The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh
DENNIS M. CAVANAUGH, U.S.D.J.:
The most recent incarnation of this protracted and complicated case feels to the Court like deja vu all over again. (See 95-2097, Dock. 617, Court's Opinion June 14, 2005.) There are several motions and applications before the Court which will be addressed in turn. Interfaith Community Organization et al ("Plaintiff") has filed applications asking the Court to award disputed fees and expenses for post-judgment and post-decree monitoring work in the companion cases of Interfaith Community Organization v. Honeywell, D.N.J., Civ. No. 95-2097, Hackensack Riverkeeper v. Honeywell, Inc., D.N.J., Civ. No. 06-22, Jersey City Municipal Utilities Authorities v. Honeywell, Inc., Civ. No. 05-5955, and Jersey City Incinerator Authority v. Honeywell International Inc., D.N.J., Civ. No.05-5993, all of which are opposed by Defendant.*fn1 In addition, Plaintiff has filed a motion to consolidate four cases involving various study areas which Defendant opposes. There is also a pending motion by Plaintiff requesting a declaratory judgment that Defendant's offers of judgment pursuant to Fed. R. Civ. P. 68 are null and void. In addition, Defendant has recently filed a motion to strike new evidence and argument in Plaintiff's reply brief, much of which the Court finds to be moot, which led Plaintiff to file a motion requesting permission to file a sur-sur-reply brief.
For purposes of this Opinion, the Court will summarize only so much of the history of this litigation as it deems necessary to understanding the Court's decision.
On May 21, 2003, this Court entered an Amended Opinion granting judgment in favor of Plaintiff with regard to Plaintiff'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 Plaintiff fees and costs that were "incurred in furtherance of its RCRA claim against Honeywell in this action." Id. at 850. Defendants subsequently appealed, and the Third Circuit affirmed in part and vacated in part (426 F. 3d 694(3dCir. 2005)). Following the appeal and denial of certiorari, the companion cases were filed. Collectively, these cases involve several Study Areas 6 North and South and 5. All of them were brought with the intention of imposing a comprehensive clean up of chromium contamination resulting from the operations of Honeywell's predecessor in interest, Mutual Chemical Company.
Over the course of this litigation, the parties have entered into a number of consent decrees and consent orders that gave rise to the fees and expenses sought in Plaintiff's three applications for work in 2009, 2010, and outstanding fees and expenses as defined by the NJCU consent decree. Each of the consent decrees includes a provision regarding the payment of past fees and expenses, as well as a provision regarding future fees and expenses. Until 2009, the parties were able to negotiate the amount of future fees without intervention of the Court, but have not been able to do so more recently. At issue are both the reasonableness of the hours and expenses as well as the correct rate to be applied to determine the appropriate fees. Although this issue was previously litigated and decided by the Court in the Study Area 7 case, Defendants feel the time is ripe to raise the issue for the post-decree and post-judgment work for 2009 and the first half of 2010, as well as the outstanding fees and expenses as defined by the NJCU consent decree.
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.*fn2 "
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.'" PIRG of N.J. v. Widnall, 1995 WL 836144. 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).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 that "[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." (Internal citations omitted). The court went on to state that "[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 ). "The first inquiry of the court should be into the hours spent by the attorneys-how many hours were spent in what manner by which attorneys. It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought." Lindy Bros. Builders, Inc., 487 F.2d at 167.
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).
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' ...