each of ICO's
experts was reasonable based on the length and complexity of this
2. ECARG's Experts
ECARG seeks to reimburse Dr. Kirk Brown and his company the SI
Group, LLC $957,681.72, but Honeywell asserts that the recovery
should be limited to $109,593 because the use of 35 support staff
and billing 8,300 hours is excessive. ECARG contests that Dr.
Brown played a huge role at trial, and was cited by this Court as
"an excellent witness" to whose testimony this Court gave "the
greatest weight." Honeywell makes a similar assertion with
respect to Dr. Andy Davis, arguing that the request for
$644,871.35 should be reduced to $125,754.04 because of
"substantial overbilling" including 2,100 hours for preparation
of trial exhibits and 1,100 hours preparing for trial. ECARG
argues that the hours worked by Dr. Davis were reasonable given
the scope and complexity of the litigation.*fn6 Likewise,
Honeywell asserts that recovery for work performed by Dr.
Elizabeth Anderson should be reduced from the $628,554.93 sought
to $137,421 because of a lack of narrative records for much of
the time claimed by Dr. Anderson thus failing the burden of
proof imposed by Steiner v. Hercules Inc., 835 F.Supp. 771, 779
(D.Del. 1993) (denying expert witness fees due to inadequate
documentation). ECARG has since submitted the detailed
explanations of Dr. Anderson's activities. Honeywell objects, and
has submitted a sur-reply, but the sur-reply is little more than
a blanket accusation that Dr. Anderson overbilled. Honeywell also
seeks to exclude compensation for work performed by Dr. Ronald
Schmiermund because that work was purportedly not related to the
RCRA claim. ECARG counters that Dr. Schmiermund testified that
COPR is the cause of heaving at the Site, and that this Court,
based in part on this testimony, determined that the proper
remedy would be excavation and removal of the COPR. Honeywell
also seeks to reduce the compensation for work performed by Dr.
Peter Chapman from $99,341.99 to $47,583.82 due to lack of
narrative time records. ECARG has since submitted the detailed
explanations of Dr. Chapman's activities. Honeywell objects, and
has submitted a sur-reply, but the sur-reply is little more than
a blanket accusation that Dr. Chapman overbilled.
Again, given the length and complexity of this litigation, it
is entirely reasonable for ECARG to have retained and utilized
all of the above experts. The time records that have been
provided to this Court are sufficiently detailed, and do not
appear to be excessive, as asserted by Honeywell. Indeed,
Honeywell's overarching argument is simply that the hours and
expenses incurred by ECARG's experts are excessive without more
this Court cannot reach any conclusion other than that the work
of the above experts is reimbursable.
Honeywell also seeks to reduce the compensation for work
performed by Dr. Donald Belsito from $139,860.31 to $59,751
because the 66 hours of deposition preparation time is excessive
and should be reduced to 40, and because Dr. Belsito billed
$29,400 for the submission of a risk assessment study that
Honeywell argues was unrelated to the RCRA litigation. ECARG
asserts that Dr. Belsito spent his time reviewing and analyzing
hundreds of technical documents that are inherently time
consuming, and that his risk assessment study was related to the
RCRA case and was, in fact, presented as part of ECARG's RCRA
The risk assessment study submitted by Dr. Belsito was
submitted to the New Jersey Department of Environmental
Protection, and argued for the revision of direct contact
standards for chromium. This submission to the Department of the
Environment does not appear to be sufficiently related to this
RCRA litigation, as New Jersey's chromium standards were not at
issue in the RCRA claims before this Court. Accordingly, ECARG is
not entitled to reimbursement for the $29,400.00 billed by Dr.
Belsito for the preparation of this report.
3. Non-Testifying Consultants
Honeywell also asserts that ICO and ECARG should not be
permitted to recover for the time of three non-testifying
consultants. Time and expenses incurred by consulting experts are
not recoverable under a statutory fee provision such as that in
RCRA. Sierra Club v. EPA, 769 F.2d 796, 812 (D.C. Cir. 1985).
Student Pub. Interest Group, Inc. v. Anchor Thread Co., CIV No.
84-320 (GEB), 1988 WL 49177, at *5 (D.N.J. 1998), a District of
New Jersey case, does permit the recovery of limited consultant
fees under the Clean Water Act, but Honeywell characterizes this
case as ignoring the express language of the Clean Water Act and
RCRA as not contemplating fee provisions, and suggests that the
award of consultant fees may be because the parties may not have
contested the award. Honeywell further argues that even if this
Court were to grant recovery for consultant fees, that ICO and
ECARG have failed to demonstrate that their claimed fees were
reasonable and necessary, and suggests that the consultants' work
was duplicative of expert services already provided.
Petitioners argue that RCRA specifically provides for recovery
of all "costs of litigation . . ." 42 U.S.C. § 6972(e), and that
consultants played a pivotal role in assisting counsel with
preparing and prosecuting the RCRA claims. Petitioners further
assert that the consultants retained greatly contributed to the
efficient management of the case and kept counsel apprised of the
significance of ongoing technical data that was being submitted
throughout the case, and that without this assistance that more
attorney hours (at substantially higher hourly rates) would have
been incurred. ICO and ECARG assert that without the assistance
of consultants, they could not have presented as effective a RCRA
case as they did at trial. Pennsylvania Envtl. Def. Found. v.
Packaging Corp. of Am., 1989 WL 3477, at *5 (E.D.Pa. Jan 19,
1989) (awarding successful plaintiff fees under comparable
provision in federal Clean Water Act for services performed by
plaintiff's non-testifying environmental consultant).
While the law on this issue is somewhat undecided, this Court
grants ICO and ECARG compensation for non-testifying consultants.
This was a very complex environmental matter, and the attorneys
involved are simply not equipped with the technical and
scientific expertise necessary to efficiently deal with the
complex environmental issues that arise on a day-to-day basis
this is precisely the reason that law firms often hire
consultants. The consultants retained by ICO and ECARG were
necessary to the prosecution of the RCRA claims, and compensation
for their services is appropriate as their services are necessary
to the effective prosecution of ICO and ECARG's RCRA claims, and
reasonable given the high degree of scientific complexity of this
While ICO and ECARG are entitled to compensation for the
services of non-testifying consultants, this compensation must be
curtailed to the extent that such services are necessary and
reasonable under the circumstances. With this in mind, this Court
must exclude from ECARG's recovery $4,466.45 for overhead,
administrative costs, and markups charged by its non-testifying
consultant, the Center for Toxicology and Environmental Health
("CTEH"). ECARG has waived recovery of surcharges and markups
charged by Drs. Brown, Davis, and Anderson, but has not waived
those of CTEH. Although retention of CTEH's services were clearly
reasonable, payment of overhead, administrative costs, and
markups, are not. ECARG's recovery will therefore be reduced in
the amount of $4,466.45.
ICO and ECARG's requests reimbursement for litigation costs are
met with much opposition from Honeywell. Honeywell essentially
makes blanket attacks, but does little to explain why their
assessments of reasonable litigation expenses are in any way more
valid than the actual litigation expenses incurred by
Petitioners. Blanket and conclusory objections to expenses are
inadequate. Objections must be specific, reasonably precise and
be presented with supporting proof. See American Charities for
Reasonable Fundraising Regulation, Inc. v. Pinellas County,
278 F.Supp.2d 1301, (M.D.Fla. 2003) (citing American Civil
Liberties Union of Georgia v. Barnes, 168 F.3d at 428). Each of
these objections are detailed below.
1. Photocopy Costs
ICO requests $148,715.24 in photocopying expenses, but
Honeywell counters that nearly 1.5 million copies are excessive,
and that a $50,000 recovery would be sufficient as it would allow
for 500,000 copies.*fn7 Honeywell makes essentially the same
argument with respect to ECARG, that $206,885 is excessive as it
would require in the neighborhood of 2 million copies. Honeywell
suggests that $50,000.00 is reasonable, as it would allow for
500,000 copies at 10 cents each. Honeywell's proposed reduction
provides this Court with little basis to determine the
reasonableness of the expenses incurred by ICO and ECARG.
Moreover, different type of copies (e.g. color, size, etc.)
clearly have different costs. Accordingly, Honeywell's request to
reduce the photocopy costs for ICO and ECARG is denied.
2. Travel Expenses
Honeywell also seeks to prevent ICO for recovering $46,970.48
that the Terris Firm incurred in travel expenses traveling from
Washington, D.C. to New Jersey because ICO has not established
that competent New Jersey counsel was not available. Likewise,
Honeywell requests that reimbursement for $82,418 in expenses
incurred by Wallace King and Carella Byrne in traveling between
New Jersey and Washington, D.C. be denied because ECARG cannot
establish that competent New Jersey counsel was unavailable.
Fini v. Remington Arms Co., 1999 WL 825604, at *9; Student
Pub. Interest Research Group v. Monsanto, 721 F.Supp 604,
643-614 (D.N.J. 1989), modified on other grounds,
727 F.Supp. 876 (D.N.J.) aff'd, 891 F.2d 283 (3d Cir. 1989).
Honeywell also argues that reductions are appropriate for
reimbursable trips taken by ECARG counsel because counsel
purchased full fare airplane tickets. ECARG again challenges the
validity of Honeywell's argument. ECARG notes that the travel
expenses were incurred in the necessary course of litigating this
suit and were necessary to attend court hearings, depositions,
conferences with witnesses, meetings with opposing counsel,
trial, or other in-state tasks necessary to prosecute the RCRA
Here, ICO has sufficiently demonstrated to this Court that
competent local counsel was unavailable to take their case.
Accordingly, ICO is entitled to recover costs incurred in
traveling between counsel's office in Washington, D.C. and the
forum, and is entitled to recovery of the $46, 970.48 incurred in
travel expenses between Washington, D.C. and Newark.
ECARG, however, has not demonstrated to this Court that
competent forum counsel are unavailable. Where competent forum
counsel is available, a fee applicant that elects to hire
out-of-forum counsel is not entitled to recover costs incurred by
the out-of-forum counsel traveling between counsel's office and
the forum state. Fini v. Remington Arms Co., Inc., No. Civ.A.
97-12-SLR, 1999 WL 825604, at *9 (D.Del. Sept. 24, 1999).
Accordingly, ECARG is not entitled to reimbursement for
$82,418.00 in expenses that Wallace King and Carella Byrne
incurred in traveling between Washington, D.C. and New Jersey.
3. Temporary Employees, Overtime, Meals
Honeywell also contests recovery for money that the ICO and
ECARG spent on temporary clerical employees, staff overtime, and
overtime meals. The costs of temporary employees and staff
overtime, and overtime meals are only reimbursable where there is
a need for the additional employee or overtime, such as with an
emergency. See e.g. Apple Corps. Ltd. v. Int'l Collectors
Soc., 25 F.Supp. 2d 480 (D.N.J. 1998); Monsanto,
727 F.Supp. at 889. Honeywell asserts that there were no emergencies imposed
upon the litigants during this nine year long suit, that this
recovery would therefore not be appropriate.
ICO counters that in this litigation, there were only 59
instances of overtime amounting to only 97.75 hours, and that
this overtime was necessary based on the complexity of the
litigation and the tremendous number of documents that were
produced and deadlines set by this Court. ECARG makes essentially
the same argument, that in this nine-year long litigation, the
situations where overtime was paid, and additional staff used
were in response to circumstances where the complexity of the
case and Court established deadlines required additional
The Court is not impressed with Honeywell's arguments.
Large-scale litigation is an inherently inefficient process, and
often requires work to be performed on an emergency basis.
Honeywell's blanket assertion that these charges should be
reduced is severely lacking in merit. Accordingly, this Court
shall reimburse ICO and ECARG for additional staffing, overtime
and overtime meals. However, this Court will not reimburse ICO
$541.08 nor ECARG $7,430.81 for local travel expenses because it
has not been sufficiently shown by ICO or ECARG that
circumstances existed such that incurring such travel expenses
was necessary. A busy trial or the filing of a large brief is
simply insufficient to justify such additional travel expenses.
4. Overnight Delivery Charges
Honeywell contests reimbursement for $5,764.62, and 30,596.12
in overnight delivery and messenger charges to ICO and ECARG
respectively. Express delivery costs are only reimbursable when
there is a demonstrated need for the express delivery.
Monsanto, 727 F.Supp. at 623; but see, Apple Corps,
supra, 25 F.Supp.2d at 489-99 ("Expedited delivery may be
essential to a party's ability to comply with court deadlines. In
addition, those costs are typically charged to the client. Thus
. . . express mail charges . . . are recoverable"). Honeywell
asserts that because ICO cannot demonstrate a need for express
delivery that the delivery costs should be non-recoverable in
their entirety, or, in the alternative, that this Court permit
ICO to recover 25% of its delivery expenditures. ICO and ECARG
characterize Honeywell's proposed reduction as incorrect and
arbitrary, and asserts that their use of express delivery
services were used only when reasonable and necessary to meet
court deadlines, and that they otherwise used regular mail to
avoid excessive costs. This Court agrees that express delivery
costs, even when curtailed, can be rather high. Regardless,
however, this Court is aware that express delivery is often a
necessity in a world of litigation that is often time-pressured.
Accordingly, this Court finds that the express delivery
expenditures were reasonable and necessary in the context of this
litigation, and are therefore reimbursable.
5. Private Investigator
Honeywell contests recovery for $3,544.87 to Wallace King for
use of a private investigator, All-Facts, Inc., because ECARG has
not offered sufficient justification or explanation for this
expense, thus failing to demonstrate that the expense was
necessary and reasonable. ECARG asserts that All-Facts conducted
searches for various witnesses who were believed to have relevant
knowledge of COPR disposal activities, as well as to obtain
various historical aerial photographs, many of which were used at
At the direction of counsel, All-Facts conducted searches of
various witnesses and potential rebuttal witnesses who were
believed, on the basis of Honeywell's pleadings and documents to
have knowledge regarding COPR disposal activities at the Site.
All-Facts also conducted interviews and performed searches of
state and local agency files for relevant historical documents
and aerial photographs. Accordingly, this Court finds that
ECARG's employment of All-Facts was reasonable given the context
of this litigation, and is therefore entitled to reimbursement
for this expense.
6. Miscellaneous Costs
ECARG seeks reimbursement of $5,862.69 for miscellaneous trial
expenses, many of which are not documented. Although this Court
recognizes that unexpected expenses are commonplace over the
course of a trial, without proper documentation ECARG may not
recover these expenses. Accordingly, ECARG shall not be
reimbursed in the amount of $5,862.69 for miscellaneous trial
IV. Post-Judgment Monitoring
Honeywell opposes ICO and ECARG's request that Honeywell bear
the cost of review by ICO and ECARG counsel. In order to be
reimbursable, attorney fees incurred during post judgment
monitoring must be reasonable and necessary and related to the
preservation of the underlying judgment. Retarded Citizens v.
Schafer, 83 F.3d 1008, 1011 (8th Cir. 1996). Honeywell
asserts that monitoring by ICO or ECARG is neither necessary nor
related to the preservation of the underlying judgment as this
Court has already ordered extensive oversight by the Special
Master and a consulting firm each of whom is paid for by
Honeywell. Honeywell asserts that further oversight is be
duplicative and unnecessary.
Honeywell does not dispute that the prevailing party is
entitled to fees for monitoring and compliance, just that the
efforts to do so by ECARG and ICO are unreasonable and
duplicative because the Special Master is already charged with
the oversight of the project. However, the Special Master does
not fill the shoes of Petitioners' counsel in the oversight
process, as the Special Master is the Court's "alter-ego" and
does not act in the interest of any particular party. See
Moreover, case law is clear that monitoring costs are
recoverable under fee shifting statutes such as RCRA to the
extent that they are reasonable. See e.g. Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, et al.,
478 U.S. 546 (1986). Indeed, post-judgment monitoring is a
recoverable cost under RCRA, and ICO and ECARG should be given
the opportunity to file quarterly fee petitions related to the
monitoring costs of the cleanup. This is not to say that all
costs will be reimbursable, but ICO and ECARG may submit fee
petitions and recover for any necessary post-judgment monitoring.
Accordingly, ICO and ECARG may recover for fees and expenses
incurred in post-judgement monitoring.
For the foregoing reasons, Petitioners are to be reimbursed for
litigation costs including attorneys' fees and expert witnesses'
fees with deductions from the respective applications as detailed
in this Opinion. An appropriate Order follows.
This matter coming before the Court on Plaintiff Interfaith
Community Organization's and ECARG, Inc.'s applications for an
award of litigation costs, including attorneys' fees and expert
witnesses' fees, oral argument having been heard on May 4, 2004,
this Court having carefully reviewed all submissions, and for the
reasons stated in this Court's opinion filed on this day;
IT IS on this 26th day of August, 2004,
ORDERED that Plaintiff Interfaith Community Organization is
entitled to an award of litigation costs, including attorneys'
fees and expert witnesses' fees in an amount totaling
$4,530,327.00. This amount represents the $4,587,990.22 requested
by Interfaith Community Organization less $46,353.18 for expenses
related to their claim against Grace and Roned, and $11,310.04
for clerical tasks performed by paralegals; and it is further
ORDERED that Petitioner ECARG, Inc. is entitled to an award of
litigation costs, including attorneys' fees and expert witnesses'
fees totaling $7,377,583.27. This amount represents the
$7,642,385.82 requested by ECARG, Inc. less $7,398.20 for the
cost of transferring the case from ECARG's prior firm, $2,563.80
for costs related to bankruptcy proceedings, $14,898.00 for
clerical tasks performed by paralegals, $19,177.25 for temporary
paralegal costs, $104,480.85 for travel time, $29,400.00 for the
Belsito Report, $4,466.45 for CTEH markups, and $82,418.00 for